Sheriff Appeal Court recalls permanence order made without all mandatory provisions

About this case:

• Citation:
  [2024] SAC (Civ) 38
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Catherine Dowdalls KC

Glasgow City Council originally applied to the sheriff for a permanence order in respect of a child, M, aged 16, with the application opposed by the respondent MM, who argued that it was not competent for a permanence order to be made. The SAC had previously refused an application by the appellant to remit the case to the Inner House of the Court of Session.

The appeal was heard by Sheriffs Principal Aisha Anwar, Kate Dowdalls, and Gillian Wade. Allison, advocate, appeared for the appellant, and Sharpe, advocate, appeared for the respondent.

Clear intention

It was found by the sheriff at first instance that a permanence order ought to be granted. He held that in terms of section 84(4) of the 2007 Act, the paramount consideration for a court considering whether to grant a permanence order was “the need to safeguard and promote the welfare of the child throughout childhood”. The term “throughout childhood” was determined to mean until a child reached the age of 18, although the only aspect of the mandatory provision that would apply to a child aged 16 and 17 was that set out at section 81(1)(a), regarding the provision of guidance suitable to the child’s stage of development.

The appellant contended that section 81(1)(a) was not severable from part (b), vesting the right to regulate the child’s residence in the local authority, and the sheriff had erred in concluding otherwise. He additionally erred in making the order on the basis he was satisfied that the threshold test in section 84(5)(c)(ii) was met, as no right to regulate the child’s residence vested in the appellant on the day the order was made.

It was submitted for the appellant that the natural and ordinary meaning of section 81(1) is that the mandatory provision includes both the responsibility mentioned in section 81(1)(a) and the right mentioned in section 81(1)(b). Had the Scottish Parliament intended otherwise, it could have easily made that clear. Absent such language, the word “and” conveyed a clear intention that both parts were always part of the mandatory provision.

For the respondent it was submitted that the sheriff adopted a contextual and purposive approach to his interpretation of the Act and was entitled to take that approach over a literal one. The sheriff’s order made sense when the terms of section 85(2), prohibiting the grant of a permanence order when a child aged 16 or 17 was married or in a civil partnership, were considered.

Critical to the making

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 1995 Act, vests in a person. Unless that is achieved, there can be no permanence order.”

She continued: “We are compelled to the view that the vesting of the right to regulate the child’s residence in the local authority is critical to the making of a permanence order. Without that right, the local authority cannot do what the permanence order is intended to do, which is to provide the child with a person, in the form of a corporate parent, with the right to regulate the child’s residence in a way that is not and is not likely to be seriously detrimental to the child’s welfare.”

The Sheriff Principal concluded: “There is only one mandatory provision, which is described in section 81(1) of the 2007 Act. The mandatory provision so described is comprised of two components. Giving the words of section 81 their natural and ordinary meaning and having regard to the effect and purpose of a permanence order these components are not severable. Accordingly, the order made by the sheriff, granting the permanence order subject only to the responsibility mentioned in section 81(1)(a) was not competent.”

She added in postscript: “We are conscious of the effect of our decision on the young person at the centre of this appeal, who had consented to the making of the permanence order and wanted the order to be made. It is regrettable that the respondent local authority was unable to make the application in sufficient time to enable the court to make the order prior to his 16th birthday. We have a significant degree of sympathy with the young person, who we know is likely to be disappointed by the outcome of this appeal, which will likely result in him remaining subject to compulsory measures of supervision for the foreseeable future.”

The court therefore allowed the appeal and recalled the interlocutor of the sheriff.