Sheriff Appeal Court quashes permanence order made without all mandatory provisions

Glasgow City Council initially applied to the sheriff for a permanence order in respect of a child, M, aged 16, but the application was challenged by the defendant MM, who argued that he did not have jurisdiction to make a permanence order. The SAC had previously dismissed an application by the appellant to refer the matter to the Inner House of the Court of Session.

The appeal was heard by Sheriff Director Aisha Anwar, Kate Dowdalls and Gillian Wade. Allison, solicitor, represented the appellant and Sharpe, solicitor, represented the respondent.

Clear intention

The sheriff held at first instance that a permanence order should be granted. He held that under section 84(4) of the 2007 Act, the paramount consideration for a court considering whether to grant a permanence order was “the need to protect and promote the welfare of the child throughout the child's childhood”. The phrase “throughout the child's childhood” was defined to mean until the child reached the age of 18, although the only aspect of the mandatory provision that would apply to a child aged 16 and 17 is that set out in section 81(1)(a), concerning the provision of developmentally appropriate guidance.

The appellant argued that section 81(1)(a) was not severable from part (b), which confers the right to regulate the child's residence in the local authority, and that the sheriff erred in holding otherwise. He further erred in making the order on the basis that he was satisfied that the basic test in section 84(5)(c)(ii) was met, because no right to regulate the child's residence was conferred on the appellant on the day the order was made.

The appellant argued that the natural and ordinary meaning of section 81(1) is that the mandatory provision includes both the liability referred to in section 81(1)(a) and the right referred to in section 81(1)(b). If the Scottish Parliament had intended otherwise, it could easily have made that clear. In the absence of such wording, the word “and” clearly expresses the intention that both parts should always form part of the mandatory provision.

The defendant argued that the sheriff had adopted a contextual and purposive approach in his interpretation of the law and that he was entitled to adopt that approach rather than a literal approach. The sheriff's order was consistent in light of the terms of section 85(2), which prohibits the granting of a permanence order where a child aged 16 or 17 was married or in a civil partnership.

Essential to the realization

Delivering the court's opinion, Sheriff Principal Dowdalls said of section 81: “The wording of sections 80 and 81(1) of the 2007 Act is clear. A permanency order must include such mandatory provision and such ancillary provisions as the court thinks fit. In making a permanency order, the court must be satisfied that every parental responsibility and parental right, under sections 1 and 2 of the 1995 Act, belongs to one person. Unless that is done, there can be no permanency order.”

She added: “We are obliged to consider that the grant of the right to regulate the child's residence to the local authority is essential to the making of a permanence order. Without that right, the local authority cannot do what the permanence order is intended to do, namely to provide the child with a person, in the form of a parent company, who has the right to regulate the child's residence in a way that is not, and is not likely to be, seriously prejudicial to the child's welfare.”

The Sheriff Principal concluded: “There is only one mandatory provision, which is set out in section 81(1) of the 2007 Act. The mandatory provision so described comprises two elements. If the words in section 81 are given their natural and ordinary meaning and if regard is had to the effect and purpose of a permanence order, these elements are not separable. Accordingly, the order made by the Sheriff, granting the permanence order subject only to the liability referred to in section 81(1)(a), was not competent.”

She added in a postscript: “We are aware of the effect of our decision on the young person at the centre of this appeal, who had consented to the permanency order and wished to have it made. It is regrettable that the respondent local authority was unable to bring the application in time for the court to make the order before his 16th birthday. We have great sympathy for the young person, who we know will likely be disappointed by the outcome of this appeal, which is likely to result in him being subject to compulsory supervision measures for the foreseeable future.”

The court therefore allowed the appeal and recalled the sheriff's contact.