Statutory criteria for legal aid for sheriff court proceedings where your client is a relevant person or deemed relevant person

Relevant persons include deemed relevant persons

A relevant person has the meaning given in section 200 of the Children’s Hearings (Scotland) Act 2011 and includes a person deemed to be a relevant person as detailed in sections 81(3), 160(4)(b) or 164(3)(a) of the 2011 Act.

Statutory criteria

Before we grant legal aid to your client person for sheriff court proceedings we must be satisfied:

  • That it is reasonable in the particular circumstances of the case that they should receive children’s legal aid, and
  • That after consideration of the disposable income and disposable capital of the relevant person, the expenses of the case cannot be met without undue hardship to them

Financial eligibility

You should provide full financial information on the online application form to enable us to carry out a financial assessment. This helps us to establish if the expenses of the case would cause undue hardship to your client.

Reasonableness

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 factors you think could be relevant for our assessment of this test.

We will consider all the circumstances of each individual application including

  • Your client’s current and past living arrangements
  • Whether or not they are or have been in Local Authority care

Just because legal aid has been granted to another party in the proceedings, including the child, does not mean legal aid will be granted to your client. You will need to satisfy us that it is reasonable for this to happen.

Statement of Grounds proof

If the application concerns a Statement of Grounds proof in terms of S101 of the Children’s Hearings (Scotland) Act 2011 you need to tell us:

  • 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 the Grounds in court

You always need to upload the Statement of Grounds to the application and advise us what is disputed and/or accepted by the relevant person.

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 the relevant person’s position is in relation to each Statement of Ground and each alleged supporting fact. Handwritten notes on the Statement of Grounds are not an adequate substitute for telling us specifically what is disputed and/or accepted.

In the application for legal aid is for a S101 proof, we also require to ascertain the extent of your client’s involvement in the allegations made by the Reporter in the Statement of Grounds themselves and also the alleged supporting Statement of Facts.

For example, if the Statement of Grounds alleges that your client’s son has committed a criminal offence outwith your client’s presence and the child has children’s legal aid to dispute these grounds in court, you will have to provide sufficient information to persuade us that it is reasonable for your client also to receive representation from public funds in relation to the Statement of Grounds in which they are not directly involved. It is noted here that the sheriff’s role is to find the Statement of Grounds established or not. If the sheriff finds the Statement of Grounds established then they will remit the matter back to the children’s hearing which will then make the substantive decision regarding compulsory measures of supervision.

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 the application concerns an 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 and your client has not already been granted children’s legal aid as part of other ongoing proceedings, such as a statement of grounds proof under S101 of the 2011 Act, then you require to satisfy us that it is reasonable for them to be represented in these court proceedings where the Reporter seeks to extend or vary the interim order. If your client agrees with the extension or variation then it is unlikely that the reasonableness test will be met unless you can 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 that party opposes the extension of the order in the terms sought by the reporter, or wishes to seek any variation of its proposed terms.

In terms of Regulation 6(3) of the Children’s Legal Assistance (Scotland) Regulations 2013 these extension or variation hearings do not require a separate application for children’s legal aid where your client has already been granted or has still to make an application for children’s legal aid for other distinct proceeding listed in Regulation 6(2) which are still ongoing. If you apply for legal aid and it is apparent that there are other proceedings ongoing it is likely that we will refuse the application on the basis that it is not reasonable to grant legal aid when your client can seek legal aid for the ongoing proceedings which would then incorporate representation at these extension or variation hearings if it can be demonstrated at the Accounts stage that your client opposed or wished to seek any variation of its proposed terms. If a separate grant of legal aid was made then this could result in your client having to pay a second contribution

Section 154 appeal against a children’s hearing decision

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

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

If you are acting for the appellant:

  • You need to satisfy us that it is a reasonable appeal to make if and that the appeal is not frivolous or vexatious.

If you are acting for the respondent:

  • You need to satisfy us that it is reasonable to receive representation from public funds to respond to an appeal.

It may be difficult to demonstrate that it is reasonable for legal aid to be granted where your client supports the terms of the appellants appeal and/or where any successful appeal would not have any material effect on your client.

It is always helpful to submit the Grounds of Appeal in question, if available. This will avoid continuations and ensure you receive a swift decision on the application.

Application for a review of a grounds determination in terms of S110 of the 2011 Act

Your application may concern a review of a grounds determination regarding “fresh evidence proof”. If you represent a relevant person, or someone who was at the time the grounds were established a relevant person, who is seeking the review of the grounds determination, you should 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 and if it has, to confirm that the sheriff has not dismissed the application in terms of S111(4) of the 2011 Act. If the sheriff has dismissed the application at this first stage then we will not grant legal aid and the matter cannot proceed any further.

In such an application, you will require:

  • The Statement of Grounds and supporting facts that you are seeking now to challenge
  • Any supporting information that you have regarding the evidence that you now have in support of the application such as a report and/or precognition by an expert medical witness
  • To advise us of the material outcome for your client if the review is successful

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

If you represent a relevant person 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 will detailed information why it is reasonable for your client to be represented by you rather than anyone else.

You will need to upload a copy of intimation of the application and/or court interlocutor, confirming that an application has been made by another party.

We will always consider if it is reasonable for the relevant person to have legal representation in the proceedings in addition to representation by a curator ad litem.

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 advice and guidance.

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