Permanence orders have now been around for the best part of a decade. Most child law practitioners will have come across dozens of them in this time and they have produced an ever increasing and interesting volume of case law. Following my recent(ish) involvement in a factually complex permanence case in the Court of Session, I have been wondering why the approach to permanence orders is so different to the approach taken in private child law matters, and in particular orders under s 11 of the Children (Scotland) Act 1995, when both are orders which regulate a child’s life and the operation of parental responsibilities and rights (PRRs).
I doubt that I am alone in noting that in most permanence cases the aim appears to be the same. An application is made to the court in which the local authority seeks to have all PRRs vested in it and/or the foster carers, leaving the parents with nothing except very limited opportunity for contact, and sometimes not even that. An application not in such terms is rarely seen. The applications are often opposed (at least initially) in the same rigid manner.
This approach seems particularly strange, almost instinctively so, when in areas of private child law, and especially in relation to s 11 orders, strenuous efforts are made by solicitors and courts (sometimes even parties) to reach very specific, individual, child welfare-focused solutions within the confines of the relevant legislation.
Why, then, are permanence orders approached in an “all or nothing” way? Why must all PRRs be taken away from a parent? Why can they not be shared? Why must a parent never be able to receive a school report or a photo? In other areas of child law we seek to keep legal interference to a minimum, and we can and ought to do so here. The local authority must have the right and responsibility to regulate residence, but that is all that is required: the vesting and operation of the other PRRs is therefore open for discussion. It having been agreed or decided that the mandatory provision for a permanence order is necessary does not mean that it is necessary that the parents must lose all of their responsibilities and rights.
In the case I was involved in, advocates for the local authority and for the parents spent days working on a resolution which ultimately saw the parents retain certain responsibilities and rights, the operation of which was carefully managed by the terms of a very specific minute of agreement. It was a very specific solution in accordance with the individual needs of the children and the family. Mandatory powers vested in the local authority, but it created a framework in which any contact, indirect or otherwise, stood a chance of being meaningful and successful rather than a simple tick box exercise.
One can well understand that there will be situations where the best outcome is that the parents are cut out of a child’s life entirely, but that cannot be true in every situation. Notwithstanding that, almost all applications for permanence are framed in that way and we oppose them in that way. Perhaps it is time for us all to take a new, wider, more collaborative approach to permanence orders.
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