Ref CI/01/4010301

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EDINBURGH. 15 June, 2005. The Sheriff Principal, having resumed consideration of the application, grants same; finds the applicant entitled to legal aid to pursue an action for judicial review against the respondent; reserves all questions of expenses and appoints parties to be heard thereon within the Appeal Court, Court No. 9, 27 Chambers Street, Edinburgh on June 2005 at 10.30 a.m..

This is an application to the sheriff of Lothian and Borders at Edinburgh in terms of section 14(4) of the Legal Aid (Scotland) Act 1986. Although the subsection does not provide that such an application must be determined by the sheriff principal, Sheriff Principal Macphail directed that all applications under section 14(4) should go to the sheriff principal rather than a sheriff. I accordingly heard the present application.

The applicant is a child, now aged nine years who is autistic. He is applying for legal aid to bring an action for judicial review against the respondent, the Scottish Legal Aid Board. The application arises out of the Board's refusal to grant legal aid for an appeal to the sheriff against the refusal by an education authority and its appeal committee to grant a placing request in respect of the applicant under the Education (Scotland) Act 1980 (hereinafter referred to as "the 1980 Act"). The original application for legal aid was not refused on the merits but because the applicant maintained that it was his, and not his parents', financial resources which should be taken into account when deciding whether legal aid should be granted. The issue between the parties is thus whether an appeal to the sheriff under section 65 (as substituted) of the 1980 Act, if brought by a parent, is brought by that parent as an individual or in a representative capacity. For the sake of clarity I shall in the main refer throughout this judgment to the applicant as "the child", to his parents as "the parents" and to the respondent as "the Board".

In a carefully argued submission Mr Scott began by taking me through the statutory framework of the 1980 Act, which he described, not without justification, as "a nightmare". The child was recognised by the education authority as having special needs. The authority decided that a record of needs should be opened. The child thus became a "recorded child". In terms of section 28A (as substituted) of the 1980 Act the parent of a recorded child is entitled to make a placing request to the education authority for the child's admission to a special school. If the recorded child is over the age of 16 years, he becomes a "recorded young person" and is entitled to make the placing request in his own name (paragraph 4 of Schedule A2 (as inserted) of the 1980 Act). Section 63(1) (as substituted) of the 1980 Act provides that "the parent of a recorded child may refer to an appeal committee ... (d) ... [the education authority's] decision refusing his placing request in respect of the child." Section 63(2) provides, "Where the education authority were satisfied that a young person was not capable of expressing his view for the purposes of section 61(7) of this Act, his parent and, in any other case, the young person himself may refer to an appeal committee ..." Section 64(2) (as substituted) of the 1980 Act provides that the appeal committee must grant the placing request unless it is satisfied that certain specified grounds of refusal exist. In the present case the parents referred their application for a placing request to the appeal committee, but their application was again refused. They accordingly decided to appeal to the sheriff as they were entitled to do in terms of section 65(1) (as substituted) of the 1980 Act. Section 28F (as inserted) of the 1980 Act provides inter alia that such an appeal should be by summary application and that the hearing of the application should be in chambers. It was in order to take that appeal that an application for legal aid was made to the Board.

The Board took the view that it was the parents' financial resources and not those of the child which should be taken into account when deciding whether or not to grant legal aid. Mr Scott submitted that this approach was one-dimensional. "Parent" is defined in the 1980 Act in such a way as to make it clear that a parent taking an appeal to the sheriff under section 65 was acting in a representative capacity. The definition of "parent" in the 1980 Act as originally passed was: '"parent" includes guardian and any person who is liable to maintain or has the actual custody of a child or young person.' Even under that definition it was clear that a parent acted in a representative capacity. That definition was amended by the Children (Scotland) Act 1995 (hereinafter referred to as "the 1995 Act") and now reads: '"parent" includes guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of [the 1995 Act]) in relation to, or has care of a child or young person.' This meant that "parent" could include any person with parental responsibilities, e.g. a foster parent, an aunt, uncle or grandparent.

In terms of section 1(3) of the 1995 Act a person acting on behalf of a child has title to sue in any proceedings as respects a parental responsibility. Parental responsibilities are set out in section 1(1) of the 1995 Act and include "(a) to promote the child's health, development and welfare". This must include the child's education. The Standards in Scotland's Schools etc. Act 2000 provides in section 1 that it is the right of every child of school age to be provided with school education. This is clearly a right of the child. It was clear in terms of section 2(1) of the same Act that education is to be child-centred. If the right to education is a right of the child any application made by a parent relating to education must be made in a representative capacity.

Mr Scott then referred me to the Civil Legal Aid (Scotland) Regulations 1996. Regulation 6(1) provides: "...application on behalf of a child may be made by any person having parental responsibilities in relation to the child or by any person in whose care he is, or by a person acting for the purpose of any proceedings as his tutor or curator." Regulation 14(1) provides: "Where the applicant is a person who is concerned in the proceedings only in a representative, fiduciary or official capacity, then for the purpose of determining his disposable income and disposable capital, and the amount of any contribution required under section 17 of the [Legal Aid (Scotland) Act [1986], the personal resources of the applicant shall be disregarded ..." I note in passing that the 1996 Regulations appear to have been superseded by regulations with an identical name made in 2002 (SSI 2002/144) which came into effect on 1 December of that year and which would thus have applied to the original application for legal aid. However, this is immaterial to the present discussion as Regulation 14(1) of the 2002 Regulations is in terms identical to those of the 1996 Regulation quoted above.

Mr Scott submitted that an important point of principle and a matter of public importance were in issue here. An appeal to the sheriff in the case of a child with special needs was expensive. Expert witnesses would be involved. A hearing in such a case could last several weeks. The parents here could not possibly afford to engage in such litigation. If legal aid were not granted in the present application the child's right to pursue the appeal would be lost.

Mr Haggarty began by pointing out that if the parents' financial circumstances were considered it could be that they would receive legal aid without any contribution. Or they might receive legal aid with a contribution, which would mean that they would not have to pay anything beyond the amount of that contribution. Although strict limits were set so far as disposable income was concerned, the Board did have a discretion in deciding the extent to which disposable capital should be taken into account. Mr Haggarty referred to the opinion of Mr John Moir, Advocate dated 4 February 2004, which had been obtained by the solicitors acting for the child and his parents, although in connection with a different case. Mr Haggarty said that there was much in that opinion with which the Board would agree.

The Board's position was that it was clear from the terms of the 1980 Act that it was the parents who had the right to appeal as individuals and not in a representative capacity. It was therefore their financial position which should be taken into account. The Standards in Scotland's Schools etc. Act 2000 did not radically affect the position. The provision of the 1980 Act that a child should be educated in accordance with the wishes of his parent was not affected. The 1980 Act clearly differentiated between a child, a parent and a young person. If Parliament had intended to give a child a right to appeal, this could have been specifically provided. In construing the terms of that Act one did not require to go outside its terms. Both the original and the 1995 definitions of "parent" stated who was included as a parent; they did not state who was a parent. There was no need to do so as a parent was quite simply that.

Mr Haggarty conceded that, if his submission were correct, even a foster parent would not be regarded as raising an action in a representative capacity. In such a case it would be the foster parent's own financial resources which would be taken into account in deciding eligibility for legal aid.

The 1995 Act in section 1(1) sets out parental responsibilities. That is what the definition of "parent" in the amended section 135 of the 1980 Act referred to. The part of section 1(3) of the 1995 Act dealing with title to sue was not included in that definition. Section 2 of the 1995 Act deals with parental rights. In Parent and Child (2^nd edition) Professor Norrie states (in paragraph 8.02 at page 225): "Parental responsibilities and parental rights can thus be seen as different aspects of the same principle, which is that parents are obliged to protect and nurture their children and necessarily have the power to do so." Further on in the same paragraph he states: "Though the term "parental rights" is commonly used, and continues to have statutory sanction, the term "parental power or privilege" is jurisprudentially more accurate." In terms of section 2(4) of the 1995 Act specific authority is given to those who have parental responsibilities to enforce their parental rights by litigation.

The appeal to the sheriff in the present case arose not from the child's right to be educated but from the parents' rights and responsibilities referred to by Professor Norrie (op. cit.) at paragraph 8.44, where he states: "An important aspect of the parental responsibility to promote the child's development, and the responsibility and right to provide direction and guidance, is to ensure that the child receives a suitable education; this carries the right to determine the form that the education of a child under 16 is to take. So the parent may choose whether the child is to be educated within the state system, or, if he or she has the means to afford it, by other provision amounting to efficient education." And again at the end of the same paragraph: "... and it is noteworthy that the governing legislation dealing with state provision for school education is concerned to respect parental choice rather than the wishes of the child."

In the present case the parents of the child were his biological parents and therefore one did not require to go into the detail of the definition of parent contained in section 135 of the 1980 Act. The Act makes it clear that a child should be educated in accordance with his parents' wishes. What would happen here if the child wished to stay at his present school and not move to that to which his parents wished him to go? The posing of that question showed that the present application was misconceived.

In dealing with the present application the court's function was not to decide which argument presented to it was correct or to substitute its own view for that of the Board. The Board's decision was rational. The purpose of the hearing was to decide whether the applicant had shown that the Board's decision was irrational, perverse or illegal. These were the considerations for a petition for judicial review.

It might be said that the parents here were acting in both representative and individual capacities. If that were the case it was still their financial circumstances which should be looked at.

Mr Haggarty conceded that if it were demonstrated that the Board had clearly misinterpreted the law, that might bring their case within the scope of judicial review.

In a brief response Mr Scott submitted that this was an appropriate case for judicial review. He was not arguing that the Board had acted irrationally; they had simply interpreted the legislation wrongly. He agreed that it was not for this court to decide the matter. The court's function was to test the strength of the applicant's argument and decide whether it was sufficient to justify the granting of legal aid to proceed further. It was appropriate to consider the effect that a decision on the point at issue would have on other children as well as the applicant.

Many applications for judicial review proceed on the basis that the body whose decision it is sought to challenge has acted irrationally or capriciously or has failed properly to exercise a discretion granted to it. This is not such a case. Here the issue is simply one of statutory interpretation. It is purely a question of law. Both parties were agreed that it was not for me to decide which view of the law is correct. That will be a matter for the Court of Session if the application for judicial review proceeds. In my opinion, the correct approach for me to take at the stage of deciding whether legal aid should be granted to raise against the Board an action for judicial review is to assess whether the case put forward on behalf of the child is one which is stateable - one for which a coherent and logical argument could be presented. In my opinion this case does fall into that category.

The submission put forward by Mr Scott appeared to me to be a strong one. It is not necessarily inconsistent with the principle that a child should be educated in accordance with its parents' wishes that the parent should pursue an action concerned with the child's education in a representative capacity. After all it is the child's education which is the matter for concern. It may be that the child's argument will not find favour with the Court of Session, but that does not mean that he should not be given the opportunity of presenting it. In effect I am prepared to hold that the child has a probabilis causa litigandi. I am further satisfied that it is reasonable that he should be granted legal aid. There is an important point of principle involved here. As Mr Scott pointed out, the ultimate decision in this case may affect many more children than just the present applicant. In all these circumstances I am satisfied that the interests of justice require that I should grant the application.

For the Board Mr Haggarty stated that, in the event of the Board's being successful before me, he would not seek expenses from the applicant. Mr Scott moved me to reserve the question of expenses. As I have found in favour of the applicant I have granted Mr Scott's motion. The case will be put out for a hearing on the question of expenses.