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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 19. Curators and Reporting Officers
In any discussion about curators, reporting officers and similar appointments, there is often a confusion of terminology about who does what and in which type of case? There are four types of appointments in cases involving children and their care:
(1) ad litemCommon law Curators . These are appointed by courts under their common law powers. These powers give the courts a general right to ensure that children involved in any type of court case are entitled to have their interests protected by independent representation. This is done by appointing independent solicitors or advocates as curators. 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. They can apply for and obtain legal aid to carry out their work on behalf of the child.
(2) forad litemCurators adoption, freeing and PROs. These are curators appointed by courts in these particular cases. Such appointments are a mandatory statutory requirement in most but not all permanence cases, under the court rules (see below). Most of these curators are appointed from lists or panels kept by every local authority of people in their area who can do this work. Each local authority must have a panel of curators and reporting officers (see (3) below). In some permanence cases, however, the sheriff appoints a curator from the common law list, rather than the local authority panel. The duties in the adoption court rules are the same, but the remuneration structure is different.
(3) Reporting Officers for adoption, freeing and PROs. These are people appointed by courts in permanence cases for specific purposes, usually about consents to cases (see below for a note of their duties). Again, these appointments are usually a mandatory statutory requirement.
(4) Safeguarders in children's hearing cases. These are appointed under s. 41 of the 1995 Act. Their appointment is statutory but at the discretion of individual hearings or sheriffs, where they think appointment is necessary. The tasks are similar to those of curators, with the child's welfare as paramount consideration. Each local authority must have a panel of safeguarders from whom appointments are made and they are responsible for the fees. In some sheriff courts, common law curators are appointed in hearing cases instead of safeguarders.
None of these appointments are to be confused with solicitors or advocates representing children in court or hearings. Such solicitors and advocates represent their clients as they would adult clients: that is, they carry out their clients' instructions which may conflict with the children's best interests, viewed objectively. A young person under 16 is entitled to instruct a solicitor in any civil matter if s/he 'has a general understanding of what it means to do so' - s.2(4A) of the Age of Legal Capacity (Scotland) Act 1991. There is no lower age limit and someone who is 12 or older is presumed to have the necessary understanding.
When are appointments made?
As indicated, appointment of adoption curators and reporting officers are mandatory in most but not all cases.
- The court must appoint an adoption curator (though not always a reporting officer):
- in every sheriff court freeing and adoption application, including post-freeing adoptions - the majority of cases are dealt with in the sheriff court.
- in every Court of Session freeing or adoption application 'where it appears desirable in order to safeguard the interests of the child', and this includes post-freeing adoptions.
- in every application for a PRO.
- The court may appoint an adoption curator:
- in any application for revocation of a freeing order.
- in any application for variation or revocation of a PRO.
What are the duties?
Adoption curators' and reporting officers' duties are laid out in the court rules and these rule apply whether appointments are from the local authorities' lists or are common law ones. The rules are in:
- RCS 1994, Chapter 67 for the Court of Session;
- AS 1997, Chapter 2 for the sheriff court.
Adoption curators must investigate and report to the court with the children's welfare as their paramount concern. If children's formal agreement to adoption or freeing is sought in the sheriff court, it is the curator who discusses this with children, and witnesses any consent, not reporting officers. They are also expected to give the court the views of the child, although this is not the only medium for doing so and this must be distinguished from the overall duty to put forward the child's best interests. Views of children and their welfare do not always coincide.
Reporting officers are concerned with confirming facts in applications, finding out if birth parents consent or not, and witnessing any agreements. The tasks are much more procedural than those of curators, and not focused on the children. The court often appoints the same person as curator and reporting officer, but not always.
Local authority panels.
As indicated, each local authority must have a panel of curators and reporting officers from whom appointments are usually made, although courts can use their common law powers and appoint someone who is not on a list to carry out the statutory duties. Authorities are responsible for appointments to their panel of curators and reporting officers. These are carried out in consultation with the appropriate sheriff and Sheriff Principal. No qualifications are laid down. Some, but not all, sheriffs prefer only qualified solicitors to act as adoption curators. Payment of fees for 'panel' appointments is the responsibility of local authorities. The relevant regulations are the Curators ad Litem and Reporting Officers (Panels)(Scotland) Regulations 2001 (S.S.I. 2001/477). These are virtually the same as the previous regulations issued in 1984 and 1985 and do not specifically set out fees.
Issues for curators and reporting officers.
Adoption curators and reporting officers perform similar roles to Guardians ad litem (GALs) in adoption etc. proceedings in England and Wales. However, while GALs are not appointed in every case, curators and reporting officers are appointed in almost all cases involving adoption, freeing and PROs. Therefore they have a crucial role in freeing, adoption and PRO cases. Even where there is no dispute, s/he still represents an independent voice looking at the case, independent from adoptive families, adoption agencies, local authorities, birth families, and any other relatives or parties with an interest.
Unfortunately, however, there are serious concerns about the 'curatorial' system throughout Scotland and its haphazard nature. Problems are reported by social worker practitioners involved in permanence cases, authorities' legal advisers, sheriffs and curators themselves, whether lawyers or not. The issues include:
- No specification of qualifications for and methodology of appointment.
- No prescribed term of appointment.
- No system for training, support and monitoring of curators and reporting officers. Anecdotally, many report feeling isolated and uncertain of legal and practice developments. Curators need to know their legal duties, how the whole adoption process works and the complex welfare and care issues in this complex field.
- No system of complaints for curators or about work carried out by curators and their reports.
- Shortage of experienced curators, because of the lack of an overall structure. This causes difficulties for courts in making individual appointments.
- Delays in submitting reports, because of pressure of work, lack of experience or other reasons. Curators' reports in the sheriff court should be lodged within 4 weeks of appointment, AS 1997, r.2.8(1) and (2) for freeing, r.2.26(1) and (2) for adoption and r.2.40(1) and (2) for PROs.
- The funding structure. Payments to curators from a local authority panel are the responsibility of that authority, in terms of the 2001 Regulations mentioned above. But there is uncertainty as to which authority pays when the court is in the area of one authority and the child has been placed by another authority. Further, the current fixed fee agreed with COSLA, approximately 98 plus expenses, is not considered sufficient to cover the time and work required in complex cases. Some local authorities will pay higher fees, but others will not. There is no uniform pattern throughout Scotland. COSLA has issued new Guidance for safeguarder payments, with effect from 1 April 2003, but has indicated that no such guidance will be issued for adoption curators. And the 2001 Regulations do not cover payments to curators in PROs. And if a curator is appointed in an adoption case on a common law basis, s/he is not bound by the panel fee structure.
Some suggestions for change are:
- Reviewing whether or not appointment of curators and reporting officers should be mandatory in all cases, including revocations and variations.
- Centralisation of the system, as has now happened in England and Wales for GALS, under CAFCASS. Such a system could be administered centrally, but easily maintain good local contacts and lists.
- New regulatory provisions setting out minimum qualifications for curators and reporting officers, clearer methods of appointment, training and support to be provided for them, and monitoring and complaints procedures. Qualifications should include skills in communicating with children and an understanding of child development and related issues.
- A more flexible fee structure, taking account of the variable work. Some reports do not take much work, and the fees for them should therefore be less than the fees required in very complex cases. The amount of work varies from case to case.
- Granting legal aid to all curators and reporting officers, whatever the basis for their appointments. The courts which appoint them could do this and the work would be paid for on the ordinary civil legal aid rate. This rate of payment is not a particularly high one, but it would reflect the work actually carried out. Common law curators are paid through the legal aid system and there appear to be few reasons why adoption curators could not be similarly remunerated, even taking into account that not all of them are legally qualified.
Many experienced and interested childcare professionals no longer carry out this work. The system would benefit from review and possibly better regulation. The concern should be to improve all aspects of the system.
QUESTIONS:
68. Should a curator always be appointed in every permanence case?
69. Should the system be centralised nationally?
70. Should curators be paid for out of the legal aid fund?
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