The ‘Named Persons’ Supreme Court Ruling – what does this mean?

Yesterday (28th July), the UK Supreme Court published its judgment on the so-called ‘Named Persons scheme’ provisions of the Children & Young People (Scotland) Act 2014, which is due to come on stream across Scotland on 31st August.  Following a legal challenge to the policy, the Court made three important judgements. Firstly, it stated that the policy intention behind the 2014 Act was ‘unquestionably legitimate and benign’ and does not breach human rights. It also ruled that it was indeed within the Scottish government’s purview to legislate in this area without Westminster approval. At the same time, however, it ruled that information-sharing provisions included in the Act may result in a ‘disproportionate interference with the rights of children, young people and their parents under Article 8 of the European Convention on Human Rights (ECHR)’. In light of this finding, the Scottish Government was invited to introduce amendments to the Supreme Court within the next 42 days. These amendments will have to make clearer how the competing demands of privacy, consent and information-sharing will be respected in practice.

The judgement was hailed as a victory by those for and against the provisions in the new legislation. Many of the children’s charities support the Scottish government, seeing the named person as “central to making sure that we get it right for every child in Scotland” (Martin Crew, Director of Barnardo’s Scotland, in a 28/07/16 press release)[1]. They were therefore delighted that the scheme had not been rejected outright by the Supreme Court. At the same time, the alliance of groups that has opposed the new legislation was ecstatic that the new provisions had (at least) been paused. In the words of Ruth Davidson, the Conservative Party leader in Scotland, “the scheme is illiberal, invasive, and deeply flawed” (Conservative Party website, 29/07/16)[2].

It is enormously difficult for all of us, whether inside or outside the child protection field, to express a view about any of this. Who would want to suggest that the protection of children isn’t our primary concern?  Who doesn’t agree that early intervention – uncovering neglect or abuse before it develops – isn’t a good thing? And who would disagree that we need to coordinate services better? So, if we are all on the same side (and it seems at least possible to argue that we are), what might be done to take this forward?

I’d like to suggest that there needs to be much more detailed work undertaken to examine how this scheme is going to work in practice. So, for example, let’s imagine that you, as a member of the public, hear a child screaming or see a child being hurt by an adult outside the home. What do you do? Presumably, you call the police or emergency social work services. Where is the named person in all of this? And what if this is July, when the schools are on holiday? How does the named person scheme function then? What if the child is a toddler – how many health visitors will it take to be ‘named persons’ for all of Scotland’s under-5s? And what about 16-18 year olds, who can, of course, leave school and even marry in Scotland? Is this the best way of supporting them? My biggest concern in the new world of the named person that, rather than speeding up help and making protection easier, we create uncertainty and confusion, and yet another bureaucratic obstacle – something that gets in the way of helping children and undermines the work of social workers who, under current legislation, are the ‘lead professional’ in child protection cases. There is also a risk of net-widening; as teachers and health visitors are faced with the responsibility of making decisions about the safety of increasing numbers of children, so more children and young people may be drawn into a child protection system that is already creaking under the weight of heavy workloads and financial cutbacks.

Our research on Talking & Listening to Children[3] has demonstrated that social workers do extraordinarily difficult and complex work. They manage to hold in mind and heart children and families who have multiple problems and massive needs – poverty and deprivation, domestic abuse, drug and alcohol problems, and a range of other social, economic and personal challenges. They do so, on the whole, very well – they build on strengths and help children, young people and adults to deal with all kinds of adversities. Moving forward, I would like to hope that we can find ways of giving credit to the ‘life-changing work’ that social workers do.[4] Let’s stop vilifying social workers and blaming parents and young people, and instead, see if we can truly create the more cohesive, compassionate, caring Scotland we want to be part of – with or without a Named Person scheme.

Professor Viviene Cree