Outer House refuses judicial review of sheriff principal’s decision not to investigate alleged curator ad litem misconduct

The petitioner complained to the sheriff principal of Lothian and Borders regarding the conduct of a court-appointed curator ad litem. Seeking judicial review of the sheriff principal’s refusal to investigate the matter, she brought proceedings before the Outer House of the Court of Session.

The petition was heard by Lady Drummond, with the petitioner appearing in person and Niall McLean, solicitor advocate, for the respondent.

Misconduct alleged against curator ad litem

In 2023, the father of the petitioner’s child raised sheriff court proceedings seeking a residence order under section 11 of the Children (Scotland) Act 1995. The proceedings saw a curator ad litem appointed by the court and concluded with a residence order being made in favour of the father; the petitioner was likewise refused residence and contact. After the intervening months saw the parties’ child attain majority, an appeal to the Sheriff Appeal Court was dismissed.

Throughout the proceedings, the petitioner noted her concerns with the conduct and independence of the court-appointed curator ad litem. The curator, she argued, had a conflict of interest, having accepted payment from the child’s father; had failed to make reasonable adjustments for her and her daughter’s disabilities; and had acted outside of the remit of her role. Prior to the conclusion of the sheriff court proceedings, the petitioner complained by email to the sheriff principal.

Replying some eight months later, after the subsequent appeal had been refused, the sheriff principal noted that the petitioner had not provided a sound basis on which to investigate the complaint and invited her to provide further factual details. He emphasised that he would be willing to consider the petitioner’s complaint if she could provide sufficient detail to merit investigation. Although the petitioner proceeded to provide further details, the sheriff principal notified her by letter in November 2025 that her complaints did not provide a sufficient basis for investigation.

Seeking reduction of that decision and declarator that the sheriff principal had erred in law, the petitioner sought judicial review before the Outer House of the Court of Session. She denied that her complaints related to the merits of the sheriff’s decision to award residence to the child’s father. The sheriff principal’s supervisory responsibility with regard to the administration of justice in his sheriffdom was engaged by the complaints; no specific regulatory framework was required, the petitioner argued, to investigate. In any case, the sheriff principal’s representations that he would consider the complaint if only sufficient facts could be supplied had created a legitimate expectation it would be unlawful to frustrate without good reason. The decision not to investigate was irrational and had been made in ignorance of relevant considerations and under the influence of irrelevant ones.

Sheriff principal engaged fully with complaints

Lady Drummond began her decision by observing that: “The petitioner’s submission that the sheriff principal misunderstood the extent of his powers and wrongly concluded that he lacked jurisdiction does not withstand examination of his responses. In the first response he has considered her complaints, addressed them and concluded that because they do not disclose apparent misconduct, he would not investigate further. Having reached that conclusion he indicated that he remained open to considering any further material if the petitioner wished to pursue her complaint. In the second response, he again assessed the petitioner’s complaints and decided that there was no merit in them which would warrant further investigation. It is plain from the sheriff principal’s responses that he considered the petitioner’s complaints.”

She continued: “The sheriff principal was entitled to assess whether sufficient information had been presented to justify any further action and decided in both responses that it had not been. Public resources are limited and there is nothing unlawful in an authority making an initial assessment of a complaint before deciding whether public money should be spent investigating it further. Such an approach did not amount to a misunderstanding of his powers.”

Turning to examine the petitioner’s arguments on the averred legitimate expectation, Lady Drummond reasoned: “It was not in dispute that an authority may not depart from a clear and unambiguous undertaking previously given, unless it is fair for it to do so, the court being the arbiter of fairness. However, the petitioner’s submission faces a fundamental obstacle: there was no clear and unambiguous representation that her complaint would be further investigated … All that the sheriff principal undertook … was that he would further consider the matter if the petitioner provided additional factual information.”

As to the submissions on the relevancy or otherwise of the material the sheriff principal took into account, she noted: “The sheriff principal’s first response specifically addressed the petitioner’s complaints including allegations of impartiality, payment arrangements, the psychologist’s instructions, disability issues, the curator’s role and conduct, and the best interests of the child. The second response addressed suppression of evidence, misrepresentation of evidence and failure to ask questions … There is a distinction between the decision-maker failing to consider relevant material and the decision-maker considering it but making a decision that the petitioner disagrees with. The petitioner’s challenge on this ground falls into the latter category.”

Lady Drummond concluded by rejecting the petitioner’s arguments on irrationality: “The argument that the sheriff principal simultaneously accepted and rejected jurisdiction does not withstand scrutiny … Deciding that a complaint should not be further investigated is not the same as declining jurisdiction ie any power to consider the matter at all. Public authorities routinely assess complaints before deciding whether any further process is justified and there is nothing irrational in such an approach.”

The petition was accordingly refused.