Permanence Orders

Posted On: 16 December 2011

Author: Janys M Scott QC

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Janys Scott QC was a speaker at the Legal Services Agency conference on Permanence Orders, on 14 December 2011.  Below is a copy of her paper, updated to take account of points raised during the discussion at that seminar.

LEGAL SERVICES AGENCY

PERMANENCE ORDERS

 Outcomes 

This presentation is designed to further the PEAT outcome for the seminar by conveying relevant legal knowledge.  It introduces delegates to the legislative structure relating to permanence orders, reviews the reported cases and identifies the legal issues that arise and will require to be resolved in future litigation.  

 

Introduction

[1]  If there were a subheading for this presentation it would be “lost in translation”. The policy objective behind the new permanence order in the Adoption and Children (Scotland) Act 2007 was to provide a Scottish measure for children for whom there is no reasonable prospect of living at home with their families and who are either going to spend the rest of their childhoods accommodated by the local authority, or are going to be placed for adoption.   In contrast to the children’s hearing this order is to have a long-term focus, throughout childhood.  Orders should be flexible and tailored to the child, rather than having a “one-size-fits-all” approach.  The Adoption and Children (Scotland) Act 2007 was to some extent a surprise.  The draftsman had his own ideas on how to implement the policy and the legislative package is somewhat impenetrable.  So much so that it is difficult to find a decision on an application relating to a permanence order that is entirely consistent with the legislation.

[2]  The provisions of the 2007 Act were brought into into force on 28 September 2009 by the Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009, SSI 267/2009.  There is a new Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009, Chapter 4 of which covers permanence orders.  The rules are largely modeled on the adoption rules.  More of both later

 

Permanence orders

[3]  A permanence order is an order made on the application of a local authority, that vests in the local authority the right to regulate a child’s residence and the responsibility to provide guidance to the child (2007 Act, section 80(2)(a) and 81).  The right to regulate residence is a parental right found in section 2(1)(a) of the Children (Scotland) Act 1995.  The mandatory vesting of this right in the local authority reflects the notion that the child cannot return to live with the parent.  The responsibility to provide guidance is in section 1(1)(b)(ii) of the Children (Scotland) Act 1995.  It is not entirely clear why this is a mandatory part of a permanence order, save that rights in section 2 of the 1995 Act are there to fulfil responsibilities in section 1 so it may have been thought necessary to pick a responsibility to go with the right.  This one has the benefit of lasting until the child attains the age of 18. 

[4]  In addition to the mandatory part of the permanence order, the court may add such ancillary provisions as it thinks fit (section 80(2)(b) and 82).  This allows the court to re-distribute the parental responsibilities and parental rights found in sections 1(1) and 2(1) of the Children (Scotland) Act 1995.  The court must however ensure that every parental responsibility and parental right in respect of the child vests in a person (section 80(3)).  The provisions of section 82 are very detailed and specific and this is where many of the difficulties are apparent.  Finally the permanence order may grant authority for the child to be adopted (section 80(2)(c) and 83).  If there is a permanence order with authority to adopt in force then the child may be adopted in later proceedings without any question of parental consent arising (section 31(7)).

 

Conditions for making a permanence order

[5]  There are age constraints on making an order.  A permanence order may only be made in relation to a “child”, defined in section 119 as a person under 18.  In practice it is doubtful whether an order could or should be made for a person over 16, as the only parental responsibility to exist after a person’s 16^th birthday is the responsibility of providing guidance.  A person aged 12 or over must consent to the order (section 84(1)), unless incapable of consenting (section 84(2)).  Section 85 allows a permanence order to be made in respect of an adopted child, but not a child who has been married or a civil partner.

[6]  The conditions and considerations for making an order are found in section 84:

• The court may not make a permanence order unless it would be better for the child that the order be made than that it should not be made (section 84(3)).
• The welfare of the child throughout childhood is the paramount consideration when deciding whether an order should be made, and if so what provision the order should make (section 84(4)).
• A child of sufficient age and maturity must be given the opportunity to express a view, to which the court should have regard (section 84(5)(a), (b)(i)), a child of 12 or over being presumed of sufficient age and maturity to form a view (section 84(6)). 
• There must be regard for the child’s religious persuasion, racial origin and cultural and linguistic background (section 84(5)(b)(ii).
• There must be regard for the likely effect on the child of making the order (section 84(5)(b)(iii)).
• Before making a permanence order the court must be satisfied that:

“(i)  there is no person who has the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with that person or otherwise to regulate the child’s residence, or

(ii) where there is such a person, the child’s residence with the person is, or is likely to be, seriously detrimental to the welfare of the child.”   (section 84(5)(c)).

 This last condition reflects the original basis for the policy of permanence orders.  It was initially left out of the Bill, but inserted later by amendment.

 [7]  Thus far we have seen two appeals relating to this section.  In East Lothian Council v S, 2011 Fam LR 80 Sheriff Principal Bowen dealt with an appeal from Sheriff Peter Gillam in Haddington.  Sheriff Gillam granted a permanence order without any express finding in relation to the condition in section 84(5)(c) (Scottish Courts website, 30 July 2010). The omission was explained by a Joint Minute where parties had agreed that there was no person who had the right mentioned in subsection (1)(a) of section 2 of the 1995 Act to have the child living with that person or otherwise to regulate the child’s residence, which would have satisfied the test in section 84(5)(c)(i).  The solicitors involved in the case appear to have been confused by the fact that the child was subject to a supervision requirement which prevented the parents exercising their right to residence.  A supervision requirement suspends rights, it does not extinguish them.  The parents still had the right to have the child living with them, albeit they could not exercise that right.  The matter should have been considered under section 84(5)(c)(ii).  The error was realised on appeal and the sheriff principal remitted the case to the sheriff for consideration of the test in section 84(5)(c)(ii).  The sheriff decided the test was satisfied and sent the matter back to the sheriff principal, who refused the appeal (Scottish Courts website, 13 July 2011). The case was then appealed further to the Court of Session and a judgment is awaited.

[8]  In the other appeal Sheriff Principal Sir Stephen Young QC reversed the decision of Sheriff Philip Mann at Banff  (Aberdeenshire Council, re CW, 6 December 2010 Scottish courts website, sheriff; Aberdeenshire Council v TW, JW, 2011 SLT (Sh Ct) 186, on appeal).  Sheriff Mann had refused a permanence order without addressing the issue in section 84(5)(c).  It is perhaps difficult to see why this is a criticism, given the way that section 84 is structured.  The basic test for a permanence order is in section 84(3) and (4).  There is no need to cross the bridge in relation to section 84(5)(c) unless the court is considering granting a permanence order.  The sheriff refused a permanence order on the basis that the local authority should have completed a kinship care assessment of the mother’s parents before proceeding with the application. The sheriff principal considered that the sheriff was “plainly wrong” to have because the child required permanence, continuity and stability and the sheriff’s decision introduced harmful delay.  A decision from the Court of Session is awaited.   The cases show that the conditions relating to grant or refusal of a permanence order are trickier than might at first have been anticipated. 

 (Continued...to read the full paper please click on the link at the top of the page.)