Commentary on Sections Part 19 – Legal Aid and Advice Section 28D – Availability of children’s legal aid: child
285.This section deals with court proceedings under Parts 10 and 15 of the Act. Subsection (2) provides for children’s legal aid to be available to the child in respect of proceedings before a sheriff where the Scottish Legal Aid Board (“SLAB”) is satisfied that the conditions in subsection (3) are met. The conditions in subsection (3) take account of both the merits of the application and the applicant’s means. The conditions are that it is in the child’s best interests that children’s legal aid is made available and that it is reasonable in the circumstances of the case for the child to receive children’s legal aid. The means test requires SLAB to consider whether the expenses of the case can be met by the child, without causing undue hardship to the child. The Scottish Ministers may use their existing powers under section 42(2) of the 1986 Act in relation to civil legal aid and advice and assistance in all contexts to make detailed provision in regulations setting out what is and is not to be taken into account when assessing the means of a child or relevant person in connection with an application for children's legal aid.
286.Subsection (4) provides for children’s legal aid to be available to the child in respect of appeal proceedings before the sheriff principal or the Court of Session where the conditions in subsection (5) are met. The conditions are that SLAB is satisfied that the merits and means tests described in the preceding paragraph are met and, further, that the child has substantial grounds for making or responding to the appeal.