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Registers of child welfare reporters, curators ad litem and solicitors appointed when an individual is prohibited from conducting their own case: consultation analysis

This report provides an analysis of the consultation responses to the consultation on the registers of child welfare reporters, curators ad litem and solicitors appointed when an individual is prohibited from conducting their own case. This relates to the Children (Scotland) Act 2020.


Register of Curators ad litem

179. This section of the consultation focused on curators ad litem and sought views on:

  • The process for including a person on, and removing a person from the register, ineligibility requirements and the complaints mechanism.
  • The fee rates and expenses to be paid to curators ad litem.
  • The requirements for curators ad litem to be on the register.
  • What ongoing training requirements there should be for curators ad litem.
  • How the court would appoint a curator ad litem from the register.

180. The consultation paper noted that curators ad litem are appointed to represent and protect the interests of an individual lacking full capacity, including a child. Their role is entirely separate and distinct from that of a child welfare reporter. It is envisaged that the registers of child welfare reporters and curators ad litem will be separate, although the body appointed would be likely to undertake the operation and management of both registers as both would operate along similar lines.

181. Currently, practice in relation to the appointment of curators ad litem varies across Scotland, and in some instances curators are appointed from the list of child welfare reporters held by the Sheriffs Principal. In other cases a curator may be appointed from a panel of curators held by each local authority. The 2020 Act places a duty on the Scottish Ministers to establish and maintain a register of individuals to act as curators ad litem. The 2020 Act only covers a register of curators for the purposes of orders made under section 11 of the 1995 Act.

Requirements for curators ad litem to be on the register

182. The Scottish Government expects that curators ad litem would need to be either solicitors or advocates as their role is to represent the interests of a child who is involved in a family court case by attending court and participating in proceedings. It is expected that a curator would hold a practising certificate from the Law Society of Scotland or be a member of the Faculty of Advocates. It is also expected that certain categories of people would not be eligible to be on the register or curators ad litem. These include:

  • An individual directly involved in the establishment, maintenance operation or management of the register of curators ad litem.
  • An individual employed by the SCTS.
  • A member of the judiciary.
  • A member of the Scottish Government or a junior Scottish Minister.

183. It is also expected that an individual would need to demonstrate specific skills and experience, including:

  • The law in relation to children.
  • An understanding of family conflict.
  • Child development including learning disabilities.

184. Question 20 asked:

Q20: ‘Do you agree / disagree with the proposed requirements that a person must satisfy in order to be included on the register of curators ad litem?

185. As shown in table 17, an overwhelming majority of those who gave an opinion agreed with the proposed requirements.

Table 17: Q20: Do you agree / disagree with the proposed requirements that a person must satisfy in order to be included on the register of curators ad litem?
Number
Agree Disagree Don’t know
Legal (11) 10 - 1
Local authority (3) 3 - -
NHS (2) 2 - -
Public body (4) 1 - 3
Representative body (5) - - 5
Third sector / advocacy (14) 6 2 6
Other (1) 1 - -
Total organisations (40) 23 (58%) 2 (5%) 15 (38%)
Individuals (44) 29 (66%) 3 (7%) 12 (27%)
Total respondents (84) 52 (62%) 5 (6%) 27 (32%)

(Percentages might not add to 100% due to rounding)

186. 42 respondents chose to give reasons for their answer at Q20a. Many of those who agreed with the proposed requirements mentioned caveats in common with the few who disagreed and these are therefore all analysed together.

187. A significant minority of respondents thought the requirements to be satisfied in order to be included on the register of curators ad litem should be the same or as close as possible to the requirements for child welfare reporters. Reasons given included that most individuals act in both capacities and this would ensure consistency. A few respondents noted that these requirements should be a bare minimum.

188. Similar numbers noted that the proposed requirements seem sensible, agreeing that the areas mentioned are those which are needed to fulfil the role or the essentials for any curator.

189. However, the greatest numbers of respondents - a large minority - either reinforced the importance of various specified requirements on the list or suggested additions to the list. Of particular note were a number of mentions about demonstrating experience and / or knowledge and understanding of domestic abuse situations, as represented by a third sector / advocacy respondent as follows:

“Given their role in representing children in section 11 cases, particularly those where domestic abuse may be an issue, it is absolutely vital that curators must be able to demonstrate current skills, experience and relevant training in domestic abuse, particularly the dynamic of coercive control.” (Third Sector / Advocacy)

190. Small numbers of respondents recommended further areas in which experience, skills and/or knowledge should be requirements, including the following:

  • Domestic violence.
  • Meeting PVG requirements.
  • Knowledge of / experience with mental health conditions (e.g. trauma, adverse childhood experiences).
  • Knowledge of family contact.
  • Experience working with children and families.
  • Awareness of discrimination and anti-discriminatory practices.
  • Knowledge of data handling (e.g. unlawful data sharing.)
  • Knowledge of processes used by Police Scotland.
  • Knowledge of how to communicate with children.
  • The need to be a solicitor or advocate as attending court is a likely necessity.

191. A significant minority of respondents stated more generally that the role needs appropriate skills, knowledge, experience and / or qualifications (for instance in communicating with mentally disabled persons). A few comments were received about the need to ensure the requirements are clear, specific and transparent to avoid confusion.

192. Finally, a few respondents accepted the suggested requirements while highlighting a few caveats as follows:

  • A need for supporting certification.
  • A necessity to act independently (so as to ensure no conflicts of interest arise).
  • A need for consistent application nationwide.

193. Question 21 then went onto ask:

Q21: ‘Should there be any other requirements that a person must satisfy in order to be included on the register of curators ad litem?

194. As shown in table 18, a majority of respondents thought there should be additional requirements, except for local authorities and legal organisations.

Table 18: Q21: Should there be any other requirements that a person must satisfy in order to be included on the register of curators ad litem?
Number
Yes No Don’t know
Legal (11) 5 5 1
Local authority (3) 1 2 -
NHS (2) 2 - -
Public body (4) - - 4
Representative body (5) - - 5
Third sector / advocacy (14) 10 - 4
Other (1) 1 - -
Total organisations (40) 19 (48%) 7 (18%) 14 (35%)
Individuals (44) 18 (41%) 7 (16%) 19 (43%)
Total respondents (84) 37 (44%) 14 (17%) 33 (39%)

(Percentages might not add to 100% due to rounding)

195. 41 respondents made comments about additional requirements they felt should be satisfied in order to be included on the register of curators ad litem. However, a majority of the answers reinforced or expanded upon the requirements already stated within the consultation document, as opposed to stating additional requirements.

196. A significant minority of respondents reinforced the requirement to be independent. Conflicts of interest were regarded as a reason for preventing people from acting as curators ad litem, particularly regarding connections to interested parties such as councils’ social services departments or education departments.

197. Similar numbers of respondents highlighted the perceived importance of PVG or Disclosure and Barring Service (DBS) disclosures or checks in ensuring potential curators were not barred from working with children or vulnerable individuals. A couple of respondents wanted curators to have a clean track record with no claims and no pending investigations.

198. The largest numbers of respondents chose to comment about knowledge, experience, skills and training relating to the involvement of children. Knowledge and training regarding child behaviour and psychology was regarded as a necessity, with suitable qualifications such as a university level qualification suggested in order to comply with this requirement. Child development knowledge and training was also raised, with suggestions that this was needed to understand the capabilities of young people. One third sector / advocacy respondent recommended a suitable qualification to comply with the minimum level required for SSSC registration.

199. Further related experience and knowledge was also recommended regarding communicating with children. Examples of situations in which this requirement would be needed were given, including:

  • Interviewing children to get their views without inadvertently using leading questioning.
  • How to listen and speak to children.
  • Discerning whether or not children may be responding under undue parental influence.
  • Dealing with language disabilities or inability to speak.

200. Several respondents also mentioned knowledge of the child protection system (e.g. with regard to safeguarding) as being a requirement.

201. Experience in a number of areas was considered by a significant number of respondents not to be given a high enough profile as a requirement. Legal experience was most frequently suggested as a prerequisite, with requests from a couple of respondents for there to be a minimum required period post qualification. One legal organisation suggested that 5 years post qualification experience would be appropriate. Family law experience in particular was singled out by a few respondents, in terms of court procedures, practice, and specialisms in child and family law and in terms of accreditations from the Law Society of Scotland.

202. A few respondents focused on a requirement for skills, knowledge and training concerning domestic abuse, given curators’ roles in representing children in section 11 cases. Similar comments were made in relation to trauma and its impacts, coercive control and understanding family conflict (e.g. parental alienation).

203. Finally a few mentions were made about a requirement for unbiased reporting skills. Comments suggested reporting should be factual, succinct and analytical in nature, albeit with an emphasis on the child and their welfare.

Ongoing training requirements for curators ad litem

204. The consultation paper referred to the expectation that anyone included on the register of curators ad litem would undergo regular training to ensure they were aware of the latest understanding across a number of key areas. These were:

  • The role of the curator ad litem.
  • Family Law.
  • Family conflict.
  • Understanding domestic abuse, particularly the dynamic of coercive control.
  • Engaging with children.
  • Child development including learning disabilities.

205. The recruitment process will also ensure that all curators ad litem have experience in a variety of areas. Attending a certain number of training days would be mandatory and the estimation is that they may receive four days paid training a year. Training would be provided by experts in the relevant areas and would be provided by the body appointed to operate and manage the register or by individuals and organisations appointed by the body.

206. A number of curators ad litem are also child welfare reporters. In instances where training requirements overlap, this would be delivered once only. If a curator ad litem does not attend the required number of training days without a reasonable excuse, they would be in breach of their terms and conditions and could be recommended for removal from the register. Question 22 asked:

Q22: ‘Do you have any comments on the proposed training requirements for curators ad litem?

207. 38 respondents chose to make comments at this question. Around one in four of these made general positive comments about the training requirements, saying they were needed and that it was important to maintain standards. Other respondents qualified this, saying the training must be meaningful, recognised or certified. A few respondents agreed that the training requirements should at least match those of child welfare reporters.

208. Other general comments about training aspects were each made by small numbers of respondents as follows:

  • Agreement that ongoing training for a number of days per year was needed in order to keep knowledge up to date.
  • Agreement that there should be credit for training overlap with child welfare reporters’ requirements for those performing both roles.
  • Training should be targeted based on the individual’s experience or skills sets.
  • Monitoring should be carried out to establish training take up and provide evidence of attendance.

209. Two respondents felt that the training hours mentioned were insufficient and that longer was needed. However a legal respondent thought the requirement was excessive and suggested that two days training would be sufficient.

210. A majority of respondents discussed the various areas of training they would like to see. A priority for the largest number of these respondents, a significant minority consisting of third sector / advocacy organisations and individuals, was training in communication with children. It was felt that understanding and engagement with the young people they represent, thus enabling them to obtain children’s views was vital to the curators’ tasks. As one respondent in the third sector / advocacy sub-group noted:

“As curators ad litem are unlikely to act in this capacity in more than 1 or 2 cases per year, it may be difficult to sustain and practice skills in engaging with the children and young people they represent. As such… it is essential that there is training provided about how curators can access support from expert professionals in understanding the views and best interests of the children whose best interests they represent.”

211. Slightly smaller numbers of respondents recommended training in child development, particularly to gain knowledge of what children are capable of understanding at certain ages. Similarly, a few respondents suggested child psychology training.

212. In depth domestic abuse training was agreed to be a priority. Respondents cited the importance of the dynamics of coercive control and an understanding of its many impacts. Two respondents said the training should be carried under the Safe and Together Model.

213. A variety of other very specific child and childcare-related training areas were recommended, each by small numbers of respondents. These included childcare protection systems and associated issues, trauma or trauma informed practice (needed where dealing with a child who has experienced or witnessed domestic abuse, according to a third sector / advocacy organisation), mental health and substance use / abuse training / awareness. Additionally, there was some reference to parental alienation / absence / neglect (e.g. the long terms effects of living without one parent), Adverse Childhood Experiences (ACEs), children’s human rights and gender issues.

214. A few respondents suggested training in reporting in order to ensure this was in the child’s best interests; concision and clarity were features cited as needed to achieve this. Time management training was also suggested by two respondents.

215. A few respondents said demonstration of an understanding of court processes and the judicial system was required (e.g. the obligations of an officer of court acting independently).

216. Finally a few respondents recommended diversity or inclusivity training, or training in non-discriminatory practices (e.g. taking into account language barriers or additional support needs).

217. Question 23 then went onto ask:

Q23: ‘Do you agree that four days of paid training per year for curators ad litem is appropriate?

218. As shown in table 19, opinions were very mixed; slightly larger numbers of respondents were in favour of four days of training overall, but a majority of third sector / advocacy organisations preferred a greater number of days training, whilst a majority of legal organisations preferred fewer days training.

Table 19: Q23: Do you agree that four days of paid training per year for curators ad litem is appropriate?
Number
Four Days More Fewer Don’t know
Legal (11) 3 - 4 4
Local authority (3) 1 - - 2
NHS (2) 2 - - -
Public body (4) - - - 4
Representative body (5) - - - 5
Third sector / advocacy (14) 2 7 - 5
Other (1) 1 - - -
Total organisations (40) 9 (23%) 7 (18%) 4 (10%) 20 (50%)
Individuals (44) 12 (27%) 12 (27%) 7 (16%) 13 (30%)
Total respondents (84) 21 (25%) 19 (23%) 11 (13%) 33 (39%)

(Percentages might not add to 100% due to rounding)

219. 42 respondents in total gave reasons for their answer, in fairly equal numbers from those who answered ‘yes’, ‘more’, ‘fewer’ and ‘don’t know’; thus representing a large diversity of views.

220. Amongst those who agreed that four days training per year was appropriate, several caveats were expressed. Respondents said four days was appropriate assuming the training was of high quality or that there was a good, intensive induction programme, or assuming there was annualised learning or CPD to keep curators up to date. Other provisos mentioned by single respondents included the following:

  • On the basis that relevant training through other recognised organisations in satisfaction of other CPD requirements would be recognised.
  • Difficulties accessing training in term of cost and availability are overcome.
  • More sensitive areas such as domestic abuse and trauma are prioritised.

221. Amongst those who thought more than four days training was necessary, the greatest number referred to a need to cover all areas. A similarly large minority cited that the complexity of the area may require expertise in many issues such as trauma and report writing. Other smaller numbers of respondents also brought up the following issues:

  • Training needs to be ongoing and up to date so may require more days.
  • There are similar issues that need to be covered to those of child welfare reporters.

222. A couple of respondents suggested either 10 days or ‘at least a week’ as appropriate yearly training amounts. Two other respondents said the amount of training should depend on the curator’s qualifications, skills and experience, with an individual suggesting that four days may be sufficient to learn the legal framework if the curator had a relevant university qualification such as child psychology.

223. Amongst those who wished to see fewer than four days annual training, the largest numbers suggested less top-up training per year would be required if the induction training was longer. A few respondents regarded four days as being too onerous for practitioners with other commitments, or regarded the role as being less onerous than that of child welfare reporters. There was also a suggestion that targeted training was required only in certain areas specific to the role.

224. Several respondents cited the provisos that fewer than four days training should depend on experience and / or whether there is training overlap due to the practitioner also being a child welfare reporter. It was also suggested that the number of days should be proportionate to the work envisaged.

225. Amongst respondents who gave a ‘don’t know’ answer, there were again comments that training days would depend on whether the person was also a child welfare reporter, with queries as to whether the training in such cases would be separate or fall under the same single annual requirement. Further equivocations included whether there would be exemptions for background or experience, what the training content would be, whether the initial training would be longer and more detailed, and whether there would be required elements. A public body foresaw that training needs would need to be discussed individually. Other comments indicated that training was difficult to assess yet as comprehensive standards were still to be agreed. A perception that fewer training days would make the curator role more attractive to solicitors or practitioners was also voiced by a couple of respondents.

How a court would appoint a curator ad litem

226. Currently there is no procedure laid down in court rules for how a curator is appointed in a case under section 11 of the 1995 Act. The 2020 Act requires the court to specify in the interlocutor the reasons for appointing a curator ad litem and to review the appointment every six months.

227. It is proposed that when a court orders a curator ad litem to be appointed in a section 11 case the clerk of the court will contact the body appointed to operate and manage the register. The body would then consult the register and where possible select the next curator ad litem on the register who is willing to take on the role and work in a specific location. The body would then inform the court who would send this person the interlocutor stating the reason for their appointment. If a curator ad litem is appointed for a period of more than six months, the court will be required to consider whether their appointment is still necessary. Question 24 of the consultation asked:

Q24: ‘Do you have any comments on the proposed process for appointing a curator ad litem in a case under section 11 of the 1995 Act?

228. Although only 23 respondents chose to make comments about the appointment process, a majority of these were in favour of basing curator appointments on a case by case basis rather than by calling up the next person on the register. These respondents thought that the most appropriately trained curator should be the one appointed for a particular case, based on qualifications, training and experience in similar cases, hence the best curator to look after the child’s best interests. Several respondents noted types of specialism that might be required in section 11 cases including domestic abuse, trauma, autism, knowledge of sign language, coercive control and behaviours used by perpetrators.

229. Significant numbers of respondents were in favour of courts having at least a say in the appointment process, with further comments that the appointment should be by the presiding sheriff or judge. Advantages of this method were purported to be local knowledge, including knowledge of the lawyers practising, ability to choose the specialisms required, and ease of clarifying procedural points.

230. A small number of respondents commented favourably in general terms about the proposed process (i.e. appointing via a register), saying the process was transparent or appropriate; however a legal respondent said the proposal was:

“…reasonable subject to the body which is appointed to operate and manage the register. If the body appointed is the SCTS, this would be more beneficial as the sheriffs/clerks know the lawyers better practicing within the area of a particular court to determine who is best suited to be appointed as curator ad litem. If the register is operated in a more centralised way, that negates the benefit of the local courts knowing the best solicitor to appoint in a particular case.”

231. Other points made by one or two respondents included that the appointment process should be consistent across sheriffdoms and that documentation stating why the curator has been appointed should be made available (e.g. to parents). It was also suggested that curators should always meet the children they represent. There was also comment that there is only a limited pool of solicitors who have capacity to take up the role because of existing workloads.

232. A respondent in the legal sector noted the 6-monthly review serves no practical purpose as “curators ad litem are either appointed to undertake specific enquiries by the court or enter the process in which case, their appointment is for the duration of the litigation.”

Fee rates for curators ad litem

233. Currently where the sheriff appoints a curator ad litem to a child, at the first instance, unless the court directs otherwise, the pursuer is responsible for the curator’s fees and outlays. In future, all curator ad litem fees and expenses would be paid by the body appointed to operate and manage the register. It is expected that a per hour fee rate will be set to reflect the fact that each case is different and would require a different degree of work and preparation. It is also expected that the same hourly fee rate would apply to curators as is set for child welfare reporters. Question 25 asked:

Q25: ‘How should fee rates for curators ad litem be paid?

234. As demonstrated in table 20, a large majority of these respondents supported an hourly rate.

Table 20: Q25: How should fee rates for curators ad litem be paid?
Number
Hourly rate Another way Don’t know
Legal (11) 7 - 4
Local authority (3) 3 - -
NHS (2) 1 1 -
Public body (4) - - 4
Representative body (5) - - 5
Third sector / advocacy (14) 6 - 8
Other (1) 1 - -
Total organisations (40) 18 (45%) 1 (3%) 21 (53%)
Individuals (44) 21 (48%) 8 (18%) 15 (34%)
Total respondents (84) 39 (46%) 9 (11%) 36 (43%)

(Percentages might not add to 100% due to rounding)

235. In all, 29 respondents made comments; most of these were from the large majority of respondents in favour of hourly fee rates.

236. Many of those in favour of hourly fee rates thought this method represented the best way of paying curators appropriately according to the workload being undertaken. It was pointed out that the length and complexity of workload per case varies greatly and thus it was important to reflect pay based on hours worked. Several of these respondents indicated that they were against a fixed fee or fee per case being levied for these reasons. There were also a few comments about hourly rates being common practice amongst professional services.

237. A small number of respondents (mostly legal organisations) focused on the need for appropriately high remuneration for the importance of the task and expertise required in order to attract people capable of doing the work. One respondent said hourly rates were the best way to reflect report writing by way of preventing excessively long reports and ensuring young people can meaningfully give their views.

238. A small number of respondents were in favour of hourly rates as long as there is oversight to prevent overcharging or an appropriate cap on charges. Other single respondents thought costs would be reduced and transparency provided by hourly rates. A public body advised monitoring of the work and outputs from the Scottish Government’s Legal Aid Payment Panel.

239. Amongst the small number of comments made by respondents in favour of another way of classifying fee rates were a variety of suggested options as follows:

  • A block fee or per case fee (to give more transparency).
  • An hourly rate for work done and per page for documentation (so travel expenses, etc. and the size of the report can be taken into account).
  • By deliverable output (stopping less scrupulous individuals from clocking up high bills).
  • Sending the curator’s file to law accountants who can prepare a fully itemised account.

Expenses for curators ad litem

240. The Scottish Government expects that curators ad litem would only be able to claim expenses and allowances if the additional expense is actually incurred to carrying out official curator ad litem work. It is expected that curators ad litem will seek value for money in terms of travel expenses. Question 26 asked:

Q26: ‘Do you have any comments on the proposed approach in relation to expenses for curators ad litem?

241. Only 14 respondents provided comments at this question, almost all of which were favourable to the proposed approach, albeit with occasional caveats. Respondents said the proposed approach was standard procedure as well as proportionate and transparent. There was also broad agreement that curators should seek value for money regarding expenses incurred.

242. In very small numbers, respondents raised the following provisos:

  • Only expenses with a receipt should be claimable (for parking expenses, it was intimated that receipts can be requested or photographic evidence could be provided).
  • The approach should be consistent with that for child welfare reporters.
  • Expenses should follow HMRC guidelines (e.g. 45p / mile vehicle expenses).
  • Expenses should be set at a reasonable rate to reflect the cost of living.
  • There should be provisions made for exceptional expenses (e.g. in cases where cheap accommodation is not possible).

243. One respondent complained about a lack of enforcement in relation to seeking value for money regarding expenses.

Complaints procedures

244. The Scottish Government considers that the complaints process in relation to curators ad litem would be similar to that outlined for child welfare reporters. This would include complaints by an individual about not being on the register or being removed from the register, grievances held by curators on the register, and complaints about a curator on the register. Question 27 asked:

Q27: ‘Do you have any comments on the proposed procedure for complaints by or about curators ad litem?

245. 31 respondents gave responses to this question; general remarks were that the complaints system should be clear, transparent, accessible and open to scrutiny (to the general public), with clear reasons given for decisions and without conflicts of interest. Most comments referred to complaints about curators rather those than made by them.

246. A variety of comments were made referring to confusion as to which body complaints about curators should be made to. In particular, an issue was raised by several respondents that in cases where the curator is a lawyer or solicitor, they are subject to the pre-existing statutory complaint schemes of their professional bodies, thereby potentially causing duplication. It would be unclear whether the complainant should state their case through the registration body or through a professional body. A third sector / advocacy respondent noted:

“For complaints about curators, it is very important that people wishing to make a complaint are provided with clear information about which bodies can handle complaints. Although the registration body would be the first point of complaint, the complaint could also be made to the SLCC on service issues or the Law Society of Scotland on behaviour. We presume that even if the curator is working for a law firm the complaint would not have to go through that firm’s complaints process first.”

247. However, a couple of respondents agreed that complaints by curators could be handled by the body managing the register.

248. Several respondents noted various characteristics the overseeing body should possess, which included impartiality, independence, knowledge of the curator role, and knowledge of domestic abuse and trauma situations. The overseeing body should also be given automatic access to reports.

249. A few recommendations were made about an appeals process, saying there was a need for this to be independent from the complaints process, particularly in cases where the complainant is unhappy with the response from the body appointed to deal with a complaint. Queries were also made about how decision-making would be carried out as to whether or not a complaint has any merit. A few respondents had concerns about vexatious or frivolous complaints about curators (e.g. when decisions haven’t gone a particular party’s way). Clarity was also desired as to which body (e.g. Scottish Public Service Ombudsman, Scottish Government or Scottish Ministers) should act as the final arbiter after the registration body.

250. Several other comments about the complaints process were each made by a few respondents and these included that the system must be child-friendly (e.g. children should be involved in its design), that it should be the same as that for child welfare reporters and that complaints should be dealt with timeously.

251. A few respondents held negative general perceptions of the current complaints procedure, commenting that it was cumbersome and not fit for purpose.

Contact

Email: family.law@gov.scot

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