Statutory criteria for legal aid for sheriff court appeal proceedings where client is a section 126 individual

Definition of a “section 126 individual”

A “section 126 individual” means a person to whom S126 (2)(b) or (3) of the Children’s Hearings (Scotland) Act 2011 applies, namely an individual who

  • Is named on a Contact Order which regulates contact between the child and that individual, or
  • Is named on a Permanence Order which specifies arrangements for contact between the child and that individual
  • Claims that the conditions specified in an order made by Scottish Ministers are satisfied in relation to that individual

Statutory criteria

Before we grant legal aid to a section 126 individual we must be satisfied:

  • that for the purpose of enabling your client to participate effectively in the proceedings, it is necessary that they be represented by you or counsel
  • That it is reasonable in the particular circumstances of the case that your client should receive children’s legal aid
  • After consideration of the disposable income and disposable capital of your client. the expenses of the case cannot be met without undue hardship to your client or their dependents

Financial eligibility

You need to give us full information in the application to enable us to carry out a financial assessment. This will allow us to establish whether expenses of the case can be met without undue hardship to the client.

Reasonableness

The reasonableness test provides us with a very wide discretion.  We consider all the circumstances of each individual application. This can include your client’s current and past living arrangements such as whether or not they are or have been in Local Authority care.

While this list is not definitive, some of the factors that we will consider are:

  • If the outcome of the appeal will materially affect your client and how
  • If the outcome of the appeal will materially affect the child or children and how
  • 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
  • The prospects of success
  • That the action to be taken is proportionate to the issues involved

We consider all the circumstances of each individual application.  The fact that legal aid has been granted to another appellant or respondent in the appeal proceedings does not necessarily mean your client will be granted legal aid.

Effective participation

Regulation 5(3) of the Children’s Legal Assistance (Scotland) Regulations 2013 sets out factors that we will take into account in deciding whether legal aid should be granted to your client. This does not mean that we cannot consider other factors not detailed in the regulations.  You should draw all relevant factors to our attention in the application.

However, in considering the regulatory factors it should be noted that the 2013 regulations do not suggest that

  • The regulatory factors are listed in any particular order of importance or priority
  • 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 must consider all the circumstances of the particular case, including your client’s current and past living arrangements.

Regulatory factors to be taken into consideration in terms of Regulation 5(3)

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 need to address the following in the online application:

  • Nature of appeal,
  • Why the appeal is complex
  • What the point or points of law 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 of your client, with the assistance of any accompanying person, to consider and challenge any document or information before the proceedings

If you wish to rely on this factor then you should advise:

  • What particular document (or part thereof) or information requires you (rather than any other accompanying person) to consider and challenge before the sheriff in court
  • Submit this actual document or information (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 to consider and challenge the document

The ability of your client, with the assistance of any accompanying person, to give his/her views in the proceedings in an effective manner

If you wish to rely on this factor then you should advise:

  • What your client’s views are and why they cannot effectively present 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 in giving their views to the sheriff 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 the your client to give their views in an effective manner

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