The Scottish Goverment’s provision of state guardians for every child from birth to 18 – euphemistically known as ‘Named Persons’ - in the recent Children and Young People [Scotland] Act 2014 – is a far from adequately considered and wholly inadequately tested piece of legislation.
The contentious provision for state appointed guardians for all children from birth to 18 years [at least] is markedly sketchily considered and clearly rushed into the Act without all of the necessary provisions of the Act actually contained in it.
For example, with an enforced provision of this kind [usurping the primary responsibility of all parents for their children] so fiercely contested by parents and by the public at large, the matter of complaints about this service in action has not been considered at all in the act as it stands.
According to Part 4 Section 30 of the Act, every single one of the following matters – for which there is no current statutory provision – is to be resolved at some unspecified future time, by order, by Scottish Ministers.
- (a) matters which may, or may not, be the subject of a complaint;
- (b) who may make a complaint;
- (c) how a complaint may be made;
- (d) time limits for making complaints;
- (e) steps which require to be taken before a complaint may be made;
- (f) who is to consider a complaint;
- (g) the procedure for the consideration of a complaint;
- (h) the obtaining of information for the purpose of considering a complaint;
- (i) the keeping of records in relation to complaints or their consideration;
- (j) the making of findings, and reporting, following the consideration of a complaint.
A major democratic deficit bequeathed by this dereliction of duty is that there is no provision for access to information held by a Health Board or a Local Authority [both providers of Named Persons for, respectively, pre-school and school-age children] by parents considering whether or not they have grounds for complaint.
Yet this Act was passed into law by the Scottish Parliament, without adequate scrutiny; and was very quickly put into enforced action.
This is an extraordinary situation, the result of a willful majority administration and a unicameral parliament.
For Argyll has been unable to discover the existence of any Statutory Guidance for Part 4 of the act [on the problematic Provision of Named Persons].
This means that, with the permission of the Scottish Government [against assurances it had given], this provision was speedily implemented by local authorities, potentially giving rise to complaints – with no Statutory Guidance to this part of the Act available to the responsible authorities or to the Judiciary.
Since this part of the Act is currently subject to a petitioned Judicial Review at the Court of Session [led by Aidan O'Neill QC], it may well be that the action of that Court may resolve this situation in one or more of a range of ways.
Failures of Part 4 in the coverage of provision of Named Persons
Since this provision is to be universal, from birth to 18 years old, there is no conceptual justification for the omission of some children and young people from that supposedly safeguarding provision.
Yet there are several – some potentially serious – categories which slip between the levels of consciousness of the proposers and framers of this Act.
Children educated at home
There is no provision for the allocation of a named person for children educated at home. This offers an immediate loophole to those parents objecting to the usurping of their position and having the capability to deliver education at home to their children; or who might combine together to do so for their children collectively.
16 year olds joining the Regular or Reserve Armed Forces
There is neither a Named Person for 16 year olds who join the regular or reserve armed forces; nor is there any requirement for the armed forces to provide a Named Person service for 16-18 year olds in their employment.
Failing the existence of any Statutory Guidance to Part 4: Provision of Named Persons of the Act, the non-statutory Explanatory Notes to the Act say of this matter:
’53. Subsection (6) provides that the named person functions are not to be exercised in relation to a matter arising at a time when a child or young person is subject to service law as a member of the reserve forces. But this does not prevent [ED: our emphasis] the named person functions from being exercised in relation to other aspects of the life of the child or young person.’
The point of the words we have emphasised above is that while they do not prevent ‘named person functions from being exercised in relation to other aspects of the life of the child or young person’, they do not require them to be exercised, as they do with many 16 years olds in other circumstances.
Scotland and the United Kingdom as a whole is well aware of the deficiencies in conduct that have occurred at army barracks [such as Deepcut] with the bullying and abuse of young recruits resulting, in some tragic instances, in their deaths.
One such instance was on 23rd March, 2002, with Private James Collinson from Perth, where the SNP have just held their party rally.
Private Collinson was only 17 when he was found dead while on Guard Duty at Deepcut- with a single gunshot wound upwards through his chin. He was one of four still inadequately explained deaths of young soldiers at Deepcut. He was of an age comfortably within the normal age range covered by the state guardianship of the Named Person provision.
The effective exemption of the Armed Services from providing Named Persons for the protection of young recruits between 16-18 years of age could not be more culpably negligent. These recruits are living and working within a system beyond the purview of their parents. So, with no Named Person where no other guardian exists, they are especially vulnerable in a situation known and proven to have severely failed such youngsters in the recent past.
Note: the relevant sections of the Act here are:
- (5)(a) does not apply in relation to a matter arising at a time when the child or young person is, as a member of any of the reserve forces, subject to service law.
- 21 (4)A child falls within this subsection [Ed: meaning that it is not the not responsibility of the local authority or the armed Force in particular to provide a Named Person] if the child is a member of any of the regular forces.
Post-16 year olds continuing in education
There is no requirement in this Act upon any Post-16 educational establishment of any kind to provide a Named Person service for 16-18 year olds. Such educational institutions are actually explicitly proscribed from being relevant authorities in this service provision.
The relevant section 31 of Part 4 of the Act, says:
‘(3)The following persons are not relevant authorities for the purposes of section 29 — [ED: Section 29 lists relevant authorities which 'must comply with any direction issued by the Scottish Ministers about the exercise of functions conferred by this Part']
‘(a)the Commissioner for Children and Young People in Scotland,
‘(b)a body which is a “post-16 education body” for the purposes of the Further and Higher Education (Scotland) Act 2005.’
The fact that a 16 year old is continuing with some form of practical or academic education from the age of 16 to 18, cannot be held to confer immunity from this Act’s perceived need of universal protection from birth to legal maturity.
Since the act interprets a ‘young person’ as ‘anyone who has reached the age of 18 but still attends school‘ [Ed - our emphasis, for obvious reasons] – that covers students at University – some of whom will be on veterinary or medical courses where qualification cannot be gained in under 5-7 years. Yet the Act, as it is framed, regards such people as continuing to need the provision of a state guardian, although it makes absolutely no provision for the allocation of a Named Person in such a [common] situation.
Post 16 year old school-leavers
There is no Named Person provision specified for any of those who leave school at 16 and who take up jobs or apprenticeships to the age of 18. Yet workplace bullying is commonplace; and newstart workers and apprentices will not universally adjust to the level of responsibility their new position requires of them – or indeed adequately protect and care for themselves – and may run into trouble.
In none of these situations outlined above does the Act identify any source of the Named Service provision universally required from birth to legal maturity.
An endemic weakness in the Act
Nowhere in Part 4 of the Act is there any prescription for the maximum case load of the Named Person appointed by a Health Board or a Local Authority [the normal sources the Act envisages as providers of this service to children and young people].
The Act necessarily provides for access by parents as well as their children to their child’s Named Person.
If a substantial number of parents decided to embrace this statutory provision as a well meaning additional state support for the child and for themselves in the execution of their duties to their child – this system would quickly fail.
A Head Teacher, for example, as the Named Person for all of the children in their school – even a Class Teacher as Named Person for each member of their class – could not begin to cope with regular approaches for consultations from concerned parents – additionally concerned to protect themselves from coming under any suspicion of being uncaring or negligent.
These consultations might cover matters such as options on medication and treatment for specific conditions; nervousness; anti-social behaviour; eating disorders; depression; prematurely sexualised behaviour; inappropriate behaviour to siblings in the home; refusals to respond to parental authority; financial worries over extra funds required for school trips and extra-curricular experiences.
They might include requests for the Named Person’s supportive presence at hospital appointments or interviews with police or probation officers.
Any refusal to respond positively to requests for this sort of contact and support would immediately make a nonsense of the declared protective purpose of the Act – upon which there is as yet no Statutory Guidance; and of the assignment to the Named Person of an authority which supercedes that of parents.
The final absurdity
The Act specifies that a parent may not be the Named Person responsible for their child’s protection. Yet any parent, as an employee of a Health Bard or a Local Authority, will be a legitimate Named Person for an unspecified number of other people’s children.
What happens if the Named Person for the child of another Named Person becomes concerned about that child in matters that might reflect upon the insights or indeed the sense of responsibility of that other named Person?
This Act is an invasive and totalitarian nonsense, capable of being culpably negligent on the one hand and a profound abuse on the other.
What would have been utterly defensible would have been the straightforward introduction of statutory Named Persons in the specific cases of children deemed by relevant authorities, in contact with them or their families, to be at risk.
But this government lacked the courage to confront individual cases as it must, preferring to hide behind the imposition of an indefensible universal compulsory provision and, by doing so, usurp, undermine and smear the generality of responsible and engaged parents.
Note 1: The Minister responsible for this Act is Aileen Campbell, Minister for Children and Young People. This effort makes evident the consequences of the fact that she had had no serious job outside the world of politics before, at just over 26, becoming the youngest MSP ‘elected’ [as a List nomination] to serve in Parliament in the SNPs 2007–2011 minority administration.
Note 2: There will be a follow up article on the early implementation of this act.
