Children (Scotland) Act 2020 - registers of child welfare reporters, curators ad litem and solicitors: consultation

Part 3: Register of Curators ad litem

Introduction

3.1. Curators ad litem are appointed to represent and protect the interests of an individual lacking full capacity, including a child. The role of the curator ad litem is entirely separate and distinct from the role of the child welfare reporter.

3.2. Curators ad litem are used in cases other than those under section 11 of the 1995 Act such as Mental Health Tribunals, divorce and dissolution proceedings where it appears to the court that the defender is suffering from a mental disorder; or to protect the interests of a child who is the subject of proceedings for permanence or adoption orders.

3.3. This section of the consultation focuses on curators ad litem. It seeks views on:

• the process for including a person on, and removing a person from the register, ineligibility requirements and the complaints mechanism
• the fee rates and expenses to be paid to curators ad litem
• the requirements for curators ad litem to be on the register
• what ongoing training requirements there should be for curators ad litem and
• how the court would appoint a curator ad litem from the register.

3.4. The registers of child welfare reporters and of curators ad litem will be separate registers. However, the Scottish Government would expect that the body appointed to undertake the operation and management of the register of child welfare reporters would also undertake the operation and management of the register of curators ad litem.

3.5. The process for including a person on, and removing a person from, the register would be the same as the process in relation to child welfare reporters.

3.6. The same requirements for being ineligible for inclusion as a child welfare reporter would extend to curators ad litem.

3.7. The 2020 Act only covers establishing a register of curators for the purposes of orders made under section 11 of the 1995 Act. Therefore, unless otherwise indicated, reference in this consultation to curators ad litem are references only to curators appointed for the purposes of orders made under section 11 of the 1995 Act.

Existing situation

3.8. Currently, practice in relation to appointment of curators ad litem varies across Scotland. In some Sheriffdoms, curators are appointed from the list of child welfare reporters held by the Sheriffs Principal.

3.9. In other areas curators are appointed from the panel of curators held by each local authority for permanence and adoption cases^[34].

3.10. The number of curators ad litem appointed varies across the country. For example, from a survey of Sheriffs Principal, in the Sheriffdom of Lothian and Borders there were four appointments of curators ad litem in the first two months of 2019 whilst in the Sheriffdom of South Strathclyde, Dumfries & Galloway there were six appointments for the whole of 2018/19.

3.11. The Scottish Government understands that the appointment of curators ad litem by the court has a long history and rests in the common law powers of the court. The Scottish Government is not aware of any relevant court rules on the appointment of curators ad litem in family cases although there are rules on fees and outlays of curators ad litem in respect of children (see Chapter 39 of the Sheriff Court Ordinary Cause rules)^[35].

Children (Scotland) Act 2020

3.12. Section 101B of the 1995 Act (inserted by section 17 of the 2020 Act) places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as curators ad litem. Section 101B gives Scottish Ministers the power by regulations to make provision about:

• the requirements that a person must satisfy in order to be included, and remain, on the register
• the process for including a person on, and removing a person from, the register
• the process for how, and by whom, a registered person is to be selected as the appointed child welfare reporter in a case
• the remuneration of child welfare reporters including expenses and outlays
• the operation and management of the register.

Requirements for curators ad litem to be on the register

3.13. The Scottish Government expects that curators ad litem would need to be either solicitors or advocates as their role is to represent the interests of a child who is involved in a family court case. This is a different role to that of a child welfare reporter, which is to speak to a range of individuals and report back to the court on what they have heard and, in future, to explain decisions to the child. In most cases it is not envisaged that the child welfare reporter would attend court. However, it is envisaged that a curator ad litem would attend court and participate in proceedings.

3.14. The Scottish Government would expect that an individual would need to hold a practising certificate from the Law Society of Scotland or be a member of the Faculty of Advocates.

3.15. As is the case for child welfare reporters, the Scottish Government considers that certain categories of people would not be eligible to be on the register of curators ad litem. This means that even if someone holds a practising certificate from the Law Society of Scotland or are a member of the Faculty of Advocates they would not be eligible to be on the register of curators ad litem if they are:

• an individual directly involved in the establishment, maintenance operation or management of the register of curators ad litem
• an individual employed by the SCTS
• a member of the judiciary
• a member of the Scottish Government or a junior Scottish Minister.

3.16. In terms of any conflict of interest we would expect that an individual included on the register of curators ad litem who subsequently accepts a post that would make them ineligible to be included on the register would need to resign as a curator ad litem.

3.17. The Scottish Government suggests that an individual would also need to demonstrate relevant skills and experience in:

• the law in relation to children
• an understanding of family conflict and
• child development including learning disabilities

Question 20): Do you agree/disagree with the proposed requirements that a person must satisfy in order to be included on the register of curators ad litem?

Agree

Disagree

Don't know

Why did you select your answer?

Question 21): Should there be any other requirements that a person must satisfy in order to be included on the register of curators ad litem?

Yes

No

Don't know

Please give the additional requirements you feel are necessary and why you feel they are important.

Ongoing training requirements for curators ad litem

3.18. The Scottish Government would expect anyone who was included on the register of curators ad litem would undergo regular training to ensure that they are aware of the latest understanding in key areas. Training would cover the following areas:

• the role of the curator ad litem
• family Law
• family conflict
• understanding domestic abuse, particularly the dynamic of coercive control
• engaging with children and
• child development including learning disabilities

3.19. Attending a certain number of training days would be mandatory as part of a curator ad litem's terms and conditions. In the Financial Memorandum which accompanied the Bill as it was introduced into the Scottish Parliament the Scottish Government estimated that a curator ad litem may receive four days paid training a year. Four days was decided as appropriate as it would strike a balance between providing regular training on a yearly basis and not being overly burdensome.

3.20. The recruitment process will ensure that all curators ad litem have experience in a variety of areas. The Scottish Government would expect training to be provided by experts in the relevant areas. Training would be provided by the body appointed to operate and manage the register or by individuals and organisations the body asked to carry out the training.

3.21. The Scottish Government is aware that a number of curators ad litem are also child welfare reporters. Any training requirements that overlap between the two roles would be able to be undertaken once rather than twice in a year. In addition, the Scottish Government is aware that lawyers undergo Continuing Professional Development (CPD).

3.22. If a curator ad litem does not attend the required number of training days without a reasonable excuse then they could be in breach of their terms and conditions and could be recommended for removal from the register.

Question 22): Do you have any comments on the proposed training requirements for curators ad litem?

Yes

No

Please provide your comments

Question 23): Do you agree that four days of paid training per year for curators ad litem is appropriate?

Yes

No, I believe it should be fewer days

No, I believe it should be more days

Don't know

Why did you select your answer?

How a court would appoint a curator ad litem

3.23. Currently there is no procedure laid down in court rules for how a curator is appointed in a case under section 11 of the 1995 Act.

3.24. Section 11D of the 1995 Act requires the court to specify in the interlocutor the reasons for appointing of a curator ad litem and to review the appointment every six months. In line with usual practice, the Scottish Government will prepare a policy paper for the Family Law Committee of the Scottish Civil Justice Council proposing court rules on the procedures for appointing a curator ad litem and for reviewing the appointment.

3.25. When a court orders a curator ad litem be appointed the clerk of the court will then contact the body appointed to operate and manage the register. The body would then consult the register and where possible select the next curator ad litem on the register who is willing to work in a specific geographic location. The body will check this person is able to take on the role (eg has no conflicts of interest and has sufficient time to be able to carry out the function).

3.26. In relation to child welfare reporters, this consultation seeks views on whether the next person on the register should be selected or whether the court could specify that it wished a person with a specific skill set. That type of question reflects the varied nature of the role of child welfare reporters. In relation to curators ad litem, it appears to the Scottish Government that this type of question does not arise – and the next available person on the register should be selected – as the main skill needed for the curator ad litem role is to represent the child's interests.

3.27. As indicated above, once the court has appointed a curator ad litem, the clerk will then contact the body appointed to operate and manage the register. The body will then select the next available person on the register. The next step then could be for the body to advise the court of the name of that person. The court could then send this person the interlocutor stating the reason for their appointment. The curator ad litem would then be responsible for assessing what is in the best interests of the child and representing these interests in the court proceedings. Where possible, the curator ad litem will wish to speak directly to the child.

If a curator ad litem has a query that relates to for example expenses or payment then this would be dealt with by the body appointed to manage and operate the register. Queries around the appointment of a curator ad litem by the court would need to be addressed to the court.

3.28. If a curator ad litem is appointed for a period of more than 6 months then the court will be required, by virtue of section 11D(2) of the 1995 Act as added by section 17 of the 2020 Act, to consider whether their appointment continues to be necessary.

Question 24) Do you have any comments on the proposed process for appointing a curator ad litem in a case under section 11 of the 1995 Act?

Yes

No

Please provide your comments

Fee rates for curators ad litem

3.29. Currently where the sheriff appoints a curator ad litem to a child, at the first instance, unless the court directs otherwise, the pursuer is responsible for the curator's fees and outlays (see Chapter 39 of the Ordinary Cause Rules). In future all curator ad litem fees and expenses would be paid by the body appointed to operate and manage the register.

3.30. The Scottish Government would expect that a per hour fee rate be set. This would reflect the fact that each case is different and a curator ad litem appointed in one case may be required to undertake a significantly different amount of work than one appointed in another case.

3.31. It would not seem appropriate to set a per case fee rate as each case would require a different degree of work and preparation. In addition, the length of time the appointment lasts will vary.

3.32. The Scottish Government expects that the same hourly fee rate would be applicable for curators ad litem as for child welfare reporters (see paragraphs 2.67 – 2.79.

Question 25): How should fee rates for curators ad litem be paid?

Hourly rate

Another way

Don't know

Why did you select your answer?

Expenses for curators ad litem

3.33. The Scottish Government expects that curators ad litem would only be able to claim expenses and allowances if the additional expense is actually incurred to carrying out official curator ad litem work. When this occurs all expenses and allowances including actual receipted costs and flat rate mileage payments are payable. Where there are items of expenses where it is not possible to obtain receipts (such as paying for parking by phone) then this should be claimed for with an explanation of why the receipt isn't available.

3.34. The Scottish Government would expect that curators ad litem seek value for money in terms of travel expenses. For example they would be expected to purchase standard class rail fares. It would be expected that the expenses that a curator ad litem can claim would be in line with the levels set by the Scottish Government for its own staff. These are set at Annex E to this consultation.

Question 26): Do you have any comments on the proposed approach in relation to expenses for curators ad litem?

Yes

No

Please provide your comments.

Complaints procedures

3.35. The Scottish Government considers that the complaints process in relation to curators ad litem would be similar to what is outlined above for child welfare reporters.

Not being on the register

3.36. An individual may wish to complain about being unsuccessful in their application to be on the register of curators ad litem or about being removed from the register. The Scottish Government envisages that any such complaint would initially be handled by the team which dealt with appointments. If the individual remains dissatisfied then the complaint would be dealt with by another team which had no involvement in the original decision.

Grievances held by curators ad litem

3.37. A person on the curator ad litem register may have a grievance about fees or expenses; or comments on their appraisal; or on the quality of the training provided and the subjects covered; or on other points about the way in which the register is run. Any such grievances would be handed by the body appointed to operate and manage the register,

Complaints about a curator ad litem

3.38. One of the key aims of establishing the register of curators ad litem is to ensure that there is a child friendly complaints process available. If a child or adult wishes to complain about a curator ad litem they should contact the body appointed to operate and manage the register.

3.39. Complaints could be about the service provided by the curator ad litem or about the conduct of the curator ad litem. A complaint could be raised by the child, a person acting for the child or by a party to a case.

3.40. On receiving a complaint the body appointed to operate and manage the register would decide whether it has any merit. If there is evidence of failings a decision would be taken on the outcome which could be – more training, a verbal or written warning or being suspended from or removed from the register. The body may approach the relevant sheriff who appointed a curator ad litem to the child.

3.41. Any decisions to remove an individual from the register would be made by the Scottish Ministers. The Scottish Government would ensure that children and parties are aware of the complaints process.

3.42. The Scottish Government would expect that parties and anyone else could raise a complaint about the conduct of the solicitor to the Scottish Legal Complaints Commission in the usual manner.

Question 27): Do you have any comments on the proposed procedure for complaints by or about curators ad litem?

Yes

No

Please provide your comments