Is Scotland any closer to becoming the best place for children to grow up?

Written by Alan Robertson on 4 November 2015 in Inside Politics

Named person, looked after children and the age of criminal responsibility continue to attract attention

Why deliver a forty-nine minute speech when forty-nine characters will do? “LOL (as I believe the youngsters say these days!)” the First Minister tweeted alongside a cartoon of her as ‘big sister’ on the front page of The Spectator.

Inside, a regular critic of Nicola Sturgeon’s so-called “one-party state”, University of Glasgow public law professor and Conservative MSP candidate for 2016, Adam Tomkins, took issue with the “illiberal control-freakery” of plans – already passed by Holyrood – to give every person under age 18 a ‘named person’.

Sturgeon has always been good at brushing off criticism. This was no exception, the witty remark more powerful than any robust defence of the policy itself ever could be. However, defence – not just on this front – is becoming a hallmark.

It has been two-and-a-half years since the Scottish Government introduced the Children and Young People Bill, a year-and-a-half since it received Royal Assent. And, yet, part four of the Act, which cements a single point of contact – a midwife, health visitor or teacher – to look out for a child’s welfare, remains mired in controversy less than a year out from its implementation.

“If the government was sensible, they would announce a delay in the implementation and just let it die off,” says Maggie Mellon, vice-chair of the British Association of Social Workers. Mellon’s objections are three-fold: she deems there to be no evidence to support the measure; the threshold for intervention is “lowered significantly”; and the legislation itself clashes with what proponents of the provision declare its intent to be.

A former chair of the Scottish Child Law Centre, Mellon will this week debate the measure one-on-one with Jackie Brock, chief executive of Children in Scotland, at the latter’s annual conference. “There has been a lot of mischief made because of people’s political and cultural antipathy towards what they call state intervention – what I would call good universal services,” says Brock. As it stands, the range of silos within children’s services that parents and children must navigate are “ineffective, inadequate and can actually lead to damage”, she adds.

Judges at the Court of Session have already dismissed a legal challenge but campaign group No To Named Persons (NO2NP) will take their case to the Supreme Court next March. Even so, there is no escaping the fact that those in favour of formalising what is already common practice in several parts of Scotland haven’t helped themselves in selling it.

“Undoubtedly, the communication and the confused arguments in support of named person has been extremely unfortunate,” admits Brock. “That appears to be getting better now, but I think it almost took the very, very bad publicity and the strength of feeling that was being raised to have a far more focused and effective communication of the measure.”

In truth, few could find fault in the government’s ambition that Scotland should aspire to be the best place for children to grow up. It’s their record on realising that that is open to scrutiny. Between 2005-06 and 2012-13, the difference in tariff scores between S4 pupils living in the top and bottom 10 per cent SIMD areas narrowed by just 11 points. Figures for 2013-14 show two in five leavers from the 20 per cent most deprived areas achieved one or more Highers or Advanced Highers compared to four in five from the 20 per cent most affluent areas.

“The stubborn inequality gap that has been there for decades is only improving glacially,” says Brock, welcoming the government’s renewed focus as “absolutely right”. The national agency last week led a roundtable on educational attainment at the First Minister’s request. The event came eight weeks to the day after Sturgeon positioned an improvement in school attainment as “arguably the single most important objective” in her Programme for Government.

To that end, an Education Bill, which had its Stage 1 debate in parliament last week, will place a statutory duty on councils to narrow the attainment gap and report on progress. Ministers also launched the Scottish Attainment Challenge, backed by a £100m fund focused on supporting pupils in local authorities with the highest concentrations of deprivation.

The proposals drew on learning from elsewhere, most notably the London Challenge launched in 2003 by the then Labour government. The scheme paired secondary schools with similar characteristics, albeit at different ends of the performance spectrum, while advisers were appointed to those deemed in need of most attention. Less than a quarter of children on free school meals in inner London obtained five or more A*–C GCSEs or their equivalent in 2002. By 2013, this had risen to almost half.

It isn’t certain, though, that the London Challenge was the driving force commentators often consider it to be. According to a study published by the London School of Economics and Institute for Fiscal Studies in September, improvements in the performance of disadvantaged pupils across the city predated the high-profile policy, with primary schools deserving most of the credit. It underlines the case for looking again at the quality of advice and knowledge Scottish teachers are given about how they teach literacy and numeracy, says Sue Ellis, Professor of Education at the University of Strathclyde.

Then there is the issue of data. “The difficulty with applying it to Scotland, certainly for the primary sector, is that we don’t know which schools are doing better because we have no data that is comparable across local authorities,” adds Ellis. Government’s answer to that – the introduction of national standardised assessments at primary schools and in the early years of secondary – has proved controversial, to say the least, with the Educational Institute of Scotland and the Scottish Secondary Teachers’ Association rounding on the plans.

Others seem less perturbed. “Yes, there are issues round about it, I wouldn’t deny that,” says Jim Thewliss, School Leaders Scotland general secretary, who stresses the need to handle the transition carefully amid workload pressures within the profession. “But I don’t think that we’re talking about the same animal as we had before – it certainly isn’t national testing revisited in any way.”

Not everyone is convinced. “We know that in order to prepare for SATs in England, children are tested and tested and tested before the final day,” says Brock. “Is that really what we think is the most effective way of learning because there is certainly no evidence to suggest that that is effective.” Information already exists at various levels that should be better used rather than seeking “false comfort” from an additional source, she claims.

“Just because other systems haven’t done it terribly well doesn’t mean that Scotland couldn’t do it differently,” counters Ellis. “We have to be brave enough to imagine a different way of doing things. We need to work at creating a mindset that doesn’t let a standardised test rule everything.”

To its credit, the Scottish Government has form for bold thinking. Though the ‘named person’ provision has turned the Children and Young People Act into a lightning rod for criticism, its potential for looked after children should not be discounted. Those who are looked after are now able to stay in care until 21 and entitled to aftercare services until they are 26. Those that leave care early are entitled to return if in need of additional support.

“It is quite remarkable and world leading that since April this year, every looked after child and care leaver can now consider themselves to have 120 different corporate parents who have the potential to create a context where not only is the unacceptable gap in terms of outcomes for these children and non looked after children being tackled but it’s where these young people have the potential to flourish,” adds Jennifer Davidson, director of the Centre for Excellence for Looked After Children in Scotland (CELCIS).

Initial signs of the seriousness with which agencies are taking their responsibilities are encouraging as far as Davidson is concerned. “In many ways, looked after children are the proxy measure in Scotland of children who are disadvantaged. If we can get services and systems right for all looked after children, we are orientated in a way which will get things right for all children and families who are in disadvantage.”

Passage of legislation doesn’t mean it is job done, though. Last month Barnardo’s Scotland, backed up by three exhaustive research reports compiled by CELCIS, warned that children and young people being looked after by a local authority but still living at home with their parents continue to suffer the worst educational outcomes of all children in care.

Support for such children and young people – a group that numbers more than 5,000 in Scotland – is “frequently inadequately planned or sporadically delivered”, warned researchers, with a culture having developed in which some providers regard children on home supervision as being “less in need, or less entitled to services than other looked-after children”.

It is on the age of criminal responsibility, though, where the Scottish Government could find itself most susceptible to criticism. Justice Secretary Michael Matheson has found himself fielding questions on the issue outside of parliament twice in as many months, including at SNP conference a few weeks ago.

The line has consistently been that ministers remain open to changing the age from its low base of eight years old, though the “unintended consequences” of such must be figured out. Matheson has cited issues such as the disclosure of criminal records, use of forensic samples, police investigatory powers and the rights of victims as areas where safeguards are necessary. An advisory group has been set up to consider these, with their recommendations for public consultation expected by early next year.

Still, the question stands as to why it has taken this long. Government ministers told the UN Committee on the Rights of the Child three-and-a-half years ago that it would review whether the age of criminal responsibility should be increased to 12 during the course of this parliament. Only an attempt by Alison McInnes to attach an amendment to the Criminal Justice Bill appears to have sprung them into action.

“It matters in and of itself and as a symbol,” says Claire Lightowler, Centre for Youth and Criminal Justice director. “People have different views about the extent to which it does matter in practice given that the age of prosecution is 12, but it is still the case that if children accept their convictions at a children’s hearing at eight years old, that can stay with them and can have a range of implications for them.”

This government is not the only one to drag their feet. Another advisory group to the Scottish Parliament recommended the age be raised to 12 in 2000. The then Scottish Executive sent the proposal to the Scottish Law Commission with the age of prosecution subsequently going up but responsibility remaining static.

“I think there is still a fear of what the public response will be,” adds Lightowler. “But I am not convinced that the general public know the age of criminal responsibility is eight and what that means. We are holding eight-year-old children solely responsible for their actions and I’m not sure that’s known.”

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