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SHERIFF APPEAL COURT

[2024] SAC (Civ) 38

Sheriff Principal A Y Anwar

Sheriff Principal C Dowdalls KC

Sheriff Principal G A Wade KC

OPINION OF THE COURT

delivered by SHERIFF PRINCIPAL C DOWDALLS KC

in the appeal in the cause

GLASGOW CITY COUNCIL

Petitioner and Respondent

against

Respondent and Appellant

Petitioner and Respondent: Sharpe; JK Cameron

Respondent and Appellant: Allison; Livingston Brown Ltd

12 August 2024

Introduction

[1]

Are parts (a) and (b) of section 81(1) of the Adoption and Children (Scotland)

Act 2007 ("the 2007 Act") to be read as one or are they severable? Can a permanence order

consist of only one part of section 81(1) or must it contain both? Is the word "and" where it

appears in section 81(1) used conjunctively? Those were the questions this court considered

arose in this appeal when it refused the appellant's application to remit to the Court of

Session: Glasgow City Council v MM [2024] SAC (Civ) 14 at para [13]. This opinion answers

those questions.

Adoption and Children (Scotland) Act 2007

[2]

The provisions of the 2007 Act relevant to this appeal are:

"80 Permanence orders

(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

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.

81 Permanence orders: mandatory provision

(1) The mandatory provision is provision vesting in the local authority for the

appropriate period--

(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.

...

84 Conditions and considerations applicable to making of order

(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

(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).

85 Child in respect of whom order may be made

(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."

The sheriff's judgment

[3]

The sheriff held that, in terms of section 84(4), the paramount consideration for a

court considering whether to grant a permanence order was "the need to safeguard and

promote the welfare of the child throughout childhood". He considered that the term

"throughout childhood" meant until a child reached the age of 18. The 2007 Act made

provision for a child aged 16 or 17 to be the subject of a permanence order; however, the

only aspect of the mandatory provision that would apply to a child aged 16 and 17 was that

set out at section 81(1)(a).

[4]

The sheriff was referred to paragraph 20.22 of Wilkinson and Norrie, The Law

Relating to Parent and Child in Scotland, (3rd ed), in which the authors expressed the view that

the two aspects of the mandatory provision were complementary and not alternatives. They

concluded "it would seem to be incompetent to make a permanence order in respect of a

16 or 17 year old". That analysis was ultimately accepted by the summary sheriff in

Clackmannanshire Council, Applicants, unreported, 1 June 2022 at para [78].

[5]

The sheriff considered that section 81(2) provided distinct periods for the provisions

mentioned in section 81(1)(a) and 81(1)(b) to apply. The term "for the appropriate period"

qualified the application of the different elements of the mandatory provision and specified

different appropriate periods for each. Simply because the time period for granting the

provision mentioned in section 81(1)(b) had passed, it did not follow that the time for

granting an order in terms of section 81(1)(a) had passed.

[6]

In summary, Wilkinson and Norrie and the summary sheriff in Clackmannanshire

Council, Applicants considered that section 81(1) is not severable; that the mandatory

provision must contain both parts of section 81(1); and that the word "and" where it

appears in section 81(1) is used conjunctively. By contrast, the sheriff considered that

section 81(1) is severable; that the mandatory provision did not need to contain both parts

of section 81(1); and that the word "and" where it appears in section 81(1) is not used

conjunctively.

Grounds of appeal

[7]

The appellant appeals the decision of the sheriff on the following grounds:

(i)

The sheriff erred in his interpretation of section 81(1) of the 2007 Act by

concluding that parts (a) and (b) of subsection (1) were severable, and that

therefore a permanence order could competently be made without inclusion

within the mandatory provision of the parental right in section 2(1)(a) of the

Children (Scotland) Act 1995 Act ("the 1995 Act"), being the right to regulate the

child's residence. Where a child has reached the age of 16, it is accordingly not

competent to make a permanence order.

(ii)

The sheriff erred in making the permanence order on the basis he was satisfied

that the threshold test in section 84(5)(c)(ii) was met, as no right to regulate the

child's residence vested in the appellant on the day the order was made.

Submissions for the appellant

Competency

[8]

The court raised the issue of the competency of the appeal with the appellant. The

sheriff had determined whether it was competent for the respondent to seek a permanence

order in his interlocutor of 19 December 2023. As part of that interlocutor, the sheriff fixed a

diet of proof on 4 January 2024. At the diet of proof on 4 January 2024, the appellant did not

oppose the granting of the permanence order. Thereafter, the appellant lodged her appeal;

however, as the substantive issue on appeal had been decided on 19 December 2023, the

court asked to be addressed as to: (i) why leave to appeal had not been sought from the

sheriff within 7 days of 19 December 2023; and (ii) whether the appeal was competent,

standing the withdrawal of opposition to the petition on 4 January 2024.

[9]

In response to the court's first question, the appellant submits that, by virtue of

section 116(2) of the Courts Reform (Scotland) Act 2014, an appeal against a final

interlocutor opened up all prior interlocutors for review. There was nothing within that

section, or elsewhere in the 2014 Act, which suggested that a failure to seek leave to appeal

at an earlier stage was a barrier to seeking to appeal at the conclusion of the action. The

circumstances under which a prior interlocutor could be reviewed upon appeal had been

recently considered by this court in Ashraf v Accountant in Bankruptcy & Anr

[2024] SAC (Civ) 22 at para [57]. The final interlocutor of 4 January 2024 was contingent upon that of

19 December 2023. Without the decision of 19 December 2023, there could have been no

permanence order granted on 4 January 2024. The review of the interlocutor of 19 December

2023 was necessary to allow justice to be done.

[10]

As to the second question, the appellant's opposition to the permanence order

centred on whether such an order was competent. That question was resolved by the sheriff

in his interlocutor of 19 December 2023. Following that, the respondent on 3 January 2024

substantially altered the nature of the order sought. The appellant thereafter withdrew her

opposition, albeit on a specific understanding. As the appellant was not opposing the

making of a permanence order in the limited terms now sought, if competent, that was the

responsible course of action. The alternative was to oppose the petition on its merits simply

as a vehicle to maintain dissatisfaction with the sheriff's earlier interlocutor of 19 December

2023; that would have been inappropriate. The alternative, to have sought leave to appeal

within 7 days of 19 December 2023, would have simply caused delay for final disposal, in

circumstances where the issue in controversy between the parties had been disposed of.

[11]

Whilst there are limitations upon appeals against decisions of consent (Macphail,

Sheriff Court Practice (4th ed) at paragraph 18.161), those were not relevant to this appeal. The

appellant withdrew opposition, rather than offering consent. It was still for the sheriff to be

satisfied that the conditions in section 84 of the 2007 Act were met.

Section 81(1) of the 2007 Act

[12]

In relation to the first ground of appeal, the definition of "appropriate period" in

section 81(2)(b) means that, where a child has already attained the age of 16, a court cannot

vest the right contained at section 81(1)(b) in a petitioning local authority because the

appropriate period would have already lapsed. The issue is whether the two components in

section 81(1) are severable, notwithstanding the reference in both section 80 and section 81 to

"the mandatory provision" (ie singular) and the use of the word "and" between

subsections (1)(a) and (b) of section 81.

[13]

The natural and ordinary meaning of section 81(1) is that the mandatory provision

includes both the responsibility mentioned in section 81(1)(a) and the right mentioned in

section 81(1)(b). Had the Scottish Parliament intended otherwise, it could have easily made

that clear by, for example, the addition of the words "one or more of" at the end of the

preamble in section 81(1). Absent such language, the word "and" conveys a clear intention

that the right referred to in section 81(1)(b) - the right to regulate residence in terms of

section 2(1) of the 1995 Act is always part of the mandatory provision, and so must be

included in every permanence order. There is no ambiguity in section 81 itself.

[14]

The appellant also questioned the purpose of a permanence order being issued for a

child aged 16 and 17 years old if the only duty it created was one which was already

implicitly placed upon the petitioning local authority by virtue of section 17 of the 1995 Act

in respect of children who are looked after and section 22(1) of the 1995 Act in respect of all

children in their area. Moreover, a further duty imposed upon the local authority was

contained in section 29 of the 1995 Act; it required a local authority to advise, guide and

assist a child aged between 16 and 19 years old who used to be looked after by the local

authority, but no longer was.

[15]

Given almost all children who are the subject of applications for permanence orders

will already be the subject of compulsory supervision orders under the Children's Hearings

(Scotland) Act 2011, it was difficult to see what possible benefits to the cohort of 16 and

17 year olds there could be to a permanence order being made, when the same benefits

could be achieved via a compulsory supervision order. If, as occurred here, the intention

was that the compulsory supervision order be terminated, then that was absurd because it

involved replacing an order that allowed for various steps to be taken in respect of a child in

need (where necessary) with one that did not allow for those steps to be taken.

[16]

The appellant accepted that the terms of section 85(2) of the 2007 Act sat

uncomfortably with her interpretation of section 81; however, following the ordinary rules

of statutory interpretation, the appellant's interpretation ought to be preferred, even if that

made section 85(2) redundant. In a similar vein, the appellant accepted that her

interpretation of section 81 was inconsistent with the definition of "child" in section 119;

however, that definition applied to the 2007 Act as a whole, rather than specifically relating

to permanence orders.

[17]

With respect to the second ground of appeal, the sheriff had made a typographical

error in his interlocutor of 4 January 2024. The appropriate threshold test it ought to refer to

was that contained in section 84(5)(c)(i). The sheriff's error is material, in respect that it

purports to reach a conclusion that is adverse to the appellant; her lack of opposition to the

making of a permanence order was founded on an understanding that the test in

section 84(5)(c)(ii) would not be addressed.

Submissions for the respondent

Competency

[18]

The respondent made no submissions on the issue of competency of the appeal.

Section 81(1) of the 2007 Act

[19]

The sheriff was correct to refuse the appellant's challenge on competency on the

granting of the permanence order. The sheriff adopted a contextual and purposive

approach to his interpretation of section 81 of the 2007 Act. He was entitled to do so, rather

than adopt a literal approach: R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687

per Lord Bingham at para [8]; Test Claimants in the FII Group Litigation v Revenue and Customs

Commissioners [2022] AC 1 per Lords Reed and Hodge at para [155]; and Veale v Scottish

Power UK Plc 2024 SLT 607 per Lord President (Carloway) at paras [26] - [27].

[20]

The sheriff was entitled to conclude that the term "for the appropriate period"

qualified the application of the different elements of the mandatory provision at the time

when the court was considering a permanence order which specifies different appropriate

periods for each.

[21]

The sheriff's interpretation made sense when the terms of section 85(2) of the Act

were considered: "A permanence order may not be made in respect of a child who is or has

been (a) married, (b) a civil partner." By implication, a child aged 16 or 17 could be the

subject of a permanence order if they were not married or were not in a civil partnership.

That was coherent, given that section 119 defined "child" as "a person who is under the age

of 18".

[22]

The appellant's references to the Children (Scotland) Act 1995 and the Children's

Hearings (Scotland) Act 2011 were irrelevant. Those statutes related to different statutory

regimes for the care and protection of children. This court had to interpret section 81(1) of

the 2007 Act and thereafter ask whether the sheriff was entitled to grant the order that he

did.

[23]

As for the error in the sheriff's interlocutor of 4 January 2024, the respondent invited

the court to delete part (iii) of the interlocutor and substitute the following:

"The Compulsory Supervision Order is revoked in terms of section 89 of the

Adoption and Children (Scotland) Act 2007, in that compulsory measures of

supervision in respect of the child are no longer necessary."

Decision

Competency

[24]

On the issue of the competency of this appeal, we agree with the appellant's

submissions. The competency of making the order sought by the respondent had been

determined by the sheriff on 19 December 2023. That decision did not dispose of the

petition, so was not a final order. No leave was sought by the appellant to appeal the order

and no final order was made until 4 January 2024. The appellant did not offer any

opposition to the making of the permanence order on that date, but neither did she consent

to it. It was for the respondent to satisfy the court that the permanence order should be

granted. There is no mechanism within sections 80 to 85 of the 2007 Act whereby the

appellant could consent to the making of the permanence order. By withdrawing

opposition, therefore, she was doing no more than leaving it to the respondent to establish

its case and the sheriff to reach a decision.

[25]

Upon the lodging of this appeal, in terms of section 116 of the Courts Reform

(Scotland) Act 2014, all prior decisions in the proceedings became open to review. The

appellant's failure to seek leave to appeal an earlier decision in the proceedings does not

create a barrier to appeal at the conclusion of the proceedings. We agree with the statement

of general principles set out in Ashraf at para [57]. This is a competent appeal.

Section 81(1) of the 2007 Act

[26]

The language of sections 80 and 81(1) of the 2007 Act is clear. A permanence order

must consist of the mandatory provision and such of the ancillary provisions as the court

thinks fit. Section 80(3) provides: "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." In making a permanence order, the court must secure that

each parental responsibility and each parental right, in terms respectively of sections 1 and 2

of the 1995 Act, vests in a person. Unless that is achieved, there can be no permanence order.

[27]

The mandatory provision mentioned in section 80(2)(a) is explained in section 81(1).

It vests in the local authority the responsibility in section 1(1)(b)(ii) of the 1995 Act, being the

responsibility to provide guidance appropriate to the child's stage of development; and the

right in section 2(1)(a) of the 1995 Act, being "the right ... to regulate the child's residence."

[28]

The ancillary provisions, mentioned in section 80(2)(b), are explained in section 82(1).

These include the vesting in the local authority of the parental responsibilities in

section 1(1)(a), (b)(i) and (d) of the 1995 Act, respectively to safeguard the child's health,

development and welfare, provide direction to the child and act as the child's legal

representative; and the parental rights mentioned in section 2(1)(b) and (d) of the 1995 Act,

being to control, direct or guide the child's upbringing and act as the child's legal

representative. The parental responsibilities in section 1(1) of the 1995 Act may be vested in

a person other than the local authority. The parental rights mentioned in section 2(1)(b)

to (d) may also be vested in a person other than the local authority. Provision is also made,

in section 82(1)(c) to (f) for ancillary orders extinguishing certain parental rights and

responsibilities, specifying arrangements for contact with the child and determining

questions in connection with any parental rights and responsibilities in relation to the child

or any other aspect of the welfare of the child.

[29]

The effect of the making of the permanence order is the redistribution of parental

rights and responsibilities which, where there was previously a person with parental rights

and responsibilities in relation to the child, would otherwise have vested in that person. The

local authority will, on the making of a permanence order have, at least, the responsibility to

provide guidance to the child and the right to regulate the child's residence. The right to

regulate the child's residence vests solely in the local authority and may not be vested in any

other person.

[30]

Section 81 of the 2007 Act also provides, in relation to the mandatory provision, that

the responsibility and right mentioned in subsection (1) will vest in the local authority "for

the appropriate period". The appropriate period is defined in subsection (2) as, in the case

of the responsibility to provide guidance to the child, the period beginning with the making

of the order and ending on the day the child reaches the age of 18. In the case of the right to

regulate the child's residence, the appropriate period is defined as beginning with the

making of the permanence order and ending on the day the child reaches the age of 16.

[31]

The question for us is whether the sheriff erred in making a permanence order

vesting in the local authority only that part of the mandatory provision in section 81(1)(a),

being the responsibility to provide guidance appropriate to the child's stage of development.

The question arises because the child in respect of whom the order was sought was over the

age of 16 when the order was made, such that the appropriate period for which the right to

regulate the child's residence in terms of section 81(2)(b) could vest in the local authority

had passed.

[32]

The appellant argues that the constituent parts of the mandatory provision are not

severable; it follows therefore that the permanence order made by the sheriff is not

competent. In making that submission, the appellant acknowledged that there may be some

inconsistencies in the legislation. Section 119 defines a "child" as a person under the age

of 18. We do not consider that definition to be inconsistent with the provision at

section 81(2)(b). That latter provision does no more than recognise and reflect the effect of

the definition of "child" in sections 1(2) and 2(7) of the 1995 Act. Section 2(1) of the 1995 Act

is clear that parental rights vest in a parent in order to enable the parent to fulfil his parental

responsibilities in relation to the child; they do not stand separate from those

responsibilities. Parliament has enacted sections 80 to 85 of the 2007 Act by reference to

parental rights and responsibilities in terms of sections 1 and 2 of the 1995 Act. Had it

considered it appropriate to do otherwise, it would have done so.

[33]

The appellant also recognises the apparent inconsistency between sections 80(1)

and 85 of the 2007 Act. Section 85(2) provides that a permanence order may not be made in

respect of a child who is or has been married. In Scotland, the minimum age for marriage is

16 years. Section 85 prohibits the making of a permanence order in respect of any person

over 16 who has been legally married. Far from being inconsistent with section 80(1),

section 85 recognises that, once a person has reached the age of 16 and has married, a

permanence order may not be made. That is entirely consistent with the requirements of

section 81, and the requirement that both components of the mandatory provision vesting in

the local authority upon the making of a permanence order.

[34]

We have also considered the significance of the right to regulate a child's residence in

the context of the conditions and considerations applicable to the making of a permanence

order, in terms of section 84. Subsection (5)(c) of section 84 requires that the court is 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. Unless the court is so satisfied,

the threshold test in section 84(5)(c) is not met and no permanence order may be made. We

are compelled to the view that the vesting of the right to regulate the child's residence in the

local authority is critical to the making of a permanence order. Without that right, the local

authority cannot do what the permanence order is intended to do, which is to provide the

child with a person, in the form of a corporate parent, with the right to regulate the child's

residence in a way that is not and is not likely to be seriously detrimental to the child's

welfare.

[35]

We do not agree with the sheriff's conclusion that:

"[s]imply because the time period for granting the provision mentioned in section

81(1)(b) has passed, it does not follow that the time for granting an order in terms of

section 81(1)(a) has passed."

Nor do we agree that the Act clearly intends that children aged 16 and 17 will be the subject

of permanence orders and that the only mandatory provision that will apply during that

time will be that described in section 81(1)(a). There is only one mandatory provision, which

is described in section 81(1) of the 2007 Act. The mandatory provision so described is

comprised of two components. Giving the words of section 81 their natural and ordinary

meaning and having regard to the effect and purpose of a permanence order these

components are not severable. Accordingly, the order made by the sheriff, granting the

permanence order subject only to the responsibility mentioned in section 81(1)(a) was not

competent.

[36]

We recognise that the effect of our decision is that a permanence order may be made

in respect of child who is under 16 but will continue to have effect in terms of vesting in the

local authority the parental responsibility to provide guidance appropriate to the child's

stage of development, until the child attains the age of 18; those children who are over 16

however, will not so benefit. In that respect, it may be suggested that the legislation offers a

lesser degree of protection to young people who are over 16 when an application for a

permanence order is made. However, those who are over 16 and in a similar position to the

young person in this appeal, will continue to derive the protections afforded by section 17

and section 22(1) of the 1995 Act and the duties incumbent upon the local authority in terms

of section 29 of the 1995 Act requiring the local authority to advise, guide and assist a young

person aged between 16 and 19 years old who used to be looked after by the local authority,

but no longer is.

[37]

We are conscious of the effect of our decision on the young person at the centre of

this appeal, who had consented to the making of the permanence order and wanted the

order to be made. It is regrettable that the respondent local authority was unable to make

the application in sufficient time to enable the court to make the order prior to his

16th birthday. We have a significant degree of sympathy with the young person, who we

know is likely to be disappointed by the outcome of this appeal, which will likely result in

him remaining subject to compulsory measures of supervision for the foreseeable future.

[38]

It is not necessary in the circumstances for us to address the second ground of appeal

which was directed at the terms of the sheriff's interlocutor.

Disposal

[39]

We will allow the appeal and recall the sheriff's interlocutor of 4 January 2024 and

refuse the petition. We shall make no award of expenses to or by either party, and sanction

the appeal as suitable for the employment of junior counsel.