Mother with mild learning disability capable of instructing solicitor did not require curator ad litem

About this case:

• Citation:
  [2024] SAC (Civ) 1
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Catherine Dowdalls KC

It was argued by S, the appellant, that rule 33.16 of the Ordinary Cause Rules was mandatory in nature, and thus the sheriff erred in not appointing a curator ad litem to the respondent M. Attention was drawn to the use of the word “shall” in paragraph (1) of the rule, which he argued the respondent was attempting to construe as “may”.

The appeal was heard by Sheriff Principal Catherine Dowdalls KC in the Sheriff Appeal Court. Thompson Family Law Solicitors provided representation for the appellant and 1st Legal Ltd for the respondent.

Completely at odds

The action, which commenced in 2020, concerned arrangements for the care of M’s 3-year-old child, J. The appellant sought declarator that he was J’s father and orders for parental rights and responsibilities and contact. It was noted that the respondent suffered from a mild learning disability, and on that basis the appellant submitted a motion to appoint a curator ad litem to her in terms of Ordinary Cause Rule 33.16.

A psychiatric report dated 1 September 2023 which was provided to the sheriff confirmed that the respondent had a mild learning disability. However, the psychiatrist opined, on soul and conscience, that she was able to instruct a solicitor and communicate her views and that she was able to understand the case.

The sheriff, who expressed considerable disquiet about the possibility of appointing a curator ad litem, took the view that rule 33.16 as a whole was concerned with capacity to instruct where that question arose. He was completely at odds with the suggestion that a person having capacity but suffering from a form of mental disorder required to have a curator ad litem. Despite not being addressed on ECHR issues, he also considered that disqualifying the defender from conducting her own litigation would almost certainly be a breach of her human rights.

For the appellant it was submitted that the sheriff had no discretion to refuse the motion, as the terms of rule 33.16 were mandatory. The objective purpose of the rule was not to protect a person with a mental disorder but to protect the court and the wider administration of justice. The respondent submitted that the rule was intended to establish whether a person had capacity to instruct, and in this case she had done so for over three years without difficulty.

Unnecessary delay

In her decision, Sheriff Principal Dowdalls observed: “It is apparent that the purpose of rule 33.16 is not to require that, in every case where the defender suffers from a mental disorder, the case is conducted on the defender’s behalf by a curator ad litem. The purpose of the rule is to identify, through the appointment of a curator ad litem who will obtain a medical report, whether the defender is capable of instructing a solicitor.”

She continued: “The appellant submits that, as the respondent suffers from a learning disability, which is a mental disorder in terms of section 328 of the 2003 Act, and as rule 33.16(2) provides that the sheriff shall appoint a curator ad litem to a defender in an action to which the rule applies, the sheriff had no discretion to refuse the appointment of a curator ad litem. On the face of it, that argument has much to commend it, provided one looks no further than the first paragraph of the rule.”

On the actual scope of the rule, the Sheriff Principal said: “The rule applies in cases where it appears to the court that the defender has a mental disorder, in which the court requires to ascertain whether the defender is capable of instructing a solicitor. Were the application of the rule to be otherwise, the courts, parties and their children would be faced with unnecessary delay and expense in every family case where it appeared that the defender suffered from a mental disorder, and defenders would be subjected to unacceptable and intrusive medical examination, regardless of medical evidence confirming their capacity to instruct a solicitor. Such an interpretation would produce absurd results.”

She concluded: “In the present case, the sheriff was in possession of an opinion from an appropriately qualified medical practitioner, who had examined the respondent just six days before the 7 September hearing, confirming that she had capacity to instruct a solicitor, communicate her views and understand the case. In those circumstances, the sheriff was correct to take a purposive approach to the interpretation of rule 33.16 and refuse the motion for the appointment of a curator ad litem.”

The appeal was therefore refused.