Clan Childlaw intervenes in ‘named persons’ case at Supreme Court

A charity that gives legal help to children and young people in Scotland has intervened to assist thevSupreme Court in the ongoing judicial review proceedings regarding “Named Person” provisions of the Children and Young People (Scotland) Act 2014.

Clan Childlaw is of the view that the 2014 act is imprecise in setting out the conditions for disclosure of confidential information, creating real, practical difficulties for professionals providing named person and other services; and the balance between sharing information amongst professionals and the ability of a young person to access confidential services has shifted too far towards the sharing of information, resulting in an unlawful interference with a child’s right to privacy as protected by article 8 of theEuropean Convention on Human Rights.

The act sets a lower threshold for sharing information about children than has previously been the case. It drops the threshold from the widely understood child protection test of “risk of significant harm” to a much lower one around concern for a child’s “wellbeing”, which involves a highly subjective judgment on the part of the Named Person and others as to whether to share information. It allows for the sharing of confidential information at that lower threshold even if the child does not consent.

There is a serious risk, the charity said, that the overriding of confidentiality when there is no child protection concern will lead to children being reluctant to engage with confidential services, which will ultimately be to their detriment as they will be unable to access the help they need.

Alison Reid, principal solicitor of Clan Childlaw, said: “We all want to make sure that children and young people in Scotland are protected and recognise that when child protection issues arise, these need to be shared appropriately amongst professionals.

“However, where there are no child protection concerns, a child, like anyone else, should be entitled to a level of confidentiality when accessing advice.

“This act creates a serious risk that children and young people will not access confidential services when they are in need of help.”

The case will be heard at the Supreme Court on 8 & 9 March.

Colin Hart, director of the Christian Institute, said: “We would endorse Clan Childlaw’s concerns. The named person scheme is all about the free flow of private information about children and about families in a way that to us is clearly illegal.”

Mr Hart added that no one would question the requirement for information to be shared if there was a disclosure of child abuse or some other urgent threat to a child’s safety – but that the principle of consent should otherwise be preserved.

He added: “We are working with people we wouldn’t necessarily agree with on other things because they agree this scheme is over the top.”

“Lowering the bar for information sharing to being about a child’s ‘wellbeing’ which merely means ‘happy’. If a named person’s own view is that it might lead to being happier, then the child won’t be able to object.”

A Scottish government spokesperson said: “The Court of Session has twice rejected the petition against Named Person on all grounds and ruled it did not contravene ECHR rights or EU law.

“We have been clear that information should only be shared in a manner that is proportionate and respects the views of children and young people and existing legal frameworks. The Scottish Information Commissioner’s Office has supported the information-sharing provisions within the Act and accepted that they are fully compatible with existing law.”