Parents need assurance for their children in the event of an untimely death, writes Ewan M Campbell
One of the important reasons for parents making wills is to provide for the appointment of guardians to their children should they die whilst their kids are still under age.
It is perfectly understandable that most parents would wish to make such provision to ensure that the interests of their children are fully protected by guardians of their choosing, until their children reach adulthood and are able to decide for themselves.
What might not be so immediately understandable is the idea of a ‘state guardian’ for every child in Scotland under 18, tasked with looking after that child’s happiness and wellbeing, even although that child might already be in a loving family with all the help and support they might need.
This was proposed by the Scottish Parliament in 2014 when it declared that every child in Scotland should have a ‘named person’ – a state official tasked with looking after a child’s ‘wellbeing’, which was defined as ‘happiness’.
As part of its ‘Getting it Right for Every Child’ strategy, the Government proposed giving every child from birth to 18 access to a ‘named person’ under the Children and Young People (Scotland) Act 2014. The Government made it clear the ‘named person’ cannot be the child’s parent and is more likely to be a midwife or health visitor in a child’s early years and a head or guidance teacher later.
It is not proposed that the named person would have any parental rights and responsibilities but would simply act as a link between families and any necessary services such as social work, healthcare, and counselling services.
They would also be a point of contact for other services if they had any concerns about a child’s wellbeing.
According to the Scottish Government, the named person would be available to ‘listen, advise, and help a young child or young person and their family’. The Act had been due to come into force on 31 August – this now looks set to be delayed following a defeat in the Supreme Court in July, after the scheme was ruled unlawful.
Opponents had been tried to have it quashed by the courts, arguing the legislation would undermine parents, breach privacy, and stretch resources.
The Supreme Court ruled that, whilst the aim of the Act was ‘unquestionably legitimate and benign’, some of Holyrood’s proposals relating to information-sharing breached the right to privacy and a family life under the European Convention on Human Rights.
The five judges were unanimous in declaring that the Scottish Government had exceeded its powers in allowing public bodies to share sensitive private information about children and parents without consent and gave Scottish Ministers 42 days in which to address the issues .
According to the Scottish Government, the legislation is required to avoid another child abuse tragedy. They have said it is not always possible to predict which children might become vulnerable.
The Named Person Scheme is broadly supported by children’s charities, and pilot schemes have been considered a success.
No one could dispute a strategy of ‘Getting it Right for Every Child’– and it is hoped that the Government does just that with its amending legislation.
• Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken LLP