Statutory criteria for legal aid for sheriff court proceedings where your client is a child

Before we grant legal aid to a child we must in terms of section 28D(3) of the Legal Aid (Scotland) Act 1986 be satisfied –

• That it is in the best interests of the child
• That it is reasonable in the particular circumstances of the case
• That, after consideration of the disposable income and disposable capital of the child, the expenses of the case cannot be met without undue hardship to the child

You must give us full information in the application to enable us to carry out a financial assessment. This will help us to establish whether expenses of the case can be met without undue hardship to your client.  We do not take your client’s parents’ or carers’ resources into account for these applications.

Where your client, a child, is old enough to directly instruct you and asks you to make an application on their behalf for children’s legal aid it will be apparent that they want to take part in the proceedings which will be persuasive in satisfying this test.

Your client’s current living circumstances can also be taken into consideration here such as whether they are currently residing in local authority care in secure accommodation, a children’s unit, residential school or with foster carers.

In terms of section 25 of the Children’s Hearings (Scotland) Act 2011, the court must regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as a paramount consideration (known as “the welfare principle”)

General points:

• If a grant of children’s legal aid is deemed detrimental to the child’s welfare, we may refuse it on this basis.
• If a child is not old enough or capable enough to directly instruct you, we will always take into consideration whether it is in their best interests to have legal representation in the proceedings as well as a safeguarder or curator ad litem.

In this circumstance, it will be for you to satisfy us that it would be in your client’s best interests to have such dual representation. The greater the number of representatives in a case the longer it is likely to take to reach a conclusion.  We consider that the proceedings should be dealt with as expeditiously as possible in the best interests of the child.

Where we are told that a relevant person is representing themselves in the proceedings, and their position is in conflict with the child, this will be persuasive that it is in your client’s best interests to be granted legal aid.

You must also satisfy us that it is reasonable in the particular circumstances of the case that the child 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 but we will consider all the circumstances of each individual applicant. This could include the child’s current living circumstances. We consider whether the child is currently residing in:

• Local authority care in secure accommodation
• A children’s unit
• Residential school
• With foster carers

The fact that legal aid has been granted to another party in the proceedings will not, of itself, mean that we will grant legal aid to your client. You should demonstrate that it is reasonable for them to receive representation and public funds. You will always need to tell us why there is a necessity for this and why it is reasonable for them to take part in the court proceedings in question.

Statement of Grounds Proof

If the application concerns a Statement of Grounds proof, you need to address us on:

• Your client’s position in relation to the Statement of Grounds
• Your client’s position on the alleged supporting facts
• Why you consider it is reasonable for your client to receive legal aid to dispute or accept them in court

You always require to upload the Statement of Grounds and advise us what is disputed and/or accepted your client. Handwritten notes on the Statement of Grounds are not an adequate substitute for telling us specifically what is disputed and/or accepted.

In order to avoid any unnecessary continuations or refusals please ensure that, in response to the reasonableness question on the application, you specifically address what your client’s position is in relation to each Statement of Ground and each alleged supporting fact.

You should also let us know:

• If and how your client’s position differs to the relevant person’s position
• If they have no conflict of interest with another party to the proceedings, demonstrate that it is reasonable for them to have separate legal representation

If they have the same position and there is no conflict of interest demonstrated between them then you will require to give us sufficient information to satisfy us that it is reasonable they have separate legal representation. The greater the number of solicitors conducting a court proof the longer it will take to conclude

Where the child accepts the statement of Grounds

If your client:

• Accepts the Statement of Grounds
• Accepts the alleged supporting facts
• Still wishes to be represented in court

then you will require to advise us why you conclude that this is still reasonable given that they will not have anything to refute and/or evidence to put forward and that they can always take someone else with them to the court for support. It is the Reporter’s role to establish the Statement of Grounds and alleged supporting facts and not the child’s. If your client accepts the Grounds in full they may prefer simply not to attend the court process but rather attend the hearing instead as it is the hearing that will make decisions about any Compulsory Supervision Order for them. A child’s attendance in court can be excused by the sheriff and if they are not called to give evidence by the Reporter or any other party they do not necessarily require to be present.

Application to the sheriff to extend/further extend or vary/further vary an interim compulsory supervision order under S98 or 99 of the 2011 Act

If is the application is to extend or vary an interim compulsory supervision order and your client has not already been granted  legal aid, then you require to satisfy us that it is reasonable for them to be represented in these court proceedings.

If your client agrees with the extension or variation, it is unlikely that the reasonableness test will be met. You will need to persuade us that there are other factors present in the case that could still make this reasonable.

Part 5 of Practice Note no 1, 2018 for the Sheriffdom of Glasgow and Strathkelvin is noted here which states that there is NO requirement for any party other than the children’s reporter to attend such a hearing in person, or to be represented at such a hearing. Unless your client:

• Opposes the extension of the order in the terms sought by the reporter
• Wishes to seek any variation of its proposed terms

These extension or variation hearings do not require a separate application for children’s legal aid where your client has already been granted or is yet to apply for children’s legal aid. You should not apply for a separate grant, as this could mean your client has to pay a second contribution and we would refuse it.

If you attend these extension hearings you charge for them under your legal aid grant for the s101 proof

Section 154 appeal against a children’s hearing decision

If the application concerns an appeal against a children’s hearing decision then we need to know:

• Who has made the appeal
• What the appeal concerns
• On what basis your client wants to appeal or respond to the appeal
• Why you consider the decision of the hearing was or was not justified in all the circumstances of the case.

If your client is the appellant, you need to satisfy us that it is a reasonable appeal to make and it is not frivolous or vexatious.

If the child is the respondent, you will also require to satisfy us that it is reasonable for them to receive representation from public funds to respond to the appeal in question.

If the Grounds of Appeal are available to you when you make an application for legal aid to respond to an appeal, it is always helpful to submit the Grounds of Appeal in question.

Review of a grounds determination in terms of S110 of the 2011 Act

Your application may concern a review of a grounds determination – what is often referred to as a “fresh evidence proof”. If you represent your client who is seeking the review of the grounds determination you will require to address us on:

• The nature of the evidence that you now have in support of such an application to persuade the sheriff that the grounds should be recalled
• The fact that the sheriff did not take this evidence into account when the original grounds were held to be established
• The fact that if the evidence has been available in the original proceedings then it would have been admissible
• Whether there is a reasonable explanation for the failure to lead that evidence before the original grounds determination was made
• Whether the evidence is significant and relevant to the question of whether the grounds determination should have been made

You must also advise if the application has been made to the sheriff as yet and if it has, to confirm that the sheriff has not dismissed the application. We will not be able to proceed any further with legal aid if the sheriff has dismissed the application at this first stage.

You must provide:

• The Statement of Grounds and supporting facts that you are seeking now to challenge
• Any supporting information that you have regarding the new evidence such as a report and/or precognition by an expert medical witness
• The material outcome for the child (even if that person is no longer a child) if the review is successful

We will require sight of the Statement of Grounds to ensure that they have been established under the 2011 Act and not the 1995 Act.

Please note that if you seek to review Grounds that were established under the Children (Scotland) Act 1995 a number of years ago then you cannot seek a review of them under the 2011 Act. In this circumstance, you will require to seek a review under S85 of the 1995 Act. Where you seek legal aid for this please contact us for assistance and guidance.

Where your client has not made the application

You must advise us if you represent a child who has not made the application but has a duty attend the review of grounds determination hearing.  We need to know your client has been excused from attending the hearing by the sheriff.

In support of such an application you will also need to provide:

• A copy of intimation of the application and/or court interlocutor confirming that an application has been made by another party
• Confirmation that your client requires to attend the hearing. In support of such an application you will also have to provide information to show that it is reasonable for them to receive legal representation from you

Where your client can be represented by another person

If you represent a child who was the subject of the original grounds determination then your client is entitled to be represented at the hearing by another person.

However, your client does not need be represented by a solicitor or advocate. Therefore, you will need to demonstrate information why it is reasonable for your client to be represented by you rather than anyone else.

Where the child is not old enough to instruct you

A safeguarder or curator may make an application on the child’s behalf if the child is not old/capable enough of instructing you. In such cases, we will always consider if it is reasonable for the child to have legal representation additionally.

You must satisfy us that it would be reasonable for your client to have such dual representation. It is widely accepted that having additional representatives will usually cause proceedings to slow down and such matters are to be dealt with expeditiously.