About this case

Case name

Glasgow City Council v MM

Case reference number

XA58/24

Date of hearing

Thursday, 28 November 2024

Time of hearing

10:30 to 13:00 then 14:00 until conclusion

Division

Extra Division

Judges

• Lord Malcolm
• Lord Tyre
• Lady Wise

Agents and Counsel

For the Appellant (Glasgow City Council)

• Agents: SKO Family Law Specialists (for JK Cameron and Solicitors)
• Counsel: Moynihan KC

For the Respondent (MM)

• Agents: Drummond Miller LLP (for Livingston Brown)
• Counsel: J Scott KC, Allison

Case description

Can a permanence order under the Adoption and Children (Scotland) Act 2007 be made for a child over 16?

Or, in legal language: are parts (a) & (b) of s.81(1) of the 2007 Act severable thus allowing a permanence order (“PO”) to be made for a child aged over 16?

These are the questions to be decided on this appeal.

The child in this appeal was made subject to a Compulsory Supervision Order (“CSO”) when they were less than one year old. Glasgow City Council (“GCC”) was the implementing authority; the child was "looked after" by GCC under s.17 of the Children (Scotland) Act 1995.

The child resided with their foster carer. They remained subject to a CSO on their 16th birthday. All of their mother's parental rights ended by automatic operation of law when they became 16 as did all her parental responsibilities except the responsibility to provide the child with guidance under s.1(1)(b)(ii) of the 1995 Act which can subsist to age 18.

Consequently, their mother continued to have the rights and duties of a relevant person for the purposes of children's hearings under s.200(1)(a) of the Children’s Hearings (Scotland) Act 2007 and retained special status under s. 17(1)(c) of the 1995 Act.

Before the child turned 16, GCC sought a permanence order in terms of section 80 of the Adoption and Children (Scotland) Act 2007.

The PO sought to end all the mother's responsibilities and rights and transfer them to GCC/the foster carer on the basis this aligned with the practical reality of the child being dependent on GCC/the foster carer, not the mother. The consequence of this transfer was that the petition also sought termination of the CSO, ending the mother's role as a relevant person and her specific status under s.17(6)(b) of the 1995 Act. After GCC went to court to get the PO, but before the Sheriff granted it, the child turned 16.

The mother challenged the competency of making a PO for a child over 16. She argues that s80 of the 2007 Act requires a PO must contain “the mandatory provision” (s80(2)(a)).

S81 of the Act defines the “mandatory provision” as:-

… 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.

Or, in other words: A PO must make the local authority responsible for both the right to control the child’s residence and the responsibility to provide the child guidance. But the law says that children over the age of 16 can live where they want – the right to control a child’s residence terminates on their 16th birthday. Therefore, it is impossible to make a PO for a child over the age of 16 – the court has no power to give the council the right to regulate a 16+ child’s residence. In legal language, GCC’s petition for a PO was “incompetent” because it asked the Sheriff Court to do something it had no power to do.

In December 2023 the Sheriff rejected this argument. He decided that the provisions were “severable” – or, in other words, where a child is over 16, the “mandatory provision” in s81 should be read as consisting only of s81(1)(a) – i.e. the responsibility to provide guidance to the child.

The mother appealed to the Sheriff Appeal Court (“SAC”). The SAC allowed the mother’s appeal in August 2024. The SAC decided that s81(1)(b) of the 2007 Act imposed a requirement that a PO can only be made in respect of a child under 16 years old and so the petition for a PO was incompetent.

GCC now appeal to the Court of Session against the SAC’s decision of August 2024. Because the SAC’s decision raises questions of law and practice for every local authority in Scotland involved in looking after children, the Inner House agreed to hear the appeal urgently.