Beyond the named person service
The UK Supreme Court ruling in Christian Institute v Scottish Ministers arguably has wider implications for reform of Scots law in general, and child and family law in particular
On 28 July 2016, the Deputy First Minister, John Swinney, announced triumphantly that “the attempt to scrap the named person service has failed”. A month later, and just a week before the controversial service was due to come into operation, he laid orders before the Scottish Parliament to stop the process.
Thereafter, he confirmed that “this Government remains absolutely committed to the named person service”, and suggested that it is now likely to become operative in August 2017. Given that the service, as devised originally, would have provided an identified third party to watch over every child in Scotland, children and parents across the country would be excused for wondering what is going on.
Mr Swinney’s first statement followed publication by the UK Supreme Court of its unanimous judgment in Christian Institute v Scottish Ministers  UKSC 51, the case brought by opponents of the named person service. It rejected the broad human rights challenge to the proposed scheme, reserving its criticism for the provisions that would have permitted the sharing of information between agencies – provisions that it found to be “incompatible with the rights of children, young persons and parents under article 8” of the European Convention on Human Rights (ECHR): judgment, para 106. Since the Scottish Parliament has no competence to legislate in a manner incompatible with Convention rights, the offending provisions are of no effect: Scotland Act 1998, s 29(2)(d).
Where legislative provisions fail in this way, all is not necessarily lost and the Supreme Court exercised its discretion under s 102(2)(b) of the Scotland Act to give the Scottish ministers and the Scottish Parliament the opportunity to correct the defects: judgment, para 109. Making the necessary corrections to the legislation will be no simple matter, and the Government was faced with a choice between devising a more modest scheme or abandoning it altogether.
It is clear from the Deputy First Minister’s most recent statement to the Scottish Parliament that the Government has no intention of giving up on the scheme. Rather, it has promised that there will be a “three month period of engagement” with interested parties, including “parents, charities, young people… the Children’s Commissioner and the Information Commissioner”, designed to result in legislation that is ECHR compatible. What compromises will be made in the course of that process remain to be seen. However, there was a hint that the new version may be a pale shadow of its former self when Mr Swinney referred to the service being “guaranteed by law to those who want to use it”, suggesting that participation in the new scheme may be optional.
The judgment of the Supreme Court warrants reading in full, since it has implications for Scots law in general, and child and family law in particular, that go beyond the future of the named person service. This article explores some of these implications.
The named person service
It will be recalled that the named person service was introduced by the Children and Young People (Scotland) Act 2014, part 4. Under the scheme, almost every child and young person in Scotland (those serving in the reserve or regular armed forces are excluded: s 21(4)) would be provided with a “named person”: an identified individual who would usually be a health care professional, for pre-school children, or a schoolteacher for older children. That person’s function would be threefold: to advise, inform or support the child or young person or his or her parent; to help the child or young person or his or her parent access services or support; and to discuss or raise a matter about the child or young person with a service provider or relevant authority (s 19(5)).
The rationale behind the innovation, as accepted by the Supreme Court at paras 1-4, was that it reflected a shift away from simply reacting to a crisis or serious occurrence and towards early intervention designed to promote child wellbeing. The sharing of information between agencies was designed to facilitate more effective early intervention and greater collaboration, and to reduce the risk of a child “falling through the cracks”.
Reaction to the legislation was swift and divided. While the scheme has its supporters, there was widespread opposition to the whole concept and to specific aspects of the service. Opponents ranged from sometimes religious, conservative parents, who saw it as an interference with their right to raise their children as they saw fit, to human rights activists who viewed it as a violation of article 8 of the ECHR, guaranteeing the right to respect for private and family life. In addition, there were concerns about the training and skills of named persons and whether they would be sufficiently independent of the local authority to advocate for children effectively in respect of local authority obligations to children.
Another source of disquiet was the diversion of resources to monitor vast numbers of children who have no demonstrable need for state intervention, when overstretched social work departments are unable to fulfil their responsibilities to children who are already on their radar due to concerns about their care. The death of two-year-old Liam Fee at the hands of his mother and her partner was only the latest in a catalogue of such failures and the tragic irony, in Liam’s case, was that his local authority, Fife Council, had an equivalent of the named person service in place at the time of his death: see Kenneth Roy, “Liam Fee, the Scottish Government, and an incriminating document”: Scottish Review, 1 June 2016.
Four registered charities with an interest in family matters and three individual parents sought to challenge the scheme in the courts. In the Outer House, the charities were found to lack standing ( CSOH 7; 2015 SLT 72, -), only to have it reinstated by the Inner House ( CSIH 64; 2016 SC 47, -), and both of these courts upheld the validity of the legislation. Throughout the litigation, bad publicity dogged the service (there were media reports of a teacher appointed as a “named person” being struck off the teaching register after she admitted posting comments involving sexual abuse of children: Scotsman, 29 January 2016, and the situation was not helped when the First Minister, Nicola Sturgeon, made statements suggesting that she did not understand the operational details of the service her Government had created (Lindsay McIntosh, “Parents could 'opt out' of named person policy”, The Times, 24 March 2016).
Before the Supreme Court
By the time the case reached the Supreme Court, the opponents of the named person service had focused on four challenges: that the legislation related to a “reserved matter”, and thus was outwith the legislative competence of the Scottish Parliament; that the scheme as a whole breached the article 8 rights of parents because it permitted the appointment of a named person without parental consent or any evidence that the appointment was necessary to protect the child from significant harm; that the provisions on the sharing of information between agencies breached article 8; and that the information-sharing provisions of the service were incompatible with the Charter of Fundamental Rights of the European Union.
The Supreme Court dispensed with the first and fourth challenges fairly quickly. It did not accept that the legislation introducing the service encroached impermissibly on “reserved” territory: “The fact that a provision of an Act of the Scottish Parliament requires or authorises the disclosure of personal data does not in itself mean that the provision is outside legislative competence” (para 63), and the information-sharing provisions were not “truly distinct” from the overall purpose of promoting the wellbeing of children and young people (para 64). Nor were the information-sharing provisions incompatible with EU law “in any way which goes beyond their incompatibility with article 8 of the ECHR” (para 104).
In so far as the service was designed to promote the wellbeing of children and to assist, coordinate and improve access to public services, the court found it to be rationally connected to the pursuit of legitimate aims (paras 91-92). Since the court allowed the state the customary margin of appreciation in selecting the means by which these aims were realised, it concluded that “it cannot be said that its operation will necessarily give rise to disproportionate interferences in all cases” (para 106).
However, the court determined that the complex provisions for the sharing of information between agencies were not sufficiently accessible, made it difficult to gauge whether they were being applied arbitrarily and, thus, were not “in accordance with the law”. As a result, they were “incompatible with the rights of children, young persons and parents under article 8 of the ECHR” (para 106). Furthermore, the provisions could operate, in practice, to interfere disproportionately with these article 8 rights. Since incompatibility with Convention rights renders a provision outwith the legislative competence of the Scottish Parliament, these provisions fell.
Wider law reform implications
The decision in Christian Institute v Scottish Ministers is significant for the future, if any, of the named person service, of course. However, it is at least arguable that the reasoning employed may have wider implications for Scots law generally, and child and family law in particular.
It was the information-sharing provisions of the 2014 Act that proved fatal to the ECHR compatibility of the named person service. As the Supreme Court demonstrated (para 83), understanding these provisions was not a simple process since it required cross-referencing with the Data Protection Act 1998 and Council Directive 95/46/EC. Noting that the relationship between the 1998 and 2014 Acts was “extremely complex” and likely to give rise to numerous difficult questions (para 51), the court focused on what it called “the logical puzzle” (para 52): that is, the loop created by the provisions in the two Acts where disclosure of information is restricted, prohibited or required by statute.
Such was the complexity of the legislation that “the powers and duties of disclosure set out in [the 2014 Act] cannot be taken at face value” (para 83). Nor was the revised draft statutory guidance of much assistance: compliance with it was not mandatory, and it said little about the Data Protection Act, envisaging that separate guidance would be available to practitioners (para 82). This led the court to conclude that “changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed” (para 107). Thus, the information-sharing provisions were not “in accordance with the law”.
In reaching this conclusion, the court emphasised that merely being expressed in statute was not enough to render a provision ‘in accordance with law’, since it must “also be accessible to the person concerned and foreseeable as to its effects. These qualitative requirements of accessibility and foreseeability have two elements. First, a rule must be formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his or her conduct… Secondly, it must be sufficiently precise to give legal protection against arbitrariness” (para 79).
These requirements have implications for the legal system as a whole. First, the Supreme Court seemed to be suggesting that the more complex the law, the greater the likelihood of a successful human rights challenge. By requiring that rules must be formulated with sufficient precision that an individual can regulate his or her conduct accordingly, not only was it supporting clear and comprehensible legislation, it was recognising the need for law to be reasonably accessible.
One aspect of the criticism the Supreme Court levelled at the information-sharing provisions of the 2014 Act was that understanding them required considerable cross-referencing with other instruments. The problems of complexity and the need to cross-reference is a feature of much of Scots child and family law, and regular readers of the Journal will be familiar with the argument that codification of the law could make it more accessible: Elaine E Sutherland, “Bringing Order to Family Law”, Journal, September 2013, online. It is time to look again at codification, starting, perhaps, with child and family law before moving on to other areas.
The Supreme Court accepted that individuals may need “appropriate advice” in order to understand complex legal provisions. That being the case, such advice must presumably be available to all, rich and poor alike, something that has important implications for the provision of legal services. It is tempting to translate this into the familiar call for better legal aid provision but, by referring to “appropriate advice” and not to “legal advice”, the court may have chosen its words carefully in order to recognise the increasingly important role of lay advisers. That brings us back to codification, since the case for simpler, more accessible law, when legal advisers are on hand, becomes all the stronger when lay advisers enter the picture.
Recognition of children’s rights
At the heart of the “broad” human rights challenge and, indeed, much of the resistance to the named person service, lay opposition to the very notion of the state monitoring all children, without parental consent, and without the need to satisfy any threshold test for intervention, like producing prima facie evidence of significant harm.(1) In essence, parents (and the charities that stood with them) were asserting a primary claim to control child-rearing and arguing that the state must demonstrate “good cause” before it can intervene. There is no escaping the echoes of the historical notion of “children as possessions” in all of this. Yet children are not possessions. They are people with rights and it is the job of the legal system to ensure that those rights are respected.
The Supreme Court devoted considerable attention (at paras 71-77) to exploring the substantial body of international, comparative and domestic jurisprudence addressing family life, privacy, children’s rights and the special deference accorded to parents in deciding how to raise their children. It even quoted that libertarian old favourite from the US Supreme Court, “The child is not the mere creature of the state.”(2) As many scholars have recognised,(3) there is a rider to add to that statement: “nor is the child the mere creature of the parent”.
The court acknowledged (para 71) that children, like parents, have a right to respect for their private and family life, and made reference (para 72) to children’s rights as articulated in the United Nations Convention on the Rights of the Child (CRC). However, it used the CRC merely as an aid to interpretation and the real yardstick in the case was the ECHR, an instrument that was not drafted with children as its primary focus. The prominence given to the ECHR is hardly surprising, given its incorporation into domestic law by the Human Rights Act 1998, while the CRC is nothing more than a UK treaty obligation. It is also worth remembering that courts work with what is argued to them and even the intervener in the case, Community Law Advice Network, appears to have focused on the ECHR (para 69).
When what became the Children and Young People (Scotland) Act 2014 was making its way through the Scottish Parliament, the Government resisted calls to include a provision incorporating the CRC into Scots law. Instead – and throwing a bone to supporters of incorporation – the Act contains a rather insipid provision, requiring the Scottish ministers to promote awareness of children’s rights; to “keep under consideration” whether there is more they could do to give effect to the CRC; and to report on their progress every three years.
Were the CRC to be incorporated into Scots law, it would place the human rights of children on a par with the adult-centred protections afforded by the ECHR. At the very least, that would engender a reframing of human rights discourse in Scotland. It may be that, had the CRC been incorporated into Scots law, it would have made no difference to the result in this case. It might, however, have reduced the possessory overtones of the way aspects of the case were framed, and it would certainly make a difference in other situations, not least on the issue of physical chastisement of children, to which we shall return presently.
Child protection: proactivity
It is axiomatic that the state has an obligation to protect children from harm, something reinforced by the European Court of Human Rights and the CRC. Rather than waiting for a crisis or serious occurrence, the named person service is premised on the state keeping a watchful eye on all children and responding proactively to concerns. Parental consent played no part in the appointment of a named person, under the original scheme, since it would be automatic. When the Supreme Court rejected the “broad” human rights challenge, it signalled a degree of support for this proactive state role, noting that any requirement for parental consent would diminish the scope for early intervention (para 93). It did not, however, endorse unfettered state power.
The court acknowledged that article 8 was engaged by part 4 of the 2014 Act, albeit it noted that not everything a named person might do would necessarily interfere with the rights it guarantees (para 78). Thus, it saw the first two of the named person’s functions – providing advice, information and support to children, young people and their parents and assisting them in accessing services – as generally benign in human rights terms.
Even where an action did interfere with the guaranteed rights, it might still be possible for it to be justified under article 8(2), provided that it was in accordance with the law, proportionate and designed to meet one of the enumerated aims. As the court observed (para 89), “the promotion of the wellbeing of children and young people is not… one of the aims listed in article 8(2)”, albeit promoting wellbeing could be linked to a number of these aims (e.g. prevention of disorder or crime, protection of health or morals). This led the court to conclude that “the more tenuous the link between the objective pursued by the intervention… and the achievement of one of the legitimate aims listed in article 8(2), the more difficult it will be to justify a significant interference with the individual’s private and family life”.
When it turned to assessing proportionality, as we have seen, the court found the promotion of child wellbeing to be a legitimate aim and establishing the named person service, in general, to be rationally related to it (paras 91-92). Yet even in respect of what it saw as the named person’s more benign advisory or supportive functions, it was alert to the potential for this kind of intervention to become coercive if parents were given the impression that they were required to take the advice offered and that a failure to do so would be regarded as evidence of a risk of harm, justifying compulsory intervention (para 95). It was in no doubt that such coercion might amount to disproportionate interference with article 8 rights. This becomes particularly important when one remembers that intervention most often occurs in respect of the least educated and empowered of parents: that is, those who may be most vulnerable to coercion.
As the Scottish Government moves forward with its comprehensive review of child protection policy, practice, services and structures, which is due to report by the end of the year, it will doubtless have the experience of the named person service in mind. It is to be hoped that those undertaking the review and those who act upon its recommendations have paid particular attention to the Supreme Court’s warnings.
Child protection: physical punishment of children
Given that the state’s power to oversee child-rearing, while not left unfettered, has been confirmed, the time would seem ripe for the Scottish Government to address an issue that has been either neglected or addressed inadequately by successive Scottish administrations since devolution: physical punishment of children by their parents. The case for Scotland to join the ever-swelling ranks of the civilised nations (47 at the last count: see Global Initiative to End All Corporal Punishment of Children) that prohibit parents from hitting their children is explored thoroughly elsewhere (Elaine E Sutherland, Child and Family Law (2nd ed), W Green (2008), paras 7-200 to 7-214), and will not be repeated here. Suffice to say that Scots law continues to fall short of international standards in this respect, as the Human Rights Committee(4) and the United Nations Committee on the Rights of the Child(5) reminded us, yet again, recently.
Its experience over the named person service will undoubtedly have an impact on how the Scottish Government proceeds on this issue, but just how that will play out is unclear. On the one hand, it is fond of affirming its commitment to children’s rights, and rarely does it mention children without repeating its grammatically-awkward mantra of “making Scotland the best place in the world to grow up in”: see, for example Official Report, Education and Culture Committee, 8 October 2013, col 2944. Clearly, it sees the named person service as part of that strategy. On the other hand, its efforts over the service have led to bruising accusations of paternalistic interference in the private lives of families.
Despite the “We won” bravado, losing a case before the Supreme Court is a blow and the Scottish Government might be reluctant to legislate on what many parents regard (erroneously, in this author’s view) as another private family matter for fear of provoking further ire from the parents’ rights lobby. That would be regrettable, and it is to be hoped that the Scottish Government has the courage to stand up for children’s rights and prohibit all physical punishment of children.
Elaine E Sutherland is Professor of Child and Family Law, Stirling Law School, University of Stirling (firstname.lastname@example.org) and Distinguished Professor of Law, Lewis and Clark Law School, Portland, Oregon (email@example.com).
(1) For a robust criticism of placing undue reliance on concepts like ‘significant harm’ as the trigger for intervention, see Alison Cleland, "A Long Lesson in Humility? The Inability of Child Care Law to Promote the Well-Being of Children", in Elaine E Sutherland and Lesley-Anne Barnes Macfarlane (eds), Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge University Press, forthcoming 2016).
(2) Pierce v Society of Sisters 268 US 510 (1925), 535, cited at para 73. One sees the hand of Lady Hale in this since she has shown a fondness for the quotation: see In Re B (Children) (Care Proceedings: Standard of Proof)  UKHL 35, ;  1 AC 11.
(3) See, for example, James G Dwyer, "Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parental Rights" 82 Cal L Rev 1371, 1446 (1994); Michael David Jordan, "Parents’ Rights and Children’s Interests" (1997) 10 Can J L & Juris 363, 371; Richard W Garnett, "Taking Pierce Seriously: The Family, Religious Education and Harm to Children" 76 Notre Dame L Rev 109, 131 (2000).
(4) Human Rights Committee, Concluding Observations on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland, CCPR/C/GBR/CO/7, 17 August 2015, para 20.
(5) United Nations Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/5, 3 June 2016, para 40.