Naming and Shaming

The five judges were unanimous in declaring that the Scottish Government had exceeded its powers by making a law that allowed public bodies to share sensitive private information about children and parents without consent.

One of the important reasons for parents making wills is to provide for the appointment of guardians to their children should they die whilst their children are still under age.

It is perfectly understandable that most parents would wish to make such provision to ensure that, in the event of their untimely deaths, the interests of their children are fully protected by guardians of their choosing, until their children reach adulthood and are able to decide for themselves.

What might not be so immediately understandable is the idea of the appointment of a ‘state guardian’ for every child in Scotland under the age of 18, tasked with looking after that child’s happiness and wellbeing, even although that child might already be in a loving family with all the help and support that they might need from their parents and family members.

This is what was proposed by the Scottish Parliament in February 2014 when it declared that every child in Scotland should have a ‘named person’ – a state official tasked with looking after a child’s ‘wellbeing’, which was defined as ‘happiness’.

Whilst acknowledging that most children do indeed get all the help and support that they need from their parents, wider family, and community, the Government declared that sometimes a child might need a bit of extra support.

As part of its ‘Getting it Right for Every Child’ strategy, the Government proposed giving every child from birth to 18 years access to a ‘named person’ under the Children and Young People (Scotland) Act 2014.

The Government has made it clear that the ‘named person’ cannot be the child's parent and is more likely to be a midwife or health visitor in a child’s early years and a head or guidance teacher in later years.

It is not proposed that the named person would have any parental rights and responsibilities as such but would simply act as a link between families and any necessary services such as social work, healthcare, and counselling services.

They would also be a point of contact for other services if they had any concerns about a child’s wellbeing.

According to the Scottish Government, the named person would be available to ‘listen, advise, and help a young child or young person and their family’.

The Act had been due to come into force on 31 August of this year; however, this timetable now looks set to be delayed following a defeat by the Scottish Government in the Supreme Court in July, after its scheme (which had provoked some controversy) was ruled unlawful.

Opponents of the scheme had been attempting to have it quashed by the courts, arguing that the legislation would undermine parents, breach privacy, and stretch resources for protecting vulnerable children, by creating a scheme that applied to all children, regardless of need.

The Supreme Court ruled that, whilst the aim of the Act was ‘unquestionably legitimate and benign’ nevertheless, some of Holyrood’s proposals relating to information sharing breached the right to privacy and a family life under the European Convention on Human Rights.

The five judges were unanimous in declaring that the Scottish Government had exceeded its powers by making a law that allowed public bodies to share sensitive private information about children and parents without consent.

The judgment emphasised the importance of article 8 of the European Convention on Human Rights - on the right to a private and family life - and in their judgement stated: “The first thing that a totalitarian regime tries to do is to get to the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.”

The court has given the Scottish Ministers 42 days in which to address the issues raised in their judgement.

According to the Scottish Government, the legislation is required to avoid another child abuse tragedy. They have stated that it is not always possible to predict in advance which children might become vulnerable.

The Named Person scheme is broadly supported by children’s charities, and pilot schemes in certain areas of Scotland have been considered a success.

The aim is that when the legislation eventually comes into force, in whatever form, it will provide the necessary protection required for every child at risk.

No one could dispute a strategy of ‘Getting it Right for Every Child’ - it is hoped that the Government does just that with its amending legislation.

Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken LLP

ewan.campbell@russelaitken.com

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