24 April 1984

Dear Sir/Madam

CHILDREN ACT 1975: SECTION 103

PANELS OF CURATORS AD LITEM AND REPORTING OFFICERS

1. This Circular draws the attention of local authorities and courts to the provisions of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 1984 which have been made by the Secretary of State under section 103 of the Children Act 1975 (as amended) and will come into effect on 1 September 1984. SWSG11/85 provides advice on the 1985 Amendment Regulations and updates the relevant statutory references in the 1984 Regulations to provisions in the Adoption (Scotland) Act 1978. Copies of the regulations can be purchased from HMSO, 71 Lothian Road, Edinburgh EH3 9AZ.

2. The regulations relate to the establishing of panels from which persons may be appointed to act as curators ad litem and reporting officers in adoption and adoption-related proceedings, on implementation of section 20 of the Children Act 1975 on 1 September 1984: Circular SWSG7/84 of 24 April 1984 dealt with the relevant commencement order. The Children (Scotland) Act 1995 amends section 58 of the Adoption (Scotland) Act 1978, which relates to Curators Ad Litem and Reporting Officers, to replace the terminology ‘parental rights’ with ‘parental responsibilties and parental rights’. Similar amendments to the regulations will be required. Revised guidance will be produced to complement implementation of this provision in the 1995 Act.

Establishment of Panels and their Administration by Local Authorities

3. Each regional and islands council - referred to in this circular as the "administering authority" - will have a duty to administer in its area a panel or panels of person under the regulations. The Secretary of State considers that it would be appropriate for day-to-day responsibility for the administrative arrangements to rest with the Director of Social Work of each administering authority.

4. Authorities may agree to act jointly in the administration of panels to serve the courts in their areas, and may nominate one authority as the administering authority. Any such agreement should be reached in consultation with the courts. Joint administration may be appropriate in circumstances such as

a. where a regional or islands council conclude that the likely number of relevant proceedings does not justify the establishment of a separate panel for their area - in which case they may wish to join with one or more neighbouring authorities to establish a joint panel to serve the courts in their areas; or

b. where a court district includes the area of more than one local authority and the authorities concerned agree to establish a joint panel to serve that court district.

5. The regulations enable each administering authority to decide whether to establish within their area a single panel of persons to serve as reporting officers and curators ad litem or more than one such panel - for example, so that there is one panel for each sheriff court district. The regulations also permit administering authorities to establish separate panels for those who are to act as curators ad litem and for those who are to act as reporting officers. In deciding whether this would be of practical benefit authorities should have regard to the provisions for the appointment and the duties of curators ad litem and reporting officers in revised court rules.

Consultation with the Courts

6. Full consultation between the local authorities and the courts is of great importance, in order to ensure that the arrangements for the operation of the panels enable the court to carry out their functions effectively. It would be appropriate for the administering authority, before deciding how to proceed in the establishment of a panel or panels, to consult with the courts in their area on the arrangements which would be most convenient. The following matters prescribed by the regulations involve collaboration and consultation between the local authorities and the courts;

a. Authorities must consult with the courts before deciding on the number and size of the panel or panels which they wish to establish (regulations 3(2) and 4(1)).

b. Authorities may set standards of qualifications or experience to be required of persons to be nominated to serve as members of a panel; if they do so, they must consult the courts on these (regulation 4(4)).

c. The courts must be invited to nominate members for panels, and anyone so nominated must be appointed, provided he meets any requirements agreed under b. above (regulations 5(1) and 6(1)).

d. Authorities must consult with the courts on the suitability of those they propose to appoint (regulation 6(2)).

e. Authorities must consult with the courts on the period for which members are appointed to the panel (regulation 7(1)).

f. Subject to the arrangements mentioned in paragraph 17, authorities must remove a panel member if they are satisfied that he is unable, unfit or unsuitable to continue, or if the courts report such circumstances to the authorities.

g. There is a general duty on both the authorities and courts to collaborate in monitoring and reviewing the operation of the panel arrangements (regulation 8).

This level of co-operation will work most effectively where the administering authority makes proper arrangements for prior, and thereafter regular, consultation on all matters relating to the panels with the local courts through the sheriffs principal. The Secretary of State urges authorities to make appropriate arrangements as early as possible.

7. Members of panels may also be asked to serve in relevant proceedings before the Court of Session. Administering authorities should therefore ensure that the office of the Lord President of the Court of Session is fully informed of arrangements to establish panels under the regulations, including arrangements for consultation with the sheriff principal for each court district as outlined in the previous paragraph, so that the Lord President can be satisfied that sufficient members are appointed who have the qualifications or experience necessary to serve in proceedings before the Court of Session.

Qualifications for Appointment

8. The regulations place responsibility for determining the suitability of persons proposed for appointment on the administering authority, subject to consultation. Persons appointed to a panel need to have appropriate professional qualifications and/or sufficient relevant experience to undertake the duties of reporting officers and curators ad litem which are specified in the court rules. The administering authority should be satisfied that they have a sound understanding and a broad range of experience of work with families and children, including children needing to live temporarily or permanently apart from their parents. Experience of court work in adoption proceedings and knowledge of adoption agency organisations and practice will both be especially important. Panel members will need to examine social workers’ records and evaluate - and possibly question - social work practice; they should be people in whose knowledge and experience social workers can have confidence.

9. Revised court rules prescribe that normally the combined duties of reporting officers and curators ad litem (particularly in adoption proceedings) should be similar to those of the curators ad litem under the previous rules made under the Adoption Act 1958. This should assist administering authorities in considering whether nominees for appointment to the panels have sufficient training, background and breadth of experience to serve under the new arrangements. Training may be needed to up-date knowledge, and provision of information on current court practice may be useful for some panel members; but panel members’ need for training to enable them to act as curators ad litem and reporting officers should not be extensive, since their experience or qualifications will have been established as being appropriate to the task prior to their being considered for appointment.

Size and Membership of Panels

10. The required size and composition of the panel or panels depends very much on the likely incidence of cases to be dealt with in the area. Panels need to be of such a size and balance as to avoid placing too great a burden on individual panel members (or on their agencies and employer) and to avoid delay in handling cases. On the other hand members of the panel should be used regularly enough to develop expertise. Since a curator ad litem or reporting officer must be independent of agencies and authorities directly concerned with the particular case to which he has been appointed, the administering authority have to ensure that there are panel members from a sufficient variety of organisations. Equally, in considering appointments to individual cases, courts should not be restricted to panel members with a particular professional qualification or background.

11. Panels should therefore include people with a range of qualifications and experience, in particular those relating to law and to social work. The cases coming before the courts will vary in the demands they will make on the reporting officer and curator ad litem, with some indicating a greater need for social work skills and others requiring greater legal expertise. No doubt the courts will wish to ensure that the full range of skills available on the panel is used as appropriate cases arise, and that over a period of time they would be able to make use of all members of the panel.

12. Those panel members with social work experience may appropriately be drawn from social work departments, voluntary adoption societies and other child care organisations, or other bodies recognised as providing relevant experience; they may be social workers no longer employed as such, including retired social workers. It would be appropriate for panel members drawn from the legal profession to have experience in working with children and in adoption proceedings. Panels need not, however, be exclusively drawn from the social work and legal professions; other professionals and other persons with relevant practical experience may also be appointed.

Procedure for Making Appointments to Panels

13. Authorities should make arrangements for gathering names for consideration which suit their particular circumstances. They should invite proposals for membership of the panel from the sheriffs principal of all courts in their area, local authorities adjoining their area, voluntary child care organisations, local associations of the legal profession and the local community generally. They may also consider advertising to invite applications. Authorities will also be able themselves directly to nominate suitably qualified persons, including their own employees or independent social workers.

14. Before making appointments authorities must consult such bodies and organisations as they think appropriate on the list of prospective panel members which they propose. With the exception of nominations by courts - dealt with in paragraph 6C above - authorities are not obliged to accept any particular nominees; the final decision on a nominee’s suitability will rest with the administering authority.

15. In each area for which a panel operates the court should be provided with details for the panel membership when appointments are made. These details should include the qualifications and experience of each member, the employing authority or other employer, and such other information as may be relevant to the court when selecting a panel member to act as curator ad litem or reporting officer in a particular case. Organisations or bodies who proposed persons for panel membership should also receive a list of panel members. Administering authorities should ensure that courts are given information on any changes to the lists as they occur.

Arrangements for Monitoring of the Panels

16. Regulation 8 lays a duty on each administering authority in consultation with the courts in its area to monitor the operation of the panel from time to time. Authorities should therefore discuss with courts how this should be done and the aspects of the arrangements which should be covered. The latter should include the way in which appointments of panel members are made, and procedures for handling any difficulties which may arise.

Term of Office of Members

17. The term of office of persons appointed to the panel will be for a period not exceeding 3 years, at the discretion of the administering authority in consultation with the courts. Appointment to the panel should be dependent on the person’s all-round suitability and should not be subject to an inflexible upper age limit; but the appointment or reappointment of people over 65 should be made only in exceptional circumstances. Where in accordance with regulation 7(3) the administering authority wish to remove a member from the panel before his term of appointment is completed (other than in the case of resignation), this should be done only after a full review of the position. In some cases this may involve consultation with the organisations which proposed the member or his employing authority, but any such consultation would need to be handled sensitively. The procedures for dealing with such situations should ensure that the individual concerned is given a full opportunity to discuss the position and to present his point of view before a final decision is taken.

Selection of Panel Members to Serve in Individual Cases

18. Section 20 of the 1975 Act requires that no person should be appointed to serve as curator ad litem or reporting officer if he has parental rights and duties in respect of the child; or has taken part in arrangements for adoption of the child; or at any time during the 3 years preceding the date of appointment as a member, officer or servant of the local authority, adoption society or other body which has parental rights and duties in respect of the child or which has taken part in arrangements or proceedings concerning the adoption of the child. The appointment of a curator ad litem and reporting officer to serve in an individual case will be made in accordance with the rules of court. Subject to section 20 it is the right of the court to appoint the member of the panel who is considered best fitted to serve in an individual case. Practical procedures for making such appointments should be worked out between the courts and the employing bodies likely to be concerned, and it would be desirable to have such agreed procedures set down and made available to all interested parties. In view of the authority’s responsibilities for payment of fees (see paragraph 19) it would be helpful if the court informed the administering authority on each occasion that a curator ad litem or reporting officer is appointed from the panel for the area. There is no need for the court to inform the authority when, in exceptional circumstances, an appointment is made from outwith the panel.

Fees and Expenses for Panel Members

19. Regulation 10 provides that fees and expenses of curators ad litem and reporting officers are to be met by the local authority in all proceedings under sections 14 and 16 of the 1975 Act, and in adoption proceedings and proceedings under section 25 of the 1975 Act where the child is placed for adoption by an adoption agency; expenses for this purpose includes the cost of support services provided for panel members. In cases other than those described above the petitioners themselves will continue to be liable to meet the expenses of curators ad litem and reporting officers, unless authorities decide to give financial support in individual cases.

20. To deal with the cases for which the local authority has statutory responsibility to meet the relevant costs it would be desirable for local authorities to establish a scale of fees which will ensure that an appropriate calibre of person is willing to serve. The fees should provide fair remuneration for the tasks which will be required of panel members under the court rules, while not imposing unreasonable burdens on local authorities. The Convention of Scottish Local Authorities proposes to prepare guidelines for individual authorities on this following discussions with the Sheriffs’ and Sheriff Principals’ Association and the Law Society for Scotland. Paragraph 5 of circular SWSG11/85 provides advice on a scale of fees.

Expert Advice to Panel Members

21. Administering authorities should consider how they should arrange for advice in other professional areas, such as child psychology or medical or legal matters, to be made available to panel members as required.

Review of Operation of Panels by the Secretary of State

22. The Secretary of State considers that the arrangements set out in the regulations and this circular should ensure the establishment of well-balanced panels of suitably qualified or experienced individuals; and that their operation will assist the courts in promoting the welfare of children.

Contact Point

23. Any general enquiries about the terms of this circular should be addressed to Mr M J Hunter, Social Work Services Group, Room 41, James Craig Walk, Edinburgh EH1 3BA (telephone 0131 244 5479).

Yours faithfully

J W SINCLAIR