Statutory criteria for legal aid for sheriff court appeal proceedings under the Children’s Hearings (Scotland) Act 2011 where a client is 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, and
• claims that the conditions specified in an order made by Scottish Ministers are satisfied in relation to that individual.

Before we grant legal aid to a section 126 individualthe 2011 Act 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
• 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.

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.

The reasonableness test provides us with a very wide discretion. We consider all the circumstances of each individual application.

In the legal aid application we need to know:

• on what basis the client wants to appeal
• why you consider the decision was not justified in all the circumstances of the case
• that it is a reasonable appeal to make with reasonable prospects
• that legal representation, as opposed to non-legal representation, is required
  in what way the outcome of the appeal will specifically and materially affect the applicant
• 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
• that the action to be taken is proportionate to the issues involved
• any other factors to demonstrate that it is reasonable to make this appeal.

Regulation 5(3) of the Children’s Legal Assistance (Scotland) Regulations 2013 sets out factors that we must take into account in deciding whether legal aid should be granted to a S126 individual under the 2011 Act. 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.

In considering the regulatory factors it should be noted that the 2013 regulations do not suggest that:

• these 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 will be satisfied
• if all the factors are satisfied, legal aid must be granted.

We must consider all the circumstances of the particular case.

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 in the legal aid application we need to know:

• 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 advocacy 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 in the legal aid application we need to know:

• 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 advocacy worker, curator ad litem or other lay representative cannot assist your client to give their views in an effective manner.