2014: Protecting the Children

The Children and Young People (Scotland) Act 2014 was an Act of the Scottish Parliament passed on 19 February 2014. The legislation was part of the SNP Government’s “Getting it right for every child” policy implementation. The scope of the act made provision for the rights of children and young people. The provision of services and support for or in relation to children and young people. Children’s hearings, detention in secure accommodation and consultation on certain proposals in relation to schools.

The provisions of the act gained the support of parents, professionals involved in childcare provision, childrens organisations and charitable institutions and implementation of the new measures was scheduled to be implemented from 2015.

But the public became increasingly concerned about the wisdom of a “Named Person” when press coverage revealed the propensity for the abuse of children.

Press Report:

Dayna Dickson-Boath was appointed one of the first Named Persons in Scotland, but is now banned from working with children for the rest of her life. She had held a senior position at a secondary school in Moray, but yesterday consented to being struck off by the General Teaching Council for Scotland on the charge that, between 8 August 2014 and 10 September 2014, she “did send, by means of a public electronic communications network, messages to another person that were grossly offensive or of an indecent, obscene or menacing character, in that you did converse regarding the sexual abuse of children”. Dickson-Boath was placed on the Sex Offenders’ Register and ordered to undergo treatment when she was convicted in Elgin Sheriff Court.

A trickle of protests reached tsunami strength at the start of 2015 as concerns were raised about aspects of the legislation which were draconian, poorly drafted and “Big Brother State”.

The SNP government ignored requests for a dialogue and forced the new measures through. But the public would not be denied and a number of Scots parents and Christian organisations took the SNP government to court in an effort to get parts of the act repealed. They failed in their efforts and all appeared to be lost. But they gathered strength from increasing support of Scots who had been alerted to what the SNP government was seeking to impose on the nation. They appealed to the UK Supreme Court.

2016: The Supreme Court Judgement – The Named Person Scheme

In their summary ruling against the introduction of the scheme the Supreme Court judges noted that the appropriateness of the novel new legislation hinged on the government’s assertion of a need to ensure the “wellbeing” of the child.

But “wellbeing” was not defined and reliance on SHANARRI indicators (standing for Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included) were also not defined and were in some cases notably vague.

A unanimous ruling of Supreme Court judges also stated: “The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.

They were also agreed that the idea that parents must comply with any advice given “could well amount to an interference with” Article 8 of the ECHR (the right to respect for private and family life). The Court also held that the legislation’s data sharing provisions, which they held were central to the role of the named person, “are not within the legislative competence of the Scottish Parliament”.

And yet, In his 2016 speech to the Scottish Parliament following receipt of the judgement Swinney insisted that the judgment itself did not require current policy to change. His message to local authorities and health boards was to continue to develop and deliver the named person service. Encouraging the disregard of the Supreme Court ruling set a dangerous precedence since in continuing the development of the named person provision, its information gathering and sharing processes the Deputy First Minister encouraged unlawful practice by state bodies.

Dr Jenny Cunningham, a recently retired community paediatrician from Glasgow said that the named person scheme was “illegitimate and illiberal” and argued that an open democracy depended on the principle that “parents ought to be autonomous in relation to their own families”. he continued saying: “The underlying assumption by the SNP government is that adults are unable to identify vulnerable children – so the state has to intervene! This belittles parents. She concluded: “We should strongly resist and argue against this idea that parents are incapable of assessing children’s wellbeing needs and accessing services – parenting is about establishing good relationships with children and establishing parental authority.”

Maggie Mellon, an independent social work consultant said: “It’s important that we understand the rationale and the ideas underpinning the legislation. The SNP government has made it clear it thinks the Supreme Court judgment is purely technical and they’re going to plough on regardless. But there is no duty under the Act to consult or collaborate with parents. It’s just not there. We’ve been treated to flights of complete fancy about the voluntary nature of the scheme. We were told it was in response to parents’ demands – then we were told it was to save children from their parents. A Named Person can’t provide a hot meal, a pair of shoes, a warm home but they can spend time doing SHANARRI somersaults with 300 wellbeing outcome signifiers and 200 risk indicators! It wont work.”

Aug 2018: Plan B to by-pass MSP’s and implement the Named Person Scheme by the Backdoor

The SNP Scottish Government is considering controversial proposals to implement the detested named person scheme “by the back door” even if MSPs refuse to support changes to the law. Discussion of a so-called “Plan B” is revealed in documents which were only made public, after a Freedom of Information (FoI) request was submitted. The papers were produced following a meeting of unnamed top level government officials and advisors in February 2018. An annex under the headline “CONTINGENCY” stated: “Contingency plan? What if the legislation is not passed?” And adds: “Plan B for if Bill fails to make sure parts 4&5 can be implemented without information sharing.”

The scheme has been riddled with problems and last month a further delay was revealed. Swinney set up a panel to produce a Code of Practice by September 2018, after Holyrood’s Education and Skills Committee said it would not pass the legislation without one. But Professor Ian Welsh, chair of the panel, wrote to Mr Swinney to inform him that the panel would not be able to meet this deadline.

Lesley Scott of the TYMES Trust, said: “These worrying documents show the focus is clearly on implementing Named Person Scheme by the back door, regardless of whether the new Bill gets through Parliament. Clearly, we are now dealing with a Government which is ignoring the UK Supreme Court, has no regard for the elected representatives of the Scottish people and is determined to shun public opinion. They are riding roughshod over the democratic system in pursuit of a flawed, failed and discredited project.”

Lesley asked to be provided with details from three key meetings of the Statutory Guidance Framework Group tasked to review the named person scheme in October and December 2017 and in February 2018. Subsequently only one set of minutes was released and was useless since the names of all persons in attendance had been redacted. An appeal was submitted to the Information Commissioner’s Office seeking a review of this decision to withold the documentation.

Maggie Mellon, former chair of the Scottish Child Law Centre, said: “The names of all present including the chair are all redacted. So much for open government. There is no way of identifying which agencies are providing wrong advice or whether the persons present represent their colleagues and agencies properly. Is it now so toxic to be associated with the named person scheme that people are not willing to have their names made known”? Adding: “These are presumably many of the same people who advised the government so badly first time round, that breaching confidentiality is ok even when any concerns fall well below the proper threshold. What is so important about this flawed scheme that it has to be pushed through” ?

Sep 2019: Named Person Scheme Scrapped?

Deputy First Minister John Swinney announced in the Scottish Parliament: “We will now not underpin in law the mandatory named person scheme for every child. We will withdraw the Children and Young People (Information Sharing) (Scotland) Bill and repeal the relevant legislation. Instead, existing voluntary schemes that provide a point of contact for support will continue, under current legal powers, when councils and health boards wish to provide them and parents wish to use them.” Swinney’s announcement led to widespread media coverage, with some containing misleading content. So here we set the record straight.

Summary

The July 2016 UK Supreme Court judgment stated: “the sharing of personal data between relevant public authorities is central to the role of the named person scheme” and concluded that the information-sharing provisions:

Were incompatible with the rights of children, young persons and parents under article 8 of the European Convention on Human Rights:

May in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information:

Were “not within the legislative competence of the Scottish Parliament”, deeming the legislation “defective” and blocking it from coming into force:

Bizarrely, Swinney responded to the ruling at the time saying: “I welcome the publication of today’s judgment and the fact that the attempt to scrap the named person service has failed”. But three years down the line he was forced to admit that the mandatory Named Scheme, with legal powers to grab and share private information at the low level of wellbeing, cannot work without breaching the human rights of children and families. It had to be scrapped.

So, where do we go from here? Swinney, in his statement yesterday said: “Instead, existing voluntary schemes that provide a point of contact for support will continue, under current legal powers, where councils and health boards wish to provide them and parents wish to use them.” A voluntary single point of contact. So if you still see a Named Person service being offered, it will now be on a strictly voluntary basis. It will be up to councils and health boards to decide if they wish to offer a voluntary named person or some kind of voluntary single point of contact for parents, and it will be up to parents to decide if they want to use the service.

The ‘voluntary single point of contact’ will not be able to share information on “wellbeing” concerns at will. Instead it will have to adhere to current data sharing frameworks. There will no longer be a statutory Named Person service imposed on every child in Scotland. Parents can feel confident that when they are given advice or offered a service by a voluntary “Named Person” or “voluntary single point of contact”, they do not have to accept it. As the 2016 Supreme Court judgment stated: “Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help which is offered”.

https://www.supremecourt.uk/cases/uksc-2015-0216.html
https://no2np.org/ Comprehensive coverage here