Glasgow City Council against MM (Mother), Appeal under Section 113(1) of the Courts Reform (Scotland) Act 2014 by

Factual and Procedural Background

The case concerns a child, referred to as TM to preserve anonymity, who has not lived with his mother, the Respondent, since infancy. TM has been subject to a Compulsory Supervision Order since before his first birthday and has been placed with his current foster carer since around the age of eight. The local authority, Company A, petitioned for a permanence order under the Adoption and Children (Scotland) Act 2007 when TM was 15 years old. The proceedings were ongoing when TM turned 16. The Respondent opposed the making of the permanence order on the sole ground that it was incompetent to make such an order for a child aged 16 or over. The sheriff rejected this argument and granted the permanence order, but this decision was overturned by the Sheriff Appeal Court. Company A appealed this decision to the court delivering this opinion.

Legal Issues Presented

1. Whether the court can competently make a permanence order for a child who has reached the age of sixteen under the Adoption and Children (Scotland) Act 2007.
2. The proper statutory interpretation of the mandatory provisions required in a permanence order, specifically concerning the vesting of parental responsibilities and rights for children aged 16 and over.
3. The interaction between the threshold test for permanence orders and the age of the child, particularly in relation to the right to regulate residence and the responsibility to provide guidance.

Arguments of the Parties

Appellant's Arguments

• The Sheriff Appeal Court erred in law by interpreting section 81(1)(b) of the 2007 Act as limiting permanence orders to children under 16.
• A literal reading of section 81 would ignore the broader legislative context and purpose, which is to provide long-term security for children unable to return home, including those over 16.
• The "appropriate period" in section 81(2) can be understood as flexible, allowing permanence orders for children aged 16 and 17, restricting mandatory provisions to the responsibility to provide guidance only.
• Such an interpretation avoids impractical procedural deadlines and aligns with the purposive approach to statutory interpretation endorsed by recent UK Supreme Court authority.
• The permanence order serves to redistribute parental responsibilities and rights, with the right to regulate residence ceasing at 16 but the responsibility to provide guidance continuing until 18.
• Section 85(2) of the Act, prohibiting permanence orders for married children or civil partners, implies that orders can be made for children aged 16 and over.
• The order would provide TM with emotional stability and remove him from the Children's Hearing system, consistent with the legislation's purpose and international obligations under the UNCRC.

Respondent's Arguments

• The Sheriff Appeal Court correctly held that permanence orders cannot be made for children aged 16 or over.
• The threshold test in section 84(5)(c) requires a right to regulate residence, which does not exist for children aged 16 or over, rendering the order incompetent.
• Allowing permanence orders for 16 and 17 year olds would negate the threshold test and undermine protections against unjustified state intervention.
• The residual parental responsibility to provide guidance after 16 is largely academic and has no practical effect; permanence orders are not intended to provide emotional security beyond legal functions.
• The interpretation must align with the legislative intent that permanence orders extinguish parental rights to regulate residence, which is impossible once those rights have ceased at 16.
• The legislation and amendments concerning aftercare and continuing care for looked after children are consistent with the limitation of permanence orders to under-16s.
• The interpretation must consider the threshold test as fundamental, and the absence of a right to regulate residence in children aged 16 or over precludes the making of permanence orders.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging that the 2007 Act does not expressly limit the age of a child in respect of whom a permanence order can be made, and that the general power under section 80(1) applies to children under 18, as defined in section 119(1). A literal reading of section 81, which defines the mandatory provision requiring both the responsibility to provide guidance and the right to regulate residence, would suggest orders are limited to children under 16. However, the court found this reading conflicts with the broader statutory context and purpose.

The court applied the modern, purposive approach to statutory interpretation, emphasizing the importance of context and legislative intent. It concluded that for children under 16, both parental responsibilities and rights vest in the local authority under a permanence order, but for children aged 16 or over, only the responsibility to provide guidance vests, as the right to regulate residence legally ceases at 16.

The court rejected the Respondent's argument that the threshold test in section 84(5)(c) precludes orders for those aged 16 or over, noting that the alternative threshold test applies where no person holds the right to regulate residence. The court was satisfied that substantive welfare considerations and the requirement that the order be better for the child than no order ensure that only appropriate orders will be made.

The court further reasoned that the prohibition on permanence orders for married or civil partnered children in section 85(2) implies that orders can be made for children aged 16 and 17, as these are the only children who can marry or enter civil partnerships. The court found no conflict with other statutory provisions relating to looked after children and noted that an interpretation excluding children aged 16 or over would impose impractical procedural deadlines and create unjustified distinctions.

Finally, the court considered compatibility with the United Nations Convention on the Rights of the Child, concluding that the inclusive interpretation is consistent with the Convention's requirements concerning guidance and evolving capacities of children.

Holding and Implications

The court ALLOWED THE APPEAL, reinstating the sheriff's order granting a permanence order for the child, TM, despite him being over the age of 16 at the time of determination.

This decision establishes that the legislation permits the making of permanence orders for children aged 16 and 17, with the mandatory provision vesting only the responsibility to provide guidance in the local authority, as the right to regulate residence ceases at 16. The ruling clarifies statutory interpretation in this area but does not set a new precedent beyond the immediate parties. It affirms the purposive approach to statutory interpretation and ensures that children over 16 who cannot return home may still benefit from permanence orders, providing them with legal stability and emotional security.