(first) The Christian Institute, (second) Family Education Trust, (third) The Young Me Sufferers ("tymes"), (fourth) Care (christian Action Research And Education), (fifth) And (sixth) James And Rhianwen Mcintosh And (seventh) Deborah Thomas Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Bracadale,Lord Malcolm |
| Judgment Date | 03 September 2015 |
| Neutral Citation | [2015] CSIH 64 |
| Docket Number | P679/14 |
| Published date | 03 September 2015 |
| Court | Court of Session |
| Date | 03 September 2015 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 64
P679/14
Lord Justice Clerk
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the reclaiming motion
(FIRST) THE CHRISTIAN INSTITUTE, (SECOND) FAMILY EDUCATION TRUST, (THIRD) THE YOUNG ME SUFFERERS (“TYMES”) TRUST, (FOURTH) CARE (CHRISTIAN ACTION RESEARCH AND EDUCATION), (FIFTH) AND (SIXTH) JAMES AND RHIANWEN MCINTOSH, AND (SEVENTH) DEBORAH THOMAS
Petitioners and reclaimers;
against
THE SCOTTISH MINISTERS
Respondents;
Act: O’Neill QC, Van der Westhuizen; Balfour & Manson LLP
Alt: Clark QC; C O’Neill, Solicitor Advocate; Scottish Government Legal Directorate
3 September 2015
Introduction
[1] The Children and Young People (Scotland) Act 2014 received Royal Assent on 27 March 2014. On 11 July 2014, a petition was lodged for judicial review of the provisions contained in Part 4 of the Act, which introduce the “named person service”. On 11 November and the three ensuing days, the Lord Ordinary heard argument at a First Hearing. On 22 January 2015, he refused the prayer of the petition ([2015] CSOH 7). The petitioners reclaimed. On 27 April, an application was made by the Community Law Advice Network (known as “Clan Childlaw”) for leave to intervene in the public interest in terms of RCS 58.8A. The application was granted and, on 25 May, the interveners lodged a written submission. The reclaiming motion was heard on 3 and 4 June 2015.
[2] Parts 1 to 5 of the 2014 Act form a comprehensive scheme intended to promote and safeguard the rights and wellbeing of children and young people. Part 1 requires the respondents to consider and, if appropriate, to take steps to secure better or further implementation (“effect”) of the requirements of the United Nations Convention on the Rights of the Child, reporting thereon to the Scottish Parliament triennially. Part 2 makes provision for the investigation, at the instance of the Commissioner for Children and Young People, of the extent to which any persons providing services for children and young people, excluding parents or guardians, (“service providers”, Commissioner for Children and Young People (Scotland) Act 2003, s 16) have regard to the rights, interests and views of children and young people when making decisions, or taking action, that affect them. It remains the Commissioner’s general function “to promote and safeguard the rights of children and young people” (2003 Act, s 4).
[3] Part 3 provides for the preparation of three year “children’s services plans” for local authority areas designed to secure, inter alia, that children’s services are provided in a way which: best safeguards, supports and promotes the wellbeing of children; ensures that any action to meet their needs is taken at the earliest appropriate time; is most integrated from the point of view of recipients; and constitutes the best use of available resources. Part 4 requires service providers to make available, in relation to each child or young person, an identified individual (“named person”), whose general function is to promote, support or safeguard the wellbeing of the child or young person, on behalf of the service provider concerned. Part 5 provides for the preparation of a “child’s plan” in respect of any child whose wellbeing is being, or is at risk of being, adversely affected by any matter and requires a targeted intervention beyond the services provided to children generally.
[4] The “wellbeing” of the child or young person is to be assessed (2014 Act, s 96) by reference to the extent to which he or she is or would be “safe, healthy, achieving, nurtured, active, respected, responsible and included” (described by the acronym “SHANARRI”). The respondents must issue guidance on how the listed elements are to be used to assess wellbeing. The general principle, that functions should be exercised by local authorities in a way which is designed to safeguard, support and promote the wellbeing of children and young people, is extended (2014 Act, s 95) to functions provided by them in terms of the Children (Scotland) Act 1995.
[5] The petitioners object to the named person service provisions contained in Part 4 of the 2014 Act, on the basis that they are incompatible with the European Convention on Human Rights and hence beyond the legislative competence of the Scottish Parliament. The primary contention is that they interfere with the right to respect for a person’s private and family life and for the integrity of the home (Art 8). They interfere with parents’ rights to determine, in accordance with their conscience and religion, the welfare and upbringing of their children (Art 9; Art 2 of Protocol 1). The fundamental point advanced is that the automatic naming of a person to be allocated to each child, without the consent of the child or parent and without any assessment of need, contravenes the relevant Convention articles. The scheme is not “in accordance with law” since it lacks transparency, accessibility and predictability. It amounts to an arbitrary interference by the State.
[6] The second main aspect of the petitioners’ challenge is that the sections of the 2014 Act which deal with the sharing of information are incompatible with the requirement of the European Parliament and Council Directive on Data Protection (95/46/EC), as read and applied in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. For this reason also the provisions are ultra vires of the Scottish Parliament. They run contrary to the Data Protection Act 1998. The fact that data could be shared, when not strictly necessary, rendered the information sharing provisions (2014 Act, ss 26 and 27) incompatible with Article 7 of the Directive (criteria for legitimacy). There were insufficient safeguards against the unlawful sharing of data. There was no inbuilt “right to be forgotten”.
[7] The third aspect of the challenge is that the information sharing provisions relate to reserved matters (ie data protection) in terms of the Scotland Act 1998 and thus, once again, are ultra vires of the Parliament.
[8] The interveners are concerned only with the extent to which the information sharing provisions are compatible with children’s rights under Article 8 of the European Convention.
The legislative background
Named person services
[9] The precise nature of the impugned provisions requires a more detailed consideration in limine. In terms of section 19 of the 2014 Act, “named person service” means “the service of making available, in relation to a child or young person, an identified individual who is to exercise the functions in subsection (5)”, namely:
“(a) … doing such of the following where the named person considers it to be appropriate in order to promote, support or safeguard the wellbeing of the child or young person –
(i) advising, informing or supporting the child or young person, or a parent of the child or young person,
(ii) helping the child or young person, or a parent of the child or young person, to access a service or support, or
(iii) discussing, or raising, a matter about the child or young person with a service provider or relevant authority, and
(b) such other functions as are specified by this Act or any other enactment as being functions of a named person in relation to a child or young person.”
A named person is, therefore, not assigned to a child or young person as such (cf statement-of-fact 19 in the petition), but “made available, in relation to” him or her. Hence, the named person may carry out functions directed to assist not only the child or young person but also his or her parents and any relevant service providers and authorities. The named person is made available to all of those groups, in so far as may be appropriate to promote, support or safeguard the wellbeing of the child or young person.
[10] There is no single, state-operated named person service. Rather, health boards, local authorities, schools and the respondents are each to provide named person services, as appropriate. The service provider in each case is “the person which has the function of making arrangements for the provision of a named person service in relation to the child or young person” (s 32). In the case of pre-school children, the service provider is the local health board for the area where the child lives (s 20). In the case of children at school, the service provider is the local authority which manages the school (s 21). In the case of children in custody, the service provider is the respondents (s 21). In each case, the particular service provider must publish details of the operation of the named person service (s 24). It must inform the child or young person and his or her parents about named person contact arrangements (s 24(2)).
[11] The named person will be an employee of the service provider; a person who exercises functions on behalf of the service provider, or an employee of such a person. He or she must meet prescribed qualification, training and experience requirements (ss 19(2) and 19(3)). The functions of the named person are exercised on behalf of the service provider (s 19(7)). Responsibility for the exercise of those functions lies with the service provider rather than the individual (section 19(8)). In other words, the named person is simply a nominee of the service provider who, as an employee, perhaps in a pre-existing capacity, is tasked with the carrying out of particular functions on the service provider’s behalf. Thus, the individual cannot be the child or young person’s parent (section 19(4)).
Information sharing and disclosure
[12] A set of provisions, contained in sections 23 to 27 of the 2014 Act, regulates requests to, and giving assistance by, service providers and the associated sharing and disclosure of information. Distinct provisions apply according to whether: the named person functions are...
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