Scottish Sheriff Court Decisions

Sheriffdom of Grampian Highlands and Island at Lerwick

Note

By

Sheriff Philip Mann

In causa

Adoption Petition

AD3/11 (Serial Number AC2/11)

Lerwick 07 March 2012

This case raises an important point relating to the liability for settlement of the fees, allowances and expenses (hereinafter collectively referred to as "expenses") of a curator ad litem/reporting officer (hereinafter referred to as "curator") appointed by the court in an application for adoption under the Adoption and Children (Scotland) Act 2007 (hereinafter referred to as "the Act"). This particular case concerned an application under section 30(3) of the Act at the instance of the child's step-parent. It illustrates the regrettable delay which can be caused by uncertainty over who is to be responsible for the curator's expenses. It also illustrates the real difficulty which arises as a result of a panel of curators established by a Local Authority (such a panel being hereinafter referred to as "the panel" or "a panel") containing too many individuals who are members of, employees of or otherwise connected with the Local Authority and too few individuals who are not.

The Petition was lodged on 14 November 2011 in this court. A preliminary hearing was fixed for 9 January 2012 and a curator was appointed. This court is within the Local Authority area of Shetland Islands Council. It was that council which was responsible for the preparation of the report in terms of Section 19(2) of the Act. The solicitor acting for the Petitioner was the only person on the panel established by Shetland Islands Council who was not connected to that Local Authority. She could not be appointed to act as curator. The court considered that it was not appropriate to appoint any other member of that panel given the council's responsibility to prepare the Section 19(2) report. Accordingly, the court appointed an individual who was a member of the panel established by Orkney Islands Council.

A dispute arose between the Petitioner's solicitor and Shetland Islands Council as to responsibility for settlement of the curator's expenses. That council maintained that in terms of Regulation 10(1A) of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001, as amended, it was responsible for those fees and outlays only if the curator was a member of its panel. The Petitioner's solicitor maintained that that council was obliged to settle those fees and outlays by virtue of a long standing practice, mentioned in paragraph 7.09 and elsewhere in the text book "Adoption of Children in Scotland", 4^th edition, of Local Authorities settling the curator's expenses notwithstanding that the curator was not a member of their panel. The dispute was brought to the attention of the court. After being addressed by the Petitioner's solicitor and by the council the court declined to make any order against the council for settlement of the curator's expenses. Meantime the curator, understandably, was reluctant to embark on the preparation of his report without an assurance as to settlement of his expenses. In the result, the Petitioner then sought a sist, which was granted on 13 December 2011, to enable him to make arrangements for settlement of the curator's expenses by applying for legal aid or otherwise. The Petitioner made arrangements and the curator then prepared and lodged his report.

The sist was recalled and I granted the prayer of the Petition today. Ex proprio motu I included the following in my interlocutor:

"ex proprio motu, notwithstanding any commitment given by the Petitioner to be personally responsible for settlement of the expenses, fees and allowances of the Curator ad Litem/Reporting Officer or payment of the same by him, Reserves the question of who is liable for settlement of those expenses, fees and allowances; Further and having regard to Regulation 10(1A) of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001, as amended, Ordains the Curator ad Litem/Reporting Officer, he being a member of the panel established by Orkney Islands Council, to make application for settlement or reimbursement of his expenses, fees and allowances to Orkney Islands Council; Directs the Curator ad Litem/Reporting Officer to report to the court as to the outcome of that application so that the court may grant a further and final interlocutor and, in the event that Orkney Islands Council declines to settle or reimburse his expenses, fees and allowances, in order that arrangements might be made for the court to hear the Petitioners, the Curator ad Litem/Reporting Officer, Shetland Islands Council and Orkney Islands Council on the matter before issuing such further and final interlocutor; Directs the Petitioner to intimate a copy of the note relative to this interlocutor, dated of even date herewith, to Shetland Islands Council and Orkney Islands Council in order that they may be aware of the terms of the interlocutor, so far as relevant to the question of the expenses, fees and allowances of the Curator ad Litem/Reporting Officer, and of the terms of the note"

My reason for making the foregoing orders was that on my interpretation of Regulation 10(1A) of the 2001 Regulations, as amended, Orkney Islands Council is responsible for settlement of the curator's fees and expenses. Regulation 10(1A) is in the following terms:

"(1A) The 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 the local authority think fit in the case of an application for-

(a) an adoption order (within the meaning of section 28 of the 2007 Act);

.............."

There is nothing in that wording which restricts the liability of the Local Authority in question to cases where the Petition is presented in a court which is within its area. Liability on the Local Authority arises simply where a member of its panel is involved in the case of an application for an adoption order (within the meaning of section 28 of the Act), which this is. Every Local Authority in Scotland has important duties and obligations in regard to all matters relating to adoption. One of those duties is to facilitate the preparation of reports by curators, which are so vitally important to the decision making process, by meeting the expenses of curators who are members of its panel. The clear intention of regulation 10(1A) of the 2001 Regulations, as amended, is that such expenses are to be paid not by Petitioners but by Local Authorities. Here there are two Local Authorities involved, one by virtue of being responsible for preparation of the Section 19(2) report and being the Authority in whose area the court is situated and the other by virtue of the curator appointed by the court being a member of its panel. One or other of them has to be responsible for the curator's expenses. They cannot both escape liability because then the clear intention of regulation 10(A) would be thwarted.

In this case it seems to me that, despite any practice that may have developed, Shetland Islands Council cannot be responsible if the curator is not a member of its panel. That means that Orkney Islands Council must be responsible. This all results from a plain reading of regulation 10(1A) of the 2001 Regulations, as amended. I am fortified in this view by referring to paragraph 14.03 of the textbook "Adoption of Children in Scotland", 4^th edition, where it is stated:

"Sometimes, a person, whose consent has to be taken, lives in a local authority area different from the area of the sheriff court dealing with the Petition. Then, the court may appoint a member of the panel within its area who would travel to the other area and look to his own local authority for payment; or the court may appoint a member of the panel in the other area who would look to that local authority for payment. No doubt, considerations of economy would determine which course was adopted."

Of course, other considerations, such as those mentioned by me earlier, might determine the course adopted. I have to say that if Shetland Islands Council had taken steps to ensure that there was more than one member of its panel who was not connected to it in some, disqualifying, way this situation, with the attendant delay, would have been unlikely to have arisen in this case. It is to be hoped that Shetland Islands Council will review the membership of its panel to obviate any such difficulties in the future.

I have framed my interlocutor in the way that I have for two reasons. Firstly, I did not wish to hold up the granting of the adoption order, to await full submissions on the question of the curator's expenses, when there has already been a significant delay. Secondly, I am conscious that I have not heard full submissions in the matter and, accordingly, I may be wrong in the view that I have taken. It is right, therefore, that there be a mechanism for full submissions to be heard in the event that Orkney Islands Council takes a different view and declines to reimburse the curator. Of course, if Orkney Islands Council accepts liability for settlement of the curator's expenses I will simply grant a final interlocutor reflecting that.