Shaping a new life

The Adoption and Children (Scotland) Act 2007 principally came into force on 28 September 2009. The main changes it introduced were:

• the creation of new legal options for children who cannot live with their birth parents;
• an increase in local authorities’ duties to provide adoption support;
• an extension of the range of people who may apply to adopt a child.

This article looks at the working to date of the new “permanence orders”, the vehicle for the new options for such children.

Flexible friend

The aim of the permanence order, according to the Adoption Policy Review Group which recommended its introduction (see panel), was that it should be “completely flexible, thus enabling the court to make an order that fits the needs of the individual child, securing the interests of the child, the birth family and the new family”.

Permanence orders are covered in part 2 of the 2007 Act. A permanence order (or “PO” as they are often referred to) is an order which signals that the child is not going home to their birth parents. It can be a “destination order” in itself or it can be a route to adoption.

The main provisions are that:

• only a local authority can apply for a permanence order;
• every child who is subject to a permanence order is “looked after”;
• the local authority is given “mandatory provision”;
• the permanence order may also contain “ancillary provisions”;
• the permanence order may also give authority for adoption.

Mandatory and other provisions

The mandatory provision gives the local authority the right to control the residence of the child, and the responsibility to provide guidance to the child. The right to control residence is automatically removed from the child’s parents. However, the responsibility to provide guidance may be shared with the child’s parents, depending on the circumstances.

The ancillary provisions are particular to each individual child and their circumstances. The local authority and/or any other person may be given some or all of the parental responsibilities, including responsibility of guidance (except the mandatory right of residence). Parents may have some or all responsibilities and/or rights removed, but not necessarily. They may include contact and “any other aspect of the welfare of the child”.

Ancillary provisions can include contact arrangements, matters in relation to passport applications or foreign travel, and issues relative to medical consent for the child. The main guideline is that they should always be in the best interests of the child.

It is implicit that good social work assessments are crucial for deciding what is needed for each child or young person. Local authorities must plan for the best and most flexible combination of responsibilities and rights for each child and his or her permanence order. The idea is to produce a detailed “package” for the child, which can best meet his or her circumstances.

It is important to note the following points:

• The permanence order does not extinguish the child’s legal identity as a member of his or her birth family, unless it includes authority for adoption.
• The consent of a child of 12 or over is required unless the child is incapable of consenting for any reason.
• The child’s welfare throughout childhood is the paramount consideration for the court.
• The child’s views must be considered by the court.
• The “no order” principle applies.
• The court must also consider the child’s religious persuasion, racial origin and cultural and linguistic background.
• The permanence order may be varied or revoked.
• It does not last beyond 18 years of age.
• When the permanence order is granted the court or a children’s hearing may terminate the supervision requirement.

The court must also be satisfied that one of the following applies:

• there is no one who has residence rights for the children; or there is someone with residence rights or living with that person who “is, or is likely to be, seriously detrimental” to the child’s welfare.
• A permanence order may include authority for adoption. Three conditions have to be met:
• the local authority must ask for authority in the application;
• the court must be satisfied that the child is placed or is likely to be placed for adoption;
• there is formal parental consent or dispensation of consent (as is the case with adoption).

Towards a normal life

A main aim of the permanence order is that it will lead to a greater feeling of stability for children and young people. Children who are looked after by foster carers or kinship carers and are subject to supervision requirements made by a children’s hearing, are required to attend at least annual reviews of their supervision requirements. Even although the panel may consider that the current arrangements are working well and no changes are necessary, it should not be underestimated how difficult it is for children to have to attend annual reviews.

I sit on the children’s panel and am acutely aware that children are extremely well tuned in to the role of panel members in their lives. They are often very conscious that children’s panels can make far-reaching decisions which can change where they live and who they see in their daily lives.

They find it stressful and often upsetting. This can lead to a profound sense of instability and lack of security in their home lives.

If a child is subject to a permanence order, they should not be subject to a supervision requirement and required to attend children’s hearings or social work reviews. The permanence order is designed to create a feeling of a permanent place within one family – for the child to feel “claimed”.

Flexibility is an important feature and perceived benefit of the permanence order. It allows the court to consider the child’s life as a whole and make an order which is tailored to their unique circumstances. For example, the order could state that the child would reside with their foster carer and have contact every month with their siblings and once a year with their birth parents. Or, it could state that no contact with any birth relatives would be appropriate for that child. Or, it could spell out who had what rights to be consulted if the child had to have a medical operation, or be taken abroad on a school trip. Therefore, the child has an opportunity to be considered as an individual by the court, with individual needs and circumstances.

The “normalisation” of day-to-day life for children and young people is also an aim of the permanence order. Previously, there were many problems as a result of the old legislation which meant that foster carers (or residential staff or kinship carers) would have to seek permission from the local authority to allow the children in their care to attend a school trip or go to the dentist, for example, as they did not have parental rights and responsibilities which would allow them to grant such consent. This only served to highlight that the child was not in a “normal” family situation and made children feel different to many of their friends. A permanence order can allow foster carers (and others caring for children) to have some or all of the parental rights and responsibilities needed to make day-to-day decisions affecting the child. Depending on the circumstances, birth parents could also retain some parental rights and responsibilities. The idea is that it will always depend on the child’s circumstances and particular needs.

How to apply

The local authority must apply to either the relevant sheriff court or to the Court of Session. If a child is subject to a supervision requirement (which is likely), a children’s hearing must give advice to the court before the application is determined.

The child’s supervision requirement is also reviewed at the same hearing.

Once the application is lodged, a children’s hearing may not make a new supervision requirement, nor vary a requirement (including conditions) without the court’s permission. Therefore panel members must write a report for the court stating what the panel wants to do and why. The hearing is continued pending the court’s decision. The reporter sends the report to the court with the request. The court considers the report and decides whether to allow variation of the supervision requirement. The reporter is informed and then a children’s hearing is arranged. The panel members’ decision will reflect the court’s decision.

Panel members are advised to give the court as much detail as possible in making a request, and clear reasons must be advanced. This is a real departure for panel members and it is important that they realise that once a permanence order application is lodged, they will not be able to change the supervision requirement without the court’s permission. The rationale for this new approach is that the child’s life should not be changed unnecessarily and without great consideration, when things are moving towards permanence.

A sheriff will normally terminate the supervision requirement at the time of granting the permanence order. A child will not normally have a permanence order and a supervision requirement at the same time. However, of course, if at a later stage there are reasons for referring the child to the reporter this can be done, for example if the child is offending or outwith parental control.

Encouraging signs

In my opinion, the early signs as to how permanence orders are working are good. Sitting as a panel member in Edinburgh, I have noticed a thoughtful and considered approach from the local authority in dealing with permanence orders. Time and energy is being given to considering what will work best for each child, and a more detailed work plan is being shared with the panel to illustrate how the authority considers that a permanence order will help that particular child. Good local authority judgments will be key in the success or otherwise of permanence orders, and detailed reports are very important in assisting the panel in making helpful decisions for children.

Anecdotally, I have heard from social workers in the Edinburgh and Glasgow local authority areas that they feel the permanence order is a really flexible order which they can use to help create good outcomes for children. They seem to feel that it is a positive step forward and one which will ultimately serve the children in their care. They also feel that the 2007 Act is an important piece of legislation, and consider that there is now a higher duty on the local authority to provide post-adoption support in terms of those individuals who are entitled to adoption services such as counselling, assistance in tracing birth relatives and practical assistance.

Panel members have been trained on the new legislation, and are aware of the key differences from the former position and how the 2007 Act will impact on their practice – for example, as detailed above, they cannot change the supervision requirement without the court’s authority if an application for a permanence order has been lodged.

In my opinion, the permanence order is a creative and sensitive legal mechanism which should provide a much more subtle tool in dealing with these delicate cases. Of course, to an eight-year-old child, the term “permanence order” is probably meaningless. What it is hoped will not be meaningless will be the difference that these new legal options could make to their life.

• Jennifer Broatch is an associate with the family law team at Lindsays LLP

The need for change

The changes to the law in this area were recommended by the Adoption Policy Review Group, chaired by Sheriff Principal Graham Cox.

The Group acknowledged that the typical model of adoption had changed significantly – the stereotypical notion of a baby adopted at birth being replaced in many cases with a much older child, who had been in the care system for years and had complex needs to consider. There was also recognition of emerging research which suggested that children are often negatively affected by a complete ending of their relationships with their birth parents.

The Review Group considered that the legal framework previously in place did not adequately meet the needs of the children it was set up to serve, and recommended the abolition of both parental responsibility orders and freeing for adoption applications. Parental responsibility orders, which removed almost all of the birth parents’ parental rights and responsibilities and transferred them to the local authority, were seen as inflexible and for that reason were used infrequently. Freeing for adoption orders were also flawed as, pending adoption, the freed child was left in the difficult position of having no one, other than the local authority, responsible for them – a situation which was described as “an adoption limbo”. They also meant a complete cut-off from the child’s birth parents.

The Review Group’s recommendations mirrored the view of many practitioners in this area, who felt that the old legal framework did not provide a flexible enough mechanism for addressing the subtleties involved in adoption and permanence planning for children. The Group’s solution was the permanence order.