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Applications for Children’s Legal Aid for an Application to the sheriff for a review of a finding under section 85 of the Children (Scotland) Act 1995 and onward appeals to the SAC and COS


We have prepared guidance on the above applications which do not fall under the Children’s Hearings (Scotland) Act 2011 meaning a legal aid application for such a court action cannot be submitted to us using our online system.

An application to the sheriff for a review of a finding under section 85 of the Children (Scotland) Act 1995 Act, also known  as a ‘fresh evidence’ proof, will be extremely rare and will become even rarer as the years go by. If your client wishes to make an application to the sheriff to review previous established grounds under the 1995 Act then the application for legal aid still requires to be made to the sheriff.  Solicitors are not required to be registered to provide children’s legal assistance to make an application for legal aid for a S85 of the 1995 Act application as the children’s registration requirements and associated Code of Practice only apply to cases under the 2011 Act.

If your client wishes to make an application to review previous established grounds under the 2011 Act then the application for legal aid is made to us in the usual way.

Initial Application Process

We will accept a legal aid application for S85 fresh evidence proceedings and arrange for it to be passed onto the appropriate sheriff court for consideration. There are no longer any paper forms for such applications and you cannot submit an online application to us for this so we require you to provide written submissions by secure email (CJSM) to: Childrensla@slab.org.uk.cjsm.net.

Please note this secure email address can only be used by solicitors registered to send CJSM emails. You can find out how to register to use this service at the
CJSM website.

It would be helpful if you could phone the Children’s Applications Team to advise that you have submitted S85 submissions for children’s legal aid via secure e mail.

Please note that as this application for legal aid is still made to the sheriff and is not a Legal Aid Online application made to us, we do not require you to complete any Declaration form.

The written submissions that we will pass onto the sheriff must contain the following –

  1. Information to satisfy the sheriff that it is in the interests of the child that legal aid be made available to the applicant, be them a child or relevant person ( this is the test stipulated at S29(4)(a) of the Legal Aid (Scotland) Act 1986).
  2. Information to satisfy the sheriff that  after consideration of the financial circumstances of the child and any relevant person in relation to him that the expenses of the case cannot be met without undue hardship to the child or to any relevant person in relation to him or the dependents of any of them ( this is the test stipulated in S29(4)(b) on of the Legal Aid (Scotland) Act 1986 ).
  3. Information to satisfy the sheriff that the applicant  does not have available to them other rights or facilities making it unnecessary for them to get legal aid , or have a reasonable expectation of receiving financial or other help from a body of which they or (if a child) any relevant person is a member (this is stipulated at regulation 7 of the Legal Aid (Scotland) Regulations 1997).

1. The Interests of the Child Test

The sheriff must be satisfied that granting legal aid to the child or relevant person is in the child’s interests. The 1986 Act does not define what ‘the interests of the child’ means or specify any factors to be taken into account in considering this.

We suggest that the following information will assist here:

2. The Undue Hardship Test

You should provide full financial information to enable the sheriff to carry out a financial assessment to establish whether the expenses of the S85 proceedings can be met without undue hardship to the child or to any relevant person in relation to them or their dependants.

The information provided should include details of

Please also explain why you think undue hardship would arise should the applicant have to fund the S85 proceedings themselves.

3. No other rights or facilities

The sheriff must also be satisfied  that the applicant does not have available to them other rights and facilities making it unnecessary for them to get legal aid or have a reasonable expectation of receiving financial or other help from a body of which they or (if a child) any relevant person is a member.

If the sheriff is not satisfied on these matters legal aid must be refused unless there is special reason for making it available. The sheriff may however be prepared to make legal aid available to the applicant or (if a child) any relevant person if they have a reasonable expectation of receiving financial help towards the cost of the case from a body of which they are a member  in which case the applicant or relevant person must give the sheriff a written undertaking to pay us any sum received from that body.

Further Application Process

When we receive written submissions for legal aid we will check that they contain sufficient information. If they do we will pass them to the sheriff clerk, along with a copy of this guidance and ask them to let us know the sheriff’s decision as quickly as possible. We will then telephone you with the decision and follow this up in writing via secure e mail.

Where legal aid is granted we will issue you with a unique legal aid reference number and accounts synopsis form to submit with your final account using the current paper process. It will be paid in terms of Schedule 5 of the 1989 Civil Fees Regulations on a detailed fee basis.

It will be your responsibility to advise the applicant of the sheriff’s decision on the application.

Any subsequent sanction applications under this grant of legal aid should be submitted to us using secure e mail, quoting the reference number and clearly stating that this is a sanction application in terms of a S85 Application under the 1995 Act.

We will deal with any sanction applications in terms of our guidance on sanction applications set out in the Children’s 2011 Act Handbook.

Appeals to the Sheriff Appeal Court and Court of Session

Once the S85 application hearing has concluded it is still open to the client to apply to us for legal aid for

Such appeals are by stated case on a point of law or in respect of any irregularity in the conduct of the case. The appeal may be at the instance of the child or any relevant person. The Reporter may also appeal and the child or relevant person may wish to oppose such an appeal. 

It is open to you to submit an application for one of these appeals to us using our online application system. If you wish to do so you must select  ‘Appeals (1995 Act)’ from the drop down children’s list of applications types you are presented with.

We no longer have an online declaration form for the applicant for this type of appeal under the 1995 Act. Please therefore use the CHLA/LAO – 2011 Act online declaration form and make it clear on that this is for a 1995 Act appeal to the Sheriff Appeal Court or Court of Session.

Before we grant legal aid for the appeal we must be satisfied that the statutory tests laid down in S29(5) of the 1986 Act are met and accordingly in the application we will ask for

  1. Information as to why the applicant wishes to make or respond to the appeal outlining the error of law or procedural irregularity.
  2. Information as to why the solicitor concludes that the applicant has substantial grounds to make or respond to the appeal.
  3. Information as to why , in all the particular circumstances , the solicitor concludes that it is reasonable that legal aid be granted to the applicant.
  4. Information to demonstrate that after consideration of the financial circumstances of the child and any relevant person, that the expenses of the appeal cannot be met without undue hardship to the child or to any relevant person in relation to them or the dependants of any of them
  5. Information to demonstrate that the applicant  does not have available to them other rights or facilities making it unnecessary for them to get legal aid , or have a reasonable expectation of receiving financial or other help from a body of which they or (if a child) any relevant person is a member (this is stipulated at regulation 7 of the Legal Aid (Scotland) Regulations 1997).

For further information on these statutory merits tests you should refer to the Chapter on Appeals to the Sheriff Appeal Court and Court of Session in the 2011 Act Children’s Handbook as we will apply this guidance when assessing such an application.

Further Application Process

We will assess the application and continue it for further information or grant or refuse the application in the same way that we would assess an on line application for an Appeal to the Sheriff Appeal Court or Court of Session under the 2011 Act.

Where legal aid is granted we will issue you with a  unique legal aid reference number and accounts synopsis form to submit your final account using the current paper process.  It will be paid in terms of Schedule 5 of the 1989 Civil Fees Regulations on a detailed fee basis.

Any subsequent sanction applications under this grant of legal aid can be made to us online under the relevant reference number.

We will deal with any sanction applications in terms of our guidance on sanction applications set out in the Children’s  2011 Act Handbook.

More information
If you have any queries please contact Elizabeth Cuschieri, senior solicitor, in the Children’s Legal Services Department on 0131 240 2179.



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