Curators ad litem: who pays, and for what?
An Edinburgh case regarding the fees of curators ad litem in child cases has led to proposals that could be considered in other sheriff courts
In an ideal world, a sheriff would have the time and resources available to investigate matters fully in every case where an order under s 11 of the Children (Scotland) Act 1995 is sought. In the reality of our overburdened court system where each sheriff has limited time to read each case as well as hear the parties and their agents, the appointment of a child welfare reporter or curator ad litem can be an invaluable tool to assist the court in investigating the issues raised and to make recommendations.
The distinction between the roles of a child welfare reporter and a curator ad litem is not entirely clear. The Ordinary Cause Rules were updated in October 2015 in respect of child welfare reporters. The rules detail the role of the reporter and make explicit provision for payment of reporters, in that the parties shall be equally liable for payment of the reporter’s fees in the first instance.
Conversely, the appointment of a curator ad litem is based in common law. A curator is appointed to represent a child who is not called as a party. There is no guidance in the Ordinary Cause Rules as to how that role should be fulfilled. The only guidance is in chapter 39, which stipulates that, unless the court directs otherwise, the pursuer is responsible in the first instance for the fees and outlays of the curator until he or she minutes into proceedings or is otherwise discharged.
There is no guidance in the rules as to when a curator ad litem must indicate that he or she intends to minute into proceedings, or when his or her appointment should be discharged. Anecdotally, there appears to be support in certain cases for curators ad litem to remain involved through numerous child welfare hearings in an attempt to assist with intractable disputes.
The instruction for payment of a curator ad litem to be made by the pursuer in the first instance seems inequitable when contrasted with the provision for the fees of a child welfare reporter to be met equally. This matter was explored in the recent case of W v W by Sheriff Braid at Edinburgh Sheriff Court (unreported), in which I acted for the pursuer.
In this case, when a curatrix ad litem was appointed the pursuer, Mr W, was found liable for the curatrix’s fees in the first instance in terms of chapter 39. The curatrix was appointed with a remit to safeguard the children and report to the court at a child welfare hearing. The curatrix undertook extensive work following certain allegations made against Mr W by Mrs W during the curatrix’s investigations. Mrs W supplied the curatrix with 26 typed A4 pages in support of her allegations. Mrs W did not incorporate these documents in her pleadings, nor did she lodge them in process. This meant that the work undertaken by the curatrix ad litem could not have been anticipated when she was appointed. The curatrix’s fee, after preparing her report and appearing at one child welfare hearing, was £11,502 (inclusive of VAT).
A motion was enrolled for Mr W to have Mrs W found liable to Mr W in expenses for one half of the curatrix’s fee. It was submitted that the curatrix had been induced by Mrs W to carry out investigations wider than her remit and that such allegations were made without credible evidence. It was also submitted that the fee was much higher than was anticipated when the curatrix ad litem was appointed.
Mrs W’s agents accepted that it was competent for a determination of expenses to be made in respect of the curatrix’s fee before the final determination of the case. However, it was submitted that such a determination was premature and that the matter should be decided at the conclusion of the case.
Sheriff Braid, after hearing submissions, made avizandum. In his written judgment he stated that a twofold question arose. First, was it fair in this case for the motion to be granted? Secondly, was it appropriate at this stage for the ultimate liability for the curatrix’s fees to be decided? He held that it was an equitable outcome, and entirely appropriate, for the parties each to be ultimately liable for one half of the fees. Sheriff Braid also recognised the practical advantages in deciding the liability for the fee at this stage. Both parties were now aware where they stood in respect of this liability. This would allow both to be heard at taxation, if required, in respect of the level of the fee. The sheriff also hoped that this would bring home to both parties that “litigation has a financial cost which must be met; and that it is in both parties’ interest, as well as those of their children, that they should endeavour to bring this action to a close as soon as possible”.
The level of the curatrix’s fee became a secondary issue in this matter. The fee charged was higher than anticipated by agents, or indeed by Sheriff Braid who had initially appointed the curatrix. Taxation was a very real possibility given that it was not agreed that the curatrix should have undertaken all the work that she did, and in any event the level of the fee she charged was felt by Mr W to be unreasonable. At the outset of the curatrix’s appointment, a quote was neither requested nor provided by the curatrix. Terms of business were not issued. Eventually the curatrix restricted her fee, and this was met equally by both parties.
Arguably, it remains best practice for agents to write to a curator ad litem on appointment to request a quote for the work the curator expects to undertake, including an hourly rate. However, in this case it was simply not anticipated that the curatrix would prepare such an extensive report. Therefore, even if an hourly rate had been provided, it seems unlikely that a realistic quote could have been prepared. A further difficulty is that the pursuer has no authority to tell a curator that he or she must not exceed a certain cost, as the curator is only answerable to the court. A further inequity may arise if the pursuer is liable for the fees in the first instance, as the defender then has no input in discussing an hourly rate or a cost limit. This is unjust when they could become liable for part or all of the fees at a later stage in the process. If payment of the fees has been made already by the pursuer, the defender has no option to refer the fees to taxation.
Users group review
Following the issues that arose in this case, the Family Court Users Group for Edinburgh Sheriff Court was asked to consider matters relating to the appointment of curators ad litem. It is understood that those solicitors who are named on the list of prospective child welfare reporters/curators ad litem held by the sheriff clerk at Edinburgh Sheriff Court are being consulted on agreeing a fixed hourly rate of £130 for both privately paying and legally aided clients. It is also understood that interlocutors appointing a curator ad litem will stipulate that work must be carried out at the agreed hourly rate and in accordance with a cost limit prearranged with both parties, and that payment of the curator will be met equally by the parties in the first instance.
This proposal should be welcomed by agents, who will be able to give their clients better information about the costs they may be required to meet when a curator ad litem is appointed. As the role of the curator is to safeguard a child, it is fair that their fees and outlays should be met equally by the child’s parents. Given the invaluable role that can be played by a curator in assisting the court, I suggest that the FCUG’s proposal should also be considered by other sheriff courts.
Finally, this case should give agents food for thought when a curator ad litem is appointed, as a remit to safeguard the interests of a child is extremely broad. In order to assist the court, submissions should be made by both parties at the time of appointment so that the sheriff can consider directing the curator to focus his or her investigations. In any event, the curator should be expected to restrict his or her investigations solely to matters which are averred on record.
Hayley Mitchell is an associate with Johnson Legal, Edinburgh