Statutory criteria for legal aid for appeals to the Sheriff Appeal Court and Court of Session where your client is a section 126 individual

Definition of a “section 126 individual”

Where you client does not meet the deemed relevant person test they may fall under the definition of a S126 individual which gives them the right to request a children’s hearing under S126 of the Children’s Hearings (Scotland) Act 2011.

A “section 126 individual” is an individual who:

  • Is named on a contact order which regulates contact between the child and your client.
  • Is named on a permanence order which specifies arrangements for contact between the child and your client.
  • Claims that conditions specified in an order made by Scottish Ministers are satisfied in relation to your client.

Availability of legal aid

A section 126 individual can appeal by stated case to the Sheriff Appeal Court or Court of Session against a decision of the sheriff relating to an appeal against a children’s hearing decision made under S126 of the 2011 Act.

An appeal under section 161 of the 2011 Act concerns an appeal to the sheriff against a decision affecting a contact or permanence order. See S126 of the 2011 Act.

A section 126 individual can also, with the leave of the Sheriff Appeal Court, appeal by stated case in the Court of Session against the Sheriff Appeal Court’s decision in an appeal outlined above.

Statutory criteria

Regulation 5 of the Children’s Legal Assistance (Scotland) Regulations 2013 states:

5.—

  1. Children’s legal aid is available to an individual to whom section 126 of the 2011 Act refers in respect of any proceedings before a sheriff, sheriff principal or in the Sheriff Appeal Court or the Court of Session in connection with a hearing under that section where the conditions in paragraph (2) are met.
  2. The conditions are that we are satisfied that—
    1. for the purpose of enabling the individual to participate effectively in the proceedings, it is necessary that the individual be represented by a solicitor or counsel;
    2. it is reasonable in the particular circumstances of the case that the individual should receive children’s legal aid; and
    3. after consideration of the disposable income and disposable capital of the individual, in accordance with these Regulations, the expenses of the case cannot be met without undue hardship to the individual or the dependants of the individual.
  3. When determining for the purposes of condition in paragraph (2)(a) whether the individual would be able to participate effectively in the proceedings, we must take into account the following matters—
    1. the nature and complexity of the case (including any points of law);
    2. the ability of the individual, with the assistance of any accompanying person, to consider and challenge any document or information before the proceedings; and
    3. the ability of the individual, with the assistance of any accompanying person, to give his or her views in the proceedings in an effective manner.

Financial eligibility

If your client was in receipt of legal aid for the original proceedings:

  • You will be asked for the legal aid reference number of that case
  • Once verified, your client will still be considered to be financially eligible for the appeal proceedings and no further financial assessment will be required

If your client was not in receipt of legal aid for the proceedings which are now the subject of the appeal:

  • A full financial assessment is needed
  • You will require to give us full information on the online application form to enable us to carry out a financial assessment

Reasonableness

The reasonableness test provides us with a very wide discretion.  It is impossible to given an exhaustive list of circumstances in which questions of reasonableness may apply.

However, some of the factors which we will consider here will include:

  • How the outcome of the appeal might materially affect your client.
  • How the outcome of the appeal might materially affect the child or children.
  • If the outcome of the appeal could materially affect other proceedings relating to your client such as ongoing or proposed civil proceedings.
  • If the outcome of the appeal would have wider implications for other unrelated cases and/or children’s hearing and court related proceedings in general.

We consider all the circumstances of each individual application. Just because legal aid has been granted to another appellant or respondent in the appeal proceedings, including the child, this does not automatically mean that we will grant legal aid to your client.

Effective participation

When considering if your client is able to participate in the proceedings effectively, we will consider the regulatory factors as detailed in regulation 5(3) of the 2013 Regulations. If any particular factor is present, or any combination of factors, the test of effective participation is satisfied. If all the factors are satisfied, legal aid must be granted.

We may also decide to grant legal aid on the basis of factors other than the regulatory factors.

Regulatory factors to be taken into consideration

We must take into account the following factors:

  • The nature and complexity of the case (including any points of law).
  • The ability of your client, with the assistance of any accompanying person, to consider and challenge any document or information before the proceedings.
  • The ability of your client, with the assistance of any accompanying person, to give his/her views in the proceedings in an effective manner.

 

The nature and complexity of the case (including any points of law)

If you wish to rely on this factor then you will require to address in the application:

  • The nature of the appeal.
  • Why the appeal is complex.
  • What the point or points of law are.
  • What the procedural irregularity or irregularities are.

This regulatory factor will not be satisfied with a simple statement such as “case is complex” or “complex point of law at issue”.

The ability to consider and challenge any document or information before the proceedings, with help of accompanying person

If you wish to rely on this factor then you will require to advise us:

  • What particular document requires you (rather than any other accompanying person) to consider and challenge before the Sheriff Appeal Court or Court of Session. You must submit this actual document (highlighting the relevant parts) as an attachment to the online legal aid application.
  • Why another accompanying person such as an interpreter, advocacy worker, social worker, curator ad litem or other lay representative cannot assist your client in such matters.

 

The ability to give their views in the proceedings in an effective manner, with the help of any accompanying person

If you wish to rely on this factor then you will require to advise:

  • What your client’s views are and why they cannot effectively represent them themselves or with the assistance of any other accompanying person.
  • Why you are required (rather than any other accompanying person) to assist your client to express their views to the Sheriff Appeal Court or Court of Session in an effective manner.
  • Why another accompanying person such as an interpreter, advocacy worker, social worker, curator ad litem or other lay representative cannot assist your client to give his/her views in an effective manner.

 

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