New Rules relating to the appointment of curators ad litem - May 10, 2017

The request was successful.

Stephen Leighton

Dear Scottish Civil Justice Council,

I am looking for information in relation to how the decision was made to change the ‘Appointment of curators ad litem’, that came into force in both the Court of Session and sheriff court on 1 June 2017.

The information below is taken from the Scottish Civil Justice Council website:

Taken from the Scottish Civil Justice Council website:
http://www.scottishciviljusticecouncil.g...
Appointment of curators ad litem
May 10, 2017
This Act of Sederunt, which comes into force on 1 June 2017, amends the rules that apply to the appointment of curators ad litem to defenders in certain family actions. Paragraph 2 amends Chapters 33 and 33A of the Ordinary Cause Rules 1993. Paragraph 3 amends Chapter 49 of the Rules of the Court of Session 1994.
On appointment, the curator ad litem will be ordered to lodge in process a report, based on medical evidence, stating whether or not the defender is incapable of instructing a solicitor. A definition of “incapable” is inserted into the rules for this purpose.
This Act of Sederunt also places an obligation on the curator ad litem to periodically review whether there has been any change in the defender’s capacity, and to seek discharge from appointment where the defender is no longer incapable.
See our news article for more information.

Taken from the Scottish Civil Justice Council website:
http://www.scottishciviljusticecouncil.g...
Curators ad litem appointments in family actions
May 10, 2017
New Rules relating to the appointment of curators ad litem to defenders in family actions will come into force in both the Court of Session and sheriff court on 1 June 2017.
A curator ad litem is a person appointed by the court to look after the interests of a party to proceedings who is under legal disability but has no guardian.
The Rules were developed by the Council’s Family Law Committee, following a joint proposal from the Mental Welfare Commission for Scotland (MWCS) and the Scottish Government.
They insert a definition of incapable and remove the requirement for the MWCS to provide a report for the court. Instead, it will be the responsibility of the curator ad litem to submit a report, based on medical evidence, "stating whether or not, in the opinion of a suitably qualified medical practitioner, the defender is incapable of instructing a solicitor to represent the defender’s interests". The Rules also oblige the curator to periodically review the need for their appointment to continue. Stigmatising terminology such as “suffering from a mental disorder” has been removed and replaced simply with “has a mental disorder”.

The Rules of the Court of Session and the Ordinary Cause Rules have also been brought into alignment in two respects, by:
• widening the scope for appointment of curators in the Court of Session to encompass family and civil partnership actions generally, as is the case in the sheriff court. (Appointments in the Court of Session were formerly restricted to actions of divorce, dissolution or separation.)
• providing for the sheriff to appoint a curator after the expiry of the period for lodging a notice of intention to defend. This matches the existing provision in the Rules of the Court of Session that a curator shall be appointed after the expiry of the period for lodging defences.

The instrument also amends the simplified divorce and dissolution forms, to achieve consistency in the questions asked about mental disorder.

I am looking for information/hard copies in relation to how the decision was made to change the ‘Appointment of curators ad litem’, that came into force in both the Court of Session and sheriff court on 1 June 2017. I am looking for all information/hard copies on how the proposal was made to the Scottish Civil Justice Council, what information the Mental Welfare Council provided, the cases they put forward, the reasoning, logic evidence needed to change the law on the appointment of curators ad litem? I am looking for any information possible.

I am also looking for information/hard copies about the joint proposal by the Mental Welfare Commission. Any documentation, evidence, supporting statements which may have helped this proposal.

I am also looking for any information about the following ‘The Rules were developed by the Council’s Family Law Committee, following a joint proposal from the Mental Welfare Commission for Scotland (MWCS) and the Scottish Government’, are there any copies/documentation that was used for this decision by the Council's Family Law Committee, minutes of any meetings, emails exchanged, telephone conversations, letters, reports, any correspondence and also copies of the public consultation around the change to this law?

I am looking for information/hard copies of anything else I have mentioned in this request but to which your knowledge could be relevant about how the decision was made to change the law in the appoint of curators ad litem which came into force the 1 June 2017.

Yours faithfully,

Stephen Leighton

Keillor, Lauren, Scottish Civil Justice Council

Dear Mr Leighton,

 

I acknowledge receipt of your request made under the Freedom of
Information (Scotland) Act 2002 which was received on Tuesday 10 April
2018.

 

Your request is currently being considered and a response will be sent to
you as soon as possible and in any event not later than the statutory
timescales.

 

Kind regards,

Lauren

Lauren Keillor | Policy Officer | Scottish Civil Justice Council|
Parliament House | Edinburgh | EH1 1RQ | 0131 240 6781

[1]www.scottishciviljusticecouncil.gov.uk/

 

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Keillor, Lauren, Scottish Civil Justice Council

8 Attachments

Dear Mr Leighton,

 

I refer to your email to the Scottish Civil Justice Council dated 10 April
2018 in which you make a request for information in terms of the Freedom
of Information (Scotland) Act 2002 (‘the Act’). I summarise your request
as follows:

 

-       Information in relation to how the decision was made to change the
rules relating to the appointment of curators ad litem, that came into
force in both the Court of Session and sheriff court on 1 June 2017;

-       How the proposal was made to the SCJC and what information the
Mental Welfare Commission provided;

-       Copies of relevant papers also along with minutes of any meetings,
emails exchanged, telephone conversations, letters, reports, any
correspondence and also copies of any public consultation.

This matter was considered by the Family Law Committee on 10/10/2016 and
12/12/2016 and by the Council on 20/03/2017 in response to a joint policy
proposal paper from the Mental Welfare Commission and the Scottish
Government. There was no public consultation in relation to these
proposals.

 

In response to your Freedom of Information request, I attach the following
Committee and Council papers relating to this matter:

 

1.    FLC 10102016 - Paper 4.1 (Covering paper for Committee)

2.    FLC 10102016 - Paper 4.1A (Mental Welfare Commission/Scottish
Government joint policy proposal paper)

3.    FLC 12122016 - Paper 4.3 (Covering paper for Committee)

4.    FLC 12122016 - Paper 4.3A (Draft rules)

5.    FLC 12122016 -Paper 4.3B (Mental Welfare Commission/Scottish
Government joint policy proposal paper)

6.    SCJC 200317 - Paper 7.2  (Covering paper for Council)

7.    SCJC 200317 - Paper 7.2A (Draft rules)

8.    SCJC 200317 - Paper 7.2B (Mental Welfare Commission/Scottish
Government joint policy proposal paper)

 

I should advise that given that each of these papers show policy
development as the matter progresses throughout Committee and ultimately
Council, there is a degree of repetition in the attached papers.

 

In relation to your request for the minutes of any meetings, I advise that
the SCJC publishes its Council and Committee meetings on its website.
Accordingly, I refuse this part of your request under section 25 of the
Act, namely that this is information which you can reasonably obtain other
than by requesting it under section 1(1) of the Act. You can access the
relevant meetings under the Council and Committees tabs [1]here on the
Council website.

 

I hope this information is helpful.  However should you feel dissatisfied
with this decision or the manner in which your request has been handled,
the Act provides for a review process to be conducted. Should you wish to
take advantage of this process you may apply in writing for a review. Your
request should provide details of why you wish a review to be carried out
and should be made within 40 working days of receipt of this
correspondence to: -

 

Roddy Flinn

Secretary to the Scottish Civil Justice Council

Parliament House

Edinburgh

EH1 1RF

[2][email address]

 

Following that review should you still feel dissatisfied, you have the
right to lodge an appeal with the Scottish Information Commissioner either
online:

 

[3]http://www.itspublicknowledge.info/YourR...

 

Or at the following address:-

 

Office of the Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St. Andrews

Fife

KY16 9DS

 

Kind regards,
Lauren

Lauren Keillor | Policy Officer | Scottish Civil Justice Council|
Parliament House | Edinburgh | EH1 1RQ |

[4]www.scottishciviljusticecouncil.gov.uk/

 

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Prevent Risk Of Threat & Ensure Complete Trust
For data security, this email has PROTECT marking unless otherwise shown.

 

PROTECT INFORMATION

Prevent Risk Of Threat & Ensure Complete Trust

For data security, this email has PROTECT marking unless otherwise shown.

 

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