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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2025] CSIH 3
XA58/24
Lord Malcolm
Lord Tyre
Lady Wise
OPINION OF THE COURT
delivered by LADY WISE
in the Appeal under Section 113(1) of the Courts Reform (Scotland) Act 2014
in the cause
GLASGOW CITY COUNCIL
Petitioner and Appellant
against
MM (Mother)
Respondent
Petitioner and Appellant: Moynihan KC, Sharpe; SKO Family Law Specialists (for JK Cameron,
Glasgow)
Respondent: Scott KC, Allison; Drummond Miller LLP (for Livingston Brown, Glasgow)
24 January 2025
Introduction
[1]
Permanence orders were introduced by the Adoption and Children (Scotland)
Act 2007. They are intended to regulate parental responsibilities and rights on a long term
basis for children who cannot return home. This appeal raises an unresolved issue of
statutory interpretation about whether the court can competently make a permanence order
for a child who has reached the age of sixteen.
2
Background and proceedings to date
[2]
The young person who is the subject of these proceedings has been referred to only
as "the child" throughout. We shall continue to protect his anonymity but will refer to him
as TM. The respondent, MM, is his mother. TM has not lived at home with his mother since
he was an infant. A Compulsory Supervision Order has been in place since before his first
birthday. He was placed with his current foster carer when he was about 8 years old. TM is
deeply attached to his foster carer and she in turn wishes to provide a permanent home for
him.
[3]
In early 2023 Glasgow City Council submitted a petition under the 2007 Act. Act for
a permanence order in respect of TM, who was at that time 15 years old. The proceedings
before the sheriff were ongoing when he attained the age of 16. Thereafter, MM opposed the
making of an order solely on the ground of competency. She contended that it would be
incompetent to make a permanence order for a 16 year old. The sheriff rejected that
argument and made a permanence order but his decision was overturned by the Sheriff
The statutory framework
[4]
The 2007 Act reformed the law in relation to orders that permanently alter the legal
position of a child. Part 1 relates to adoption of children, Part 2 creates permanence orders
and Part 3 contains miscellaneous provisions relating to both adoption orders and
permanence orders. Prior to the coming into force of this legislation, children who required
to live away from their parents in the long term tended to remain in local authority care (and
placed with long term foster carers), or be made the subject of freeing for adoption or
3
adoption orders. Freeing for adoption deprived natural parents of all parental
responsibilities and rights, but there was no mechanism for transferring limited parental
rights to a state authority. The Adoption Policy Review Group, chaired by the late Sheriff
Principal Cox QC and which reported on "Better choices for our children" following Phase II
in 2005, recommended a new form of order for children who were looked after by the local
authority and who could not return home. Flexibility was key to the recommended new
orders, the aim of which was to transfer to the local authority only such parental
responsibilities and rights as were necessary to secure the child's position throughout
childhood.
[5]
Section 80 of the Act creates the statutory power to make a permanence order. It
provides:
"(1)
The appropriate court may, on the application of a local authority, make a
permanence order in respect of a child.
(2)
A permanence order is an order consisting of
(a)
the mandatory provision,
(b)
such of the ancillary provisions as the court thinks fit, and
(c)
if the conditions in section 83 are met, provision granting authority for
the child to be adopted.
(3)
In making a permanence order in respect of a child, the appropriate court
must secure that each parental responsibility and parental right in respect of the
child vests in a person."
[6]
The mandatory provision referred to in section 80(2) is defined in section 81. The
references therein to the 1995 Act are to the Children (Scotland) Act 1995, which includes a
comprehensive list of parental responsibilities and the parental rights relative to them.
Section 81 provides:
"(1)
The mandatory provision is provision vesting in the local authority for the
appropriate period
4
(a)
the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act
(provision of guidance appropriate to child's stage of development) in
relation to the child, and
(b)
The right mentioned in section 2(1)(a) of that Act (regulation of child's
residence) in relation to the child.
(2)
In subsection (1) "the appropriate period" means-
(a) in the case of the responsibility referred to in subsection 1(a), the period
beginning with the making of the permanence order and ending with the day
on which the child reaches the age of 18,
(b) in the case of the right referred to in subsection (1)(b), the period
beginning with the making of the permanence order and ending with the day
on which the child reaches the age of 16."
[7]
Section 84 imposes a number of conditions and considerations applicable to the
making of a permanence order. Insofar as relevant to the present case these include:
"(1)
... a permanence order may not be made in respect of a child who is aged 12
or over unless the child consents.
...
(3)
The court may not make a permanence order in respect of a child unless it
considers that it would be better for the child that the order be made than that it
should not be made.
(4)
In considering whether to make a permanence order and, if so, what
provision the order should make, the court is to regard the need to safeguard and
promote the welfare of the child throughout childhood as the paramount
consideration.
(5)
Before making a permanence order, the court must-
(a)
after taking account of the child's age and maturity....
(i)
give the child the opportunity to indicate whether the child
wishes to express any views, and
(ii)
if the child does so wish, give the child an opportunity to
express them,
(b) have regard to-
(i)
any such views the child may express,
(ii)
the child's religious persuasion, racial origin and cultural and
linguistic background, and
(iii)
the likely effect on the child of the making of the order, and
(c)
be satisfied that-
5
(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 the 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.
(6)
A child who is aged 12 or over is presumed to be of sufficient age and
maturity to form a view for the purposes of subsection (5)(a)."
[8]
Section 85 clarifies specific categories of children in respect of whom orders may and
may not be made. It provides:
"(1)
A permanence order may be made in respect of a child who is an adopted
child.
(2)
A permanence order may not be made in respect of a child who is or has been
(a)
married,
(b)
a civil partner"
[9]
Section 119 is the interpretation section and applies to the whole Act. It provides
that, unless the context otherwise requires, "child" means a person who is under the age
of 18.
Submissions for the appellant
[10]
The Sheriff Appeal Court erred in law by reading section 81(1)(b) of the 2007 Act as
imposing a requirement that a permanence order can only be made in respect of a child aged
under 16. The conclusion that the petition was incompetent arose from that
misconstruction. It was acknowledged that if section 81 was read literally and in isolation,
such that the order must contain a single mandatory provision with both components (the
provision of guidance and the right to regulate the child's residence), a conclusion could be
reached that it could be made only for a child under the age of 16. That would ignore,
however, the context of the provision within the legislation as a whole and its purpose. For
6
a child like TM, reading the legislation as if it contained that restriction would leave him
subject to the parental responsibility of MM to provide him with guidance, irrespective of
her ability or otherwise to discharge it and any impact of that on him.
[11]
In the alternative, as set out in the Sheriff's Note of 19 February 2024, the reference to
"the appropriate period" in section 81(2) could be understood as referring to the period that
is "appropriate" having regard to the period of the order. If so, it would be competent to
make orders for children over the age of 16 but under the age of 18. The mandatory
provision in those circumstances would be restricted to the responsibility to provide
guidance referred to in section 81(1)(a) of the Act. That would render competent an order in
the present case, where the proceedings were raised when TM was 15 years old but the date
of determination was after his 16th birthday. To interpret the provisions otherwise would
result in an effective deadline for raising applications much earlier than could have been
anticipated, at about aged 14 to 15, given the unanticipated delays that can regrettably be a
feature of contested litigation. A purposive interpretation would achieve the practical result
that permanence orders can protect the widest range of children without doing any violence
to the statutory language.
[12]
Before the Sheriff Appeal Court, the respondent appeared to suggest that a literal
approach to statutory interpretation should take precedence. That was not the accepted
modern approach. The authorities were well known and had been gathered helpfully in an
article by Lord Burrows of the UK Supreme Court "Statutory Interpretation in the Courts
Today" (Sir Christopher Staughton Memorial Lecture, 24 March 2022). In essence, the
correct approach is contextual and purposive, designed to arrive at the best interpretation of
the words in light of their context and the purpose of the statutory provision. That approach
7
was reiterated in the recent decision of the UK Supreme Court in In re JR 2022 [2024] 1 WLR
4877, per Lord Stephens at para 73.
[13]
A permanence order serves to redistribute parental responsibilities and rights if the
conditions in section 84 are satisfied, but does not affect the substance of those
responsibilities and rights. A permanence order can last until the age of 18 but the right to
regulate residence cannot last beyond the age of 16. Only the responsibility to provide
guidance can subsist after age 16, so it would make sense to interpret section 81 as giving
rise to the possibility of a distinct order for the responsibility of guidance only.
[14]
A permanence order can have implications beyond regulating parental
responsibilities and parental rights. It can be a means to bring a Compulsory Supervision
Order to an end under section 89 of the 2007 Act. It can be a stepping stone for adoption,
where an authority to adopt provision is made under sections 80(2)(c) and 83 of the Act.
Applications for adoption can be lodged until a child attains the age of 18 and there is
specific provision in that context for the cut-off date to be when the order is made, even if
the child is already 18 at that point section 28(4). Permanence Orders must satisfy the
conditions set out in section 84. It must be better for the child that an order be made than
not (section 84(3)) and the court must have regard to the need to promote the welfare of the
child throughout childhood as the paramount consideration section 84(4). Childhood
endures until age 18 for that purpose section 119(1).
[15]
Section 85(2) of the Act was a significant provision. By prohibiting the making of a
permanence order for a child who has been married or a civil partner, it provides
confirmation that a permanence order can be made for children aged 16 and over. To
determine otherwise would render that provision redundant.
8
[16]
The purposive interpretation favoured by the sheriff was consistent with the
underlying law on parental responsibilities and rights. A child brought up by his parents
will be subject to their right to regulate his residence until he is aged 16. That right will then
fly off but his parents' responsibility to provide him with guidance will last until he is 18.
Similarly, if a permanence order is made for a child who is aged 16 or 17, the right to
regulate residence will have flown off as a matter of law and only the responsibility to
provide guidance can be regulated by the order. The Sheriff Appeal Court had
acknowledged that the alternative interpretation it favoured would result in a lesser degree
of protection for children aged 16 and over.
[17]
TM had been a looked after child in terms of section 17 of the Children (Scotland) Act
1995 because he has been the subject of a Compulsory Supervision Order. In consequence of
that and his now being accommodated by the local authority under section 25 of the
1995 Act, he will be looked after until at least the age of 18 and may be provided with
guidance and support until he is 26 years old (1995 Act section 29). The object of the current
proceedings was different, it was to remove TM from the Children's Hearing system.
[18]
The emotional dimension of making a permanence order for TM was important. It
would enhance his sense of permanence, stability and security. His accommodation had
been settled long before the application was made, that was not the issue. He had been
unable to return home for many years. He did not want the intrusion of being required to
go to the Children's Hearing. There was nothing in the Report of the Adoption Policy
Review Group to support a differentiation between those under 16 and those under 18, on
the contrary it specifically mentioned the emotional benefits. The whole purpose of the
order was to be a gateway to long term security for an accommodated child. This action was
raised when TM was 15 and absent the delays which occurred, would have been determined
9
before he attained the age of 16. The appellant's policy was to seek permanence orders only
for children aged 12 and over. There had been no reason prior to this case to be concerned
about competency; there was information, albeit anecdotal, about orders having been made
for 16 and 17 year olds.
[19]
The interpretation proposed was consistent with the requirements of the United
Nations Convention on the Rights of the Child. Senior counsel had taken the step of
meeting TM, whose primary concern remained that he wanted to be free of the Children's
Hearing system. While that was less important to him now, that was because he is no longer
subject to a Compulsory Supervision Requirement. He continues to see his mother
voluntarily but infrequently, once every 3 months. He still wants permanence in order to
affirm his sense of belonging where he is, with his foster carer. Given the passage of time,
his interest in the outcome of these proceedings is now largely to benefit others like himself,
who may attain the age of 16 before a proposed permanence order is made.
[20]
There were two conflicting but tenable interpretations available to the court. It was
acknowledged that the APRG report had recommended that "[a]s a minimum" a
Permanence Order should have the right to regulate residence. That was inapplicable for a
16 year old. The separate appropriate period relating to the provision of guidance in
section 81(1)(a) of the 2007 Act was however consistent with the interpretation advanced by
the appellant. The conjunctive "and" between section 81(1)(a) and (b) simply becomes
superfluous where a child is 16 but is made subject to a permanence order that subsists until
he is 18.
[21]
It was noteworthy that the threshold test for permanence orders had been inserted
into the Bill at the last minute and in the wrong place. In the present case, the sheriff had,
correctly, made the point that TM falls within section 84(5)(c)(i) as no person has the right to
10
regulate his residence. That requirement being met, there was no dispute that the conditions
of an order best serving his welfare, it being better for the order to be made than not and his
having given consent to it and having expressed a (positive) view on it being made were all
satisfied. If the mother's remaining responsibility to provide guidance, absent the order
being made, was of no practical utility, one had to question why she would oppose the
order.
Submissions for the respondent
[22]
The Sheriff Appeal Court had been correct in deciding that a permanence order
cannot be made in respect of a child aged 16 or over. That was the position whether a literal
or a purposive interpretation of the statutory provisions was adopted. The threshold test for
a permanence order in section 84(5)(c) was fundamental. The two parts of the test
section 84(5)(c)(i) and (ii) had to be read together, as the whole basis for the order was
postulated on their being a right to regulate residence. While the test in section 84(5)(c)(i)
could be met in the case of, say, an orphan, it was not designed to apply to someone who
had a parent but was now independent in terms of deciding where and with whom to
reside. The right to have a child living with a person or who can at least regulate his
residence does not exist in relation to a child aged 16 or over. Accordingly, the test in
section 84(5)(c) could not be met in this case. To interpret it otherwise would mean that
all 16 and 17 year olds could be made the subject of permanence orders because they would
fall within section 84(5)(c)(i). All that would be required was a birth certificate, which
would effectively negate the threshold test. It was clear from the decision of the UK
there to protect children and parents from unjustified state intervention. Welfare
11
considerations could not be addressed unless the threshold test was passed and the sheriff's
construction was contrary to the objective set out by the UK Supreme Court.
[23]
A permanence order was intended to be for children who cannot safely return home
to live with their families. That is why the minimum requirement of such an order is, as
recommended by the Adoption Policy Review Group, to remove the right of parents to have
the child reside with them or to otherwise regulate the child's residence. The high test was
whether or not the child could reside with someone who had parental responsibilities and
rights over them, albeit that it was always intended that the order would last until the child
attained the age of 18. The Policy Memorandum that had accompanied the original Bill had
confirmed that the new permanence order would provide increased stability for children
who cannot live with their birth family and would be flexible enough to cater for the
individual needs of such children. The clear implication of the threshold test, introduced to
the Bill by amendment at Stage 2, was that the ground was invoked by reference to
residence rights. If those had flown off, there could be no basis for a permanence order. A
mandatory requirement to extinguish the right to regulate residence did not contemplate a
situation where there are no rights left and only one (relatively weak) parental
responsibility. The statements to the Scottish Parliament at Stage 2 of the Bill had reinforced
that a permanence order would always extinguish a parent's right to have the child live with
him or her or otherwise to regulate their residence.
[24]
The residual parental responsibility of guidance retained by MM in relation to TM in
the absence of a permanence order was almost academic and had no practical effect. It had
been thought that he was accommodated by the appellant under section 26A of the 1995 Act
but it was now said to be in terms of section 25 of that legislation. Regardless of the
particular provisions applicable in this case, there was no legal gap in provision. A foster
12
carer is recognised by the Education (Scotland) Act 1980 as a carer for a child still at school
after the age of 16. Giving guidance to a 16 or 17 year old was not a legal function but a
practical one. The law should not be interpreted from an emotional perspective; there was
no reason to think the order would give TM any form of security.
[25]
On the obligation in this jurisdiction now to interpret legislation in a manner
compatible with the UNCRC, section 4 of the United Nations Convention on the Rights of
the Child (Incorporation)(Scotland)Act 2024 Act permits the court to have regard to General
Comments of the United Nations Committee on the Rights of the Child. It was noteworthy
that the Convention recognised the weakening of the responsibility of guidance as the child
moved towards the age of 18. As the UNCRC General comment No 14 (2013) on the right of
the child to have his or her best interests taken as a primary consideration had put it (at
para 44):
".... the more the child knows, has experienced and understands, the more the
parent, legal guardian or other persons legally responsible for him or her have to
transform direction and guidance into reminders and advice, and later to an
exchange on an equal footing".
The 2007 Act provisions on permanence orders were in any event compatible with the
UNCRC and no reading down was required. The correct balance of the various rights
involved had been achieved and the legislation was also ECHR compliant.
[26]
TM's mother had initially opposed the application for a permanence order on the
basis that she contended the appellant could not meet the threshold test. If local authorities
could secure such an order just by waiting until a child attained the age of 16 that would
negate the whole purpose of the legislation. It was acknowledged that section 85(2) of the
Act, prohibiting permanence orders for children who have been married or in a civil
partnership, posed a difficulty for the respondent's argument. It was difficult to interpret
13
the provisions of the Act in a way that reconciled all of the issues. However, if the starting
point was accepted as being to ask who is exercising the right to residence, the respondent's
interpretation made sense. Both parts of section 85(4)(c) relate to residence of children
whose residence has to be regulated.
[27]
An interpretation that permitted the continuation of a permanence order for a 16 or
17 year old where that had been made before they attained the age of 16 but not otherwise
would create no difficulty with other provisions relating to looked after children. When the
2007 Act was enacted there was already a scheme that drew the distinction between 16 and
18 year olds. One benefit of the provision that a permanence order continues until the age
of 18 is that it facilitates the ability to make foster care agreements under the Looked After
Children (Scotland) Regulations 2009 until the child attains that age. It also provides
continuity after the right to regulate residence flies off at age 16, if the child is being
accommodated other than under section 25 of the 1995 Act and where there is a desire to
take him out of the Children's Hearing system.
[28]
The statutory provisions on after care have been amended since the 2007 Act came
into force. Previously section 29 of the 1995 Act required local authorities to advise, guide
and assist (in kind or in cash) those looked after children who were over school age but
under the age of 19. The version of the 1995 Act now in force provides (in section 26A) for
continuing care for all those who have attained the age of 16 and are looked after children
and section 29 imposes the guidance duty on local authorities for all children who had been
looked after children on their 16th birthday but are no longer. Those aged between 19 and 26
and were previously looked after can apply themselves for advice, guidance and assistance.
None of those provisions was inconsistent with an interpretation of section 81 of the
14
2007 Act that permitted the court only to make permanence orders for those under the age
of 16.
Analysis and decision
[29]
The Adoption and Children (Scotland) Act 2007 Act contains no express provision on
the maximum age of a child in respect of whom a permanence order can be made. The
starting point for the interpretative analysis must be section 80 of the Act, as it bestows the
power on the court to make such orders. It provides only that "[t]he appropriate court may,
on the application of a local authority, make a permanence order in respect of a child".
Section 119(1) of the legislation defines "child", unless the context otherwise requires, as a
person under the age of 18. So the context for what follows is that, on the face of the
empowering provision, a permanence order can be made competently for a child under the
age of 18.
[30]
A potential difficulty then arises from the requirement in section 80(2) that a
permanence order must contain at least the "mandatory provision" and the language used
in section 81 to describe what that means. Does the definition of mandatory provision in
section 81 render the making of an order in respect of a 16 or 17 year old incompetent,
notwithstanding the permissive general power in section 80(1)?
[31]
In any exercise of statutory interpretation the general rule is that the language should
bear its ordinary meaning in the general context of the statute (Crozier v Scottish Power
2024 SC 373, per Lord President (Carloway) at paragraph 27). As Lord Burrows emphasised
in the 2022 article (Statutory Interpretation in the Courts Today, the Christopher Staughton
Memorial Lecture, 24 March 2022), referred to by the appellant, the modern approach is to
regard the object of the exercise as "contextual and purposive". The courts are seeking to
15
ascertain the meaning of the words used in a statute in the light of their context and the
paragraph 73). The context will include the group of statutory provisions within which the
words to be interpreted are included and the statute as a whole.
[32]
In the present case, while section 80(1) would appear to permit a permanence order
to be made for any child under the age of 18, the language of section 81 defining mandatory
provision might tend to the opposite view. Therefore, it would be inappropriate to interpret
the words in section 81 literally and in isolation, as that would result in a conflict between
that provision and the general power bestowed by section 80(1).
[33]
The purpose of Part 2 of the 2007 Act is to assist children who cannot return home to
their parents and give them long term security. Normally, the making of a permanence
order will have the additional benefit of removing those children from the Children's
Hearings system. The termination of the Compulsory Supervision Order is dependent on
the court being satisfied that such an order is no longer necessary for the protection,
guidance, treatment or control of the child (2007 Act, section 89(1)(b); City of Edinburgh
Council v LL [2021] CSOH 24). There is no suggestion that TM requires the continued
protection of a CSO. The convoluted procedure in this case has resulted in his CSO lapsing,
but it was the clear intention of the sheriff that it would terminate on the making of the
permanence order, albeit that the basis for that was initially stated incorrectly. As a CSO can
subsist until a child is aged 18, there would be no inconsistency between a reading of the
legislation that permits the making of a permanence order until that age and the general
scheme of the Children's Hearings (Scotland) Act 2011.
[34]
The threshold test for a permanence order is contained in section 84(5)(c) of the 2007
Act. It provides the necessary gateway to consideration of the welfare matters set out in
16
section 84(3) and (4). Contentious applications for permanence orders often focus on
whether it would be "seriously detrimental" for the child to return to the parent with the
right to regulate residence in terms of section 84(5)(c)(ii). Statements about the fundamental
nature of the threshold test have all been made in that context (R v Stirling Council 2016
[35]
Indisputably, the threshold test in section 84(5)(c)(ii) was no longer applicable once
TM attained the age of 16. The alternative threshold test in section 84(5)(c)(i) would,
however, appear to be applicable, as there has been no person holding the right to regulate
his residence since he attained that age. We reject the contention that utilising this threshold
for subsequent consideration of the substantive welfare requirements could result in any
16 or 17 year old being able to request that the relevant local authority apply for a
permanence order in respect of them. Where a child aged 16 or over is receiving
appropriate guidance by his parents there could be no plausible basis for an application to
the court seeking to vest that parental responsibility in the local authority. The overarching
welfare test and the requirements that any order be better for the child than no order could
not be satisfied in such a situation. The challenge in this case is restricted to competency. It
is consistent with the scheme of the 2007 Act to permit the making of an order in situations
such as the present, where the child has been unable to return home for some time but
where the right to regulate residence has flown off before any order is made. The
substantive basis for the order will always have to be satisfied, so the fact that the threshold
test may more easily be met for a child who is 16 or over is not a matter of concern. There
are other statutory circumstances in which meeting a welfare test is sufficient, for example,
to dispense with parental consent to the adoption of a child and the consequent severance of
their responsibilities and rights (2007 Act, section 31(3)(d), S v L 2013 SC (UKSC) 20). The
17
welfare requirements of sections 84(3) and (4) would necessarily apply to permanence
orders in respect of those between the ages of 16 and 18, who would also require to consent
to the making of the order.
[36]
The provisions on permanence orders are only one part of a statute concerned with
providing long term solutions for children. Part 1 of the Act relates to adoption. A child can
be adopted until the age of 18 and there is specific provision to permit adoption orders for
those who have attained that age if the proceedings were initiated before their 18th birthday
(2007 Act, section 28(4)). There is a relationship between Parts 1 and 2 of the Act. Although
not sought in this case, provision can be made as part of a permanence order granting
authority for the child to be adopted (section 80(2)(c)). There are then key provisions in
section 85. While section 85(1) permits a permanence order to be made in respect of a child
who is an adopted child (which could include any child under the age of 18 years) there is a
specific prohibition on making a permanence order in respect of a child who is or who has
been married or a civil partner section 85(2). This is the only category of child in respect of
whom a permanence order cannot be made. It is only possible to make sense of this
provision by reading it as meaning that a permanence order could otherwise be made in
respect of a child who has reached the age of 16 and so has capacity to marry. If the Act is
interpreted as meaning that permanence orders can be made only for those under the age
of 16, this provision would be at best otiose. The provision is, however, consistent with an
interpretation that permits orders to be made for those aged 16 and 17
[37]
We have considered whether the use of the singular term "mandatory provision"
and the conjunctive "and" between section 81(1) (a) and(b) require an interpretation that
excludes orders being made for those who have attained the age of 16. In so doing, we have
borne in mind all of the above mentioned factors about the context of the provisions within
18
Part 2 of the Act and the general scheme and purpose of the legislation as a whole. In our
view, the sheriff was correct to focus on the separation of the two "appropriate period[s]" in
section 81. Where a permanence order is being made for a child under the age of 16, the
mandatory provision will consist of both parts of section 81(1) and both the responsibility to
provide guidance and the right to regulate residence will transfer such that they will vest in
the local authority. If the child in respect of whom an order is to be made is aged 16 or over,
then only the responsibility of guidance will vest in the local authority and the appropriate
period will end on the child's 18th birthday. The conjunctive "and" in section 81(1) applies
only where both parts of that subsection are in play because the child is under the age of 16.
[38]
We have concluded that this interpretation fits best with sections 80-85 of the Act and
the scheme of the legislation a whole. It does not conflict with other statutory provisions
relating to looked after children. Counsel for the respondent suggested that if orders can be
made after a child turns 16 then local authorities might delay until a child attains the age
of 16 to avoid having to meet the more stringent test of serious detriment under
section 84(5)(c)(ii). The converse would also, however, apply; if a permanence order cannot
be made for a child who has reached the age of 16, a parent could seek to delay proceedings
until that date has passed. While we do not suggest there was any such motive in this case,
we note that the proceedings were raised by the appellant over 6 months before TM's
16th birthday. In the absence of a provision permitting an order to be made so long as
proceedings are raised before a particular date, a prohibition on making a permanence order
for a child aged 16 or over would effectively require proceedings to be raised by the child's
15th birthday to account for any procedural delays. That would sit uneasily with the general
subsistence of permanence orders until the age of 18. It would create an unnecessary and
unfortunate differential between those 16 and 17 year olds who have in law someone
19
(whether a parent or the local authority) with the responsibility and ability to provide them
with guidance and those who do not.
[39]
An interpretation that is inclusive of all children under the age of 18 also seems
consistent with the United Nations Convention on the Rights of the Child, incorporated into
domestic law in this jurisdiction by the United Nations Convention on the Rights of the
Child (Incorporation) (Scotland) Act 2024. The Convention applies to all those under the age
of 18 years. The veto given by the 2007 Act to those aged 12 and over and the general
obligation to take account of the child's views are both clearly compliant with the UNCRC.
Notably, Article 5 of the Convention requires all those legally responsible for a child to
provide, "in a manner consistent with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of the rights" recognised by the
Convention. The emerging autonomy of an older child will result in their seeking guidance
in how to exercise their rights and navigate their social world in a different way from much
younger children. However the importance of providing direction and guidance to older
children is supported by the specific provision of a separate responsibility for that in the
Children (Scotland) Act 1995 and section 81(1)(a) of the 2007 Act.
[40]
For the reasons given, we conclude that there is no requirement in the legislation that
a permanence order can be made only for a child under the age of 16 and in construing the
relevant provisions otherwise the Sheriff Appeal Court erred. That leaves the question of
what should happen next. TM consents to the order and wants it to be made. While the
benefits to him of a permanence order are now less than they were when it was a means to
remove him from the Children's Hearing system, an order would nonetheless give him an
emotional sense of security and provide a suitable legal framework for his guidance during
the short period left of his childhood. To give effect to that we shall allow the appeal, which
20
will have the effect of reinstating the sheriff's order of 4 January 2024, under exception of
part 3 thereof, which has been superseded by the relevant Compulsory Supervision Order
lapsing.
[41]
We shall meantime reserve all questions of expenses.
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