Handbooks Index

 

Part 4: Civil legal aid


Chapter 5

Modified application procedures

 

5.1 The Hague Convention on international child abduction and the European Convention on the custody of children
5.2 The European judgements convention
5.3 The Maintenance Orders (Reciprocal Enforcement) Act 1972
5.4 What the 1972 Act covers
5.5 Applications to recover maintenance in Scotland
5.6 Applications to recover maintenance abroad
5.7 Cross-border disputes within the European Union
5.8 Council Regulation(EC) No 4/2009 relating to maintenance obligations

 

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Unless otherwise stated, "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Civil Legal Aid (Scotland) Regulations 2002.

5.1 The Hague Convention on international child abduction and the European Convention on the custody of children

Special arrangements apply where a non-UK resident seeks legal aid for an application to the Court of Session in terms of either

(a) the Hague Convention on the Civil Aspects of International Child Abduction or

(b) the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on the Restoration of Custody of Children.

These conventions contain wide-ranging and detailed provisions, not covered in detail in this Handbook. The conventions are given the force of law in the UK by, and subject to the provisions of, the Child Abduction and Custody Act 1985, to which you should refer. Further information is also available on the Scottish Government’s website.

The Hague Convention is an agreement between contracting states to facilitate the return from one state to another of a child wrongfully removed in breach of custody rights applying in the state where the child is habitually resident. The right of custody in question may have arisen by operation of law, or by judicial or administrative decision, or by a legally binding agreement.

The European Convention is an agreement between contracting states to facilitate the recognition and enforcement of orders relating to the custody of a child notwithstanding the improper removal of the child across an international frontier.

Both conventions set up in each contracting state a central authority responsible for helping people get the benefit of the convention provisions, either by administrative action or by judicial proceedings. Where action may be taken in Scotland, the central authority is the Scottish Government (which, in practice, discharges its functions through the Scottish Court Service). The person concerned applies to the Scottish Government for assistance under the convention, providing appropriate documents and information. If it appears that they will have to take judicial proceedings, these must be taken in the Court of Session.

The costs of applying the conventions are to be met by the contracting state. The cost of judicial proceedings is thus borne by the state where the proceedings are brought. In Scotland, this is achieved by making legal aid available automatically and without payment of a contribution. To facilitate the grant of legal aid, the Scottish Government provides a certificate that the application to the Court of Session is an application under the appropriate convention.

Contracting states' administrative and judicial authorities must act expeditiously in dealing with matters covered by the conventions. To this end, the provisions for making legal aid available in Scotland have been simplified and streamlined. Regulation 46 eliminates the need to assess financial eligibility or probable cause or reasonableness.

The normal administrative requirements for getting legal aid do not apply:

When submitting the application, you should make it very clear that a convention application is involved and that the normal legal aid requirements should, therefore, be dispensed with. Provided the documents are in order and all necessary details are available, we will grant legal aid immediately.

Where someone with a certificate issued under the conventions by the Scottish Government wants legal aid to appeal to the Inner House or the Supreme Court, similar administrative arrangements apply. However, we must be satisfied the applicant has probable cause and that it is reasonable to make legal aid available.

Regulation 46 only applies in a case where a person resident outwith the UK applies for legal aid to pursue an application (certified by the Scottish Government to be a convention application) to the Court of Session. It does not apply to

In such cases, the normal legal aid requirements apply in full.

A person holding a custody or child residence order from a Scottish court may apply to the Scottish Government for assistance under the conventions in having the order made effective in another contracting state. If they currently have Scottish legal aid for the proceedings the order was made in, that legal aid will cover the costs of applying to the Scottish Government under the convention. The legal aid will not, however, cover any proceedings in a court of the other contracting state.

NOTE
Amended September 2009 to replace references to the Judicial Committee of the Privy Council and the House of Lords with a reference to the Supreme Court
.

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5.2 The European judgements convention

Special arrangements apply where legal aid is sought to enforce certain judgements in terms of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

The convention is given the force of law in the UK by section 2 of the Civil Jurisdiction and Judgments Act 1982, to which you should refer. In brief, the purpose of the Convention is to determine the international jurisdiction of the courts of the contracting states, to facilitate recognition of, and provide an expeditious procedure for securing enforcement of, judgements of these courts. The Convention applies in civil and commercial matters, and contains detailed rules for the recognition of judgements with a minimum of formality and for the enforcement of judgements according to the law of the contracting state in which enforcement is sought.

So far as enforcement in the UK is concerned, any interested party in another contracting state may apply to the appropriate court for the judgement to be registered for enforcement. In Scotland, the appropriate court is the Court of Session, unless the application relates to a maintenance judgement, when it is the sheriff court for the place of domicile of the party against whom enforcement is sought.

Regulation 46 makes special provision where legal aid is sought to apply to

In either case, although the statutory tests of probable cause and reasonableness must be satisfied:

The usual procedural application requirements are largely dispensed with:

When submitting the application, you should make it very clear that a convention application is involved and that the normal requirements relating to intimation and assessment of means do not apply.

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5.3 The Maintenance Orders (Reciprocal Enforcement) Act 1972

5.4 What the 1972 Act covers

The Maintenance Orders (Reciprocal Enforcement) Act 1972 (“the 1972 Act”) facilitates the recovery of maintenance where the parties live in different countries. It deals with two distinct situations.

Separate arrangements apply where maintenance is being sought in terms of Council Regulation(EC) No 4/2009. Guidance on applications made in terms of the 2009 Regulation is given in paragraph 5.8.

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5.5 Applications to recover maintenance in Scotland

Special arrangements for assessing applications for civil legal aid and advice and assistance are set out in section 43A of the 1972 Act. (The text of section 43A is included in a note to paragraph 2 of Schedule 3 to the Legal Aid (Scotland) Act 1986.)

Where a person in a Part I or Part 2 country seeks to recover maintenance in Scotland in accordance with the provisions of the 1972 Act, the responsible authority in the transmitting country will send the necessary documentation to the appropriate authority in Scotland – that is, the Scottish Government. The documentation will include a certificate from the responsible authority in the transmitting country to the effect that the person would, in that country, be eligible for complete or partial legal aid or exemption from costs or expenses in similar proceedings there.

In an application from a Part I country, the Scottish Government will pass the papers to the sheriff clerk of the sheriff court within whose jurisdiction the defender is believed to reside.

Once the order has been registered, the Scottish Government will ask the Law Society of Scotland to nominate a solicitor to act on behalf of the overseas claimant, to undertake whatever work is necessary to enforce the order. On production of the certificate of exemption from the transmitting country, the solicitor may make a grant of advice and assistance without enquiring into the applicant’s resources and without payment of a contribution. The solicitor should sign the application for advice and assistance on behalf of the applicant. You can ask us for an increase in authorised expenditure in the usual way.

On receiving an application from a Part II country, the Scottish Government will pass the papers to the Law Society to nominate a solicitor to act on behalf of the applicant. Advice and assistance can be made available in the same way as for applications from Part I countries and the nominated solicitor should also apply to us for civil legal aid to allow proceedings to be raised. The existence of a certificate of exemption means the applicant is eligible for free legal aid without enquiry into their resources. However, we must also be satisfied the applicant has probable cause and that it is reasonable to make legal aid available.

When submitting an application for legal aid in respect of either a Part I or Part II country, you should make it clear that it is made in terms of section 43A of the 1972 Act.

Applications under section 43A are subject to modified procedural requirements:

NOTE
Reference to form amended March 09
.

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5.6 Applications to recover maintenance abroad

Where a person resident in Scotland wishes to take proceedings in another country in relation to a maintenance order or claim, we may be asked, by the Scottish Government or the claimant direct, to issue a certificate of exemption for transmission to the responsible authority in the other country. In those circumstances, we need the same financial eligibility forms and documentation relating to resources as for any other application for legal aid.

You can get useful information about the reciprocal enforcement of maintenance orders, including lists of countries with which reciprocal arrangements have been made, from the Scottish Government Justice Department.

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5.7 Cross-border disputes within the European Union

EU Council Directive 2003/8/EC of 27 January 2003 established minimum common rules relating to legal aid in cross-border civil disputes. Among other things, the Directive allows member states to apply financial and merits tests to cross-border applications. To reflect the flexible approach to means assessment and submission of applications in cases affected by the Directive:

You can get further details about the rules relating to legal aid for cross-border disputes from the European Commission’s European judicial atlas in civil matters. This website also allows you to fill in the forms on-line, change the language of the form once you have filled it in and before printing it (so that the person receiving the form can read it in their own language), and transmit the forms electronically.

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5.8 Council Regulation(EC) No 4/2009 relating to maintenance obligations

The 2009 Regulation (the Maintenance Regulation) deals with jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters concerning maintenance obligations. It is directly effective in Scots law and applies to all EU member states. It allows a maintenance creditor to obtain easily in one Member state a decision that will be automatically enforceable in another Member state without further formalities such as registration.

This guidance applies to applications under the 2009 Regulation only. Separate guidance on other proceedings to recover maintenance in Scotland is given in paragraphs 5.3–5.6.

Although an application for civil legal aid will be required in respect of any court proceedings, you may use advice and assistance to attempt to obtain payment by agreement or to take steps to enforce an existing order. You should sign the application for advice and assistance on behalf of the applicant. You can ask us for an increase in authorised expenditure in the usual way.
Advice and assistance will not cover the routine collection of payments or the transmission of these to the client.

 An application for civil legal aid is needed where it is necessary to proceed with an action in respect of a maintenance claim or where enforcement action that requires separate proceedings to be raised, such as sequestration or proceedings for civil imprisonment, is needed. Civil legal aid is provided without any assessment of financial eligibility for all applications by a creditor under Article 56 of Council Regulation (EC) No. 4 of 2009 concerning maintenance obligations arising from a parent/child relationship towards a person under the age of 21. When submitting an application for legal aid you should make it clear that it is made in terms of Article 56 and that the applicant is a creditor. For applications other than those under Article 56(1)(a) and (b) we may refuse legal aid if we consider that, on the merits, the application or any appeal or review is manifestly unfounded.
Article 46 applies to creditors only. Any debtor applying for legal aid needs to complete an application in the usual way.

If legal aid is granted the grant will cover steps taken in the execution of diligence. Reference should be made to regulation 22 of Civil Legal Aid (Scotland) Regulations 2002 which stipulates the situations where our prior approval for work to be undertaken is needed.
The routine collection of payments and the transmission of these to the client is not covered by legal aid.

NOTE
Final paragraph added October 2012
.

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