Adoption: better choices for our children

8. Curators, Reporting Officers and Safeguards

Summary

8.1 The Group considered the separate roles of curators and reporting officers, officers appointed by the court in most permanence cases. The Group considered the circumstances in which such officers should be appointed, their functions, how they are organised and what training they receive. The Group also examined the role of safeguarders, who are appointed by children's hearings for purposes which are not dissimilar. A safeguarder may also be appointed by the court. In particular the Group considered whether there was scope for merging the roles and administration of curators, reporting officers and safeguarders.

8.2 The Group's major recommendations are:

• curators and reporting officers should normally be appointed whenever a Permanence Order is applied for, unless a court decides that this is unnecessary in the particular circumstance of the case (8.19)
• there should be no change to rules for the appointment by the hearing of safeguarders in permanence cases (8.20 and 8.21)
• there should be a small national organisation responsible for the training of curators, reporting officers, and safeguarders
• the appointment of a curator, reporting officer or safeguarder for the case before him should be made by the sheriff from the national list (8.31)

Current law

8.3 There are a variety of possible appointments in court cases involving the care of children.

8.4 A court can appoint under their common law powers a solicitor or advocate to protect the interests of children by independently representing them in the court proceedings affecting them. They are required to report to the court and generally act in the children's interests, the welfare of the children being the paramount concern.

8.5 Curators ad litem for adoption, freeing and Parental Responsibilities Orders ( PROs) on the other hand are appointed by the court under statutory provisions and the relevant court rules. ¹ They must be appointed by the court:

• in every sheriff court freeing and adoption application.
• in Court of Session freeing or adoption applications "where it appears desirable in order to safeguard the interests of the child".
• in every application for a PRO.

They may also be appointed in applications for revocation of a freeing order or variation or revocation of a PRO.

8.6 "Adoption curators" must investigate and report to the court, again the children's welfare being their paramount concern. They must, in sheriff court adoption and freeing cases, where the children in question are aged 12 years or over, seek children's consent. They are also expected to convey to the court the views of the child, although they are not the only medium for doing so. However their overall duty is to safeguard the child's best interests, and this may differ from the expressed view of the child. ²

8.7 Reporting Officers for adoption, freeing and PROs are appointed by courts again as a statutory requirement in broadly the same cases as curators ad litem. ³ The exceptions - when a reporting officer will not be appointed - are:

• in applications to revoke freeing orders; and
• in applications to vary or revoke PROs.

Reporting officers must be appointed in all Court of Session freeing and adoption applications, except where the child is under 12 years of age and has been freed for adoption. They obtain the consent of the birth parents in uncontested cases and of the child if over 12, whereas in the sheriff court witnessing the consent of a child over 12 years of age is the responsibility of the curator. Otherwise the function of the reporting officer is the same in both courts.

8.8 Reporting officers confirm facts in applications, in particular the agreement of birth parents to the adoption of freeing, and witnessing any agreements. ⁴ The tasks are more procedural than those of curators, and not focused on the children. The court can, and often does, appoint the same person as curator and reporting officer. ⁵

8.9 Safeguarders in children's hearing cases can be appointed at the discretion of individual hearings or sheriffs. ⁶ The court or the hearing must consider in any proceedings before it whether a safeguarder should be appointed, and, if so, what the terms of reference should be. If the hearing decides to appoint a safeguarder it must record its reasons for that decision.

8.10 Safeguarders have three roles:

• to ensure that children's comprehensive rights are protected, beyond simply their legal rights.
• to ensure that the view of the child is established, valued, and communicated to its hearing/court, by whatever means are deemed appropriate.
• to ensure that the proposals being put forward are judged to be in the child's best interests.

Issues relating to curators, reporting officers and safeguarders

8.11 The Group considered the following issues concerning curators, reporting officers and safeguarders:

• should there continue to be separate roles for curators, reporting officers and safeguarders?
• when should curators, reporting officers and safeguarders be appointed?
• what duties should curators, reporting officers and safeguarders have?
• how should curators, reporting officers and safeguarders be appointed, trained and administered? ⁷

8.12 The Group also examined a perception that hearings were likely to appoint safeguarders in permanence cases, even when this did not appear to be necessary, in order to reassure hearing members when considering issues in which they lacked experience and confidence. ⁸ The Group collected available information on the number of safeguarders recently appointed by hearings in permanence cases. Very few safeguarders had in fact been appointed, and the appointments made were fully justified by the facts of each case. The Group is therefore satisfied that there is no reason to believe that safeguarders are being appointed unnecessarily or disproportionately by the hearings system in permanence cases.

Views from consultation

8.13 Responses from the consultation indicated that an adoption curator should always be appointed in every permanence case unless there are good reasons for not doing so. Some responses favoured a discretionary approach rather than automatic appointment. Others expressed a desire for clarifying regulation regarding roles and boundaries. Opinion was divided as to whether the system of curator appointment should be centralised nationally and also on the subject of curators being paid for out of the legal aid fund. The majority of responses indicated that if the existing system for advice hearings is maintained the role of safeguarder is unnecessary and can cause delay. Some felt that they provide a valuable, objective view of the situation.

Could the roles for curators, reporting officers and safeguarders be combined in one appointment?

8.14 The Group considered this question. There would be advantages in such an approach: the same individual would follow cases through from children's hearings to the making of any orders about permanence, thus providing continuity; and there would be a reduction in the number of individual professionals who interviewed those involved in cases, particularly the children. However, each of these officers has a distinct role. Their duties are carried out for a different purpose and/or a different tribunal.

8.15 Curators and reporting officers have distinct roles within the court system. The reporting officer's task is to ascertain factual information for the court, in particular to establish the agreement of birth parents to an adoption or freeing. Curators have a more active role in ensuring that the child's welfare is properly considered in the case. Although courts can and do appoint the same individual to carry out both roles, there can be good reasons for separate curators and reporting officers, for example the birth parents may live some distance away from the court in which the adoption application is being made, making it more practical to appoint a reporting officer in the area where the birth parents live. The Group recommends that the rules should continue to allow the court to appoint a separate individual to the roles of curator and reporting officer if advisable in the circumstances of the particular case.

8.16 A safeguarder can have a similar role to a curator and reporting officer in permanence cases albeit at a different stage of the process. However, the Group concluded that the hearing and court would want to, and should be able to, appoint its own officers to carry out these tasks. The Group also saw advantages in independent people being appointed by the hearing and the court to consider the case separately in each of these proceedings. This gives birth families, and the wider public, the utmost confidence that the court proceedings are independent of decisions and recommendations made by the local authority and the hearing, and vice versa. Given the seriousness of decisions in adoption cases, this was a justifiable level of scrutiny. The Group recommends that the role of safeguarders should not be merged with that of curators and reporting officers and that separate appointments were justified.

When should curators, reporting officers and safeguarders be appointed?

8.17 The Group debated whether appointment of curators and reporting officers was necessary in every case. For example:

• is it necessary to appoint a reporting officer when it is known that there will be no agreement to the adoption?
• in disputed cases, is it necessary to have a curator given that the court will be hearing evidence and can form its own view after hearing the evidence?

8.18 Overall, the Group concluded that the current rules about appointment of curators and reporting officers should continue, although the duties of the reporting officer should be reworded to cover situations where the parents are not consenting to the adoption or freeing. In relation to curators, the Group believed that there is always a role for an independent person to protect a child's interests, particularly when the outcome can alter the child's status. Curators should therefore continue to be appointed in all applications for both adoption orders and freeing orders, but some discretion could be exercised in applications for other orders relating to permanence.

8.19 The Group recommends that curators and reporting officers should continue to be appointed in all applications for adoption, freeing and PROs (except post-freeing adoptions). If a Permanence Order is introduced, curators and reporting officers should be appointed in all applications for Permanence Orders, unless a court decides a curator is unnecessary in the particular circumstances of a case (for example, the child might be represented). However, this exception should not apply in cases involving applications for authority to place children for adoption as part of the permanence order.

8.20 The Group also considered whether the role of the safeguarder in permanence cases should be changed. One proposal was that the hearing should not be permitted to appoint a safeguarder in permanence cases, thus reducing delay and possible duplication with the role of the curator and reporting officer. Having found that there was no evidence of unnecessary appointment of safeguarders, the Group recommends that the hearing must always have the option of appointing a safeguarder if it considers it necessary to do so.

8.21 The Group also considered whether the role of the safeguarder should be extended, so that a safeguarder would be appointed in every case, and the safeguarder would remain involved in the case until the adoption or other order is finally made. This had some attractive features:

• an independent expert voice would speak for the child from an early stage of a process that could radically affect the child's life;
• continuing role for the safeguarder would provide consistency in the lives of these children; and
• extended involvement would provide the opportunity for a number of safeguarders to develop specialist skills in permanence cases.

Such an appointment would be akin to the role of a guardian ad litem in England and Wales. It would, however, be a radical extension of the present role of a safeguarder and it would require ample evidence to justify. Given the current number of cases in which safeguarders are thought to be necessary by the hearing, the Group recommends that the involvement of safeguarders should not be extended either to all permanence cases nor throughout a case.

What duties should curators, reporting officers and safeguarders have?

8.22 There are detailed court rules about the appointment and duties of curators and reporting officers for both the Court of Session and the sheriff court. ⁹ The Group considered that they would benefit from revision. The Group has made detailed proposals for changes to the rules for curators and reporting officers, along with other proposals for the consideration of the Sheriff Court Rules Council. ¹⁰ The proposals aim to clarify these duties and also to harmonise the rules of the Court of Session and the sheriff court.

8.23 The Group recommends that court rules concerning appointments and duties of curators and reporting officers should be amended in line with its detailed proposals.

Structure and funding of the system

8.24 The Group also discussed the administration of curators, reporting officers and safeguarders. Under current statutory provisions, local authorities have a panel of curators (not curators ad litem) and reporting officers whom they appoint in consultation with the Sheriff Principal. ¹¹ Local authorities have the power to determine the necessary experience or qualifications for appointment to the panel, and no national standard qualifications or experience are prescribed. Courts always make the appointment in individual cases from this panel, although they can appoint someone who is not on the list. Curators and reporting officers' fees and expenses are paid by local authorities in many cases, but again no standard payment is prescribed. The rate currently fixed by COSLA is considered not to represent a fair return, particularly in complex cases.

8.25 Safeguarders are also appointed by local authorities, in consultation with the chairman of the children's panel and the Sheriff Principal, and are paid by local authorities. ¹² (It has also been brought to our attention that some safeguarders appointed in court related hearings, who happen to be qualified solicitors, can also be paid through the Legal Aid Fund, perhaps in addition to payments claimed from the local authority.) Local authorities again determine the necessary experience and qualifications and the level of fees and expenses, for which no national levels are prescribed. Following legislative changes, local authorities have responsibility for the training of safeguarders under arrangements made by the Scottish Executive. ¹³ Such training is now being undertaken to safeguarders in Scotland.

8.26 The Group discussed the following issues about the administration of curators, reporting officers and safeguarders:

• qualifications for appointment;
• method of appointment to individual cases
• training and support
• complaints
• delays in submitting reports
• funding and fees. ¹⁴

8.27 The Group concluded that there should be a national structure for curators, reporting officers and safeguarders which would address these issues. A centralised system would lay down the criteria and standards of qualifications for appointment and provide uniform training. Recruitment and some aspects of management might be better done locally. The appointment and training of children's hearing members, which is run by the Scottish Executive with substantial local input, could provide the model. Training should be properly organised, quality assured and delivered through a national programme, again similar to hearing members.

8.28 The Group considered that appointments to individual cases should stay with the judge or sheriff in each case, but there should be a system of proper rotation, so that every member of the panel is appointed with sufficient regularity to gain and retain experience and expertise. The level of payment should reflect the work done in each case and be funded centrally, either by the Scottish Executive itself or through the Scottish Court Service. There should also be a national system for monitoring reports and for dealing with complaints.

8.29 The Group considered that a separate public body would not need to be created for this purpose, but that the service could be administered from within the Scottish Executive. However, if the provision of reports in all child care cases, including private law cases, were to be included in its remit, there could be a case for a separate body to organise and administer the proposed national structure.

8.30 In making this recommendation, the Group emphasises that this proposal is to merge and rationalise the administration of curators, reporting officers and safeguarders. It does not recommend that the roles are merged, nor would it envisage the same individuals carrying out all of these functions, since different skills and experience would be required for each.

8.31 The Group recommends that there should be a centralised system to appoint and train sufficient curators, reporting officers, and safeguarders, but that appointments for individual cases should be made by the sheriff/judge dealing with the case. Remuneration should be paid centrally and should take account of the active amount of work undertaken in each case.

Recommendations of Chapter 8 - curators, reporting officers and safeguarders

54. There is no reason to believe safeguarders are being appointed unnecessarily or disproportionately by the hearings system in permanence cases. (8.12)

55. The rules should continue to allow the court to appoint separate individuals to the roles of curator and reporting officer if this is the most practical approach in particular cases. (8.15)

56. The role of safeguarders should not be merged with that of curators and reporting officers. (8.16)

57. Curators and reporting officers should continue to be appointed in all applications for adoption, freeing and PROs (except post-freeing adoptions). If a Permanence Order is introduced, curators and reporting officers should be appointed in all applications for Permanence Orders, unless a court decides a curator is unnecessary in the particular circumstances of a case. (8.19)

58. The hearing must always have the option of appointing a safeguarder if it considers it necessary to do so. (8.20)

59. The involvement of safeguarders should not be extended either to all permanence cases nor throughout a case. (8.21)

60. Court rules concerning appointments and duties of curators and reporting officers should be amended in line with detailed proposals. (8.23)

61. There should be a centralised national system to appoint and train curators, reporting officers, and safeguarders from which individual case appointments are made locally. Remuneration should be paid centrally and should take account of the varying amounts of work required in individual cases. (8.31)