Supervisory Complaints about Curators ad Litem: No Legitimate Expectation of Investigation and No Judicial Review Where the Complaint Seeks to Re-open Litigation Merits

1. Introduction

In Petition of AB for Judicial Review of the decision of the Sheriff Principal of Lothian and Borders dated 26 November 2025 refusing to investigate a complaint concerning the conduct of a curator ad litem [2026] CSOH 84, the Outer House (Lady Drummond) considered a judicial review brought by the petitioner (AB) challenging the Sheriff Principal of Lothian and Borders’ refusal to investigate her complaint about a court-appointed curator ad litem in prior family proceedings about a child’s residence and related orders.

AB’s central contention was that the Sheriff Principal had (i) misunderstood his jurisdiction and powers, (ii) created and then frustrated a legitimate expectation of an investigation, and (iii) reached an irrational and procedurally unfair decision by declining to investigate alleged partiality, evidential “suppression”, and related conduct by the curator.

Although the respondent had pled that the Sheriff Principal’s decision was not amenable to review and that the petition was time-barred, those points were not insisted upon at the hearing. The court therefore determined the petition on standard public law grounds (error of law, legitimate expectation/procedural fairness, relevancy of considerations, irrationality, and alternative remedy).

2. Summary of the Judgment

  • No error of law: The Sheriff Principal did not refuse to act for want of jurisdiction; he assessed the complaint and concluded there was no sufficient basis to expend public resources on a further investigation.
  • No legitimate expectation: The earlier correspondence did not contain a “clear and unambiguous” promise of investigation; it promised only further consideration if sufficiently specific factual material were provided.
  • No failure to consider relevant matters / reliance on irrelevant matters: The Sheriff Principal engaged with the complaint. It was relevant to note that the petitioner could have contested evidence and the curator’s position within the underlying litigation.
  • No irrationality: It was rational to (a) screen a complaint and (b) distinguish between investigating misconduct and re-opening the merits of a sheriff’s factual findings.
  • Alternative remedy point rejected on facts: By the stage of the Sheriff Principal’s decision, the petitioner had exhausted the alternative routes the respondent relied on.
  • Remedy/discretion: While the court rejected the “inevitable outcome” discretion argument in principle, it indicated that even if unlawfulness had been established, reduction would have served no purpose because the curator’s conduct was already under investigation by the Law Society of Scotland.
  • Outcome: Petition refused; expenses awarded against the petitioner.

3. Analysis

3.1 Precedents Cited (and How They Were Used)

(a) Error of law / jurisdictional misdirection

  • Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and Padfield v Minister of Agriculture [1968] AC 997 were invoked by the petitioner to argue that a decision-maker errs in law by misapprehending the scope of their powers, including by wrongly treating themselves as unable to act. The court distinguished that scenario from the present facts: the Sheriff Principal did not decline jurisdiction; he performed an evaluative screening and decided the complaint did not justify further inquiry.

(b) Legitimate expectation and fairness

  • R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 was relied upon to frame the petitioner’s case that a public authority may not frustrate a legitimate expectation created by clear representations.
  • The court adopted the modern formulation that only a clear and unambiguous undertaking can found such an expectation, citing Re Finucane's Application for Judicial Review [2019] UKSC 7 (para 62) and School and Nursery Milk Alliance Ltd v Scottish Ministers [2022] CSOH 11. On the correspondence, there was no promise of an investigation—only a willingness to consider further material, with investigation contingent on the decision-maker being satisfied there was a proper factual basis.

(c) Irrationality (Wednesbury)

(d) Alternative remedy and the supervisory jurisdiction

  • The respondent relied on WA v Secretary of State for the Home Department [2017] CSOH 30, McCue v Glasgow City Council [2014] CSOH 124 and CA v Western Isles Council [2024] CSOH 103 for the general proposition that judicial review is usually unavailable where an alternative remedy exists and has not been exhausted, reflected also in RCS 58.3(1).
  • The court accepted the general rule, but held that on these facts the petitioner had already pursued the alternatives identified (raising matters before the sheriff; attempting an appeal that became incompetent once the orders expired; and complaint routes were limited because the curator was not a local authority panel appointee and was not practising as a solicitor).

(e) Discretion to refuse reduction despite error

  • The respondent relied on Amid v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582, followed in Kaagobot Ltd v City of Edinburgh Council [2023] CSOH 10, to argue that even if an error were found, the court should refuse relief because the outcome would inevitably be the same.
  • The court rejected “inevitable outcome” reasoning as applied here, emphasising the limits of the court’s role in supplanting discretionary administrative judgment. Nonetheless, it indicated that relief would have been refused for a different discretionary reason: reduction would have been pointless given the ongoing Law Society investigation.

(f) Control over curators

  • The petitioner highlighted the absence of panel-based regulation under the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (SSI 2001/477). The court referred to City of Edinburgh Council v MO's Curator [2016] CSIH 46 (para 17) as confirming that the court retains “some degree of control” to ensure curators act properly and independently, even where the 2001 Regulations do not apply.

3.2 Legal Reasoning

(a) Screening vs “refusing jurisdiction”

A key analytical move is the court’s distinction between (i) a public authority wrongly concluding it has no power to act at all and (ii) an authority having power but deciding, after preliminary assessment, that a complaint does not warrant further steps. Lady Drummond treated the Sheriff Principal’s letters as performing a lawful “triage” function: he engaged with the allegations, explained why they did not disclose prima facie misconduct, and concluded that resource-intensive investigation was unjustified.

(b) Complaints that are really merits challenges

The Sheriff Principal’s second response characterised the further allegations (misrepresentation of evidence, suppression of information, alignment with one party’s narrative, failure to ask certain questions) as issues that belonged to the conduct of the litigation and the sheriff’s adjudication. The court endorsed this framing. The point was not that curators are immune from scrutiny, but that an administrative complaint process should not be used to re-litigate evidential disputes which the sheriff was tasked to determine in adversarial proceedings.

(c) Legitimate expectation: the necessary “clear and unambiguous” promise

The court read the first letter as expressly declining investigation on the materials presented, while leaving open further consideration if enough factual material were supplied. That conditional stance could not reasonably be treated as a promise of investigation, still less a guarantee that investigation would follow the petitioner’s further submissions. Accordingly, there was no legitimate expectation capable of protection in public law.

(d) Relevant/irrelevant considerations

The petitioner argued that the Sheriff Principal wrongly relied on her failure to raise matters at proof or through cross-examination. The court held those observations were relevant because they supported the Sheriff Principal’s conclusion that the complaint was directed to evidential and procedural matters apt for litigation. The judgment also draws a common judicial review line: disagreement with the decision-maker’s evaluation is not, without more, a failure to take relevant considerations into account.

(e) Irrationality

The alleged “inconsistency” (first entertaining the complaint; later saying there was “no power”) was resolved by construing the letters as: (1) undertaking an initial assessment and (2) rejecting any notion of power to review or re-open the sheriff’s or Sheriff Appeal Court’s determinations. On that reading, the reasoning was coherent and therefore not Wednesbury-irrational.

(f) Discretion and futility

Even while dismissing the petition on the merits, the court addressed remedy. Notably, it indicated that reduction would have served “no purpose” because the curator’s conduct was already under investigation by the Law Society of Scotland. This is a practical, consequences-based restraint: judicial review remedies are discretionary and are not granted for purely symbolic victory where no material benefit follows.

3.3 Impact

  • Clarifies the Sheriff Principal’s role in curator complaints: The decision supports a model where the Sheriff Principal may consider complaints about a court-appointed curator as an officer of court, but may lawfully refuse to escalate matters absent prima facie misconduct.
  • Draws a firm boundary against “appeal by complaint”: Complaints that in substance challenge evidential weight, litigation strategy, or the sheriff’s findings are likely to be treated as matters for the court process (proof/appeal), not post hoc administrative investigation.
  • Legitimate expectation threshold reaffirmed: Conditional willingness to “consider” further information is not a promise of investigation. Future litigants will need a clear, unqualified undertaking before arguing procedural unfairness on Coughlan principles.
  • Futility as a remedial brake: The judgment illustrates that even if unlawfulness were shown, relief may be refused if it yields no practical outcome—particularly where another competent body is already investigating.

4. Complex Concepts Simplified

  • Curator ad litem: A person appointed by the court to safeguard a child’s interests in proceedings; an “officer of court” who must act independently.
  • Supervisory jurisdiction / judicial review: The Court of Session’s power to check legality, fairness, and rationality of decisions by public bodies and office-holders; it is not an appeal on the facts or merits.
  • Error of law (Anisminic): A decision can be unlawful if the decision-maker misunderstands what powers they have or asks the wrong legal question.
  • Legitimate expectation: If a public authority makes a clear promise about procedure or outcome, fairness may require it to keep that promise unless there is good reason not to. Vague or conditional statements usually do not qualify.
  • Wednesbury irrationality: A very high bar: the decision must be so unreasonable that no reasonable decision-maker could have made it.
  • Discretionary remedies / futility: Even where a decision is unlawful, the court may refuse to quash it if doing so would serve no practical purpose.

5. Conclusion

[2026] CSOH 84 confirms that a Sheriff Principal may lawfully perform an initial evaluative screening of complaints about a court-appointed curator ad litem and decline further investigation where allegations do not disclose a sufficient basis for misconduct inquiry. It also reaffirms that legitimate expectation requires a clear and unambiguous promise, and that judicial review is not a mechanism to re-open the merits of concluded (or spent) family litigation. Finally, the judgment underscores the practical, discretionary nature of judicial review remedies: even proven unlawfulness may not yield reduction where no material benefit would follow.