EM, Re Judicial Review [2011] ScotCS CSOH_134 (16 August 2011)

EM, Re Judicial Review [2011] ScotCS CSOH_134 (16 August 2011)

The instructing of an expert report was a preparatory step for advice, not a step in conducting proceedings under ABWOR; the Board should have considered the request under the advice and assistance regime.

Citation
[2011] ScotCS CSOH_134
Parties
Petitioner: EM; First Respondent: Scottish Legal Aid Board; Second Respondent: Scottish Ministers (represented by the Lord Advocate)
Jurisdiction
Scotland
Judgment Date
16 August 2011
Procedural Posture
Judicial Review / Final Judgment
Outcome
Petition upheld
Legal Topics
Legal Aid, Children's Hearings, Statutory Interpretation, ECHR Compatibility
Administrative Law Family Law Human Rights Law Legal Aid Children's Hearings Statutory Interpretation ECHR Compatibility

Case Brief

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Parties

EM

Petitioner

Scottish Legal Aid Board

First Respondent

Scottish Ministers (represented by the Lord Advocate)

Second Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Scottish Legal Aid Board correctly interpreted section 6 of the Legal Aid (Scotland) Act 1986 regarding authorised expenditure for a parenting assessment report
  2. 2 Whether the Board's refusal breached the petitioner's rights under the ECHR

Ratio Decidendi

The instructing of an expert report was a preparatory step for advice, not a step in conducting proceedings under ABWOR; the Board should have considered the request under the advice and assistance regime.

Court Disposition

Petition upheld

Orders

  • Decisions of the Scottish Legal Aid Board dated 8 June, 2 July, 3 and 24 August, and 7 September 2009 reduced
  • Question of expenses reserved