"Named person" law again upheld against appeal challenge
Campaigners against the "named person" provisions in the Children and Young People (Scotland) Act 2014 have lost their appeal against a judge's ruling that the provisions do not breach EU law or the European Convention on Human Rights.
The Inner House of the Court of Session affirmed Lord Pentland's decision that part 4 of the Act was within the powers of the Scottish Parliament, holding that it did not involve the state taking over any functions currently carried out by parents in relation to their children.
Under the, each child and young person in Scotland will have an individual, arranged by the health board for pre-school children and by the local authority for school-age children, responsible for providing advice and support to the child or a parent, and helping the child to access services, among other things. The challenge was brought on the basis that part 4 authorises “unjustifiable state interference” with the rights of parents to determine, in accordance with their conscience and religion, the proper approach to the welfare and upbringing of their children.
The petitioners, the Christian Institute and three other charities together with three individual parents, argued that the named person's role was not a passive one and the Lord Ordinary had failed to deal with the principle behind their challenge. The legislation did not achieve the necessary balance between the obligation on the state to protect the family from unwarranted intrusion, whilst also protecting children from harm, but involved the creation of a direct relationship between the state and children, which “bypassed” parents.
Delivering the opinion of the court, Lord Justice Clerk Carloway, who sat with Lord Bracadale and Lord Malcolm, stated: "The mere creation of a named person, available to assist a child or parent, no more confuses or diminishes the legal role, duties and responsibilities of parents in relation to their children than the provision of social services or education generally. It has no effect whatsoever on the legal, moral or social relationships within the family. The assertion to the contrary, without any supporting basis, has the appearance of hyperbole."
For these reasons there was no interference with the petitions' right to respect for private and family life under article 8 of the European Convention. And there was "no colourable interference, or even potential interference," with the article 9 right to freedom of conscience and religion, or the right in article 2 of Protocol 1 to bring up a child according to the parent's conscience and religion.
In any event the scheme met the proportionality test: "it is sufficient to say that the scheme has the appearance of achieving a balance in which the advantages of early detection of potential welfare issues involving a child outweigh any adverse effect on the measure on the Convention rights of parents and children generally", Lord Carloway added.
Nor did the Act infringe rights under EU law in relation to personal data, because it could not be construed as overriding the Data Protection Act when defining the circumstances in which information could be shared.
However the court disagreed with the Lord Ordinary's conclusion that the charity petitioners lacked sufficient interest to bring the case, even though they had not made representations when the bill was before the Parliament. Applying the broad tests approved by the UK Supreme Court, Lord Carloway said they did "have standing in general to challenge the legislation and may do so, as they have, on European Union law grounds, at least in so far as that law impacts upon child welfare issues".