Elaine Sutherland (2021)
BLOG: When the Scottish Government attempted to take proactive child protection to a new level, it faced considerable – and, ultimately, effective – opposition.
Blogpost by Elaine E. Sutherland, Professor II at the Centre for Research on Discretion and Paternalism, Professor Emerita at the University of Stirling, Scotland, and Distinguished Professor Emerita at Lewis & Clark Law School, Portland, Oregon.
There is debate in many countries, including Norway, over how to ensure that children and young people are protected from abuse and neglect in a manner consistent with their and their families’ human rights. In the light of that, it may be instructive to reflect on recent experience in Scotland when the government sought to take child protection to a new level by introduction of what was known as the “named person service”.
Child protection in a nutshell
In Scotland, child protection has long been premised either on the voluntary participation of families in state provision of assistance and services or on the state seeking authority from a court for mandatory intervention, save in an emergency. That authority will only be given where the state satisfies a threshold test, demonstrating that the child is suffering “significant harm” or that such harm is likely without intervention.
Since the early days of devolution, successive Scottish Governments have pursued a policy of proactive child protection, emphasising early intervention, universal services and inter-agency cooperation. There have, however, been too many cases – and one is “too many” – where the system has failed, sometimes with fatal consequences.
The named person service
When the Scottish Government created the named person service, it sought to add an additional proactive tool to the child protection toolbox by providing almost every child and young person in Scotland with a “named person”: an identified individual who would usually be a health care professional, for pre-school children, or schoolteacher, for older children.
There have, however, been too many cases – and one is “too many” – where the system has failed, sometimes with fatal consequences.
– Elaine Sutherland
The named person’s function would be threefold: to advise, inform or support the child or young person or his or her parents; to help the child or young person or his or her parents access services or support; and to discuss or raise a matter about the child or young person with a service provider or relevant authority. Where the scheme departed from the traditional approach was that appointment of a named person would be automatic and comprehensive: that is, every child would have one and there would be no need to satisfy a threshold test prior to the appointment.
Objections and strange bedfellows
While the scheme had its supporters, there was widespread opposition to the whole idea and to specific aspects of the service, with the most high-profile opponents being the “No to the Named Person” (NO2NP) campaigners. While some of the opponents were religious, conservative parents, who saw the service as interfering with their right to raise their children as they saw fit, others were children’s rights and human rights activists who viewed it as a violation of Article 8 of the European Convention on Human Rights.
On the one hand, there was the objection that the whole exercise was being done “on the cheap”, using local authority employees who were not sufficiently independent of the local authority to advocate for children effectively in respect of the authority’s obligations to children.
On the other hand, concern was expressed that resources would be diverted to monitor vast numbers of children who have no demonstrable need for state intervention, when over-stretched social work departments are unable to fulfil their responsibilities to children who were already on their radar due to concerns about their care.
When four registered charities with an interest in family matters and three individual parents sought to challenge the scheme, the courts in Scotland upheld the validity of the legislation and the dispute moved on to the UK Supreme Court.
Before the UK Supreme Court
The scheme overall survived Supreme Court scrutiny. The Court found that, in so far as it was designed to promote the wellbeing of children and to assist, coordinate and improve access to public services, it was rationally connected to the pursuit of legitimate aims. Allowing the state the customary margin of appreciation in selecting the means by which these aims were realised, the Court concluded that “it cannot be said that its operation will necessarily give rise to disproportionate interferences in all cases.” That is hardly a ringing endorsement, but it gives some indication that the Court may accept some form of intervention without the need to satisfy the traditional threshold test of significant harm.
While some of the opponents were religious, conservative parents, who saw the service as interfering with their right to raise their children as they saw fit, others were children’s rights and human rights activists who viewed it as a violation of Article 8 of the European Convention on Human Rights.
– Elaine Sutherland
However, the Supreme Court identified a problem with the complex provisions on the sharing of information between agencies. It found that these provisions were not sufficiently accessible, made it difficult to gauge whether they were being applied arbitrarily and, thus, that they were not “in accordance with the law”. As a result, they were “incompatible with the rights of children, young persons and parents under article 8 of the ECHR”. Since the legislation that established the Scottish Parliament provides that it may not legislate in a manner incompatible with Convention rights, the information sharing provisions were void. The Court exercised its permitted discretion and gave the Scottish Government the opportunity to correct the defects.
The Scottish Government made a concerted effort to take advantage of the opportunity it had been given by the Supreme Court to correct the information-sharing provisions, introducing a Bill to amend the legislation and establishing an expert panel to draft a code of practice for implementation of the scheme. The Bill was widely criticised and the expert panel was unable to formulate a Convention-compliant code of practice. Eventually, in September 2019, the Government conceded defeat and announced that the legislative provisions establishing the named person service would be repealed.
The named person scheme, it seemed, was dead – or was it? The following month, The Times newspaper reported that “an open letter … signed by senior health and education officials” had been sent to “head teachers, managers and children’s services workers” instructing them as follows:
“Where there is reasonable concern that a child may be at risk of harm, we all have a responsibility to act to make sure that they are safe and protected, and relevant information can be shared without consent, provided it is proportionate, necessary and lawful to do so.”
Such action would, of course, be Convention-compliant. Yet, the Scottish Government and its expert panel had been unable to formulate clear guidance on when information-sharing would be appropriate – that is to say, when it would be “proportionate, necessary and lawful”. The buck, it seems, has been passed to school teachers and health and children’s services workers.
 Children (Scotland) Act 1995, Part II. See further, Sutherland, E.E. (2017), “Proactive Child Protection: A Step Too Far?” in Brinig, M. (ed), International Survey of Family Law: 2017 Edition (Bristol: LexisNexis, 2017), pp.287-309, on which this Blogpost draws.
 Children (Scotland) Act 1995, s.76; Children’s Hearings (Scotland) Act 2011, ss.35-39.
 Children and Young People (Scotland) Act 2014, ss.19-32. Young people serving in the reserve or regular armed forces were excluded: 2014 Act, s.21(4).
 2014 Act, s.19(5).
 Christian Institute v Scottish Ministers  CSOH 7, - and Christian Institute v Scottish Ministers  CSIH 64, -.
  UKSC 51, -.
  UKSC 51, .
  UKSC 51, .
 Scotland Act 1998, s.29(2)(d).
 Scotland Act 1998, s.102(2)(b).
 Children and Young People (Information Sharing) (Scotland) Bill, SP Bill 17 (2017).
 Getting It Right For Every Child Practice Development Panel: Final Report (Edinburgh: Scottish Government, 2019) and Getting It Right For Every Child (GIRFEC) Practice Development Panel Report: Scottish Government Response (Edinburgh: Scottish Government, 2019).
 Official Report of Meeting of the Parliament 19 September 2019: http://archive2021.parliament.scot/parliamentarybusiness/report.aspx?r=12260&mode=pdf [Accessed 21 August 2021].
 Mark McLaughlin, “Named persons told to keep monitoring despite law’s failure”, The Times, 17 October 2019.