Handy guide to Permanence Orders

Posted On: 23 June 2009

Author: Janys M Scott QC

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SCOTTISH LEGAL GROUP CONFERENCE 19 JUNE 2009

PERMANENCE ORDERS –

HOW ARE THEY GOING TO WORK?

What is a permanence order?

• An order vesting in a local authority the right to regulate a child's residence and the responsibility to provide guidance to the child. Sections 80(2)(a) and 81

• Vesting other responsibilities and rights in persons considered appropriate, so that each parental responsibility and each parental right vests in someone (by operation of law or under the PO). Section 80(2)(b) and (3)

• In some cases, granting authority for the child to be adopted. Section 80(2)(c)

 NB1.  This contrasts with a supervision requirement which may suspend the operation of parental responsibilities and rights, but leaves the underlying responsibilities and rights untouched.

NB2.  Child becomes "looked after" in terms CSA section 17(6). Schedule 2 para 9(4).

When may a permanence order be made?

• When no-one has rights in relation to residence or Residence with any of the persons who do have rights in relation to residence is, or is likely to be seriously detrimental to the welfare of the child. Section 84(5)(c).

• Child is defined as person under 18. Section 119.
There is an effective limitation to persons under 16 at time order is made as residence rights do not apply to over 16 year olds.
The provision excluding children who have been married or civil partners may be otiose.   Section 85(2).
A PO may be made for an adopted child. Section 85(1).

• The child is under the age of 12 or
Over 12 and consents to the order or
Over 12 and incapable of consenting to the order.
Section 84(1) and (2).

• After the child has been given the opportunity to express a view to the court.
Children of 12 and over are presumed to be of an age and maturity to give a view
Views must be taken into account.
Section 84(5)(a)&(b)(i) and (6)

• If the order, and the provision within the order is likely to safeguard and promote the welfare of the child throughout childhood.  This is the paramount consideration.  Section 84(4).

• If the making of the permanence order would be better for the child than not making such an order.
The order must be shown to be an improvement on the existing position.
Section 84(3)

• Regard must be had to:
- The child's religious persuasion, racial origin and cultural and linguistic background
- The likely effect on the child of the making of the order.
Section 84(5)(b)(ii) and (iii)

What decisions need to be made in relation to parental responsibilities and rights?

Consideration has to be given to each parental responsibility and right, bearing in mind that parental rights in the Children (Scotland) Act s 2 are conferred on a parent to allow the parent to fulfil the parental responsibilities in s 1. 

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