A GALASHIELS solicitor has won a landmark court battle with Scottish Borders Council over how much he should be paid for his key role in a sensitive adoption case.

And Iain Burke, of Bannerman Burke in Bank Street, has been praised for the professional way he carried out his duties, despite the ongoing dispute over his payment.

On March 5 this year, Mr Burke was appointed as the so-called curator ad litem in a case in which SBC was petitioning for a permanence order under the Adoption and Children (Scotland) Act 2007.

The case involved an unnamed four-year-old child who was in the care of the council.

In Scots law, a curator ad litem is an independent, approved solicitor appointed by the court to represent the best interests of a child who lacks the mental capacity to make decisions for him or herself.

In a just-published written judgement on the payment wrangle, the Sheriff Principal of Lothian and Borders Mhairi Stephen describes the duties of curators as “manifold”, involving confidential enquiries of all parties in an adoption case – including the child - and an independent assessment of whether any order is in the child’s best interests.

Curators are normally given around four weeks to complete this task and, in this case, Mr Burke had until March 24 to report to the court.

But on March 17, Sheriff Derrick McIntyre, after sitting in private at Jedburgh, issued an interlocutor – a decree – in favour of Mr Burke who felt the work involved in his statutory court-appointed role was worth more than the £100.20 flat fee currently paid by the council.

The sheriff thus ruled that Mr Burke “shall be entitled to recover on a time and line basis, such fees, outlays and expense he incurs as a curator ad litem...from the Scottish Borders local authority.” Sheriff McIntyre further observed: “The matter requires clarification, otherwise it may be the situation that none of the lawyers in the Borders feel they can afford to do these reports to the high standard expected which I would regard as essential.

“This can only have a detrimental effect on child welfare matters in the Borders.” Despite these comments, the council lodged an appeal with the Sheriff Principal, a hired advocate contending that the March 17 decree was incompetent as the sheriff, and therefore the court, had no power to pronounce it.

The council claimed the matter of fees in the preparation of reports – before a hearing has actually taken place - was instead governed exclusively by the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 and, as such, Mr Burke was only entitled to the flat fee.

However, in her determination Sheriff Principal Stephen states: “There is a general principle that if a court appoints a person of skill or a professional person who is authorised to do anything by the court, the court may and will also make orders as to his remuneration or expenses and determine whether one or all of the parties should be liable.

“The principle applies to curators…and others appointed by the court.

“In my view, this tends to reinforce the conclusion that the court retains overall power to regulate the fees and expenses of those conducting proceedings before the court or appointed by the court. For these reasons the appeal [by Scottish Borders Council] is refused.” The Sheriff Principal, who has ordered the council to bear its own legal expenses in respect of its appeal, concludes with praise for Mr Burke.

“It is important to record that he has prepared the reports in his capacity as curator and reporting officer, thus allowing these [adoption] proceedings to progress without waiting for my decision on this appeal.

“I am obliged to him for doing so as, indeed, are the appellants [SBC].” Mr Burke told the Border Telegraph that the flat fee of £100.20 came “nowhere near” covering a solicitor’s costs in preparing reports for the court. He estimated the real cost in an average adoption case was between £500 and £1,000.

“In this particular adoption case, I was required to travel outwith the region to interview parties and, on a conservative estimate, about 12 hours of work was involved.

“I do not blame SBC for applying what it thought was the letter of the law, but even it must concede that the flat fee, which I understand has been agreed by the Convention of Scottish Local Authorities, is both derisory and an anachronism.

“The roles of curators ad litem and reporting officers in adoption cases are taken very seriously by solicitors for a very good reason. The future of vulnerable children can depend on them and, in matters of child welfare, I do not believe costs should be cut in this way.

“Since the Sheriff Principal upheld my position, I have been contacted by solicitors from across Scotland who have welcomed the stance I have taken. Hopefully, it will make a real difference.

A spokesperson for SBC said yesterday: “Council officers were aware that the council-set fee of £100.20 was unlikely to be representative of the level of work that a curator requires to carry out their role in court, but until this ruling, were not able to accept that those appointed should be paid outwith that.

“The Sheriff Principal is clear in her judgement that 'the budget which local authorities set with regard to panel reporters’ fees must be viewed in the context of the overall financial burden which the state – in the form of the local authority – bears in respect of looking after children and the overall cost of permanence and adoption proceedings’.

“She was minded that the conflict between two sets of regulations could be reconciled and that there is an obligation on the council to defray expenses.

“Contact has been made with the curator [Mr Burke] and fees submitted will be processed for payment by the council in line with this significant, clear judgement.

“The council retains the ability to ensure that fees and outlays are appropriate, but are not limited to the former fixed fee.”