Permitted Extension of Permanence Orders to Children Aged 16–17 under the Adoption and Children (Scotland) Act 2007

Introduction

Glasgow City Council v MM ([2025] CSIH 3) concerned the statutory interpretation of permanence orders under the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”): specifically, whether a court can competently make such an order in respect of a child who has already reached the age of sixteen. TM (the child) had lived apart from his mother, MM, under a Compulsory Supervision Order since infancy. When TM was 15, Glasgow City Council sought a permanence order to vest certain parental responsibilities and rights in the local authority. By the time of determination, TM was over 16 and MM challenged competence. After the sheriff granted the order and the Sheriff Appeal Court overturned it, Glasgow City Council appealed to the Inner House.

Summary of the Judgment

The Inner House, delivering opinion by Lady Wise, allowed the appeal. The court held that:

The general power in section 80(1) of the 2007 Act to make permanence orders extends to all “children” (under 18).
The definition of “mandatory provision” in section 81 can be read contextually so that, for 16–17 year-olds, only the guidance responsibility (not the right to regulate residence) transfers to the local authority.
No express age ceiling precludes orders for those aged 16–17, and section 85(2) (excluding married or civil-partnered children) implies the order otherwise applies up to 18.
Practical and purposive construction, consistent with the UN Convention on the Rights of the Child, supports the inclusion of 16–17 year-olds.

The court reinstated the sheriff’s permanence order.

Analysis

Precedents Cited

Crozier v Scottish Power 2024 SC 373: Affirmed that statutory language is to be read with its ordinary meaning in context.
In re JR 2022 [2024] 1 WLR 4877: Confirmed the “contextual and purposive” approach to interpretation (per Lord Stephens).
West Lothian Council v MB [2017] SC(UKSC) 67: Emphasized the threshold test’s role in safeguarding against unjustified state intervention.
City of Edinburgh Council v LL [2021] CSOH 24: Addressed the termination of Compulsory Supervision Orders upon permanence orders.

These authorities guided the court away from literalist isolation of section 81 and towards a purposive reading that reconciles the general granting power (section 80) with the mandatory-provision definition (section 81).

Legal Reasoning

The court’s analysis unfolded in stages:

Empowering Provision (Section 80): On its face, a “child” (under 18) may be the subject of a permanence order.
Mandatory Provision Tension (Section 81): A literal reading of section 81(1)(a)&(b) could limit orders to under-16s, but that conflicts with section 80(1) and the Act’s wider purpose.
Purposive Interpretation: Applying modern contextual interpretation, the court read the “appropriate period” in section 81(2) as bifurcated:
- For children < 16: both guidance responsibility and residence-regulation right vest until 18 and 16, respectively.
- For children ≥ 16: only the guidance responsibility vests until 18; the right to regulate residence has already “flown off.”
Threshold Test (Section 84(5)(c)): The threshold gateway uses either no existing regulator of residence (c)(i) or serious detriment test (c)(ii). After 16, only (c)(i) can apply, but the overarching welfare requirement (sections 84(3)–(4)) ensures protection.
Statutory Harmony: Section 85(2)’s prohibition on permanence orders for married/civil-partnered children only makes sense if orders otherwise extend to 16–17 year olds.
International Context: Aligns with UN Convention on the Rights of the Child, respecting evolving capacities and requiring guidance through childhood to 18.

Impact

This decision establishes a binding precedent in Scots law that permanence orders may be competently granted for 16 and 17 year olds, provided the statutory conditions (threshold gateway, welfare considerations, consent) are met. Local authorities can now:

Ensure continuity of a long-term legal framework for older children in care without arbitrary cut-offs at 16.
Avoid race-to-court dynamics that would force applications before the child’s 15th birthday in anticipation of 16th birthday.
Rely on a purposive approach when interpreting the 2007 Act in related contexts (e.g., authority to adopt under section 80(2)(c), interplay with after-care duties).

Family law practitioners should review pending cases to assess applicability and advise local authorities and carers on protective measures for older adolescents.

Complex Concepts Simplified

Permanence Order: A court order under the 2007 Act transferring specified parental rights/responsibilities from natural parents to a local authority, designed to secure a stable long-term arrangement for a child.
Mandatory Provision (Section 81): The essential components every permanence order must contain—guidance responsibility and regulation-of-residence right—vested in the local authority for defined “appropriate periods.”
Threshold Test (Section 84(5)(c)): The gateway requirement that no one with the right to regulate the child’s residence exists (c)(i), or if such a person exists, it would be seriously detrimental for the child to live with them (c)(ii).
“Flight” of Residence Right: The principle that a natural parent’s legal right to determine a child’s residence automatically ceases when the child turns 16.
Purposive Interpretation: Modern statutory construction focusing on the law’s purpose and context rather than isolation of literal words.

Conclusion

Glasgow City Council v MM marks a significant clarification: permanence orders under the 2007 Act are not confined to children under 16. A contextual and purposive reading of the statutory scheme harmonizes sections 80–85 with the Act’s child-centred objectives, enabling permanence orders to vest guidance responsibility in local authorities until age 18, even when a child is already 16 or 17. This ensures that the protective framework designed for vulnerable children can adapt to real-world delays and evolving capacities, reinforcing stability and welfare throughout childhood.