Legislation may have been passed over two years ago but named person debate refuses to simmer down

More than two years have passed since MSPs passed the Children and Young People Bill in overwhelming numbers. Yet, three-and-a-half weeks out from an election, consensus on Part 4 of the legislation – namely, giving every person under the age of 18 access to a ‘named person’, typically a health visitor up to age five and a school teacher thereafter – seems to be fraying at the seams. Politically, at least.

“I understand that some parents and some communities are nervous about it... but I think on balance it’s necessary to protect those children who might just be at risk,” a fresh-faced Scottish Labour leader Kezia Dugdale told the BBC last October.

Five months later, she has called for a “pause” to the process – stopping short of the Conservatives’ call to scrap it altogether – after she said parents had “lost confidence” in the scheme. For a service that, in its statutory form at least, isn’t even up and running, it is a change in position that has left her open to the accusation that her actions are predicated on political polling more than anything else.

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Two opinion polls out last month found support for the named person policy was on shaky ground, the second of which, though, took leading questions to a new level. Before that, a YouGov poll for The Times put opposition to it at almost two-thirds among Labour voters. “It’s not a burning issue but it is an issue,” said one Labour figure when asked whether it is being raised on the doorsteps in the run-up to 5 May. Another claimed it was “more a social media phenomenon”.

Under a Labour government, said Dugdale, the Children and Young People’s Commissioner for Scotland would be brought in to conduct a review. However, asked last week if he would still like to see the scheme go ahead on 31 August as planned, Tam Baillie told Holyrood: “Yes, I think we should go ahead.”

Nevertheless, he still has a concern about the potential extent of information sharing requirements given ‘wellbeing’ will be the context in which decisions are taken. That, arguably, will be a more subjective assessment and as such, is harder to write into the statutory guidance that practitioners will rely upon.

“It’s going to take time for named person in its statutory set-up to bed down and it needs the space to bed down to make sure that it achieves the policy objectives,” he added. “But I think we should commit to making it happen, subject to us being satisfied that people are confident about the information sharing aspect of it.”

In theory, that question of confidence should be answered definitively once the UK Supreme Court delivers its judgement on the case that the Christian Institute and others presented last month. In truth, though, that is unlikely given the No To Named Persons campaign group has already expressed its determination to exhaust every legal avenue, going up to the European Court of Justice if necessary.

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'The Act breaches what most would consider a fundamental right to confidentiality'

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Proponents, including a range of children’s charities, emphasise that the intention is to avoid vulnerable children ‘slipping through the net’ by supporting families to access the services they require sooner via a single point of contact. As such, they say, it will stop unnecessary referrals going to the Children’s Reporter and ensure that only the right children – those with the most pressing needs – get social work support.

Critics brand it an unwarranted extension of state interference in parenting and argue the legislation does not actually say what advocates of the service suggest it’s there to do. The named person, they allege, afraid that a situation may arise in which they have not been seen to act, will verge on the side of caution and the service will soon become unworkable.

Opponents this week leapt on a UNISON Scotland survey touching on health visitors’ concerns as backing for their case, though few acknowledged only around 30 took part in what the union insisted was a qualitative rather than quantitative exercise.

WHAT THE LEGISLATION SAYS: FUNCTIONS OF THE NAMED PERSON

‘…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.’

The Court of Session has already dismissed campaigners’ arguments – twice – with three judges latterly describing them as having “the appearance of hyperbole”. The named person “has no effect whatsoever on the legal, moral or social relationships within the family,” they said, while the Act “attempts to put what is an existing, albeit apparently inadequate and sporadic, sharing exercise onto a firmer, and more transparent, statutory footing”.

In other words, it will operate within the existing data protection principles under UK and EU law, leading Lord Pentland – who first threw out calls for a judicial review – to label the legal argument that protection given to personal data will be lowered as “perverse and nonsensical”. Statutory guidance issued by government before Christmas declared that “in all but exceptional situations, the child or young person, and – as appropriate – their parents, will be involved in the decision to share information”.

“The media speculation that they can or will ask for health files is nonsense,” says Bill Alexander, director of care and learning for Highland Council, which has had the named person service in place since 2010 following a pathfinder project that informed ‘Getting it Right for Every Child’. “Do you think my headteachers are going round wanting to read all the health files on their children? That is nonsense. They’ve no right to health files. It’s fantasy.”

Rather, the NHS could provide some information regarding an individual from a health file to a named person subject to a request deemed relevant to a wellbeing concern and in-keeping with data protection rules.

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Bill Alexander, director of care and learning at Highland Council, which has had named person service since 2010

“If we get a concern about a child and that is low level and early intervention, and the parent doesn’t want to engage, that is their choice,” adds Alexander. “If we get a report that Dad hit the child last night, that’s not [for the] named person. That’s a different environment and some of the media speculation either doesn’t understand that or just conveniently glosses over the difference between child protection concerns and early support to families.”

Indeed, the fact that the First Minister has found herself drawn into the row again in recent weeks, repeatedly being asked whether parents could ‘opt out’, merely illustrates government failed to communicate the legislation properly from the outset. Put simply, the answer is no, given it is a universal service. The more nuanced one, though, is that they can, in the sense that the Act does not give the named person any powers to force a child or family to do anything.

‘State guardian’ has become a part of the standard lexicon whenever the policy is raised, creating the impression of pen pushers sitting in the corners of classrooms furiously taking down notes. Ministers sought to sell the policy on two fronts – as being about prevention and child protection – laudable intentions, though the initial communication was confused and naïve in the assumption that these overriding principles would be enough to assuage any and all concerns around practice.

And it is this element of practice that has been overshadowed by a debate that has frequently found itself directed down an ideological rabbit hole. The Care Inspectorate’s latest inspection of services for children and young people in South Lanarkshire, published last February, reported that health and education staff “did not feel they were facilitated or sufficiently equipped to be able to respond confidently to lower level concerns within a staged intervention framework”, whilst teachers “continued to make referrals about school attendance to the Children’s Reporter without first involving staff from other services and ensuring alternatives had been explored fully”.

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Similarly, the inspectorate’s report earlier this year on the Outer Hebrides Community Planning Partnership area found a “lack of capacity” in health visiting meant health visitors “could only prioritise the most obviously vulnerable children and this was limiting their ability to become involved with families at the earliest possible stage”.

Less than five months out from the scheme becoming operational, there is still a shortage of health visitors despite government commitments. Ruth Davidson will next week set out what she has said will be a “fully-costed plan” to hire 500 health visitors over the next parliament, despite the Conservative leader prioritising “immediate repeal” of the named person policy.

Likewise, resource within the schools sector remains an “ongoing issue”, according to Jim Thewliss, general secretary of School Leaders Scotland, who are supportive of the measure. “Within the secondary sector a large part of the structural part of this is there: we have had guidance teachers, we have people who as part of their professional background have the wellbeing of young people integral to what they do,” he tells Holyrood.

“It’s a more significant issue, I would suggest, within the primary school. There are workload issues, we have got to work our way through that, and there are capacity issues as well. If we are, as we are at the moment, in a system where layers of leadership are being stripped out on account of people having to make financial savings, at a time when you’re actually going to bring to the fore the whole notion of responsibility for wellbeing, then there is a crunching of the gears in there.”