1.1 The Children and Young People (Scotland) Act 2014
On 27 March 2014, the Children and Young People (Scotland) Act 2014 (the “2014 Act”) became law.
Part 4 of the 2014 Act concerned the Named Person service.
In the context of the 2014 Act, the role of a Named Person was to promote, support or safeguard the wellbeing of a child or young person and to;
- advise, inform or support the child or young person, or a parent of the child or young person,
- help the child or young person, or a parent of the child or young person, to access a service or support, or
- discuss, or raise, a matter about the child or young person with a service provider or relevant authority, where the named person considered it appropriate to do so to promote, support or safeguard the wellbeing of the child.
In order to facilitate the Named Person service, Part 4 also included information sharing provisions which required information related to wellbeing concerns to be shared with and by the Named Person service.
Part 5 of the 2014 Act introduced the requirement for a Child’s Plan if a child has a wellbeing need that can only be met by a targeted intervention i.e. services that were not generally provided to children by the relevant local authority. The 2014 Act specified that the Child’s Plan should be prepared as soon as reasonably practicable and should include;
- the wellbeing need
- the targeted intervention(s) required
- a plan to deliver those interventions
- the intended outcome in relation to the child’s wellbeing.
1.2 The Supreme Court Challenge
The Christian Institute and others legally challenged Part 4 of the 2014 Act. The Supreme Court stated that “the aim of the Act, which is unquestionably legitimate and benign, is the promotion and safeguarding of the well-being of children and young persons”. The Court raised concerns that the provisions in Part 4, which included a ‘duty to share” information were not “in accordance with law”. The Court noted that, without additional safeguards, those provisions were liable, in practice to result in disproportionate interference with the Article 8 European Convention of Human Rights rights of many children, young persons and their parents.
The Court said that additional safeguards must include requirements that children, young people and parents provide consent to the sharing of confidential information and are informed of the possibility that information will be shared.
As a result the Supreme Court upheld that element of the appeal and Parts 4 and 5 of the 2014 Act were not brought into force.
1.3 Children and Young People (Information Sharing) (Scotland) Bill (the “Bill”)
As a result of the Supreme Court’s judgment, The Children and Young People (Information Sharing) (Scotland) Bill (the “Bill”) was introduced to amend Parts 4 and 5 of the 2014 Act and address the Court’s concerns. The Bill makes changes to the information sharing provisions in Part 4 of the 2014 Act. It also makes changes to Part 5 of the 2014 Act to ensure that the information sharing provisions align. In addition, the Bill requires that a Code of Practice be produced to provide safeguards in relation to the provision of information and clarification of the interaction between the 2014 Act and other relevant areas of law.
As part of the considerations of the Bill by the Education and Skills Committee’s (the “Committee”) considerations of the Bill, the Scottish Government committed to producing an authoritative, accessible and workable Code to support information sharing in relation to Parts 4 and 5 of the 2014 Act. This commitment led to the Deputy First Minister asking Professor Ian Welsh OBE to chair The Getting It Right For Every Child Practice Development Panel (the “Panel”).