FREE CHAPTER from ‘A Practical Guide to Permanence Orders in Scotland’ by Alan Inglis

CHAPTER TWO – THE STRUCTURE OF A PERMANENCE ORDER

In this chapter I describe and explain the orders which are available in sections 80-84 Adoption and Children (Scotland) Act 2007. I have cross-referred to the identified provisions in the Children (Scotland) Act where they arise in order to obviate the need created in the statute to jump between texts.

The Orders

A Permanence Order comprises two and in some cases three, components. Each refers back to the parental rights and responsibilities identified in sections 1 and 2 of the Children (Scotland) Act 1995. A Permanence Order will therefore comprehensively allocate each of these attributes of parenthood. Section 80 (3) of the 2007 Act requires that “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.”

Section 81 of the 2007 Act provides that the mandatory provisions within a permeance order are:

(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.

Section 87 confirms that the making of a permanence order automatically terminates the right of any person holding the right of any parent or guardian of the child to determine the child’s place of residence and therefore precludes the sharing of that right by that person with the local authority.

The ancillary provisions are set forth in section 82 namely:

(1) The ancillary provisions are provisions—

(a) vesting in the local authority for the appropriate period—

(i) such of the parental responsibilities mentioned in section 1(1)(a), (b)(i) and (d) of the 1995 Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) and (d) of that Act,

in relation to the child as the court considers appropriate,

(b) vesting in a person other than the local authority for the appropriate period—

(i) such of the parental responsibilities mentioned in section 1(1) of that Act, and

(ii) such of the parental rights mentioned in section 2(1)(b) to (d) of that Act,

in relation to the child as the court considers appropriate,

(c) extinguishing any parental responsibilities which, immediately before the making of the order, vested in a parent or guardian of the child, and which—

(i) by virtue of section 81(1)(a) or paragraph (a)(i), vest in the local authority, or

(ii) by virtue of paragraph (b)(i), vest in a person other than the authority,

(d) extinguishing any parental rights in relation to the child which, immediately before the making of the order, vested in a parent or guardian of the child, and which—

(i) by virtue of paragraph (a)(ii), vest in the local authority, or

(ii) by virtue of paragraph (b)(ii), vest in a person other than the authority,

(e) specifying such arrangements for contact between the child and any other person as the court considers appropriate and to be in the best interests of the child, and

(f) determining any question which has arisen in connection with—

(i) any parental responsibilities or parental rights in relation to the child, or

(ii) any other aspect of the welfare of the child.

Parental Rights and Parental Responsibilities

Subsection (a) enables the court to vest in the local authority the parental responsibilities set out in the specified parts of section 1 and the rights set out in section 2 Children (Scotland) Act 1995 namely:

1 Parental Responsibilities

(1) (…)

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child—

(i) direction;

to the child;

(c) (…)

(d) to act as the child’s legal representative,

2 Parental Rights

1. (…)

(a) (…)

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

(c) (…)

(d) to act as the child’s legal representative.

Subsection (1) (b) enables the court to vest in a person other than the local authority the following rights and responsibilities:

1. Parental Responsibilities

(1) (…)

(a) to safeguard and promote the child’s health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child—

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative,

2. Parental Rights

(1) (…)

(a) (…)

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative.

Sub-section (1) (c) allows to court to extinguish any parental rights which vest in the local authority because of the mandatory provision of the permanence order or which vest in a person other than the local authority after an order made under subsection (b) above.

Subsection (1) (d) allows the court to extinguish any parental rights of a parent or guardian which now vest in either the local authority or any person other than the local authority under subsections (a) or (b) above.

An order under subsection 1 (e) “specifying such arrangements for contact between the child and any other person” is an order which can only be made in favour of a natural person.¹

Subsection 83 (2) is difficult to interpret. Permanence orders may only be made to endure for “the appropriate period” Section 83 (2) provides:

In subsection (1), “the appropriate period” means—

(a) in the case of the responsibility mentioned in section 1(1)(b)(ii) of the 1995 Act, 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 any other case, the period beginning with the making of the permanence order and ending with the day on which the child reaches the age of 16.

This appears to mean that a permanence order may only last until sixteen except in the respect of the parental responsibility it imposes on the local authority to provide guidance to the child under subsection (1) above. If, however, the child is aged sixteen when the order is sought the mandatory provision cannot be made and this would negate the purpose of the order.

Conditions

The conditions which must be satisfied before a Permanence Order can lawfully be made are set out in section 84 of the Act:

(1) Except where subsection (2) applies, a permanence order may not be made in respect of a child who is aged 12 or over unless the child consents.

(2) This subsection applies where the court is satisfied that the child is incapable of consenting to the order.

(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, so far as is reasonably practicable—

(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 the 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—

(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).

The section embodies the importance which Scots Law attaches to children’s rights. Section 84 (1) operates as a bar on the making of a permanence order if a competent child over the age of 12 does not consent to it being made. Subsection (2) sets out a presumption of capacity which can only be displaced by proof of the contrary. Given the absolute bar on the making of an order if the child is competent any further process in the application is otiose and the issue should be resolved immediately evidence of unless incapacity is available.

As the Inner House has repeatedly observed, and as will be examined more fully in Chapter 5, the remainder of the section is poorly drafted because the starting point of the process of determining whether to make a Permanence Order is the threshold criterion is buried in section 84 (5) (c) (ii) – the “serious detriment” test.²

Authority to Adopt

At the same time as making a Permanence Order, the court may include the grant of authority to adopt if an application for such an order has been included in the application for the Permanence Order. This bears significant similarities to the previous orders which freed children for adoption under section 18 Adoption (Scotland) Act 1978. The effect of the authority is to extinguish the parental responsibilities and parental rights of the parent or guardian without transferring them to adopters who are not parties to the applications.

Before considering whether to grant authority to adopt the court must have satisfied itself that the threshold for making a Permanence Order under section 84 (5) (c) (ii) has been established.³

The applicable part of the statute is section 83 of the Act:

(1) The conditions referred to in section 80(2)(c) are—

(a) that the local authority has, in the application for the permanence order, requested that the order include provision granting authority for the child to be adopted,

(b) that the court is satisfied that the child has been, or is likely to be, placed for adoption,

(c) that, in the case of each parent or guardian of the child, the court is satisfied—

(i) that the parent or guardian understands what the effect of making an adoption order would be and consents to the making of such an order in relation to the child, or

(ii) that the parent’s or guardian’s consent to the making of such an order should be dispensed with on one of the grounds mentioned in subsection (2),

(d) that the court considers that it would be better for the child if it were to grant authority for the child to be adopted than if it were not to grant such authority.

(2) Those grounds are—

(a) that the parent or guardian is dead,

(b) that the parent or guardian cannot be found or is incapable of giving consent,

(c) that subsection (3) or (4) applies,

(d) that, where neither of those subsections applies, the welfare of the child otherwise requires the consent to be dispensed with.

(3) This subsection applies if the parent or guardian—

(a) has parental responsibilities or parental rights in relation to the child other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act,

(b) is, in the opinion of the court, unable satisfactorily to—

(i) discharge those responsibilities, or

(ii) exercise those rights, and

(c) is likely to continue to be unable to do so.

(4) This subsection applies if—

(a) the parent or guardian has, by virtue of the making of a permanence order which does not include provision granting authority for the child to be adopted, no parental responsibilities or parental rights in relation to the child, and

(b) it is unlikely that such responsibilities will be imposed on, or such rights given to, the parent or guardian.

As in section 84, the starting point of the Court’s review is placed towards the end of the section. The authority to adopt may be granted if the parent consents or her consent is dispensed with on a ground set forth in subsection (2). These include that the parent or guardian in dead, cannot be found or is incapable of consenting. It would be unusual of these grounds to be considered in the context of an application for a Permanence Order with Authority to Adopt as they would more expeditiously be features of a direct petition for adoption.

The grounds for dispensation more likely to be considered are those set out in subsections (2) (c) and (d), (3) or (4).

Subsection 2 (d) permits consent to be dispensed with where “the welfare of the child otherwise requires the consent to be dispensed with”. Subsection 2 (c) however, provides that this ground may only be relied upon if neither of subsections (3) or (4) applies. It is therefore necessary to consider whether they do apply before it is legitimate to rely on the welfare ground in subsection (2) (d).

The Adoption Policy Review recommended that there should be a single ground of dispensation on the foundation that the child’s welfare. The Scottish Parliament considered that this was an insufficiently exacting test and inserted the text now found at subsection (3). This does not, however, achieve the desired effect because resort to the straightforward welfare test is always available if the apparently more stringent “incapacity test” is not established.

As drafted the section appears to require the court to be satisfied on evidence that the incapacity requirement does not apply in each individual case. There is no authority for the proposition that the parties, or the applicant alone, could concede that the incapacity threshold does not apply and therefore proceed directly to the welfare ground alone.

Subsection (4) applies where a permanence order made previously did not contain authority to adopt and the birth parents had been deprived of their parental responsibilities and parental rights and the court is satisfied that those responsibilities and rights would be unlikely to be imposed upon them.

Once the court is satisfied that a ground for dispensing with parental consent to adoption exists in the case it is then required to consider the matters set out in subsections (1) (b) – that the child is likely to be place for adoption – and (1) (d) that it is better for the child to grant authority to adopt than not to grant it.

 

Further consideration specific to Authority to Adopt

When determining whether to grant authority to adopt the court is “coming to a decision relating to the adoption of a child” and it is therefore required to consider the matters set forth in section 14 (2) – (4) of the Act:⁴

(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The court or adoption agency must have regard to all the circumstances of the case.

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to—

(a) the value of a stable family unit in the child’s development,

(b) the child’s ascertainable views regarding the decision (taking account of the child’s age and maturity),

(c) the child’s religious persuasion, racial origin and cultural and linguistic background, and

(d) the likely effect on the child, throughout the child’s life, of the making of an adoption order.

These must be addressed having regard to the principles of necessity and proportionality.⁵

The Effect of a Permanence Order

By section 87 of the 2007 Act a Permanence Order extinguishes the parental right to have the child living with them which was held by a parent or guardian immediately before the order was made.

Section 88 provides that the making of a Permanence Order has the effect of revoking any existing order made under section 11 of the Children (Scotland9 Act 1995.

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