Creating change Policy Right to privacy & the Named Person scheme 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 means the information sharing part of the Named Person scheme cannot 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. Read our Written Evidence on the Children and Young People (Information Sharing) (Scotland) Bill and Press Release of 23 August 2017. The Herald reported on our view of the proposed Bill. Our Principal Solicitor gave oral evidence to the Scottish Parliament Education and Skills Committee on 1 November 2017. In December 2017, further scrutiny of the Bill by the Education and Skills Committee was postponed until the Scottish Government publishes an authoritative draft Code of Practice to accompany the Bill. The Bill was withdrawn by the Scottish Government on 19th September 2019. In a statement to the Scottish Parliament, Deputy First Minister and Education Secretary John Swinney announced that Parts 4 (Provision of named persons) and 5 (Child’s plan) of the 2014 Act would be repealed. There will not be a mandatory named person scheme. The Scottish Government accepted the recommendations of the GIRFEC Practice Development Expert Panel in full (see report and SG response here). The panel recommended that Ministers should not pursue a binding Code for Information Sharing in relation to information sharing under Part 4 but should consider measures to improve knowledge, understanding and practice in relation to sharing information to promote, support and safeguard the wellbeing of children and young people and delivery of the GIRFEC approach. The Deputy First Minister stated “existing voluntary schemes that provide a point of contact for support will continue under current legal powers, where councils and health boards wish to provide them and parents wish to use them”. The Scottish Government will develop practical help, guidance and support to help professionals, practitioners, children and families understand their rights under the existing law. The law on information sharing will not now change; the way information is shared will be based on existing law. Background: 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. Read our Stage 3 Briefing on Information Sharing. 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. Read our Intervention in the Supreme Court case. Supreme Court judgment In its judgment (The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland), [2016] 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. Read our Press Release on the 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. Further reading: 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. Opinion article in The Journal of the Law Society of Scotland – Clan Childlaw’s Principal Solicitor Alison Reid discusses Clan Childlaw’s intervention in the Named Person case.
Opinion article in The Journal of the Law Society of Scotland – Clan Childlaw’s Principal Solicitor Alison Reid discusses Clan Childlaw’s intervention in the Named Person case.