Nigel’s Notes - Children and Young People Act

The Children and Young People (Scotland) Act came up for debate last week when we reconsidered the “named person” provisions in it.

These have caused some consternation and a couple of unsuccessful legal challenges. I’d like to look at the legislation in the hope that I can reassure you that this is not the draconian measure which some have suggested.

Firstly s.19 (5) of the Act provides that a named person’s functions are, and I’m picking these out from several different lines, “advising, informing, or supporting the child, young person or parent; helping them access a service or support; and discussing or raising a matter about them with a service provider or relevant authority.”

The health board is to appoint the named person for a pre-school child, and the local authority takes over once they go to school (s20). Sections 21 – 23 are about communication – the whole point being that information about vulnerable children should not get lost. Please note the effect off s23(4) that “in considering … whether information ought to be provided, the outgoing service provider is so far as reasonably practicable to ascertain and have regard to the views of the child or young person”. This is mirrored in s25(5), and again please note that s26(7) requires “… that information ought to be provided only if the likely benefit to the wellbeing of the child or young person arising in consequence of doing so outweighs any likely adverse effect on that wellbeing arising from doing so.”

A named person must act according to Scottish Ministers’ Guidance (s28) and Directions (s29).

The Practice Briefing Note (December 2010) which provides Guidance is very clear about the purpose of a named person: “… it is the Named Person’s responsibility to take action to provide help or arrange for the right help to be provided to promote the child’s development and well-being.”

All the questions to be considered are about well-being and what can be done to help, respecting confidentiality, and “children and families must always give permission for information to be shared”. During pregnancy and immediately after birth the named person should be the midwife, thereafter a health visitor, and in time a member of the school staff.

“In most cases, the Named Person will not have to do anything more than they normally do in the course of their day-to-day work.”

Under: Taking action in different circumstances: “In every circumstance, it is critical that children and families are involved in discussions, the gathering of information and decision-making.”

The legal point is that powers conferred by statute can only be lawfully used for the purposes for which they are conferred.

The quotes which I have set out above set out the basis of the powers and their purpose. To put it shortly a named person can only do things to help a child or young person, can only handle information for the same purpose, and will normally be someone who is already in a professional relationship with the child or young person and their family (midwife, health worker or teacher). They will have no right to do anything else. They will however have the opportunity to draw together information about the relatively rare but vulnerable youngsters who need support.

We are all appalled when cases of neglected and abused youngsters arise; the common theme from such cases being that lots of folk appreciated that there might be a problem but no one had responsibility, or perhaps opportunity, to draw the information together. This is designed to ensure that this does not happen again.