The Faculty of Advocates has urged the Scottish Government to “get back to basics” on children’s rights in a robust response to the consultation on children’s service planning.
Under the Children and Young People (Scotland) Act 2014, non-statutory guidance will be issued to assist public authorities in giving “better or further effect to the UNCRC” (United Nations Convention on the Rights of the Child).
References to “a new notion of ‘wellbeing’” were seen as potentially confusing by the Faculty, who submitted that the relevant authorities should rather be directed to the Convention itself.
They noted: “While the Scottish statutory concept of ‘wellbeing’ may be related to the general and well-understood notion of ‘welfare’, it is not the same. In the context of the UNCRC it is the general notion of ‘welfare’ that is relevant. It would be unfortunate were the imperative towards implementation of UNCRC to be lost by a synthesis with a different agenda.”
The consultation document includes advice on the preparation of ‘Children’s Rights Reports’ for authorities, who will be expected to consider both the “UNCRC assessment framework” and the “child wellbeing indicators developed as part of the GIRFEC approach and their links with the UNCRC”.
The concept of welfare, which underpins the Convention, and the government’s own interpretation of wellbeing are used interchangeably throughout, and section 96 of the 2014 Act is said to provide “a statutory definition of wellbeing, relating it directly to the eight wellbeing indicators – Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, Included (known by the acronym SHANARRI).”
An appendix to the draft guidance maintains the linkage is an “interpretation of the interaction between wellbeing indicators and UNCRC Articles which can be used flexibly by authorities”.
No such wellbeing indicators appear in the UNCRC, however. Ratified by the UK Government in 1991, the international treaty comprises a preamble and 54 Articles setting out the civil, political, economic, social and cultural rights which States Parties are expected to make available to all children.
The Faculty considered that paraphrasing the Convention risks “missing the point”, using as an example Article 9, which provides that “a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such a separation is necessary for the best interests of the child”.
The preamble to the UNCRC underlines that the family represents “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children”.
The conflation of child welfare and the Scottish Government’s new notion of wellbeing has been repeatedly cited as a key concern in relation to the named person and information-sharing provisions in the Children and Young People Act, whereby every child in Scotland is to be assigned state official to monitor their wellbeing until the age of 18, with no opt-out.
A previous submission by the Faculty highlighted problems with the controversial scheme, warning that the named person had the potential to “dilute the legal role of parents” and could lead to arbitrary interference in private and family life, contrary to Article 8 of the ECHR.
Police Scotland also raised concerns last year that wellbeing assessments were being used inappropriately in child protection cases, resulting in sometimes significant delays, “during which time the children (or other children) are exposed to the potential of further criminal acts and the potential for evidential opportunities to be lost or compromised.” It is unclear whether or not the government ever took the opportunity to examine the specific examples offered by the police authority to illustrate these dangers.
The UK Supreme Court is due to rule on a judicial review of Part 4 of the Children and Young People Act following previous unsuccessful challenges in the Court of Session. Deputy first minister John Swinney indicated that implementation of the named person scheme and associated provisions, due to come into force on 31 August, may be delayed pending the judgment.
Simon Calvert of the No to Named Persons (NO2NP) campaign, which is spearheading the legal action, said: “The Faculty of Advocates has been warning about the Named Person scheme for years now but the Government has so far ignored them, just like it is ignoring the health visitors and teachers who are objecting to having to take on the Named Person role, and the parents who are revolting against the scheme in huge numbers.
“There is a dangerous confusion at the heart of the entire scheme between child protection, on the one hand, and wellbeing on the other. One rightly requires state intervention where there is risk to the welfare of a child, the other foolishly intervenes where there is an alleged risk to their happiness. To conflate these two brings the heavy hand of the state into the ordinary decisions of family life, and distracts those who should be trying to identify genuinely vulnerable children. The Named Person law is a danger to innocent families and a danger to at risk children.
“Because of this failure to distinguish between welfare and wellbeing, The authorities that should be helping truly needy kids are instead going to be overwhelmed with tittle-tattle. Genuine, serious cases will get lost in the system while the full weight of State intervention is brought to bear on innocent families.”
Bill Alexander from Highland Council has accused NO2NP of speaking “just rubbish” and described the “conflation of child protection and the named person” as “mistaken”, reassuring parents that the system is simply a consent-based point of contact that already works well.
Meanwhile, Alison Todd, chief executive of Children 1st, has defended the scheme on child protection grounds, saying: “There have been some very serious incidents. We have had Caleb Ness. We have had Baby P. We have had really tragic situations that when we’ve looked into it people held information but it wasn’t shared”.
A Conservative parliamentary motion calling for a pause in implementation was defeated in a highly-charged parliamentary debate in June, although Labour leader Kezia Dugdale has previously called for a stay, pending an independent inquiry by the Children’s Commissioner, Tam Baillie.
Mr Baillie’s office has not responded to a request for comments on the line between welfare and wellbeing with reference to the UNCRC.