Scottish Sheriff Court Decisions

Act:  Gill, Advocate

EDINBURGH, 21 August 2014

The Sheriff Principal having resumed consideration of the appeal, refuses same;  adheres to the sheriff's interlocutor of 17 March 2014 and makes no order in respect of the expenses of the appeal.

(signed) Mhairi M Stephen

NOTE:/

NOTE:

1. This appeal is concerned with the court’s powers in respect of the remuneration of the curator ad litem and reporting officer in an application for a permanence order with authority to adopt a child [EAH] in terms of section 80 of the Adoption and Children (Scotland) Act 2007.

    

2. The petitioners are Scottish Borders Council.They appeal the sheriff’s interlocutor of 17 March which is in the following terms:

   “The sheriff, having heard the solicitor for the applicants and the curator ad litem and reporting officer on the difficulties this application will present to the said curator ad litem and reporting officer in relation to the restrictive fees and outlays (and expenses) that the Scottish Borders Local Authority will authorise for payment for carrying out his statutory functions;  makes an order under Rule 2 (a) of the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 whereby the said curator ad litem and reporting officer shall be entitled to recover, on a time and line basis, such fees, outlays and expenses he incurs as curator ad litem and reporting officer in these proceedings from the Scottish Borders Local Authority.”

    

    

               The interlocutor was pronounced following a hearing in chambers specifically arranged to consider the remuneration of the curator ad litem and reporting officer who had been appointed on 5 March 2014 with a remit to investigate and report to the court by 25 March 2014.  The sheriff deals with this in his note of 6 May 2014.  The sheriff was addressed by the curator ad litem, Mr Burke, and by the solicitor for the petitioners.  Having considered the submissions and the provisions of the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (“the 2001 Regulations”) and the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children’s (Sc) Act 2007) 2009 SSI 2009/284 (“the Adoption Rules 2009”) together with certain authorities the sheriff comes to the view that Rule 2 of the Adoption Rules 2009 which deals with expenses allowed him to make an order in respect of the curator ad litem and reporting officer’s expenses.

    

3. The grounds of appeal state firstly, that the sheriff’s interlocutor in respect of expenses was incompetent as the sheriff, and therefore the court, had no power to pronounce it.The sheriff had no power to make an order in respect of “fees, outlays or expenses of the curator ad litem and reporting officer” under Rule 2(a) of the Adoption Rules 2009.

    

4. It is suggested that this is so because the matter of fees is governed exclusively by Regulation 10(1A) of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001.

    

5. The esto argument is that Rule 2(a) of the 2009 Rules applies only where the curator ad litem and reporting officer is a party to the proceedings and where there has been a formal hearing where evidence has been led.

    

6. The starting point must be the nature of these proceedings and the appointment of a curator ad litem and reporting officer.The application in respect of EAH requires the court to appoint both a reporting officer and curator ad litem.This is a mandatory and essential provision. (s.108 of the Adoption and Children (Scotland) Act 2007) (“the 2007 Act”).

    

7. It is not difficult to understand why there is a need for independence in the appointment of an individual or individuals as curator ad litem and reporting officer.The Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (“The 2001 Regs”) require the Council to maintain a panel of persons approved to be curators ad litem and reporting officers.The Sheriff Principal requires to be consulted with regard to persons to be approved and appointed to the panel.There are important statutory exceptions to eligibility for appointment (s. 108(3) of the 2007 Act) - namely persons in the employment of a local authority or an adoption agency which has placed a child for adoption may not be included on the list.This recognises the need for independence.Likewise, the court does not require to appoint as curator and reporting officer a person from the panel.In terms of the 2001 Regulations there is a statutory requirement that the local authority meet their fees (Regulation 10(1A)). However the meat of this appeal is whether individuals appointed either from the panel or from outwith the panel may look to the local authority to meet their actual reasonable fees and other costs.

    

8. Therefore, local authorities determine the qualifications and experience necessary for membership of the panel in consultation with the Sheriff Principal for their area.The local authority is responsible for payment to panel members of their expenses and “such fees and allowances as (they) think fit”.This appears to be a statutory obligation imposed on the local authority and that being so the question is how it interacts with Rule 2 of the Adoption Rules 2009.

    

9. Rule 2 in the Schedule to the Sheriff Court Adoption Rules 2009 is in the following terms:

   (2)  Expenses

         The sheriff may –

   1. Make such order as he thinks fit with regard to the expenses of an application under these rules, including the expenses of a reporting officer and curator ad litem or any other person who attended a hearing;and

       

   2. Modify such expenses or direct them to be taxed on such scale as he may determine.

       

       

10. The sheriff’s duty with regard to the appointment of a curator ad litem and reporting officer is set out in Rule 11 of the 2009 rules.In the circumstances of the current application the appointment of a curator ad litem and reporting officer is a mandatory requirement.

     

11. Importantly, the duties of the reporting officer and curator ad litem are set out in Rule 12.The duties of the reporting officer are distinct from the duties of the curator ad litem.A straightforward interpretation of Rule 11(4) leads to the conclusion that the sheriff may appoint different individuals to be curator ad litem and reporting officer.Rule 11(4) makes it clear that the same person may be appointed if the sheriff considers that doing so is appropriate in the circumstances.

     

12. In effect, the reporting officer has a duty firstly, to ascertain the whereabouts of all persons whose consent to the making of an adoption order is required and that includes ascertaining whether there are any individuals other than those mentioned in the petition upon whom notice should be served.This is another example of the autonomy and independence of the court appointed officer.

     

13. Rule 12(1)(c) enumerates the duties which the reporting officer must fulfil in respect of each person who is not a petitioner and whose consent to the making of an adoption order is required or may be dispensed with.The import of the rule is to deal with the question of consent and convey to that person the effect of the adoption order; consent; withdrawal of consent and importantly to ascertain whether the individual suffers or appears to suffer from a mental disorder. This is particularly important as many birth parents in such proceedings suffer from a mental disorder induced by drug or alcohol misuse.If consent is to be given then the reporting officer not only has to explain the consequences but must also witness the consent.

     

14. The duties of the curator ad litem are set out at Rule 12(3) and the duties are focussed on the paramount duty of safeguarding the interests of the child. It may involve enquiring into the facts and circumstances as stated in the petition and in any reports mentioned in Rule 8(4).The curator ad litem requires to make different enquiries depending on whether the petitioner is a local authority or the petitioner seeks directly an adoption order.The duties of the curator ad litem are manifold. They involve the curator progressing to the important and fundamental considerations which the curator ad litem requires to establish and ascertain in terms of sub-paragraphs (s) (t) and (u):-

    “(s)   ascertain whether it would be better for the child that the court should make the order than it should not make the order;

     

    (t)   establish whether the adoption is likely to safeguard and promote the welfare of the child throughout his life; and

     

    (u)  ascertain from the child whether he wishes to express a view and, where a child indicates his wish to express a view, ascertain that view.”

     

15. All this requires to be done within the period of four weeks normally or such further period as the court may allow.As I have indicated the reporting officer normally witnesses parental consent (Form 3).However, Rule 13(3)(b) states:

    “Where it is executed outwith Scotland but within the United Kingdom by a Justice of the Peace or Commissioner for Oaths”.

     

    Obviously in terms of his remit the reporting officer has an important role in securing that this is attended to in terms of the rules.

     

16. Accordingly the work done by the reporting officer and curator ad litem is not only both essential and mandatory but is important in order that the court can fulfil its function in terms of the 2007 Act.The court appointed officer ensures that the child’s interests are protected in the proceedings.They provide information to assist the court and may also help to identify and narrow any issues in dispute.

     

    APPELLANT’S SUBMISSIONS

17. The issue on appeal is one of competence.Scottish Borders Council’s position is that the interlocutor is incompetent because the sheriff had no power to pronounce an interlocutor dealing with the remuneration of the curator ad litem and reporting officer.The Council’s liability for the expenses, fees and allowances of the curator ad litem and reporting officer when appointed from a panel established under section 101 of the Children’s (Scotland) Act 1995 is limited or circumscribed by section 10(1A) of the 2001 Regulations.That being so only a flat fee is payable to Mr Burke in respect of his work as curator ad litem and reporting officer.That is the primary position however the Council’s esto position relates to Rule 2 of the 2009 Adoption Rules.Rule 2 only applies where there has been a formal hearing at which evidence has been led and the curator ad litem is involved.

     

18. Mr Gill drew a distinction between fees payable to a curator ad litem and the expenses of a curator ad litem.Rule 2(a) of the 2009 Adoption Rules covers only “expenses” which reinforces the argument that the court’s powers under Rule 2 may only be exercised in respect of curators ad litem who appear at a hearing and does not cover the fees due to the curator ad litem in respect of the preparation of mandatory reports.

     

19. Counsel for the appellants presented a clear and concise explanation as to the source of the rule making power to enact both the 2001 Regulations and the 2009 Rules.The 2001 Regulations are made under powers given to Scottish Ministers by virtue of section 101 of the Children’s (Scotland) Act 1995.Section 101 (1) (2) and (3) enable only the Scottish Ministers to make regulations with regard to the establishment of a panel;appointment, qualification and training of persons appointed to the panel and importantly for this appeal for the defrayment by local authorities of expenses incurred by members of the panel and for the payment by local authorities of fees and allowances for such panel members.The power to make such regulations is a power given in the primary legislation to the Scottish Ministers alone and not to the court.

     

20. On the other hand, the Act of Sederunt by which the Adoption Rules 2009 are promulgated is made by the Lords of Council and Session under powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971.It is submitted that section 32 does not confer on the Court of Session a power to make regulations in respect of the fees of a curator but rather the Act of Sederunt is concerned with and is restricted to expenses which may be awarded to parties in proceedings before the sheriff.I was reminded that the curator ad litem was not a party to proceedings but a statutory officer appointed by the court.The 2009 Rules are made by virtue of powers conferred by sections 104, 108 and 114 of the 2007 Act which make provision for rules of court but makes no mention of rules regulating the fees or expenses of curators and reporting officers.Thus analysed, the legislation exhibits a careful apportionment of legislative power between Scottish Ministers on the one hand and the court on the other.Only the Ministers have the power to make regulations in respect of fees and expenses of curators ad litem.The power given to the Scottish Ministers displaces any inherent power the court possesses to make an award of expenses in proceedings before the court in respect of the fees payable to curators.

     

21. Accordingly, the liability of the Council to pay expenses, fees and allowances to the curator ad litem is circumscribed solely by Reg 10(1A) of the 2001 Regs.The court therefore has no power to make an order as to the amount or basis on which they may be remunerated standing the terms of that regulation.The curator ad litem and reporting officer is only entitled to “such fees and allowances as the local authority think fit”.

     

22. On the other hand Rule 2 of the 2009 Adoption Rules may apply where non-panel members are appointed.It applies only to expenses and not to fees.However, if the court has a power to make orders under Rule 2 it only applies to the “expenses” of a curator ad litem who attends a hearing.

     

23. I was referred to the decision of Sheriff McCulloch in Dundee City Council v D and Others. The sheriff considered the 2001 Regulations and the Adoption Rules which applied at that time.The sheriff considered the rule making powers conferred by section 101 of the 1995 Act.Although not binding, counsel for the appellants considered the case to have been correctly decided by the sheriff who took the view that the 2001 Regulations were binding and Rule 2 of the Adoption Rules applied “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”.

     

24. Finally, Mr Gill properly and helpfully pointed out the contra indicators standing the absence of a formal contradictor in this appeal.I was referred to Lady Smith’s decision in Aberdeenshire Council, Petitioner [2006] CSOH 14; McNeill on Adoption para 14.02 where the apparent conflict leads the authors to the view that this is an open question and finally Macphail para 29.130 where the learned author states:

    “In cases where the sheriff appoints a reporting officer or curator who is not a member of the panel or where the local authority does not, for any reason, meet the fees and expenses of a panel reporting officer or curator, the sheriff should make an order relating to such fees and expenses.  It is usual for these to be met by the petitioner, at least in the first instance, subject to any order the sheriff may make as to expenses at the conclusion of the proceedings.”

     

    The passage, however, does not refer to the 2001 Regulations nor does it rely on any other authority.

     

25. The case of Aberdeenshire Council, Petitioner involves a note of objections to the Auditor’s Report in respect of the taxation of the fees of the curator ad litem and reporting officer.The court applied the Court of Session rule which is the equivalent of Rule 2(a) of the 2009 Adoption Rules.The curator ad litem was not a member of the panel and therefore consideration of the 2001 Regulations did not arise in that case.No issue was raised with the proposition that the local authority were liable for the curator’s fees.

     

26. For the reasons advanced by Mr Gill I was asked to allow the appeal and recall the interlocutor of 17 March 2014 as the sheriff had no power to make the order.

     

    DECISION

27. Concerns about the level of remuneration for curators and reporting officers have been raised in the past.The contrast between the level of fees offered by the local authority to a curator ad litem and reporting officer and what a solicitor might properly charge for the work carried out according to the table of fees for solicitors in the Sheriff Court is highlighted in a note by Sheriff McCulloch on 12 November 2007 in the cases of Dundee City Council v FD and Another and Dundee City Council v VW.Given the similarity of the roles it also seems hard to justify the divergence between, on the one hand, the fee paid to safeguarders (in children’s hearings cases) and to curators ad litem and reporting officers (in adoption cases) and, on the other hand, the fees which can be charged by solicitors acting as reporters in private family law cases.Rates of remuneration should be reasonable and reflect the actual work required to fulfil the remit of the particular appointment.

     

28. State involvement in family matters involves serious interference with family life.Permanence proceedings with authority to adopt can be some of the most difficult work in the sheriff’s case load.These are particularly anxious cases and this has been recognised in European and UK decisions.

     

    I refer to the dicta of Sir James Munby, President of the Family Division (E & W) in re J (A Child) [2013] EWHC 2694 (Fam) where at paragraph 28 he has this to say:

    “I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.  When a family judge makes a placement order or an adoption order in relation to a twenty year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years.  We must be vigilant to guard against the risks.”

     

29. Given the drastic powers which the court possesses it is a difficult but interesting argument that the court does not have the power to ensure that the reasonable costs of a court appointed officer are met.

     

30. I turn to MacNeill and Jack on Adoption which deals in some detail with the duties and the role of the curator ad litem and the reporting officer.I have discussed the distinction between the duties of the curator ad litem and separately reporting officers.The curator ad litem, in essence, requires to safeguard and look after the child’s interests.See MacNeill 7-03 where it is stated:

    “It is difficult to see how the interests of the child especially a young child – could be safeguarded without the appointment of a curator ad litem.  This has been the law and practice for the last 70 years or more that adoption has been part of our law.  The interjection of an independent officer of the court is necessary because the child cannot look to his natural parents or to the petitioners to safeguard his welfare because they may have an interest which may be contrary to that of the child.  The curator ad litem in that situation can report to the court with complete independence on the circumstances which will persuade him that the interests of the child had been safeguarded.”

     

31. If the appellants’ interpretation of the statutory and regulatory provisions is correct it leads to the unwelcome consequence that the imperative for independence is compromised if that independent officer’s remuneration is wholly controlled by the local authority who are not only parties to the proceedings but who cannot by virtue of the regulations have involvement directly in the safeguarding and reporting process.Another consequence, which appears to contradict the intention of the 2001 Regulations, is that non-panel curators and reporters are in a more favourable position as regards remuneration than those who have been accredited to be on the panel.It appears to me to be inconceivable that the policy and intention of the legislators and ministers would have sought to achieve that purpose when they had carefully recognised the need to set up panels based on merit but otherwise to remove local authority involvement in the cohort of curators. Financial control raises the spectre of controlling or limiting the curator’s approach to his duties by imposing a fee cap which might fetter his work and the time which he might be prepared to allocate to that necessary and important work.The sheriff records that the fee currently set by the appellants is £100.20.The sheriff is correct to observe:-

    “This is an anxious cause involving a child of almost five years of age and very properly Mr Burke in accordance with the professionalism displayed by lawyers in the Borders intimated that he would prepare the report nonetheless pending determination of this issue. …The matter requires clarification otherwise it may be the situation that none of the lawyers in the Borders feel that they can afford to do these reports to the high standard expected which I would regard as essential in these cases.  This can only have a detrimental effect on child welfare matters in the Borders.”

     

    Of course similar considerations and concerns affect all courts, not only in this Sheriffdom, but nationally.

     

32. On the other hand, there is clearly a need to have regard to the situation where the local authority as the paying party has no control over the costs incurred by the curator ad litem and reporting officer appointed by the court.Often the local authority is not a party to proceedings, for example, petitions for adoption under section 29 and 30 of the 2007 Act where the local authority may not, and indeed, are unlikely to be parties to the proceedings before the sheriff.Whether party to the proceedings or not, Regulation 10(1A) of the 2001 Regulations imposes an obligation on the local authority in respect of the fees of curators ad litem/reporting officers who are panel members.

     

33. In the Aberdeenshire Council case the curator ad litem and reporting officer was not a panel member.The court appointed an advocate to these roles.The court’s decision in that case followed a hearing on a note of objections by the Council to the Auditor’s Report relating to the fees submitted by the curator.No issue therefore arose relating to the 2001 Regulations as the curator was not a panel member.The petitioners were liable for the fees of the curator as taxed.The petition proceeded under the 1978 Adoption Act and its rules.There was no challenge to the court’s power to regulate the expenses of the court appointed curator, in terms of the equivalent rule to Rule 2 of the 2009 Adoption Rules.In that case Lady Smith considered the basis upon which the curator might charge whilst at the same time addressing the paying party’s concern about lack of control.Lady Smith considered that it was right to adopt the Court of Session rule governing fees for solicitors (RCS 42.10) which allows “Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed”.Albeit the curator is not a party responsible for the conduct of proceedings, it would be difficult to disagree that this provides a sound basis for determining the remuneration whilst addressing the risk of rewarding inefficiency and prolixity.That anxiety is more apparent than real however.There exist safeguards.In cases such as the present there are rules of court to promote effective case management of permanence and adoption proceedings.Curators and reporting officers should, by virtue of Rule 12(4) of the 2009 Adoption Rules, report to the sheriff within four weeks of the date of the interlocutor appointing them.The sheriff may make orders for the expeditious progress of the case and may also decide whether the curator/reporting officer requires to undertake further enquiry or indeed whether to allow further time for the report to be lodged.All in terms of the 2009 Rules.The conduct of the case is therefore under judicial control.Delay is to be avoided.

     

34. Against that background, in my view, it would be odd for the court not to have power to deal with the curator and reporting officer’s expenses.Clearly, Parliament were minded to require the appointment of such officers by the court for obvious reasons.The independence of these officers is recognised by Parliament and the Scottish Ministers in the 2007 Act and the 2001 Regulations.Those connected with the petitioners cannot be on the panel list of approved individuals.The establishment of the panel is seen as something important and worthwhile – the regulations deal not only with the independence of those on the panel but their qualifications and experience.The local authority requires to consult with the local Sheriff Principal all with a view to securing the most experienced and meritorious people who will act in the noblest traditions of officers of court.These are important factors for me in determining this appeal.Why would Parliament and the Government wish to fetter the remuneration of these officers of court whilst leaving the remuneration of individuals appointed from outwith the panel as a matter at large for the court?

     

35. Lady Smith made similar observations in the Aberdeenshire Council case.At paragraph [20] Lady Smith is dealing with the basis upon which the fee may be assessed and the interests of the third party payer.

    “The key is the payer’s lack of control.  The local authority in a case such as the present has no control over the work carried out by the reporting officer and curator ad litem, nor should it have.  It would be quite wrong for it to attempt to do so.  Such a person is an officer of the court, independent of the parties.  It would, for instance, had been wrong for the petitioners to seek to control the timetabling for the curator’s perusal of documents or attendance on witnesses, notwithstanding the apparent suggestion by the Auditor, at page 4 of his minute…that they should have done so.  Similarly, I accept Mr Mitchell’s submission that it would appear to be inappropriate, given the public funding constraints, for a local authority to agree, in advance, a global fee.”

     

    Budgetary considerations was one of the arguments advanced before me.  Clearly local authorities require to set budgets and the budget which local authorities including the appellants, have in respect of curator ad litem and reporting officer’s fees is based upon the flat rate fee set in consultation with other local authorities and COSLA.  This budget may be quite inadequate if curators ad litem and reporting officers charge on the basis of what would be allowed as reasonable for carrying out the required work in the proper manner.  This is not a swings and roundabout situation where there may be cases where the curator would be over-remunerated on occasion and under paid on others.  At present the fee is simply a token and does not relate to the time, skill and work expended upon the report.  The writing of the report follows the reading and the enquiries that are necessary to fulfil the duties of curator or reporting officer.  The budget argument is not a compelling one.  Recognising that this type of case is one of the most important in the sheriff’s civil jurisdiction the remuneration paid to the curator/reporting officer is but a minor component in the very significant overall cost of such proceedings to the public purse.  I echo Sir James Munby’s comments in a case which was about open justice and which were strictly obiter, - cases such as the present which involve State involvement and interference in family life are among the most anxious which sheriffs require to deal with.  The court is being asked to sanction significant intrusion in family life for the welfare and best interests of a child or children.  There is a compelling need for the court to be satisfied that what it is being asked to do is the correct outcome for the child outweighing the rights and ties of the birth parents.  Not only do the public require to have confidence in the family court system but the court requires to be satisfied on information displaying the utmost integrity and independence that the steps it is being asked to take are both proportionate and necessary.  It is difficult to overstate the value of the independence of the curator ad litem and reporting officer in these circumstances.

     

36. In any event the budget which local authorities set with regard to panel reporter’s fees must be viewed in the context of the overall financial burden which the State in the form of the local authority bear in respect of looking after children and the overall cost of permanence and adoption proceedings.It would be misleading to look solely at the budgetary considerations of the reporting officer and curator ad litem’s fees.I recognise, of course, that that budget may require to be reviewed if the local authority cannot rely on expending solely a flat rate token fee in such cases.

     

37. I have had regard to these considerations and in so doing I come to the view that the apparent conflict between the provisions of Regulation 10(1A) of the 2001 Regulations and Rule 2 of the 2009 Adoption Rules is capable of being reconciled.For the reasons I have given it appears inconceivable to me that the legislature and Government would seek to establish the independence and expertise of the panels on the one hand and erode their efficacy on the other by prescribing the only fee that the curator may claim.Instead, in my view, the correct approach to the interpretation of Regulation 10(1A) is that it imposes on the local authority an obligation to meet in whole or in part the remuneration, fees or expenses of the curator ad litem and reporting officer whether the local authority is a party to proceedings or not.It does not state that this is the only fee to which the curator ad litem may be entitled reserving to the court the power under Rule 2 of the 2009 Regulations to deal with the overall adjudication of the curator’s remuneration.Support for this approach may be found in the passage from Macphail to which I have referred in para 24 (Macphail 29:130).The sheriff interpreted paragraph 2(a) of the Adoption Rules to mean that he could make an order in respect of the expenses of a curator under these rules.He did not interpret that rule to mean that he could only make an order in respect of expenses if the curator ad litem attended a hearing.In that regard he took a differing view to that taken by Sheriff McCulloch in the Fife cases.Rule 2 of the Adoption Rules is open to that interpretation.The words “including the expenses of a reporting officer and curator ad litem or any other person who attended a hearing;” have been inserted for emphasis and are not prescriptive.It is quite permissible to separate the reference to curator ad litem/reporting officer from “any other person who attended a hearing”.The powers vested in the sheriff by Rule 2(a) are wide and capable of including the reporting function of the curator/reporting officer in such proceedings.There is no reference to a hearing "where evidence is led".The interpretation argued for by the appellants is an artificial one given that the curator is an essential and integral part of the proceedings on the application.He may, of course, attend any hearing and he may address the sheriff orally on the child’s views where appropriate (Rule 12(5) of the 2009 Adoption Rules).In the Aberdeenshire case the court exercised its power to deal with the curator’s expenses where there had been no appearance by the curator at a hearing.The Aberdeenshire Council case was available to Sheriff McCulloch.The sheriff observes that Lady Smith’s decision on the note of objections did not require her to consider the equivalent of Rule 2.It is, however, implicit in the Aberdeenshire case that judges in the Outer House have the power to regulate the expenses of curators ad litem appointed from outwith the local authority panel.The important words in Rule 10(1A) are the words “shall defray the expenses incurred by a member of the panel” that indicates, to me, a mandatory requirement that the local authority is obliged to make a payment in the form of defraying the expenses in the sense of meeting or contributing to these expenses.Nothing in the wording of Rule 10(1A) states or suggests that the panel member is limited to such a fee or that in becoming a member of the panel binds himself in turn to accept a token fee in lieu of his actual fees.It appears to me therefore that Regulation 10(1A) of the 2001 Regulations imposes an obligation on the appellants to defray expenses without limiting their liability as to these expenses.

     

38. In coming to this view I make no distinction between the entitlement to “expenses” or “fees” or “remuneration”.It was argued that there is such a distinction and that all the curator and reporting officer is entitled to, is a fee, being something different from his expenses.I do not agree.I do not think there is an obvious or clear distinction to be made. A fee may be made up of a variety of components including time, skill, travelling expenses and the like.I cannot see how that differs from the term expenses.There is a general principle that if a court appoints a person of skill or professional person who is authorised to do anything by the court, the court may and will also make orders as to his remuneration or expenses and determine whether one or all of the parties should be liable.The principle applies to curators, commissioners and others appointed by the court.In my view, this tends to reinforce, the conclusion that the court retains overall power to regulate the fees and expenses of those conducting proceedings before the court or appointed by the court.For these reasons the appeal is refused.In doing so I think it is proper to suggest that when the court exercises a power in respect of remuneration, especially when a third party is paying, then it is necessary to allow such expenses "as may be taxed" which allows for adjudication by the Auditor and importantly allows the paying party to be heard.

     

39. It goes without saying that the appellants will bear their own expenses in respect of the appeal.The curator ad litem and reporting officer, Mr Burke, did not appear at the appeal proceedings.It is important to record that he has prepared the reports in his capacity as curator and reporting officer thus allowing these proceedings to progress without waiting for my decision on this appeal.I am obliged to him for doing so as, indeed are the appellants.

(signed) Mhairi M Stephen