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

Applications for a sheriff to a review a finding under section 85 of the Children (Scotland) Act 1995 do not fall under the Children’s Hearings (Scotland) Act 2011. This means a legal aid application for such a court action cannot be submitted to us using our online system.

These reviews, also known as a ‘fresh evidence’ proof, will be extremely rare and will become increasingly rarer in the future.

You have to make an application for legal aid to the sheriff if your client wishes them to review previous established grounds under the 1995 Act. You do not have to be registered to provide children’s legal assistance to make this 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.

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. You must instead send us 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 when you have done this.

You do not have to complete any Declaration form as this application for legal aid is made to the sheriff and is not a Legal Aid Online application made to us.

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 themt, whether they are 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 them, the expenses of the case cannot be met without undue hardship to them or to any relevant person in relation to them 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 your client 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).

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:

• Provide a copy of the Grounds that have been previously held established under the 1995 Act which you now seek to review.
• Provide information to demonstrate that if your client is a child, that they remain the subject of the established grounds of referral. Or if they are a relevant person that they remain a relevant person in relation to the child who is the subject of the established grounds.
• Provide a brief outline of the evidence that was not considered by the sheriff in the original proof that you now have to demonstrate that it could have a material effect on the decision to uphold the grounds in the original application.
• Provide brief information to demonstrate that the evidence is credible, reliable and admissible, and why it was not available at the time of the original proof.
• Provide an explanation as to why it is in the interests of the child, and not therefore the relevant person should they be the applicant, to have the original grounds discharged now, any existing Compulsory Supervision Order terminated or to find any alternative grounds established.

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

• The applicant or relevant person’s (if the applicant is a child) capital (including any property they own but do not live in, savings and investments),
• The applicant or relevant person’s (if the applicant is a child) income from all sources including a note of the amount and type of any benefits received (for wages/salaries provide the figure after deduction of tax and NI).
• The applicant or relevant person’s (if the applicant is a child) major outgoings (e.g. rent/mortgage, childcare and travel to work costs).

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

The sheriff must also be satisfied that your client does not have other rights and facilities available to them that would make it unnecessary for them to get legal aid. They must also be satisfied there is no 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 if your client has 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 they must give the sheriff a written undertaking to pay us any sum received from that body.

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.

When 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 your client 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 email, 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 our guidance.

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

• An appeal under S51(11) of the 1995 Act to the Sheriff Appeal Court or to the Court of Session against the decision of the sheriff.
• With leave of the Sheriff Appeal Court, an appeal to the Court of Session against any decision of the Sheriff Appeal Court in relation to the S85 application.

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 Legal Aid Online. 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 your client 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 your client wishes to make or respond to the appeal outlining the error of law or procedural irregularity.
2. Information as to why you conclude that your client has substantial grounds to make or respond to the appeal.
3. Information as to why, in all the particular circumstances , you conclude that it is reasonable that legal aid be granted.
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 them or in relation to their dependants.
5. Information to demonstrate that your client does not have available to them other rights or facilities making it unnecessary for them to get legal aid. You must also explain that there is no reasonable expectation of them 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 our guidance about appeals to the Sheriff Appeal Court and Court of Session. We will apply this guidance when assessing such an application.

What happens next

We will assess the application, continue it for further information or grant or refuse it in the same way that we would assess any Legal Aid Online application for an appeal to the Sheriff Appeal Court or Court of Session under the 2011 Act.

We will issue you with a unique legal aid reference number and accounts synopsis form oif legal aid is granted for you 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.

Please contact Elizabeth Cuschieri, senior solicitor in the Children’s Legal Services Department, on 0131 240 2179 or by email if you have any queries.