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Hamilton Ross
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Named Person- Children and Young People (Scotland) Act 2014

In Scots Law children have always had rights. The law requires that these rights are upheld by the parents of the child. This is reinforced by the fact that the United Kingdom is a signatory to the UN Convention on the Rights of the Child (UNCRC). The United Nations has proclaimed that childhood is entitled to special care and assistance; therefore states must ensure the rights of the child are protected. The UNCRC is a means to ensure that states uphold this responsibility.

The Children and Young People (Scotland) Act 2014 which has recently come into force, was enacted by the Scottish government to secure and further the UNCRC requirements in Scotland, in order to protect the rights of children. One of the key concerns raised about this new legislation is the requirement for every child under the age of 18 in Scotland to have a ‘named person’ to promote, support or safeguard the child’s wellbeing. The named person is to be an employee of a ‘service provider.’ This could be a teacher employed by local authority but cannot be the parent of the child. The named persons will begin to oversee children they are responsible for from August this year.

The concerns concerning the ‘named person’ stem from the possible implication this could have on the right to private and family life, protected by Article 8 of the Human Rights Act 1998. It has raised suspicions about the somewhat paternalistic approach of the Scottish government, by providing the service to all children, not just those families in most need of the service.

Whilst there are still those that hold reservations about the practicalities of the service, it is clear that it is an attempt to ensure the upmost protection the child’s welfare, by providing help to the child from a young age. The ‘named person’ is there to advise and help the child or parent should they need support or access to a service provided by the local authority.

It should be noted that the ‘named person’ provisions were recently subject to judicial review. (Christian Institute v Lord Advocate [2015] CSOH 7). The petition was refused in the Outer House of the Court of Session. It was decided that the provisions clearly pursued a legitimate aim, at a general level, to promote and safeguard the wellbeing of all children and young people in Scotland. The Court also noted that it ought not to be assumed that the new service would operate in a manner which was inappropriately invasive or disrespectful of private and family lives.

However due to the fact that the legislation is in its infancy, it is too early to make a judgement as to the success of the ‘named person service’. Practitioners and academics alike will be keeping a close eye on the developments of this particular part of the legislation, to assess whether it achieves its legitimate, purpose without delving too deeply into family life.

Author: Matthew McCabe, L.L.B, Currently studying the Diploma In Legal Practice

This blog is the work of the author and does not necessarily reflect the views of this firm.

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