Getting legislation through parliament is often the easy part. It’s what happens next that can create the biggest headache for government ministers. At least that is the case in terms of the Children and Young People (Scotland) Act 2014 – more specifically, Part 4 – which made its way through Holyrood earlier this year.
Every person under age 18 in Scotland is to have a named person, the duty lying with a midwife initially then a health visitor up to age five and a school teacher thereafter. “It’s simply what we’ve always done,” says Bill Alexander, Highland Council’s director of care and learning. “It’s what every school and every health visitor and every midwife in Scotland who operates best practice has always done in that they are the first point of contact for any parent who has concerns about the wellbeing of their child.”
And, yet, the provision has become highly controversial. Proponents emphasise that the intention is to avoid vulnerable children slipping through the net by supporting families to access the services they require. Critics brand it an unwarranted extension of state interference in parenting. The debate is now poised to take a significant step forward. Holyrood can reveal that campaign group, The Christian Institute, intends to lodge papers at the Court of Session this week. CARE for Scotland, the Tymes Trust, which works with young people with ME and their families, and a number of parents will act as co-petitioners. Their legal grounds for a judicial review will be an infringement of Article 8 of the European Convention on Human Rights (ECHR), which provides a right to respect private and family life. If similar interpretations shared by the Law Society of Scotland and Faculty of Advocates are to be believed, then the Scottish Government could face an anxious wait. The legal challenge will also claim the proposal constitutes a breach of data protection laws.
Funds have been raised for the first stage of the action only. However, director of The Christian Institute, Colin Hart, does raise the prospect of a lengthy legal battle given their willingness to follow this through to the European Court of Justice if necessary. “We believe really passionately about this,” he tells Holyrood. “It could even go to the European Union because there are data protection issues and a breach of the European directive on data protection.
“There’s a range of things a court could do. If it does nothing, we can go to a higher level. I don’t think that is going to happen, I think the court could say there must be safeguards – you must now impose safeguards on this, this and this – so it could require the Scottish Government to bring forward safeguards because at the moment, they really aren’t there at all, it is just a complete nonsense. The private medical records and other private information about children can just be shared without the consent of parents. Now they may present the whole thing as a named person service that you can use or not use, but that is not what the legislation says. The legislation talks about the power to advise children and the power to share data, irrespective of the wishes of parents – they don’t even come into it.”
The entire debacle has left proponents somewhat puzzled. “For the debate to have come about at this particular time seems to me to misread where our actual practice is at present,” says Tam Baillie, Scotland’s Commissioner for Children and Young People. The policy is already in place in a number of areas across Scotland, a point that has been somewhat overlooked amid constant references to Highland and its pathfinder project that informed the early development of Getting it Right for Every Child (GIRFEC) within which ‘named person’ sits.
The role does not owe its roots to policymaking pushed by government, says Alexander. Rather, it was simply a formalisation of existing best practice that reaffirmed the entitlement families have to access additional support via a single conduit. “What that has meant is children getting support earlier,” he says. “More children experiencing and benefiting from earlier intervention and therefore fewer children with escalating needs, so more children getting early support but also fewer looked-after children, fewer children at risk of significant harm, fewer children offending, fewer young people reporting that they are taking solace from alcohol or drugs. It has meant not only have we had more children getting earlier intervention but fewer children needing higher level interventions. So it works well for every child but it also has ensured that fewer children are becoming vulnerable.”
Alexander has clearly become exasperated with a conversation that he considers riddled with misrepresentation. Not a single parent has complained about having a named person, he says. The Christian Institute has labelled that untrue and said a number of parents supporting their judicial review live in the Highlands. After the negative publicity that accompanied passage of the Bill, however, one parent entered a school to say that they didn’t wish the head teacher to act as a named person.
“The named person acts on the basis of consent, the named person is there to provide support and [a] response,” says Alexander. “It isn’t about a social worker; it isn’t about a child-protection response. If we have to take child-protection measures to protect a child then we will do that; that isn’t about consent, that’s about child-protection processes to protect a child from the risk of significant harm. The named person is a supportive role that acts on the basis of consent and it is entirely inappropriate to conflate those processes.”
The local authority’s approach has earned the backing of the Highland Children’s Forum, a charity that works with young people with additional needs and their parents/carers to ensure input in the design and provision of services. “Certainly, as we have seen GIRFEC develop, we have not recognised in it what has been portrayed in the press as a snooper’s charter, we haven’t seen that,” says policy lead Calum Munro.
“It hasn’t come [across] to us from the families we have consulted with and it hasn’t come to us from our conversations with services, and so it’s not something that the forum sees as a fear. What we have seen in the past is the opposite of that – families desperate for assistance in the past going from pillar to post, families getting a service in one area but not getting it in another, a methodology being applied in one area but not in a different one, we’ve seen inequity of service, we’ve seen difference of practice, and we have seen the most important thing being families just not knowing where to turn. The forum’s belief in GIRFEC is based upon listening to those families and saying, ‘if this is operated along the guidance we have seen develop in Highland it provides a first port of call who cannot turn families away and say, no, this is somebody’s else business’.”
However, the concept has failed to attract universal support from parent groups. In fact, almost three-quarters of parents responding to a survey organised by the Scottish Parent Teacher Council (SPTC) opposed it. “Our perspective is that the systems are already there, we simply need to use them better,” executive director, Eileen Prior, tells Holyrood. “The named person goes beyond the current signposting role of heads/teachers/health professionals, by placing greater responsibilities and rights on these individuals to share information about children and families. It also lowers the bar for action by professionals from ‘at risk’ to ‘cause for concern’. This seems to us to be very subjective and will mean more families will be brought into the system.”
The named person role “appears to be founded on a deficit model of the family, where children are presumed to be at risk and professionals know best”, Prior adds. It underlines a concern that rather than supporting families, the provision serves to sideline them. “It is important for the supporters of this to realise the interpretation some people put on this and for some it does appear to drive a wedge, or at least try to drive a wedge, between children on the one hand and their parents and guardians on the other hand,” says Peter Kearney, director of the Scottish Catholic Media Office.
The debate that has unfolded has centred not just on principle, but practice too. The Government sought to quell concerns over resourcing with last month’s announcement that an additional 500 health visitor posts will be created over the next four years.
“Health visitors, by the very nature of their education and training, being a named person would not be something added to them because that understanding of being accountable, being the point of contact, coordinating care, would come naturally to health visitors,” says Theresa Fyffe, director of the Royal College of Nursing (RCN) Scotland. “It would be fair to say that there will be some health visitors who are in post right now that, until they are given time to discuss it and [the] support, might be anxious about taking on the named person role given the way the headlines have been.”
That is a concern that can be “easily overcome”, she says. The more intractable one, however, is the caseloads that health visitors are facing. In that respect, the recent announcement is obviously a welcome one, albeit Fyffe is unable to say whether it will be sufficient in the absence of a more detailed picture of the workforce planning being pursued by each of Scotland’s 14 health boards. Still, an increase in health visitors addresses the principal weakness of the proposal as seen by Scotland’s Commissioner for Children and Young People. There are, however, still matters that need to be clarified, he believes.
First, responsibility will sit with health visitors until the age of five but the lion’s share of three and four year olds’ time will be spent in early childhood, education and care. Local arrangements will be necessary to ensure the two are talking to one another. Second, attention will need to be focused on how best to work with 16 and 17 year olds who may have left school and are in work or further education with scope for a “lighter touch”, says Baillie. He has backed extending the proposal beyond school-leaving age as in-keeping with the United Nations Convention on the Rights of the Child, though Highland Council has questioned the feasibility and desirability of such a step. And, third, the threshold for information sharing requires careful consideration to ensure it is proportionate. “There is a danger that if we share too much information then it makes it as difficult to sort out the information that is key and important as to that information which just becomes superfluous to the needs of the child,” adds Baillie.
Likewise, the universal approach adopted has triggered division. “For children and young people universal services are right and proper because [targeted interventions] make the assumption that we know where vulnerable families are,” says Fyffe. “It makes the assumption that we can say, ‘that’s a vulnerable family’. And one thing, if you read all the evidence on the case studies and some of the things that have come out, we have not always seen where vulnerable children are.”
Critics have suggested, however, that such universality will swamp the system and, in so doing, deprive those who are in greatest need. One parent, says Prior, expressed it as “looking for a needle in a haystack by making the haystack bigger”. Most families will not have much need for a named person but the existence of a duty under legislation will, goes the argument, lead teachers to apply a much more cautious approach for fear of challenge should they not catch something early. “The appearance at the moment is that there is no trigger and that a named person could intervene of their own volition, really – that’s an area of concern,” adds Kearney.
In truth, that – much like the rest of Part 4 of the Act – is subject to interpretation. Clarity is unlikely to be forthcoming until statutory guidance is produced ahead of introduction of provisions in 2016. “What we’re still waiting for [are the guidelines],” says Ken Cunningham, General Secretary of School Leaders Scotland (SLS). “In fairness, the Government will consult on the guidelines, they will consult with all of us, and they’re doing that.
“But until these guidelines are out people won’t really understand what it means and what actions they have to take, who they have to contact, what they have to do. What it does do [is that] if somebody is a named person for someone and they then call into action the relevant bodies, under legislation the bodies have to do it. Now in theory, that is fine. In reality, the resources are currently not there, so if the problem was bigger than it currently is, or seems to be, then we’ve got a problem because the resources aren’t available.”