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REPORT TO: CHILDREN AND YOUNG PEOPLE’S SERVICES COMMITTEE ON 2 MARCH 2016

SUBJECT: CURATORS AD LITEM AND REPORTING OFFICERS

BY: CORPORATE DIRECTOR (EDUCATION AND SOCIAL CARE)

1. REASON FOR REPORT

1.1 To inform the Committee of emerging issues that relate to this service area and confirm the re-appointments to the Joint Curators ad Litem and Reporting Officers Panel.

1.2 This report is submitted to Committee in terms of Section III C (2) of the Council's Scheme of Administration relating to exercising the functions of the Council in respect of Looked After Children, adoption and young people leaving care.

2. RECOMMENDATION

2.1 It is recommended that Committee scrutinises and notes the detail within this report.

3. BACKGROUND

3.1 The Curators ad Litem and Reporting Officers (Panels) () Regulations 2001, amended by The Curators ad Litem and Reporting Officers (Panels) and the Panels of Persons to Safeguard the Interests of Children (Scotland) Amendment Regulations 2011, provides for the appointment of Curators ad Litem and Reporting Officers to provide independent reports to the Court on adoption and permanence plans for children. Often one person acts in both capacities as Curator ad Litem and as Reporting Officer.

3.2 A Curator ad Litem is a judicial officer charged with safeguarding the interests of a child before the Court.

3.3 The setting up of a Joint Curators ad Litem and Reporting Officers Panel with Aberdeen City Council and Aberdeenshire Council was agreed at Committee on 2 December 2009 (paragraph 9 of the minute refers).

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3.4 The Moray Council on 30 March 2011 (paragraph 8 of the minute refers) agreed that fees, paid from 2011/12 onwards, to Curators ad Litem and Reporting Officers appointed to the Joint Panel, should be streamlined and that increase in fees paid would be consistent with the percentage salary change agreed for Council employees through the Scottish Joint Council (SJC).

3.5 The Moray Council on 3 February 2016 agreed to delegate authority to the Head of Legal and Democratic Services (paragraph 8 of the draft minute refers) to agree future amendments to fees for Joint Curators ad Litem and Reporting Officers, in line with the percentage salary change agreed for Council employees through the Scottish Joint Council (SJC). This transfer of delegation from the Head of Integrated Children’s Services is dependent upon agreement on resource allocation and remains with the Head of Integrated Children’s Services meantime.

3.6 An issue, which may have implications for fees and budget, has emerged. A solicitor in the Scottish Borders Council was appointed curator ad litem and reporting officer. Under the (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 and in advance of any work being carried out, this solicitor secured an order from the court entitling him to recover “on a time and line basis”, such fees, outlays and expenses incurred as curator ad litem and reporting officer in those proceedings from the Scottish Borders Council. This was significantly more than the fee which would have been paid to the solicitor as a Panel member. Stephen refused the appeal lodged by Scottish Borders Council. Since then, further court decisions have been made where curators have been paid on a time and line basis.

3.7 More usually The Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 are applied in relation to fees. The obligation under the Regulations 10 (1A) is to defray expenses and pay such fees and allowances “as the local authority shall think fit…”. The deliberations arising from this specific case and about which a number of Local Authorities have been considering is whether, the operation of fixed fee schemes, which Moray currently operates, may be open to challenge on grounds of unreasonableness or irrationality.

3.8 Fees paid by the Joint Panel are as follows: -

Fees Fees 2015/16 (£) 2016/17 (£) Curator ad Litem Reports Fee for Curator only for 1 child 262.50 265.12 Second and Subsequent Children 131.25 132.56 Joint Curator ad Litem and Reporting Officer Reports Fee for Curator and Reporting Officer 393.73 397.67 for 1 child Second and Subsequent Children 196.86 198.83

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When Curators ad Litem and Reporting Officers are advised of the fee payable by the Joint Panel the following is added “We recognise from time to time some cases can incur costs over and above what would be anticipated by an appointment. Where you believe this to be the case then please contact the relevant local authority, as soon as practical to discuss the anticipated additional costs.”

3.9 Following a meeting with the Curators ad Litem and Reporting Officers, members of the Joint Panel have advised they will meet to consider the fees, within the context of needing to recognise the nature and extent of the work involved: this work is important. If there were to be challenges to court for fees to be paid on a “time and line” basis the costs would increase significantly.

3.10 Another issue which has proved challenging has been in relation to a decision of HMRC (Her Majesty’s Revenue and Customs). HMRC ruled against Aberdeen City Council deciding that Curators ad Litem and Reporting Officers should be viewed as Office Bearers and as such their payments should be subject to National Insurance and PAYE contributions. Discussions were held within Moray payments section and human resources and as a consequence Moray adopted that course of action: making Curators ad Litem and Reporting Officers office bearers of the Council for HMRC purposes. Other local authorities have also adopted that course of action following approaches from HMRC.

3.11 This action resulted in 3 of the Curators ad Litem and Reporting Officers on the Joint Panel resigning from their post on principle raising issue with the potential for conflict of interest. The Curators ad Litem and Reporting Officers stated they believed that by becoming Council office bearers they had lost their independence: this could be viewed as being a moot point given the Curators ad Litem and Reporting Officers are appointed to a panel which is within the remit of the local authority. The number of Curators ad Litem and Reporting Officers who continue to offer service to Elgin Sherriff Court is 6, with much of the work being undertaken by 3 of those 6. One further person is currently within the process of recruitment. All reappointments were processed not later than November 2015 and will be reviewed not later than 3 years, consistent with policy.

4. SUMMARY OF IMPLICATIONS

(a) Moray 2023: A Plan for the Future/Service Plan

Achieving permanence for Moray’s more vulnerable children seeks to ensure the outcomes of reducing drift and delay in care planning; supporting our children to become achieving responsible citizens and where adoption is secured, reducing the number of looked after children. The service offered by Curators ad Litem and Reporting Officers is a necessary and vital stage in those processes.

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(b) Policy and Legal

The Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001, as amended 2011, provide for the appointment and payment of Curators ad Litem and Reporting Officers.

(c) Financial implications

The financial implications associated with this report arise from the potential challenge to fees currently agreed which the Joint panel had considered to be reasonable and rational. Following a meeting with the Curators ad Litem and Reporting Officers, the Joint Panel has advised that the fees will be reviewed and if there are recommendations that extend beyond delegated authority a report will be made to Committee.

(d) Risk Implications

There is need to have Curators ad Litem and Reporting Officers available to service cases, otherwise adoption and permanence plans for vulnerable children will not be progressed in a timely fashion.

If Curators ad Litem and Reporting Officers applied to court for increased fees on the basis of fixed fees being unreasonable or irrational there is the potential that the Sheriff could decide on rates, on an individual case by case basis, being payable on “time and line”.

(e) Staffing Implications

There are no staffing implications associated with this report.

(f) Property

The report has no property implications.

(g) Equalities

There are no equality implications associated with this report.

(h) Consultations

Katrina McGillivray, Senior Human Resources Adviser; Deborah Brands, Principal Accountant; Margaret Forrest, Legal Services Manager (Litigation & Licensing); Don Toonen, Equal Opportunities Officer; Diane Beattie, Payments Manager and Caroline Howie, Committee Services Officer have been consulted in the preparation of this report. Comments received have been incorporated within the report.

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5. CONCLUSION

5.1 There are a number of emerging issues which are being considered or which have been addressed.

5.2 A meeting to consider the basis of the existing fee will be held mid February and report will be made to Committee should there be recommendations for change to the current fee basis arising from that meeting.

5.3 Those Curators ad Litem and Reporting Officers who have been re- appointed are compliant with the requirements of HMRC and at future recruitment any expressing interest in delivery of this service will be advised at outset of this issue/need. There was concern that Moray might have insufficient Curators ad Litem and Reporting Officers given 3 resigned as a result of the HMRC requirements. However there remain sufficient in number to deliver this important service: and recruitment is active.

5.4 Re-appointments have progressed and review will next be an issue in 2018.

Author of Report: Jennifer Gordon, Corporate Parenting & Commissioning Background Papers: Ref: