Named Person - Supreme Court judgment
Date: 28th July 2016
Category: General measures of implementation, Family Environment and Alternative Care, Protection of privacy
The Supreme Court has published its judgment on the Named Persons scheme provisions of the Children & Young People (Scotland) Act 2014.
The Court has ruled that information-sharing provisions included in the Named Person scheme in Part 4 of the Children & Young People (Scotland) Act 2014 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). The Court was very clear that the policy intention behind the 2014 Act is 'unquestionably legitimate and benign' and does not breach human rights.
In this article, Together attempts to provide an overview of the Court's judgment, and the background to which it was made:
What is the Named Person scheme?
The Named Person scheme was brought into legislation through Part 4 of the Children and Young People (Scotland) Act 2014 and was due to commence on 31 August 2016. A Named Person would be a single point of contact for children, parents and other professionals who would help them access services and identify where there may be concerns about a child's wellbeing. A Named Person would normally be the health visitor for a pre-school child and a headteacher, or guidance teacher for a school age child.
What was the court case about?
The case at the Supreme Court concerns the question of whether the provisions of Part 4 of the 2014 Act were incompatible with the ECHR and therefore outwith the legislative competence of the Scottish Parliament. The case was brought by the Christian Institute, among others, who raised concern that the Named Person scheme authorised "unjustified and unjustifiable state interference with family rights". The case had twice been dismissed by Scottish courts, with the Court of Session stating that the concern was "hyperbole" and that the Named Person scheme did not diminish the role of parents or have any effect on the "legal, moral or social relationships within the family".
What did the Supreme Court's judgment say?
The judgment concludes that the information-sharing provisions included in the Named Person scheme, included in Part 4 of the 2014 Act, violate the privacy protections of article 8 of the European Convention on Human Rights (ECHR) and are therefore not within the legislative competence of the Scottish Parliament. It details the ways in which the apparently 'relaxed' approach to information sharing within the Named Person scheme could result in serious difficulty in understanding what an information holder's duties of disclosure might be. It may also result in the disproportionate sharing of confidential information.
The court focuses much of its analysis on the implications of the information-sharing provisions of the Named Person scheme for children and young people's article 8 ECHR rights to family life and privacy, in large part due to CLAN Childlaw's intervention on the issue before the Supreme Court. This intervention prompted the Court to consider the following four questions:
- What are the interests which article 8 of ECHR protects in this context?
- Whether and in what respects the operation of the Act interferes with the article 8 rights of parents or of children and young people?
- Whether that interference is in accordance with the law?
- Whether that interference is proportionate, having regard to the legitimate aim pursued.
In considering the first question, the judgment notes that the article 8 right to private life covers the disclosure of person data such as information about a person's health, criminal offending, sexual activities and other personal matters. The judgment further specifies the importance of the privacy of children and young people beyond the protection of the family and parents' rights. The judgment considers the UN Convention on the Rights of the Child 1989 (UNCRC), and specifically mentions the article 16 protections against the arbitrary and unlawful interference of a child or young person's privacy and family.
In answering the second question, the judgment concludes that the operation of the information-sharing provisions of the Named Person scheme, in particular sections 23, 26 and 27 of the Act, will result in interferences with rights protected by article 8 of the ECHR. Because the ECHR allows interferences in certain circumstances, the judgment proceeds to consider whether interference under the Named Person scheme is in accordance with the law and whether interference would be proportionate.
If the Named Person scheme information-sharing provisions are to be in accordance with the law, they must be sufficiently precise to:
- enable any individual to regulate his or her conduct; and
- give legal protection against arbitrariness.
In relation to the first requirement, the judgment concludes that the 'obscure' relationship between the relevant duties under the Named Person scheme and the Data Protection Act 1998 would create "very serious difficulties in accessing the relevant legal rules" for anyone who might have a duty to share information about a child or young person.
In relation to the second requirement, the judgment concludes that the Named Person scheme's lack of safeguards means that it is possible "information, including confidential information concerning a child or young person's state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed [...] to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views."
Protection against arbitrariness requires the possibility of examining the proportionality of an interference; because a child or young person might have their article 8 rights breached under the Named Person scheme without their knowledge, they would not be in a position to challenge the proportionality of a disclosure. As a consequence, the Court concludes that the information-sharing provisions of the Named Person scheme, as they exist, allow for interference with a child or young person's privacy in a way that is not in accordance with the law for the purpose of article 8 ECHR.
In considering whether interference in the privacy of children and young people would be proportionate under the Named Person scheme, the judgment notes that the 2014 Act's aim of promoting and safeguarding the wellbeing of children and young people is "unquestionably legitimate and benign". However, the judgment expresses concern at the lack of safeguards against disproportionate sharing of information. It highlights that:
- There is a risk that parents will be given the impression that they must accept the advice or services of the Named Person, and that failure to do so would be taken as evidence of risk of harm to the child or young person.
- The information holder may have serious difficulties when assessing whether sharing information is proportionate in a particular instance, given the limited guidance from the Scottish Government and the low threshold for disclosure in the Named Person scheme.
As a result, the Court notes that without stronger safeguards, the interference with confidentiality is often likely to be disproportionate. These safeguards must include requirements that children, young people and their parents provide consent to the sharing of confidential information, and are informed of the possibility that information will be shared.
What does this mean?
This ruling does not mean that the Named Person scheme cannot be implemented, rather that it cannot be brought into force as it currently stands. The Scottish Government must propose changes to ensure it is fully compatible with the ECHR. The Supreme Court has invited the Scottish Parliament and Scottish Ministers to make submissions as to what amendments could be made to address the identified 'defects' in the Named Person Scheme.
What has been the Scottish Government's response?
The Scottish Government has committed to start work immediately on the necessary amendments, with input from key public services and children's charities. Amendments will include clarification on the manner in which information will be shared and received under the Named Person scheme and ensuring that Named Persons have adequate support and guidance before the scheme is implemented. The Scottish Government has insisted that its aim remains to implement the Named Person scheme as soon as possible.
How have Together's members responded?
What else should happen next?
The ruling provides an opportunity to explore what steps need to be taken to ensure that children and young people's rights are fully respected, protected and fulfilled throughout the implementation of the Named Person scheme. Central to the Scottish Government's deliberations must be the Court's conclusion that safeguards should be put in place to allow children, young people and their parents to provide consent to the sharing of confidential information, and to be informed if - and when - information is shared. As it works on the necessary amendments to the Named Person scheme, it is essential that the Scottish Government seeks and listens to the views of children and young people, as well as their parents and practitioners.