Liz Smith, Conservative: Scotland’s named person policy ‘was both universally unpopular and unworkable.’
“Through children and families knowing who to contact, their access to help is made easier. This is an essential feature of a child centred approach.” South Ayrshire council policy in 2016
https://sourcenews.scot/scottish-tory-council-has-run-named-person-scheme-for-5-years-without-problems/
By stewartb
There is a new (May 2022) report on the findings and recommendations of an important independent review commissioned by the Westminster government. It considers child safeguarding practices in England following yet more tragic incidents.
Source: The Child Safeguarding Practice Review Panel (2022) Child protection in England – National review into the murders of Arthur Labinjo- Hughes and Star Hobson.
The extracts below from this document may bring back memories. Discussed at length are issues that were at the centre of the campaign in Scotland against a child safeguarding initiative introduced by the Scottish Government! This is a sensitive, complex and hugely important topic: I have opted to reproduce material directly from the report to avoid inexpert interpretation by me.
Extract 1) ’What went wrong? … we have identified a set of issues which hindered professionals’ understanding of what was happening to Arthur and Star. These are (among several):
• Weaknesses in information sharing and seeking within and between agencies.’
The report notes: ’These are not new issues; they recur across the reviews of serious incidents that the Panel sees on a fortnightly basis. They come up in all analyses of serious case reviews and thematic practice reviews; and they have featured in all previous inquiries into child deaths.’
2) ‘Protecting children from abuse is intrinsically complex and challenging work. It requires great expertise in finding out what is happening in the intimate realm of family life. It involves intruding into very private spaces to evaluate and make professional judgements about parenting, the development and wellbeing of children, and whether a child or infant is experiencing harm.‘
3) ’What needs to change? …. The child’s story is often held by multiple people in multiple places, the detail of which is constantly evolving. This means that it can be extremely difficult to build and maintain an accurate sense of what life is actually like for a child, without a forensic focus held by a consistent set of multi-disciplinary professionals who are charged with pulling together the disparate parts of the jigsaw of a child’s life.’
4) ’Lord Laming described to us how, during his inquiry into the death of Victoria Climbie (2003), many professionals reflected on how they would have acted differently: ‘if only I’d known’. Arthur and Star’s stories tragically illustrate how critical information from multiple sources becomes rapidly fragmented leading to a partial and siloed understanding of children’s experiences and lives. Our recommendations seek to address these issues.’
5) ‘Professionals did not always hear Arthur’s voice. Arthur’s voice was often mediated by his father in contact with professionals.’
6) ‘Most importantly, practitioners need to be given the space and time to do quality work with the child and to critically reflect on the child’s experiences, including putting together the jigsaw of information they hold about them and the network around them. Otherwise, there is a risk that the child will become invisible.’
7) ’In order for professionals to make good decisions about children in need of protection, they have to have a full picture of what is happening in a child’s life. Part of this is about having access to all the information known about the child. But just as important is seeking out missing information, considering disparate pieces of information in the round, and asking what bigger picture is being painted about a child’s experience’.
8) ’Problems with information sharing have been raised by every national child protection review and inquiry – going back as far as the inquiry into the death of Maria Colwell in 1973. … Time and again we see that different agencies hold pieces of the same puzzle but no one holds all of the pieces or is seeking to put them together. As Eileen Munro summarised in her 2011 review of child protection, ‘abuse and neglect rarely present with a clear, unequivocal picture. It is often the totality of information, the overall pattern of the child’s story, that raises suspicions of possible abuse or neglect.’’
9) ’… the behavioural biases that can impact upon information sharing within and between agencies, which need to be addressed. This includes:
- Diffusion of responsibility – the tendency for people in groups to fail to act on the assumption that someone else is responsible, an issue identified as a frequent contributor to children’s deaths or serious injuries.’
10) ‘With regard to consent, legislation is clear that sharing information without consent for the purposes of safeguarding is permitted; and guidance, such as Working Together to Safeguard Children, should reinforce this unambiguously. Locally, child protection practitioners need to feel empowered to share information without consent but we recognise that this is not commonplace.’
11) And finally, and notably when thinking back to the Scottish cexperience: ‘ Schools, colleges and other educational settings have a pivotal role to play in protecting children. In seeing children every day, they are in a unique position to identify concerns early, to recognise when concerns are escalating, and to share key information with Safeguarding Partners.’
On the topic of schools the report adds: ’Professionals also frequently have an insight into family life that would otherwise be unknown, through their contact with parents and carers. Arthur’s school was the last to have contact with his father in the days leading up to Arthur’s death. The critical role schools and other educational settings play is highlighted in previous reviews of serious incidents.’
‘… there must be full involvement of schools and education services at both the strategic and operational level. …. strengthen educational settings’ role in shaping child protection systems, including the critical sharing of data and the establishment of the proposed Child Protection Units. At the same time, it will ensure that they are consistently engaged as an equal partner at both an operational and strategic level and that they are held to account in the same way as other Partners.’
Remember?
On 28 July 2016, in the case of The Christian Institute and others v The Lord Advocate (Scotland) five UK Supreme Court judges unanimously struck down certain provisions of the Scottish Government’s (SG) Named Person scheme.
While the Court said the aims of the SG’s bill were “unquestionably legitimate and benign”, it raised concerns about information-sharing plans for how named persons would share details about children with other organisations or professionals such as GPs, where they believed it was likely to help safeguard the child.
The judges said specific proposals about information-sharing “are not within the legislative competence of the Scottish Parliament”. And they said the legislation made it “perfectly possible” that confidential information about a young person could be disclosed to a “wide range of public authorities without either the child or young person or her parents being aware”.
The Court stated that the data sharing provisions in the Children and Young People (Scotland) Act were in breach of the right to a private and family life under article 8 of the European Convention on Human Rights. (See summary in https://www.bbc.co.uk/news/uk-scotland-scotland-politics-36903513)
Recall also that the Scottish Conservative Party leadership campaigned against the Named Person scheme: Tory MSP Liz Smith in 2015 referred to it as ‘sinister’!
And this was despite at the time this from South Ayrshire council on Named Person, a Tory-led administration partnering with local Labour Party councillors: “South Ayrshire Council has been introducing the approach gradually since 2011. We’ve worked closely with other agencies such as health and social work. The local authority currently has 90 named persons on our websites. For pre-school children these are health visitors and for school aged children they are head teachers, depute head teachers and principal teachers of guidance.
“… it has been felt the changes have been generally positive. At the core, the policy is putting into law what was good practice from the ‘Getting it right for every child’ (GIRFEC) approach which has been promoted for a number of years and was itself emerging good practice.’
We don’t yet know how the Tory Westminster government will respond to the findings and recommendations from the Child Safeguarding Practice Review Panel. Will it face up to the challenges posed and the need for change highlighted, not least over information sharing and seeking? Or will it dodge these difficult issues? Are the lawyers of the Christian Institute on stand-by?
Talking-up Scotland 
The UK Supreme Court did rule that the so called ‘Named Person’ Act was ‘legitimate and benign’ but the provision for sharing information was contrary to the provisions of the Data Protection Act. The Court did not, however, dismiss the legislation but gave the SG a grace period to allow them to try to frame the legislation to get round the conflict with the Data Protection Act. The SG tried but ultimately had to admit it was not possible.
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It would be interesting to try and determine what interaction took place between the Scottish Government and Westminster to try and resolve the issue with the Data protection Act. Was it the subject of Parliamentary debate, was the Scotland office involved or the relevant departments of the Home office or the Attorney General in an attempt to produce a ‘ work around ‘.
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As far as I am aware an expert panel was set up by the SG after the Supreme Court judgement to try to square the circle concerning information sharing. They concluded that any such guidance would be so complex that it would be virtually unworkable as a result in 2019 John Swinney as Education Secretary announced the formal withdrawal of the legislation although various Local Councils continued with versions of the scheme.
I don’t know if any approaches were made to the UK Gov but on past form I doubt they would be successful. They could not have the SG having a ‘win’
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I think, too, that while Scottish Labour was initially supportive of the legislation, once the media started punting the Christian loonies’ “intrusion” line, and the LibDums started talking about the ‘sinister surveillance state’, they began backing off saying that it should only apply to under 16s and then some of the public sector unions began making noises. It was the kind of complex legislation that needed cross party and intergovernmental cooperation. With Iain Gray leading Labour during its implacably oppositionist stance, and Westminster wanting to ‘dish the Nats’, then, I think that things were not going to progress
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The European Convention Human Rights says this
“Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
According to Wiki, Article 8 is considered to be one of the convention’s “!most open-ended provisions.”
I think it is fairly clear that the right is not absolute (see para 2). In fact the reference to a “national security” exemption means that while the right seems to prevent action being taken that might have prevented crimes such as the murders of Arthur Labinjo-Hughes and Star Hobson, it’s ok for spooks to hack our phones!
Indeed one might have thought that “for the protection of health” might have covered situations like that. , or even for the “protection of the rights and freedoms of others” – for instance to allow young Arthur and Star the right to grow up.
In short if the Supreme Court consider that this Article is offended by the legislation that was proposed here, I would suggest they are taking a remarkably strict view of it.
More serious seems to be the Data Protection issues, and certainly we dont want data shared willy nilly. But perhaps there is a possibility that data can be shared if there is justification for it, rather than just as a matter of course – for instance a reasonable likelihood that criminal abuse is being committed and that the data in question should be shared to prevent it. To be clear, this is not – and should not be – an open door to data sharing – but an exception in a situation which can reasonably be said to be causing concern.
It’s all too easy to imagine such as the Christian Institute foaming at the mouth at this, but they themselves argue that there might not be anything going on, nothing for the authorities to be involved in. In that case, what is the problem? It is after all young lives – too many young lives – that are at stake in such situations.
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You write: ‘But perhaps there is a possibility that data can be shared if there is justification for it.
The Panel’s report states: ‘With regard to consent, LEGISLATION IS CLEAR THAT SHARING INFORMATION WITHOUT CONSENT FOR THE PURPOSES OF SAFEGUARDING IS PERMITTED; and guidance, such as Working Together to Safeguard Children, should reinforce this unambiguously. Locally, child protection practitioners need to feel empowered to share information without consent but we recognise that this is not commonplace.’ (my emphasis)
All very puzzling!
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There are two other, and quite different, observations I’d like to make concerning the report by the Child Safeguarding Practice Review Panel:
My first observation relates to GDPR. When comparing the following extracts from the report with the fate of the proposed legislation in Scotland, the contrast seems obvious!
‘12.35. With regard to consent, LEGISLATION IS CLEAR THAT SHARING INFORMATION WITHOUT CONSENT FOR THE PURPOSES OF SAFEGUARDING IS PERMITTED; and guidance, such as Working Together to Safeguard Children, should reinforce this unambiguously. (with my emphasis)
‘Locally, CHILD PROTECTION PRACTITIONERS NEED TO FEEL EMPOWERED TO SHARE INFORMATION WITHOUT CONSENT but we recognise that this is not commonplace (Department for Education and Kantar Public, 2021).
‘The culture around information sharing and seeking must be driven by leaders at every level including central Government, and TO THIS END WE WELCOME POSITIVE STEPS SUCH AS THE DEPARTMENT OF CULTURE MEDIA AND SPORT’S PROPOSED AMENDMENT TO GDPR.’ There is a reference in the report to a footnote here.
The footnote states: ‘ The proposed amendment will ensure that SHARING INFORMATION WITHOUT CONSENT FOR SAFEGUARDING PURPOSES ALWAYS PASSES THE LEGITIMATE INTEREST TEST. ‘
Secondly, on the overall nature of the report: it’s a lengthy report (118 pages excluding annexes). A search reveals that ‘sharing’ in the context of information is mentioned on 32 different pages. The issue of ‘information sharing’ is raised repeatedly in the report both as an area of weakness/failure and as a priority in recommendations for change.
It seems a bit odd – given the centrality of information sharing to the problems encountered by the Scottish Government – to find no obvious record of engagement with consultees from Scotland and, in an otherwise well-referenced report, to find no reference to Scotland’s experience. Might it be this Panel’s view that the issues which proved fatal in Scotland face NO legal impediment in England and/or that ‘learning’ from Scotland has no relevance?
I followed the Named Person controversy quite closely. However, I am not sufficiently well-informed to be certain of the implications of what is now being proposed to improve child protection in England – including actions which in Scotland previously were called out as ‘sinister’ by a Tory MSP. But on the face of it, there must be implications!
In my blog post above I lifted a quote from the Supreme Court judgement from a BBC News website article: ‘The judges said specific proposals about information-sharing “are not within the legislative competence of the Scottish Parliament”.’ Perhaps the Court’s judgement specifically concerning ‘legislative competence’ played a more significant role than I had appreciated!
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Perhaps the Court’s judgement specifically concerning ‘legislative competence’ played a more significant role than I had appreciated!
Mirrors my own thoughts, which was basically why I asked what, if any, engagement occurred between the Scottish Government and Westminster to try and resolve this issue. I’m not aware of any which seems strange given the courts judgement.
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The Court’s judgement was very specific and detailed about where the proposed legislation fell foul of the legislative competence/reserved matter bar. Overall the Court was quite positive about the legislation and its aims so much so that in giving the precise details/area where the legislation ‘failed’ they gave the SG the opportunity to rectify those points. It was not by any means a blanket judgement on the competence or otherwise of the Scottish Parliament and SG to draw up and pass such legislation.
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As I remember the judgement of the Court the legislation proposed the sharing of the information based on the ‘wellbeing’ of the child rather than ‘serious risk’ which was the criteria under the Dsata Protection Act. It was felt by the judges that ‘wellbeing’ was not sufficiently defined in legal terms and lowered the criteria for the sharing of information set out in the DP Act
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Indeed this may be both crucial and difficult to bound. The panel report that is the subject of the blog post does make reference to the term ‘well-being/wellbeing’ on multiple occasions but does not offer a definition. It does not really address how and when to escalate concern to intervention. The reference to ‘wellbeing’ in this extract is notable:
‘Protecting children from abuse is intrinsically complex and challenging work. It requires great expertise in finding out what is happening in the intimate realm of family life. It involves intruding into very private spaces TO EVALUATE AND MAKE PROFESSIONAL JUDGEMENTS ABOUT parenting, the development AND WELLBEING of children, and whether a child or infant is experiencing harm.’
I don’t envy the task of legislators to get this ‘right’ – to achieve the important, desired outcomes, to be ‘legitimate and benign’ in objective, process design and practice, and to remain lawful.
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It would be interesting to see if what is now being proposed in England could pass a legal challenge similar to that mounted against the SG’s legislation.
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Stewartb
May I suggest that you read the full judgement of the UK Supreme Court if you have not already done so. I have read it several times and did so again last night after seeing some of the posts here I think you will find it answers/clarifies the points you have raised as well as setting out their reasoning that led them to their judgement
As I have said below it may be that what is proposed in England would fail if subjected to a similar legal challenge that was directed at the Scottish legislation.
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