Courts should control curator ad litem fees, Inner House rules

Fees of curators ad litem and reporting officers in adoption cases are properly included in orders for expenses under rule 2 of the Sheriff Court Adoption Rules, and are not limited to such sum as the local authority thinks fit, the Inner House has ruled.

Lady Dorrian, the Lord Justice Clerk, Lady Clark of Calton and Lord Malcolm gave the ruling in refusing two appeals, one by the City of Edinburgh Council and one by Clackmannanshire Council, against decisions of the sheriff to allow a curator in permanence order proceedings to recover expenses from the council. The sheriffs had followed the sheriff principal's decision in the Scottish Borders Council case in 2014 (click here for report) which rejected the argument that the council was entitled to impose a very limited flat fee.

The council argued that the fee payable to a curator appointed under the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 was reserved to its discretion as local authority, by reg 10(1A). It had not been the legislature’s intention to provide two separate sources of payment for this work. As the respondents in each case had accepted appointment as a member of the panel appointed under the 2001 Regulations, they had accepted that remuneration would be determined under reg 10(1A) and were personally barred from seeking a judicial award of expenses against the authority. Their only remedy was a petition for judicial review.

Lady Dorrian, delivering the opinion of the court, said there was no necessary conflict between the two sets of rules, and no reason why they could not be read together. "The fact that a local authority is charged with statutory responsibility for maintaining a panel, and has an associated duty to defray the expenses incurred by panel members, is not conclusive of the entirely separate question of the judicial expenses which may be awarded by the court", she commented.

"The power in rule 2 is very wide, mirroring the court’s common law powers. It would require clear language to curtail such powers. There is no express limitation on the exercise of the court’s power in rule 2, and there is no basis for implying such a limitation."

Nor was there any basis for discriminating between panel and non-panel members in setting their remuneration.

Approving the sheriff principal's comments in the Scottish Borders case, she added: "The court should – and on this interpretation would – retain some degree of control to ensure that the work of curators ad litem and reporting officers is done properly and independently, and that those appointed by the court to this important job are properly paid, all of which are matters in which the court has an interest."

Click for the opinion in the Edinburgh case, and for the opinion in the Clackmannanshire case.