By Trudy Burns
Recently, the Court of Session has seen the start of the legal challenge to the Scottish Government's plan to appoint a"Named Person" for every child in Scotland. The move is part of the Scottish Government's Children and Young People (Scotland) Act 2014, in which every child under the age of 18 would be assigned a Named Person such as a teacher or health visitor, to monitor and look out for the child's welfare.
The principal objective of the legislation is to provide a single and independent point of contact for the child to ensure that those who are vulnerable, and in need of help, do not slip through the net. The Named Person will assist access to services and raise any concerns over a child's well-being, including exposure to abuse or developmental difficulties. Under the terms of the Act the Named Person is permitted to have confidential information disclosed about the child, if they feel it is relevant and proportionate in relation to the any concerns they have regarding their welfare.
Parents would not be required to accept help or advice from the Named Person. Notwithstanding this, the Named Person can make their concerns known to other agencies, without parental consent, if they believe there is a serious risk to the child's well-being. The Act does not define how someone, particularly a non-medical professional, such as a teacher, might define a"serious risk", an omission which some say may lead to inconsistent reporting.
The policy is principally opposed by campaign group"No To Named Person", which argues that Scottish Ministers have exceeded their powers by breaching data protection laws and the protected right to conduct and respect a private life. In addition, the Conservative Party, which tried unsuccessfully to amend the legislation, argues that the policy undermines family life because it threatens the trust between parents and children. It feels that taxpayers' money would be better spent on helping society's most vulnerable children rather than the majority where a Named Person, in their view, is neither necessary nor wanted.
The policy raises a number of questions, for example: Are teachers qualified to make such assessments? Do they have time in their already hectic timetable? On what basis will they make the decision to alert social services? Will a Named Person make it their business to get to know the child's background and family circumstance? Do these professionals want the extra responsibility? Will children be willing to share? What happens if a Named Person goes beyond their powers? On what types of subjects will Named Persons be providing an impartial ear - weight, sexual activity or orientation, medical concerns, academia? Do parents want such an intrusion?
It would also appear from the legislation that different Named Persons could be assigned to different children within one family. Taking into account each Named Person's individual view and approach this may result in anomalies and inconsistencies within a single family.
There is no dispute that the Act is well-intended but it is difficult to envisage how this it will translate into practical terms, especially in relation to a Named Person's interaction and relationship with parents. Surely, the Scottish Government do not dispute the fact that in the vast majority of cases the best qualified adult to make such assessments asked of the Named Person are would ordinarily be parents themselves. By accepting this fact, it would not undermine or dismiss the excellent role that social services and teachers generally play in young peoples' lives. However, to confuse the roles in the manner proposed would, in the authors' opinion, be asking for trouble.
It remains to be seen whether the Scottish Government will be able to reconcile the apparent legal, moral and practical apprehension which the Act undoubtedly generates.