Protecting a child’s rights to privacy in the Named Person scheme
When the Named Person Scheme was proposed in the Children and Young People (Scotland) Bill, Clan Childlaw raised its concerns about the risk of sharing information about a child without their consent insofar as it may make children and young people reluctant to access confidential services if they think their confidential information is going to be shared without their consent.
After the Children and Young People (Scotland) Act 2014 was adopted, it was challenged in court by the Christian Institute and others by way of judicial review. Clan Childlaw intervened in this case as a third party to put forward the children’s rights perspective.
The case resulted in the Supreme Court finding the information sharing provisions of the Children and Young People (Scotland) Act 2014 incompatible with the right to privacy in article 8 of the European Convention on Human Rights, in line with our concerns. This meant the information sharing part of the Named Person scheme could not be implemented.
The Scottish Government proposed new provisions on information sharing in response to the judgment. We responded to the Children and Young People (Information Sharing) (Scotland) Bill. In our view, the Bill did not meet the requirements of the Supreme Court judgment.
In December 2017, further scrutiny of the Bill by the Education and Skills Committee was postponed until the Scottish Government could publish an authoritative draft Code of Practice to accompany the Bill.
During the passage of the Children and Young People (Scotland) Act 2014, Clan Childlaw argued that the information sharing provisions of the Act did not strike the right balance between appropriate sharing of information and a child’s right to privacy. We were concerned that by allowing confidential information to be shared without consent, there was a danger that young people would not engage with confidential services and so would not obtain the support that they required.
Intervening in the “Named Person” case
When the Christian Institute and others lodged a judicial review of the Named Person scheme, Clan Childlaw intervened in the court case as a third party to put forward the children’s rights perspective, first in the Court or Session (read the opinion of the Court of Session, our reaction in the Herald Scotland and watch our Principal Solicitor’s interview on BBC Scotland) and then in the Supreme Court.
Supreme Court judgment
In its judgment (The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland),  UKSC 51, 28 July 2016), the Court held that the information sharing provisions contained within the Children and Young People (Scotland) Act 2014 are incompatible with the rights of children, young people and parents under article 8 of the European Convention on Human Rights and therefore outwith the legislative competence of the Scottish Parliament.Read the Supreme Court judgment.
Following our successful Intervention in the “Named Person” case in the Supreme Court, we published a Paper on Information Sharing Provisions – the way forward, setting out the legislative history of the provisions, our analysis of the Supreme Court decision, and our preferred way forward, to contribute to the engagement with Scottish Government about the next steps.
Opinion Piece on Named Person – Fiona Jones, Clan Childlaw’s Policy & Advocacy Consultant, sets out the background to Clan’s intervention in the Supreme Court Named Person case in which we highlighted our long-standing concerns about the adverse impact of the information-sharing provisions on the rights of children and young people.