Legal challenge to child guardian plan begins

A JUDGE was warned yesterday that Scottish Government plans for blanket appointments of a “named person” to look out for the well-being of every child in Scotland was “a dangerous route to go down”.

A coalition of individuals and charities, including the Christian Institute, has launched a legal challenge against the legislation seeking to have the controversial provisions set aside.

Aidan O’Neill, QC for the group, said: “The named person provision does not allow for opt-out. They are compulsory in application and are not necessary in terms of child protection.”

Yesterday, Mr O’Neill told a judicial review at the Court of Session in Edinburgh: “It does not provide for the appointment of a named person to a child where there is an assessment of need.”

He told Lord Pentland: “Whatever comes subsequently is going to further the aims of this act and we say it is the aims, with this universal coverage focused on well-being rather than child protection, that raises the problematic issues.

“Everyone accepts the absolute need for child protection measures and for the state to intervene to protect a child from risk of significant harm.”

But the senior counsel said the legislation produced by the Scottish Government was not about child protection issues, but rather a “much more amorphous and lower standard of well-being”.

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Mr O’Neill contended that a child’s well-being was a matter for the parents and family.

“Nobody is denying child protection is increasingly important. That is a completely different thing from the state insisting on particular views of what constitutes a child’s well-being,” he said.

“We have a form of state intervention, not the taking away of children, but the collating of information on children.

“All one knows is that every child will have a ‘named person’ appointed by the state. The one person it cannot be is the parent of the child.”

The campaigners against the provisions in the Children and Young People (Scotland) Act 2014 maintain that the people principally responsible for carrying out the functions mentioned in the legislation are a child’s parents.

The campaigners asked the court to declare that the “named person” provisions are not lawful. They argue they are outside the legislative competence of Holyrood, are incompatible with the European Convention on Human Rights and that the data-sharing provisions are unlawful.

They are also seeking a declaration that the appointment of a “named person” to every child in Scotland regardless of any individual assessment of need or appropriateness is unlawful at common law.

The legal action is being spearheaded by the Christian Institute, the Christian charity Care (Christian Action Research and Education), the Family Education Trust and Tymes (The Young ME Sufferers) Trust with the support of academics and individual parents. Donations to fund the case have been made from more than 70 different sources.

The Children and Young People (Scotland) Act received Royal Assent in March. A Scottish Government spokeswoman said: “The legislation, including the named person service, was supported by a large majority of those who responded to the public consultation, backed by a wide range of children’s charities and professionals working daily to support families across the country, and endorsed by the parliament.

“As the legislation is currently the subject of a challenge in court, it would not be appropriate to comment further.”

The judicial review is expected to take place over four days.

• Aidan O’Neill QC hired to challenge guardian plan

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