Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL & FIFE

AT DUNDEE

NOTE BY

SHERIFF AG McCULLOCH

Dundee City Council -v- F D & Anr B319/06

Dundee City Council -v- V W B550/06 & B551/06

Dundee, 12 Nov. 07

Act McCrae, for the curator ad litem and reporting officer

Alt Smillie, for the petitioners

The Sheriff having resumed consideration of the cause refuses the motions on behalf of the curator ad litem and reporting officer.

NOTE :

[1].            This decision follows on from a dispute that has unfortunately arisen regarding the fees and outlays incurred by a curator ad litem and reporting officer appointed by the Court, in a number of applications for parental responsibility orders by the local authority. This decision covers three petitions for such orders.

[2].            The solicitor appointed to these roles carried out his statutory duties, and in due course lodged his reports. As it happened, the matters were not contested, and orders were granted as sought by the Council, the Court having regard to the content of the reports, as well as other documentation.

[3].            In due course, the solicitor submitted his detailed accounts to the Council, as not only were they the Petitioners, on whose motion he had been appointed, but they were also the relevant local authority who are charged with the responsibility to make payment of such fees.

[4].            The council have refused to pay the fees as rendered, and have now opposed a motion lodged on behalf of the solicitor, to have the Council found liable in the fees incurred, and to remit the account to the Auditor of Court to tax. Instead, the Council have offered a very much smaller fee, citing certain regulations in support of their position.

[5].            I had previously heard argument on a similar point, save that the proceedings were adoption rather than parental rights, and after some discussion, the motion was dropped. The agent for the solicitor sought to distinguish the parental rights cases from the adoption cases, by reference to the regulations. It is helpful to consider the statutory background. In both adoption cases and parental rights applications, the Court appoints a curator ad litem and reporting officer from a panel set up for that purpose. Regulations made under section 101 of the Children (Scotland) Act 1995 make the necessary provisions. S101 is in the following terms:-

"(1) The Scottish Ministers may by regulations make provision for the establishment of one or more of each of the following--

(a) a panel of persons from which curators ad litem may be appointed under section 58 of the Adoption (Scotland) Act 1978 or under section 87(4) of this Act;

(b) a panel of persons from which reporting officers may be appointed under either of those sections; and

(c) a panel of persons from which appointments may be made under section 41(1) of this Act.

(2) Regulations under subsection (1) above may provide, without prejudice to the generality of that subsection--

(a) for the appointment, qualifications and training of persons who may be appointed to those panels; and

(b) for the management and organisation of persons available for appointment from those panels.

(3) Regulations under subsection (1) above may provide--

(a) for the defrayment by local authorities of expenses incurred by members of any panel established by virtue of that subsection; and

(b) for the payment by local authorities of fees and allowances for such members.

(4) Paragraphs 9 and 10(b) of Schedule 1 to this Act shall apply in relation to any panel established by virtue of subsection (1)(c) above as they apply in relation to children's panels."

[6].            The local authority draws up a list, which is submitted to the Sheriff Principal for approval. At the relevant time, all members of the Panel in this Sheriff Court district were solicitors. The procedure is regulated by SSI 477/2001, The Curators ad litem and Reporting Officers (Panels) (Scotland) Regulations 2001, (hereafter "the 2001 regulations"). Regulation 10 deals with fees, expenses and allowances in the following terms:- "10 (1). In the case of-
(a) an application under section 18 or section 20 of the 1978 Act; or
(b) an application for an adoption order or order under section 49 of the 1978 Act where the child was placed with an applicant by an adoption agency; or
(c) an application for an adoption order or order under section 49 of the 1978 Act which is made by a court, a local authority shall defray the expenses incurred by a member of a panel established for their area and shall pay to that member such fees and allowances as they think fit.
(2) In the case of an appointment made under the 1995 Act or the Children's Hearings (Legal Representation) (Scotland) Rules 2001 a local authority shall defray the expenses incurred by a member of a panel established for their area and shall pay to the panel member such fees and allowances as the Scottish Ministers shall determine."

[7].            I was also referred to the Act of Sederunt (Child Care and Maintenance Rules) 1997, also a Statutory Instrument (291/1997), (hereafter "the 1997 rules"). These rules were made by authority of several Acts, including section 91, (but not section 101), of the Children (Scotland) Act 1995. These rules set out the procedure to be adopted for applications under the various Acts, such as the duties of a reporting officer, and curator ad litem, the fixing of a hearing, confidentiality, and the like. But it also, at rule 2.2, purports to deal with expenses, thus :- " The sheriff may make such an order with regard to the expenses, including the expenses of a reporting officer and a curator ad litem or any other person who attended a hearing, of an application under this Chapter as he thinks fit, and may modify such expenses or direct them to be taxed on such scale as he may determine." Clearly, this rule is in conflict with rule 10 of the 2001 Regulations. I would respectfully suggest that it would appear not to be within their Lordships powers to have made Rule 2.2, at least insofar as it can be applied to applications for parental responsibilities orders in terms of s86 of the 1995 Act. It is clear that it is s101(3) that founds the authority for the regulation of fees and expenses of panel members. But the 1997 rules are made, inter alia, under s91 of the 1995 act, and not under s101. Section 91 does not deal with fees, nor does it give authority for the making of rules other than as described in that section, namely procedural rules for the appointment of safeguarders. The 1997 rules were amended in 2006, by SSI 2006/411, but the amendments did not include rule 2.2, which remained as originally introduced.

[8].            I was urged by the agent for the solicitor to remit the account for taxation, and order that the petitioners be liable for the fees and outlays of the solicitor, as curator ad litem and reporting officer, as taxed. It was explained to me that for some years, solicitors acting as court appointed reporting officers and curators ad litem had submitted accounts to local authorities for payment, and they had either agreed a fee, or an account was sent to the auditor for taxation. That latter course of action had been taken in the case of the Petitions of Aberdeenshire Council for Freeing Orders in respect of the children A,B, and C. There, a dispute on the approach taken by the auditor was the subject of discussion on a Hearing on Objections before Lady Smith. Her decision, dated 31 January 2006 was shown to me. However, in that case no reference was made to either of the conflicting rules or regulations. I assume that Rule 2.2 (or its Court of Session equivalent, if any) had been followed, given there was a remit to an auditor. This case therefore does not assist in determining whether the 2001 regulations prevent a finding of liability for expenses, and a remit for taxation.

[9].            I was advised on behalf of the local authority that the Panels referred to were introduced principally because Parliament had recognised the need for children to have representation at Children's Hearings, where they were charged with criminal conduct. This function was different to the other functions carried out by curators, under other statutory provisions. Thus s 10(1) dealt with applications under the Adoption (Scotland) Act 1978, and required " a local authority to defray the expenses incurred by a member of a Panel established for their area, and to pay such fees and allowances as they think fit". The local authority therefore determined how much was to be paid for the reports required in applications under the 1978 Act. This had clearly been recognised by the agent for the solicitor in the previous motions, who had dropped his applications for findings of expenses. There could be no remit in such cases, and those appointed as curators ad litem and reporting officers had to accept the expenses, fees and allowances offered to them by a local authority, or seek Judicial Review. The offer was at a rate approved by COSLA.

[10].        Attention then turned to s 10(2) of the 2001 Regulations. This dealt with an appointment "under the 1995 Act", and required a local authority to "defray the expenses incurred by a member of a panel established for their area and shall pay to the panel member such fees and allowances as the Scottish Ministers shall determine". The terms of this section contrast with the previous section in that although in both sets of circumstances the local authority has to pay, in the latter it is at a rate as determined by Scottish Ministers. Sadly, and perhaps inevitably, Scottish Ministers have failed to determine such fees and allowances. Thus those appointed by the court in parental responsibilities cases, to undertake the important statutory functions of reporting officer and curator ad litem have not merited consideration by Scottish Ministers for suitable remuneration since 2001. There is therefore no rate to be paid by the local authority. The agent for the solicitor argued that as s10(2) had not been implemented, I should be free to make the order under Rule 2.2. The Council argued that the effect of s 10 as a whole was to remove fees from the Courts, and place it with the local authority for adoptions, and Scottish Ministers for 1995 Act orders. A finding of liability coupled with a remit to the auditor was not competent.

[11].        I find it disturbing that some months after appointment, and after the work has been done, the local authority seeks to escape liability for fees and outlays incurred by a solicitor in this way. I was advised that an offer had been made, but it bore no resemblance to the fees charged, nor to the value of the work done. In one of the cases, (FD) the solicitor had required to see one parent at HMP Shotts, then travel to Lincolnshire to see the other parent and a sibling. Enquiries were also made of Social workers and other relevant parties. The child and foster carers were also seen, in Stirlingshire. Clearly a substantial amount of time had to be taken to carry out the essential functions set out by the legislation. I was advised that, in that case the solicitor's fee, calculated in accordance with Chapter 3 of the table of fees for solicitors in the Sheriff Court, amounted to just over £4000, to which VAT and outlays would be added. The offer of payment from the Petitioners was £150 plus VAT and outlays. In the other case, where there were two petitions as there were two children, the fee was £1140, and the fee offered was £150 per petition. The court is being asked to make far reaching decisions about a child, and requires to rely on reports from experienced and responsible reporters. For there to be such a fundamental dispute on fees is liable to bring the whole issue into focus, with the distinct possibility that existing members of the panel will refuse appointment, heralding a crisis in these cases. For my part, I find the reports prepared in this court, both in adoption and parental rights cases, to be of the highest quality, accurately and promptly prepared. The children, who are the unvoiced subjects of the orders require and deserve nothing less. Be that as it may, the 2001 regulations appear to me to be binding, and I do not have the power to grant the motion lodged, despite the terms of Rule 2.2. I would construe that rule being operational where there was a formal hearing, at which evidence was taken, and in those circumstances it would be competent to make an order regulating expenses.

[12].        It would appear therefore that as Scottish Ministers have not determined the fees, and as the court cannot make an order, it is up to the Council to make such payments as they think fit. I regard the whole situation as less than satisfactory, and urge that it is remedied as soon as possible. It is inappropriate to expect a curator ad litem to seek to resolve the failure of Scottish Ministers by Judicial Review, nor do I consider it fair and reasonable for a local authority, often also petitioners, to pay, in adoption cases, a fee which they alone think fit. Presumably, their offer of a fee could also be the subject of a Judicial Review. But that is a sledgehammer approach, and it seems to me that the route suggested by Rule 2.2 ought to be preferred, were that competent. The adoption of a "one fee fits all" approach is unwarranted, especially in the few cases where one or more parties are outwith the local authority area. It is essential that the duties required of reporting officers and curators ad litem are properly carried out, and that requires proper remuneration. Quoting Lady Smith, at para 25, "... the curator is entitled to a reasonable fee for carrying out the required work in a proper manner, taking account of the whole relevant facts and circumstances which include the 'going rate' for such reports." It is something which requires action and I would urge COSLA, the Law Society of Scotland and Scottish Ministers to discuss and remedy the issue before there follows delay and prejudice in all these types of proceedings, to the detriment of the well-being of the children involved.

Sheriff A G McCulloch.