Legal challenge to child guardians plan rejected

Fiona McLeod MSP
Fiona McLeod MSP
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A LEGAL challenge against the Scottish Government’s plans to appoint named guardians for every child has been thrown out by Scotland’s top civil court.

A judge at the Court of Session refused a petition for the judicial review of legislation which will assign a “named person”, such as a teacher or health visitor, to look out for the welfare of every child under 18.

.The measure contained in the Children and Young People (Scotland) Act was opposed by the No To Named Persons (NO2NP) campaign group, which argues that ministers have exceeded their powers and breached data protection laws and the human rights of parents.


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Lord Pentland concluded that the petitioners’ case failed on all points and refused to refer the matter to the European Court of Justice for a preliminary ruling.

Scottish Conservatives young people spokeswoman Liz Smith branded the decision “very disappointing” but said yesterday’s judgement was likely to be “only the first stage in the legal battle”.

She said: “I firmly believe the named person policy remains a huge error of judgement on the part of the Scottish Government. It is neither necessary nor wanted by the vast majority of parents across Scotland, who see it as a completely unacceptable intrusion into family life.”

Liberal Democrat MSP Liam McArthur said: “The named person scheme has been controversial from the outset. This legal case demonstrates clearly the strength of feeling that these plans have generated.”

Campaigners argued provisions which will lead to the creation of a “named person” service were outside the Scottish Parliament’s legislative competence because they were incompatible with rights guaranteed under the European Convention on Human Rights and the EU law on data protection.

They also claimed the provisions were unlawful as they contravened fundamental constitutional rights protected by common law. But Lord Pentland ruled that Part 4 of the Act did not contravene Convention rights, EU law or fundamental common law rights and observed that the fact the named person service will be provided for nearly every child and young person did not, in itself, necessarily mean there will be a breach of Convention rights.

He concluded the subject matter of the legislation was “within the devolved competence” of the Scottish Parliament, stating it was clear the provisions did not relate to matters reserved to Westminster.

Campaigners yesterday suggested they were prepared for a lengthy and protracted legal battle against the controversial legislation. A NO2NP spokesman said: “We are considering all options for appeal. Our case is strong, as is our resolve.”

Children’s minister Fiona McLeod said: “This decision is good news for families in Scotland. Named persons are being introduced because parents and children asked for them, as a single point of contact.”

Jackie Brock, chief executive of the Children in Scotland charity, said: “Having a primary point of contact available to all children is the formalisation of practice that already exists.”


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