The Children and Young People (Scotland) Act 2014 applies to all children and young people in Scotland. The Scottish Government has tried to strengthen the rights of children and young people in Scotland by encouraging Scottish Ministers and Public Bodies to think about these rights and how they relate to their work. It will come into force in stages, with most of the provisions coming into effect in either 2015 or 2016.
Probably the most controversial provision in the Act is the role of a 'named person'.
One of the Scottish Government's key policies over the last few years has been "Getting It Right for Every Child" - known as GIRFEC. The idea behind GIRFEC is that everyone should work together to ensure that each child has the best start in life. One way the Scottish Government has decided this should be taken forward is to create the role of a named person. A named person will be the person anyone can approach if they have concerns about a child or young person's well-being or if they think they require some help or support.
Every child and young person in Scotland up to the age of 18 should have a named person. The role is designed to help with all types of problems, not just for times where a child or young person is at risk. This might include where a child or young person needs more short-term support, such as when they are ill or have had a bereavement.
The named person will decide - hopefully alongside the person they support, and their parents, - what kind of support might help a child or young person. They may then help them access a service. Where there are serious concerns about the child or young person, the named person might also have to share this information with other professionals - such as social workers - so the child or young person can be kept safe.
A child or young person's named person will change as they get older. Up until a child is 10 days old, the named person will be the mother's midwife, then the child's Health Visitor will take over until the child starts school. At school, the named person will usually be the child or young person's Headteacher. The Scottish Government is currently considering how best to support young people under the age of 18 who have left school.
While every child and young person will have a named person, this does not mean there will be a named person actively involved in the child or young person's life. Some children may never need the support of their named person, while others will require lots of support.
A legal challenge by a coalition of charities and individuals was recently brought against the 'named person' provision.
They argued that the provisions were outwith Holyrood's powers, breached human and constitutional rights and amounted to an "unjustifiable interference by the state". They argued that the named person provision does not allow for opt-out and is not necessary in terms of child protection.
Lord Pentland heard the case, and issued his decision last week. He held that the case 'falls on all points'. His Lordship found that those who brought the action had failed to show that the provisions were incompatible with rights under the European Convention on Human Rights (ECHR). He held that at the most general level the objective of the measure was to promote and safeguard the wellbeing of all children and young people in Scotland, which was clearly a legitimate aim.
Lord Pentland said:
"It is important to keep a sense of proportion and balance and not to assume that the new service will operate in a way that is inappropriately invasive or disrespectful of private and family lives,"
"In the great majority of cases the practical effect of allocating a named person to a child or young person is likely to be minimal. There is no reason to suppose that named persons will intrude inappropriately or to an excessive degree in the lives of children and young persons or that they will act in a manner likely to undermine family life."
It will be interesting to see the impact the Act has over the course of the next few years, and in particular how this new and controversial aspect will develop. At Drummond Miller, we have an experienced Family Law Team who will be able to advise and guide you on the changes to the law. If you require advice on any Family Law matter, please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate.