A recent decision of the Sheriff Appeal Court found that a Sheriff had erred in granting a permanence order in favour of Glasgow City Council which did not contain both parts of the mandatory provision from section 81(1) of the Adoption and Children (Scotland) Act 2007 ("the 2007 Act"). Both parts of the mandatory provision are necessary for a valid permanence order and cannot be severable.
Background
A permanence order is a court order that is applied for by the local authority which regulates the exercise of parental responsibilities and parental rights in respect of a child who cannot reside with their parents, but where contact or shared exercise of parental responsibilities and parental rights is or may be appropriate. It may remove some or all parental responsibilities and rights and grant them to persons specified in the order.
A valid permanence order must consist of (1) the mandatory provision, (2) any of the ancillary provisions that the court thinks fit, and (3) authority for the child to be adopted if requested and additional conditions are met. The mandatory provision is set out in section 81(1) of the 2007 Act and is split into two parts and vests in the local authority:
- Responsibility for the provision of guidance, appropriate to the child's stage of development, in relation to the child; and
- Responsibility for regulating the child's residence.
The responsibility to provide guidance to the child, will vest in the local authority until the child reaches 18; conversely, the responsibility to regulate the child's residence will vest in the local authority until the child reaches 16.
The Sheriff at first instance granted the permanence order in respect of the child, M. He determined that the paramount consideration for the court when considering an application for a permanence order was "the need to safeguard and promote the welfare of the child throughout childhood". Throughout childhood meant until the age of 18 and M had reached the age of 16 by the time the application for permanence was made. As a result of the child's age, only part (a) of the mandatory provision to provide guidance appropriate to the child's stage of development in relation to the child could apply.
The Sheriff at first instance, acknowledged that as the child was over 16,the local authority could not seek an order to regulate the child's residence. However, the Sheriff considered that the provision of guidance to the child could still vest separately in the local authority. He considered that the legislation provided distinct periods for the provisions in section 81(1)(a) and (b) respectively, to apply. Although the time period for granting part (b) of the mandatory provision had passed, it did not mean that the time for granting part (a) had also passed.
A permanence order was made in respect of the child M with only part (a) of the mandatory provision. The decision was appealed by M's parent, MM on the basis that the order was not competent and the sheriff's interpretation was inconsistent with the wording of the statute. MM argued that the mandatory provision contained two distinct requirements which were not severable from each other; and both parts needed to be satisfied for an order to be granted.
The decision
The Sheriff Appeal Court determined that the sheriff at first instance had erred in their interpretation of section 81(1). Parts (a) and (b) were not severable and both were required for a competent permanence order to be granted. Delivering the opinion of the court, Sheriff Principal Dowdalls said of section 81:
"The language of sections 80 and 81(1) of the 2007 Act is clear. A permanence order must consist of the mandatory provision and such of the ancillary provisions as the court thinks fit. In making a permanence order, the court must secure that each parental responsibility and each parental right, in terms respectively of sections 1 and 2 of the [Children (Scotland) Act 1995], vests in a person. Unless that is achieved, there can be no permanence order."
The court considered that the vesting of the right to regulate a child's residence in the local authority is critical to the making of a permanence order. Without that right, the local authority is unable to fulfil the intentions of a permanence order and cannot provide a child with a corporate parent. The local authority would be unable to regulate the child's residence in a way that is not, and is not likely to be, seriously detrimental to the welfare of the chid. Whilst there is only one mandatory provision under section 81 of the 2007 Act, it does have two separate components. The court held that if the words of section 81 are to be given their ordinary and natural meaning, and having regard to the effect of a permanence order, the two components are not servable and must be read together.
The court noted that the effect of its decision was that it is only competent for a permanence order to be made in respect of a child that is under 16. The terms of the order, in respect of section 81(1)(a) providing guidance appropriate the child's stage of development to the child, will vest in the local authority until the child reaches the age of 18.
What does this judgement mean?
The decision in Glasgow City Council v MM provides useful guidance around the use of permanence orders for young people that are aged 16 and 17. Children over 16 who would otherwise require a permanence order to be made to safeguard them will have their welfare supported by the measures contained within the Children (Scotland) Act 1995. Local authorities should be mindful of time constraints where they are intending to make an application for a permanence order for a child that is approaching their 16th birthday and highlights the need for local authorities to act quickly in such circumstances.
