Permanence orders were introduced by the Adoption and Children (Scotland) Act 2007.
A permanence order provides a mechanism by which a Local Authority can apply to the Court to have the parental responsibilities and rights (PRRs) in respect of a child vested in the Local Authority. In the majority of cases this involves having the PRRs removed from the child’s natural parent(s) when they are unable to satisfactorily exercise and discharge these responsibilities and rights and are likely to be unable to do so.
The Local Authority can also seek to have the PRRs vested in another person, for example kinship carers (relatives looking after a child), foster carers or prospective adopters. Crucially, the Local Authority can apply for the authority for the child to be adopted to be granted and dispense with the consent of the parents to the child being adopted. The permanence order will also normally deal with any future contact between the child and natural parents.
Where a child is over 12 they must consent to the making of a permanence order. The test for making a permanence order is three-fold and set out in section 84 of the 2007 Act.
The 2007 Act confusingly does not set out the three-fold test in the order of how it should be applied. However, there is now a clear direction from the wealth of applicable case law on the hierarchy with which this should be applied.
In the first place, the “threshold test” must be met. This is as follows:-
“Where there is someone who has the right to have the child live with them, the child’s residence with this person is, or is likely to be, seriously detrimental to the welfare of the child. If this test is not met, then a permanence order cannot be made by the Court” (section 84(5)(c)(ii)).
Only when the “threshold test” is met, should the remaining tests be considered;
Having satisfied these three criteria, the Court can consider the granting of a permanence order.
