Curators ad litem unable to charge fees

Sheriff hits at threat to welfare cases

News, 14 November 2007

A sheriff has hit out at a gap in the regulations in cases dealing with child care which could leave the courts without proper information on which to base their decisions.

Sheriff Grant McCulloch at Dundee Sheriff Court held that he had no power to find Dundee City Council liable to a solicitor appointed as a curator ad litem and reporting officer to the court, in a number of applications by the council for parental responsibility orders. Reporters have to prepare background reports on the children concerned.

The sheriff said that a similar situation had previously arisen in an adoption case. In that case the solicitor had eventually dropped the motion for a finding of liability, but it had been argued that the present cases were different because different regulations applied.

However the sheriff ruled that because regulations made in 2001 said that the local authority should pay such fees and allowances as the Scottish Ministers shall determine, and the ministers had failed to do so, the court could not make an order and it was up to the council to make such payments as it thought fit.

In one of the cases before him the solicitor had had to interview one parent in prison, travel to Lincolnshire to visit the other parent and a sibling, and make other enquiries and visits. The fee calculated under the table laid down for sheriff court work came to over £4,000 plus VAT and outlays, but the council had offered only £150. In another the council had offered £150 for each of two children when the account rendered had been £1,150.

"I find it disturbing that some months after appointment, and after the work has been done, the local authority seeks to escape liability for fees and outlays incurred by a solicitor in this way", the sheriff said.

"The court is being asked to make far reaching decisions about a child, and requires to rely on reports from experienced and responsible reporters. For there to be such a fundamental dispute on fees is liable to bring the whole issue into focus, with the distinct possibility that existing members of the panel will refuse appointment, heralding a crisis in these cases."

The sheriff observed that if there had been a formal hearing with evidence, rule 2.2 of the 1997 Child Care and Maintenance Rules, made by the court, would have applied. He concluded:

"It is something which requires action and I would urge COSLA, the Law Society of Scotland and Scottish Ministers to discuss and remedy the issue before there follows delay and prejudice in all these types of proceedings, to the detriment of the wellbeing of the children involved."

Sheriff McCulloch's decision can be read at http://www.scotcourts.gov.uk/opinions/B319_06.html .