Sheriff Appeal Court refuses remit application in issue of permanence orders for children over 16

About this case:

• Citation:
  [2024] SAC (Civ) 14
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Appellant MM argued that the case raised a novel point of law which required to be considered by the Inner House. They appealed against the sheriff’s decision on competency and also his finding in fact that the test of detriment had been met.

The appeal was heard by Sheriffs Principal Aisha Anwar, Sean Murphy and Kate Dowdalls. Allison, advocate, appeared for the appellant and Sharpe, advocate, for the respondent.

Novel but not complex

It was argued by the appellant that it was not competent for a local authority to make a permanence order in terms of section 80 of the Adoption and Children (Scotland) Act 2007 in respect of a child aged 16 or over. Nonetheless, the sheriff at first instance found in favour of the respondent and granted the order sought.

The sheriff also made certain ancillary orders, including extinguishing the appellant’s parental responsibility of providing guidance appropriate to M’s stage of development and vesting the same parental responsibility in M’s foster carer. A finding in fact was made that the test in section 84(5)(c)(ii) that the child’s continued residence with their present carer would be seriously detrimental to their welfare.

Counsel for the appellant submitted that there was no binding authority on the first issue of appeal. The sheriff’s decision was contrary to the position taken by the authors of The Law Relating to Parent and Child in Scotland and an unreported sheriff court decision of 2022. The issue had Scotland-wide importance and there was a high probability that if the issue remained with the SAC, there would be a further appeal.

For the respondent it was submitted that while the point was novel, it was not complex. It raised a simple matter of statutory interpretation such as the SAC regularly dealt with. While it was possible to raise an Outer House application for a permanence order, most were raised in the sheriff courts, and in any case this was not an appropriate reason to remit.

Narrow and focussed

Delivering the opinion of the court, Sheriff Principal Anwar said of the core issue: “The point of law arising is a narrow and focussed one of statutory interpretation. It may have a degree of complexity but it is not of sufficient complexity to merit the appeal being remitted to the Court of Session.”

On the novelty of this point of law, she noted: “That there exist competing interpretations of a statutory provisions which have not hitherto been the subject of significant judicial consideration does not in our view, of itself, render a point of law novel. Sections 80 and 81 of the 2007 Act have been in force since September 2009. To date, there has been only one unreported decision on the question of whether it is competent to make a permanence order in respect of a child who is 16 or 17.”

She continued: “That might suggest that there is a widespread understanding that such orders are not competent, in which case, the issue raised is not novel, or it might suggest that there has been a lack of challenge to such orders because of a widespread misinterpretation of the statutory provisions. This appeal will resolve that question. In doing so, the court will interpret the existing statutory provisions; it will not innovate or develop the law.”

Accepting there was no binding authority on the issue, Sheriff Principal Anwar added: “A decision of this court will be binding upon all sheriffs. As the respondent submitted, the vast majority of applications for permanence orders are made in the sheriff courts. While the Court of Session enjoys concurrent first instance jurisdiction in such applications, that is also true of a number of species of actions; it is not a cogent reason for remitting an appeal.”

She concluded: “If, as the appellant suggests, there is a high probability of a further appeal to the Inner House by the unsuccessful party and assuming that the second appeals test is met, in our judgment the submissions at any further appeal would benefit from being informed by the analysis contained in a decision of this court which regularly deals with appeals from the sheriff courts in relation to adoption and permanence proceedings.”

The motion to remit was therefore refused, with the matter to continue to an appeal hearing.