Statutory criteria for legal aid for appeals to the Sheriff Appeal Court and Court of Session where your client is seeking deemed relevant person status or has been undeemed relevant

Availability of legal aid

In terms of section 164 of the 2011 Act your client can appeal by stated case to the Sheriff Appeal Court or Court of Session against a decision of the sheriff in an appeal against a determination of a:

  • pre-hearing panel, or
  • children’s hearing

that they are not to be deemed a relevant person in relation to the child or that they have been un-deemed as a relevant person.  They can also, with the leave of the Sheriff Appeal Court, appeal by stated case to the Court of Session against the Sheriff Appeal Court’s decision in relation to this issue.

Statutory criteria

Before we grant legal aid to your client we must be satisfied, in terms of section 28F of the Legal Aid (Scotland) Act 1986 that:

  • It is reasonable in the particular circumstances of the case that your client should receive children’s legal aid.
  • After consideration of your client’s disposable income and disposable capital, the expenses of the case cannot be met without undue hardship to them.
  • Your client has substantial grounds for making the appeal.

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

You must satisfy us that it is reasonable in the particular circumstances of the case that your client should receive legal aid.

The reasonableness test provides us with a very wide discretion.  It is impossible to give an exhaustive list of circumstances in which questions of reasonableness may apply. You should draw our attention to any issue that you want us to consider in this connection.

In considering reasonableness some of the factors which we will contemplate 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 or the child such as ongoing or proposed criminal or civil proceedings.

We consider all the circumstances of each individual application. Just because legal aid has been granted to another party in the case does not automatically mean we will grant legal aid to your client.

If this is a first instance appeal you will also require to address us on why you have decided to proceed with the appeal directly from the sheriff to the Court of Session rather than to the Sheriff Appeal Court whose decision is binding on all sheriffdoms.

Factors to support an appeal directly to the Court of Session could include:

  • Significant complexity and/or novelty in the appeal proceedings either in fact or in law.
  • A conflict of authorities to be resolved at a higher level.
  • If the outcome of the appeal could materially affect other unrelated cases and/or children’s hearings and court related proceedings in general.

Substantial grounds

You must also satisfy us that your client has “substantial grounds” for making the appeal, and indicate what those grounds are. This is a high test. Simply stating on the application form that “substantial grounds exist” will be insufficient to establish this statutory test.

You must explain in detail:

  • What the proposed substantial grounds are.
  • Why you have reached the conclusion that they exist.
  • Why you consider that the sheriff or Sheriff Appeal Court erred in law and/or why you consider that there has been a procedural irregularity in the conduct of that appeal.

Our view is that to show that substantial grounds exist you must show that the grounds of appeal:

  • Are more than merely stateable
  • Have real merit or prospects of success

As noted in the case of JS V MULROONEY 2014 CSIH 70 at paragraph 36, ‘the appellate court in a stated case appeal is not a court of review.’

Actual errors of law need to be identified in any application for legal aid and a vague reference to breach of Convention rights will not meet this test. The Opinion of the sheriff appeal court in NR V Roma Bruce-Davies 2018 SAC Civ 13 stated that ‘Convention rights are not designed as a licence to side step statutory grounds of appeal, or as an incantation to justify endless dispute on the facts

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