Inner House decision challenges the belief that ‘nothing is permanent except change’

Christopher Agnew is an associate in the family law team at Harper Macleod

The Inner House of the Court of Session recently published its judgment relating to Glasgow City Council v MM, where the local authority sought a permanence order in relation to a child, which was granted by the Sheriff Court. The decision was appealed by TM’s mother, MM, on the basis that it was incompetent to grant such an order, and separately that the facts of the case did not satisfy the threshold test.

Ultimately reaching the Inner House, its decision clarifies the position in relation to when a permanence order may be applied for, and when it may be made.

What are permanence orders?

Permanence order applications are made in terms of the Adoption and Children (Scotland) Act 2007. There are three defining features of a permanence order, which are set out in Section 80 of the 2007 Act, namely:

1. The application must be made by a Local Authority
2. An order must consist of a mandatory provision (section 81), any ancillary provisions that the court thinks fit (section 82), and;
3. Provision for authority to adopt may be included subject to certain conditions being met (section 83).

As a mandatory provision, section 81 vests certain parental responsibilities and rights in the Local Authority, giving them legal authority to regulate a child’s residence and provide age-appropriate guidance to the child. Frequently, ancillary provisions are sought which seek to expand on the parental responsibilities bestowed on the Local Authority, or to extinguish some or all of the biological parents’ responsibilities and rights. Whilst a permanence order does not extinguish the legal relationship between a child and their birth parents in the way that an adoption order does, the effect of a permanence order is considerable in terms of the family dynamic. It is for this reason, that decisions frequently come under appeal.

In appellate proceedings, the Courts regularly see challenges mounted on the basis that the Court at first instance misapplied the ‘threshold test’ – that set out in Section 84(5)(c) of the 2007 Act – or challenges to certain ancillary provisions or the granting of authority to adopt. Recently, there has been a succession of linked appellate cases where the challenge involved a question of technical statutory interpretation – the case of Glasgow City Council v MM.

Glasgow City Council v MM: Timing of a permanence order application – is the law now settled?

Glasgow City Council sought a permanence order in relation to a child, TM, who at the time of the initial appeal, was 16-years-old. The Sheriff at first instance granted a permanence order in January 2024, which included the mandatory provision and certain ancillary provisions. MM, the Respondent mother, appealed the initial Sheriff Court decision to the Sheriff Appeal Court on the basis that it was incompetent to grant such an order, and separately that the facts of the case did not satisfy the threshold test.

The first appeal considered by the Sheriff Appeal Court was published on 18th April 2024 – [2024] SAC (Civ) 14. This appeal concerned an application to remit the proceedings to the Inner House of the Court of Session in terms of Section 112(2) of the Courts (Reform) Scotland Act 2014. The party seeking remit must show that the appeal raises a complex or novel point of law. Even if that party has shown that there is a complex or novel point of law, it is ultimately a matter of the Court’s discretion whether to allow the remit.

The Sheriff Appeal Court highlights the substance of the issue at paragraph 13 of their judgment. It did not accede to the application to remit. It was clear from paragraph 18 of its judgment that the Sheriff Appeal Court was aware of the wide-ranging effect and importance of its decision “A decision of this court will, however, be binding on all Sheriffs.” It considered that it was in a position to determine the appeal based on interpretation of the existing statutory provisions rather than deferring to the Inner House. The substantive appeal would therefore proceed before the Sheriff Appeal Court.

The substantive Sheriff Appeal Court judgment

On 22nd August, the Sheriff Appeal Court published its judgment – [2024] SAC (Civ) 38. The judgment involved careful analysis of the relevant statutory provisions contained within the 2007 Act, as well as the related provisions which arise in terms of Section 1 and 2 of the Children (Scotland) Act 1995. The main issues to be addressed were the definition of the “appropriate period” in section 81(2)(b), the impact of the word “and” at the end of Section 81(1)(a) and the perceived inconsistency between Section 81 and Section 119 so far as it defined a ‘child’.

At paragraphs 32 and 33, the Sheriff Appeal Court opines that the definition of a ‘child’ in Section 119 is not inconsistent with the provisions of 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. 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…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.”

The Sheriff Appeal Court determined that the making of a permanence order means that paragraphs (a) and (b) of Section 81(1) must be read together and were not severable. It considered the right to regulate a child’s residence as ‘critical’ to the making of a permanence order. The appeal was therefore upheld. In passing comment, the Sheriff Appeal Court expresses that “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.” Put short, this issue would not have arisen had the Local Authority acted sooner. The decision was appealed by Glasgow City Council.

Unlike adoption applications, where a Petition may be determined after the child has turned 18-years-old, provided it was raised prior to their 18th birthday, the effect of this decision was that an application for permanence required to be determined before a child’s 16th birthday. Some Local Authorities may have faced the prospect of urgently raising proceedings in order to ensure sufficient time to have the proceedings concluded, or face revisiting alternative options for ongoing care arrangements. This only serves to highlight the critical importance of making decisions about the long-term care planning of children, without delay.

The Inner House judgment

In January 2025, the Inner House of the Court of Session published its judgment. The case was heard by the Extra Division with the opinion of the Court being delivered by Lady Wise – [2025] CSIH 3.

For the appellant, it was argued that context was key – “A purposive interpretation would achieve the practical result that permanence orders can protect the widest range of children without doing any violence to the statutory language.”

The Inner House is no stranger to statutory interpretation. They acknowledge that the general position is to apply the ordinary meaning of the language. However, modern practice is evolving to approach the exercise of statutory interpretation as ‘contextual and purposive’. At paragraph 32 of its judgment, it grapples with the perceived inconsistency of certain key parts of the statute; namely how a child is defined. The purposive approach taken is not to read section 81(1) literally and in isolation.

The court applies the ‘threshold test’ as being Section 84(5)(c). It differentiates between subsections (i) and (ii) when applying the test to TM’s current circumstances, “Indisputably, the threshold test in section 84(5)(c)(ii) was no longer applicable once TM attained the age of 16. The alternative threshold test in section 84(5)(c)(i) would, however, appear to be applicable….”

Regarding restrictions on making permanence orders provided for in Section 85, the Court observes in relation to Section 85(2), “This is the only category of child in respect of whom a permanence order cannot be made. It is only possible to make sense of this provision by reading it as meaning that a permanence order could otherwise be made in respect of a child who has reached the age of 16 and so has capacity to marry. If the Act is interpreted as meaning that permanence orders can be made only for those under the age of 16, this provision would be at best otiose.”

A decision which clarifies the position

Ultimately the Inner House allowed the appeal and reinstated the order of the Sheriff at first instance.

The decision of the Inner House clarifies the position in relation to when a permanence order may be applied for, and when it may be made. The distinction between the provisions in Section 80(1) will be of assistance to Local Authorities who are ultimately the ones who may bring such applications before the Courts. We now benefit from binding authority in relation to the question of when a permanence order may be made.

As was highlighted in the Inner House case by the child himself, the emotional dimension of making an order was important. It would enhance his sense of permanence, stability and security. This emotional dimension is applicable to children of all ages. In clarifying that a permanence order may be made for a child who has not yet attained the age of 18 years, this does not mean that Local Authorities should be ‘relaxed’ about timescales for progressing children’s cases. It is essential that Local Authorities ensure adequate timely decision making for children who are in their care. Where a decision has been reached that rehabilitation into the care of either or both parents is not in the best interests of the child, steps ought to be taken without delay to ensure legal security for a child.