Controversial named person scheme upheld by the Court of Session

8 September 2015 by

The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – read judgment

The Court of Session’s appeal chamber – the Inner House – has unanimously rejected challenges to the Scottish government’s controversial named person scheme. Three individual petitioners, as well as The Christian Institute, Family Education Trust, The Tymes Trust, and Christian Action Research and Education (CARE), contested the appointment of named persons and the scheme’s provisions for data sharing.

The Named Person Scheme

The named person scheme is part of a package of measures introduced by the Children and Young People (Scotland) Act 2014. According to the Scottish government, the aim of the legislation is to ensure that the rights of children are respected across the public sector.

Part 4 of the Act requires public service providers to make a named person available to every child in Scotland. If the child is of pre-school age the named person will be provided by their local health board whereas for children of school age it will be their local authority that provides the named person. In practice, the named person will be someone who is already working with the child such as a health professional or a senior teacher. Section 19 of the Act sets out the named person’s functions. Where they consider it appropriate to promote the wellbeing of the child, a named person may: advise, inform or support the child or parent; help the child or parent access a service or support; or raise a matter about the child with a service provider or relevant authority.

The 2014 Act also contains provisions relating to the sharing of information between named persons and public authorities. A public authority must generally provide information to the named person’s employer where such information is relevant to the exercise of the named person’s functions (s 26 (1), (2)). Furthermore, a public authority may provide information where they consider it “necessary or expedient” for the exercise of named person functions (s 26 (8), (9)). When considering if information should be provided the information holder should have regard to the views of the child (s 25).

The Arguments

The petitioners argued that the legislation was a disproportionate interference with the right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR) and the right of parents to determine the upbringing of their children under Article 9 and Article 2 of Protocol 1 (A2P1) . The scheme failed to strike a balance between the state’s obligation to protect the family from unwarranted intrusion and the need to protect children from harm as it operated in a blanket manner, appointing a named person without the consent of the parent or child and without being necessary to prevent serious harm.

The petitioners also challenged the data sharing provisions of the 2014 Act. They argued that these provisions were inconsistent with Articles 7 and 8 of  the EU Charter of Fundamental rights as consent was not a prerequisite for the sharing of personal data and the threshold for sharing data was lower than necessity.

For the Scottish government, the legislation had a legitimate aim, namely, to promote and safeguard the wellbeing of children. A policy choice had been made to enable early intervention rather than waiting for an immediate risk of serious harm. An interference with Article 8 could only arise once a named person had exercised his or her statutory functions. The petitioners’ challenge was speculative and premature, particularly because the legislation was to be supplemented by subordinate legislation, statutory guidance, and advice on best practice. There was no interference with the right to hold or manifest beliefs under Article 9 and it was unclear how the rights of the petitioners under A2P1 were affected.

The Outer House Judgment

At first instance (judgment here) the Lord Ordinary rejected the petitioners’ arguments. The most that could be said was that the legislation created the potential for an infringement of Convention rights. The scheme was not yet complete, with statutory guidance and directions to follow. The petitioners had not shown that the scheme would inevitably breach Convention rights, particularly as service providers would have to respect the ECHR in the exercise of their functions. In relation to Article 9 and A2P1, the petitioners had not identified how Part 4 of the 2014 Act interfered with these rights. Finally, a wide degree of latitude should be given to the government in the formulation of social policy.

The Inner House Judgment

The Inner House rejected the petitioners’ reclaiming motion (appeal). Under the scheme a person would be appointed to assist a parent or child in a number of ways, but it was impossible to regard an offer of help, which could be rejected, as an interference with a person’s right to respect for their private and family life. Creating a named person had no effect whatsoever on the legal, moral, or social relationships within the family and to suggest otherwise had the “appearance of hyperbole”. The legislation did not involve the state taking over any functions carried out by parents. Having a named person no more confused or diminished the role and responsibilities of parents than the provision of social services or education generally. There was no interference with Article 8.

The court also found that there was no interference with the right of parents and children to freedom of thought, conscience, and religion under Article 9. Moreover, the legislation contained no provision which impacted upon a child’s right to education or a parent’s right to bring up their child according to their own conscience and religion under A2P1.

Though not necessary, the court also addressed the issue of proportionality finding that any interference with Convention rights would nonetheless be justified. First, the legislation had a legitimate aim, namely, the promotion of child welfare. The petitioners tried to draw a distinction between promoting the wellbeing of children and protecting them from harm, arguing that state intrusion was only justified in the latter scenario. However, it was understandable that policy makers would want a scheme which identified threats in advance rather than waiting for a child to be the subject of a specific threat. Secondly, the chosen scheme was rationally connected to its objective. Without it there was the potential for a lack of communication which would “seriously undermine” the government’s aims. Finally, whilst the role of parents was to be respected there was nothing to prevent the state from putting in place reasonable measures to support children and their parents. The scheme was designed to ensure that crucial information about a child’s welfare was not missed, with the need to ensure early detection of welfare issues outweighing any adverse effect on children and parents.

In relation to the data sharing provisions, the court found that the 2014 Act could be operated consistently with the data protection regime, including the Data Protection Act 1998 which transposed the EU Charter and Directives concerning personal data into domestic law. Whilst it was possible that breaches of data protection principles could occur in particular cases there was nothing to suggest that the legislation necessarily infringed those principles.

The named person scheme has been politically controversial with criticism directed in particular at the perceived interference with family life and the role of parents. It was striking that the Inner House attached little weight to these arguments, suggesting that they were hyperbolic. For the court, the named person scheme was similar to other public services. It was designed to help children and their families, offering advice and assistance, and had no effect on familial relationships and parental responsibilities. Opponents of the named person scheme have already signalled their disappointment with the judgment and an intention to appeal to the Supreme Court. The challenges are not over.

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by Thomas Raine

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