John Davis and Harla Octarra examine the implications of the Supreme Court decision on the Children and Young People (Scotland) Act 2014.

Professor John M. Davis has written two books on integrated (link) and multi-professional working (link) in children and family services that utilised case-studies from practice to unpick the complexities of participatory and collaborative assessment, planning, delivery and evaluation for professionals and student.  John co-ordinates undergraduate and post-graduate courses on integrated and collaborative working and has twenty years experience of supporting local authorities to develop rights-based, inclusive, anti-discriminatory, socially-just and participatory approaches to child and family support.

Harla Sara Octarra is in her last year of a PhD in Social Policy at the University of Edinburgh. Her research interests are children’s rights and public policy for children, and her PhD looks at inter-agency working in Scotland’s children services. Before coming to Scotland to do post-graduate studies she has worked for 8 years as a researcher in her home country, Indonesia investigated a range of childhood related topics including the experiences of street children, children in post-conflict situation, and child-friendly city initiatives.

Introduction:

This post investigates what lessons can be re-learnt from the Supreme Court decision that the Children and Young People (Scotland) 2014 Act (aka the Named Person Act) infringed human rights law (see link to decision here).  It unpacks what we can learn from the Supreme Court decision by connecting ideas from research projects carried out by the authors to the perspectives of a range of writers and commentators including Maggie Mellon, Kenneth Norrie, Allan Norman and Nicky MacCrimmon.

The post has also been influenced by Common Weal policy labs that are looking at the wider picture of children and families’ lives in Scotland (see link here for information on these policy labs).

It should be remembered that the 2014 Act was passed unanimously in the Scottish parliament – this is an act owned by all parties and not one – all MSPs have a duty and responsibility to amend their errors.  This posts aspires to point our representatives,who have this duty, in a more human rights direction.  We argue that when carrying out this duty they need to recognise that any change in local authorities involves building upon existing mechanisms (e.g. existing and traditional check and balance mechanisms).

So, any change does not require the MSPs nor the Scottish Government to rip up the 2014 act and start again.  Yet we also argue that the fact that the government can make changes from a fairly stable starting point should not mean they forgo the opportunity to be radical.  There is much debate in the media about whether the changes to the 2014 act should involve a mere refining process, however, our blog post encourages the government to adopt an innovative approach to the problem that they are now faced with and to take cognisance of the current ‘new politics’ that has emerged in Scotland.

The emergence of new policy networks, creative groupings and think tanks during the referendum such as the Common Weal, Business for Scotland, Women For Independence, RISE and the National collective has provided a context with in which people are no longer prepared to accept the status quo, nor to put up with MSPs ignoring the tenants of contemporary research and theory on children and family issues.  (See this link for a previous article in this vein critiquing MSPs blunders over low pay for early years workers).

This post is written with the aim of providing a critical perspective (friendly advice) to politicians on the complex tensions and histories that led up to the Supreme Court decision.  It sets out a more considered way forward. It is our hope that the SNP government can amend the Children and Young People Act to become a much more supportive and rights-based form of legislation and that whilst doing so, they might take on board some of the advice in this post.

This post encourages the SNP Government, in keeping with the notion of a ‘new kind of politics’, to approach the re-working of the legislation from the positon that it provides a unique opportunity to liberate everyday people from the oppressive grip of unthinking, unreflexively and over-controlling professionals, managers and system.

By connecting the redrafting of the legislation to values such as trust, collaboration and partnership the Scottish government should be able to promote a contemporary and up-to-date approach to children and families that compliments modern day human rights law.

Key Arguments Include That:

• Current policy has failed in its intention to challenge the surveillance, performance indicator, and top down hierarchical cultures that came out of the Blair and Thatcher eras.
• The combination of a culture of control, practices of surveillance and techniques of hierarchical power have created bullying cultures in public services, institutions (e.g. schools, social work departments and family support teams) and communities.
• When hierarchical and child-protection cultures meet – professionals adopt deficit practices which take power away from children and families and result in arbitrary decision making.
• Child and family policy in Scotland have tended to provide a sticking plaster for Westminster imposed austerity and child poverty caused by an inequitable neo-liberal model rather than fundamentally challenge the root causes of inequality.

Challenges To The 2014 Act:

When the Children and Young People (Scotland) Act 2014 was being challenged it was obvious that the problems with the Act were complex, that the named person aspects of the Act had strengths and weaknesses and that people, by focussing on the legal challenge, were missing the bigger issues that the act had failed to address – e.g. the need for a flexible rights-based approaches that challenges the root causes of inequality.

When working in the field of family support, children’s services or disability services our approach should be variable to the people and settings they encounter, and relations they are engaged in.  This position is based on the idea that we have to constantly question the concepts (ethos), relationships and contexts within which we work and that services should begin from the perspective that (in the main) children and families (not professionals) should make decisions about how they utilise services, structures and processes.

Hence, the politicians at Holyrood now have a rare opportunity for the whole parliament to be reflexive about their own politics, their role in public life, the underlying principles of Getting It Right For Every Child and what the phrase ‘Making Scotland The Best Place To Grow Up’ really means.

Some writers have approached the Children and Young People (Scotland) Act 2014 as if everything operates top down in the world of children and families and that workers are either slaves to the system or manipulative evil people who have malevolent intentions. Professionals are not all the same, most adopt a contentious approach and few start out with malevolent intentions. However, some fail to meet their own standards because the pressures they are under either lead them to make mistakes or inhibit them for perceiving that there is another way to work.

We should also realise that they are ‘employees’ of the state and are required to comply with national guidance, legislation and regulation and that guidance, legislation and regulation will always be translated into everyday procedures and work arrangements within local institutions in ways that involve professional acceptance, resistance or adaptation.

This is where the problem lies with practice in children and family services. For example feminist campaigner and former social worker Maggie Mellon reminds us that we cannot assume that professionals always act in the best interest of children and families.  Professionals can misfire and become overly focussed on child protection, snooping, and widening the net of families who have to be assessed and be subject to surveillance.  they can do this to the point where resources can only focus on assessment rather than delivering services that enable the changes that children and families aspire to, request or require.

But let us also state that the media’s representation that the whole of the Children and Young People Act is a snoopers charter is an exaggeration that does a great disservice to professionals such as family support workers who tirelessly try to work collaboratively with children and families to address issues that owe more to the Westminster cuts than the limitations of the Scottish Government.

A lot of journalists have complained about what they think is wrong with the ‘named person’ Act (as they reductively call it).  But, very few of these people have ever worked with families, utilised the my wellbeing tool kit or taken the time, for example, to learn the symbols and signs that are necessary for communicating with some disabled children about their service requests.

It is easy to tear something down, it’s a lot more difficult to collaborate with others to construct a new way of working, being or thinking that actually enables people to change their lives.  Indeed, the way that some people have written about the ‘named person’ has inferred that professionals are not human beings, that professionals are aliens from another planet who know nothing about working with children and families and that professionals are incapable of empathetic, supportive, collaborative or participatory working.

In contrast, we think our focus, rather than picking fights with the SNP Government, should be on identifying the issues that need to change in the 2014 Act and then recommending practical solutions based on sound research, knowledge and experience.

The media position on the Children and Young people’s Act and on child protection (in general)  mostly lurches between blaming social workers for not intervening enough in family affairs to attacking the state for carrying out witch hunts that interfere too much in people’s lives (just occasionally academics fall into this trap too).

For example, some journalists have connected the development of child protection procedures such as police checks to ‘a national psychosis ‘.  Iain Macwhirter has mined this ground regularly, his 2007 article (link here) argued (in a deliberately cantankerous and potentially insensitive way):

‘The vast majority of sex offences on children take place in the family home by parents, relatives or by trusted friends. The lesson surely is clear: children need to be protected from their families. If we really want them to be out of the reach of paedophiles, children need to be taken from their homes and placed in secure units supervised by properly-vetted, state-registered guardians.  You think I am making light of a very serious subject, and I am. But some things are so serious the only thing you can do is laugh. The alternative would be to join the current witch hunt of paedophiles which is becoming a national psychosis.’

The problem with such writing is that it is quick to attack but doesn’t offer anything in the way of alternatives – other than a liberal lassie fair approach. So when looking for a more considered position we may want to consult a family lawyer.

The Terminology Of Integrated Children’s Services:

Kenneth Norrie, an expert on family and child protection at Strathclyde University, put forward a list of concerns about the Children and Young People Bill, some of which the government listened to, others they didn’t (see link to article here).

As if sensing Iain Macwhirter’s complaint, Kenneth Norrie argued for a distinction to be made in the Act between wellbeing and welfare.  He queried if the word wellbeing at times was being used in a way that implied it meant the same as the word welfare.  Norrie argued that welfare should be used as a stronger term that implies compulsion (e.g. a compulsion placed on parents to ensure their child’s welfare).

He, in contrasted, argued that the term wellbeing was different to welfare as it involved collaboration.  He indicated that the state could take steps to protect a child’s welfare (e.g. when the child was at risk) but should adopt a collaborative approach with parents when attempting to ensure wellbeing.  His argument implied that relationship building, time, power and space was used differently in relation to compulsion and collaboration.

‘The state needs to enhance all children’s wellbeing by statutory means that will nearly always be co-operative with parents; and the state needs to step in to protect children’s welfare when co-operation is not enough and compulsion is required. The distinction in terminology is, in my view, helpful. ‘

Setting aside that Norrie uses terms such as collaboration (joint planning), cooperation (information sharing) and co-ordination (joint planning that leads to an accord) without realising that these terms are part of what academic literature on integrated, multi-agency and multi-professional working calls a ‘terminological quagmire’ (Leathard 2003), the distinction he makes between compulsion and collaboration and welfare and wellbeing, though not the whole story, is helpful part of the story.

It terms of the parts of the story Norrie missed, a number of writers have questioned whether the shift to using the term wellbeing ensures we do not need to use compulsion or is simply the first step in a process that draws too many families into a big state sponsored net that ends up with compulsion.

Indeed the act ran into trouble because different sections (particularly those relating to the action, process and responsibilities of information sharing) contradicted themselves in relation to co-ordination, collaboration and compulsion.  For example, Maggie Mellon argued that the act was authoritarian rather than cooperative (see link for her article written prior to the decision for The Common Space and link to her article for the Common Space written after the decision see).

Maggie Mellon’s writing encourages us here to pose the question to teachers, social workers community educators, early years managers, out of school care managers or professionals working in family support teams:

‘Are you storm troopers for the state or does your role involve collaboratively and participatively ensuring children and parents human rights are upheld?’

Particularly in educational settings, children tell us that some professionals routinely fail to attend to children’s rights, routinely make arbitrary decisions and enforce unfair punishments (e.g. around issues such as dress-code, time keeping and verbalising opinions which do not agree with the teacher’s)

Elsewhere (e.g. in social work), Maggie Mellon suggested that problems arise when you consider the history and context of intervention in families lives, particularly families living in poverty: (see link here to her article in the Scottish Left Review).

‘Poverty and inequality are what stunt children’s lives and these things cannot be tackled by case working the entire population of children. Instead, housing, jobs, income, education, health services and the environment are the basis for the overall wellbeing of children….. … This and the relentless focus on ‘risk’ have created an authoritarian rather than a supportive approach’

Maggie argued that a surveillance and ‘child protection’ approach made social workers jobs difficult to do because the public didn’t trust them.  She argued that the 2014 Act conflated need and risk.  She suggested that aspects of the 2014 Act we appropriate For example, when they sought to enable collaboration and co-ordination where a child experiences a disability and receive services from numerous professionals.

Maggie suggested that the requirement for service providers to collaborate with disabled children and families to produce more effective services had been conflated with a child protection focus that placed the surveillance gaze of social services onto all families:

‘It is worth noting that this idea of monitoring ‘wellbeing’ on a child-by-child case, mainly on the basis of their private home lives, has emerged at a time when more and more children are being deprived of the basic essentials for their healthy and optimum development – not by their parents, but by institutionalised inequality and poverty… …If you have not experienced the juggernaut of child protection investigations in your or a friends or family members’ lives, or seen the damage done by heavy handed, intrusive intervention, you may be able to believe that ‘services’ are benevolent and that all parents need to be watched very carefully in case one child slips through the net.  I have heard the justification that ‘families are where children are abused’ often, but families are more usually the place that keeps children safe and happy, and parents are more usually children’s defenders and champions against the often casual carelessness or cruelty of services. Children separated from their families in care and in schools are more vulnerable to abuse than children who remain within their families.’

Maggie Mellon makes a similar point as that of Iain Macwhirter (we shouldn’t pathologies families) but with much more consideration, experience and care.  This tension between compulsion and collaboration was also picked up by Kenneth Norrie who raised concerns, at the drafting stage, about the 2014 Act.  He questioned whether the welfare of the child would be paramount in the new Act; whether the listening to children aspects of the Act were going to ensure the ‘named person’ consulted with children and whether the act included the proviso that any intervention should be the minimum that was necessary:

‘Our law says that, in children cases before courts and children’s hearings, the welfare of the child is to be the paramount consideration. This is reflected in Article 21 of UNCRC in adoption proceedings, but in any other matter Article 3 states that welfare is merely a primary consideration. Incorporation would therefore actually weaken at least some aspects of the protections we currently give children… …The three overarching principles might appear usefully, for example, in section 19 which sets out the “named person functions”: in carrying out these functions children should be consulted, their welfare should be paramount, and any intervention (however early) should be the minimum that is necessary.

Information Sharing, Choice and Consent:

We would argue, it used to be the case that professionals would utilise person or child centred approaches to enable children’s views and aspirations to be the starting point for service co-ordination – however, there is research evidence that children are no longer present during planning meetings (Octarra 2016 see link here).

Similarly, A key issue that was questioned early on in the legislative process was whether a child would be able to choose their named person, the final Act did not enshrine that possibility and to some extent this meant that it did not take sufficient account of the Age of Legal Capacity (Scotland) Act 1991 which affirmed the legal capacity of children to instruct a solicitor, to enter into contracts/transactions and make medical decisions in consultation with medical professionals (and independent of their parents)’:

‘A person under the age of 16 years shall have legal capacity to enter into a transaction—

(a) of a kind commonly entered into by persons of his age and circumstances, and

(b) on terms which are not unreasonable.’

The 1991 act can be connected to the parts of the Data Protection Act and the ECHR that have suggested sensitive information should not be conveyed by professionals without consent.  There has long been a presumption that there is information, which children have the competency to discuss with professionals, that they do not want their parents or other professionals to be a party to.  This is an important principle that was enshrined by the Gillick case in English law.

The Supreme Court decision hits the ball out of the park on this issue:

‘Article 16 of the UNCRC provides: 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks.” We are therefore satisfied that the operation of the information-sharing provisions of Part 4 (in particular, sections 23, 26 and 27) will result in interferences with rights protected by article 8 of the ECHR…. …Of even greater concern is the lack of safeguards which would enable the proportionality of an interference with article 8 rights to be adequately examined. Section 26(5) requires an information holder, when considering whether information ought to be provided in the exercise of the duties in section 26(1) or (3), “so far as reasonably practicable to ascertain and have regard to the views of the child or young person”. But there is no such requirement in relation to a service provider’s discretionary power to share information under section 26(8). There the test is merely that the provision of the information is necessary or expedient for the purposes of the exercise of any of the named person functions. Moreover, there is no statutory requirement, qualified or otherwise, to inform the parents of a child about the sharing of information. The RDSG is only guidance, speaks of “routine good practice”, and leaves it to the discretion of the information holder whether to involve the parent or parents.’

The Supreme Court is very clear that the Children and Young People Scotland Act fails to satisfy our long term assumption that sensitive information cannot be shared without consent (unless the child is at risk) and it does so in a way that demonstrates that the Act may in fact have moved us to a position where information can be shared without our consent and without us knowing:

‘It is thus perfectly possible that information, including confidential information concerning a child or young person’s state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed under section 26 to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights of ECHR, and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views.’

Kenneth Norrie warned the Scottish Government about the dangers of the information sharing aspects of the Act:

‘The aim of sharing information is clearly legitimate – to allow early identification of potential problems in order to put support mechanisms in place to minimise the risk of greater interference in the child’s family life. So long as the sharing of information is limited to service providers and other responsible persons this is probably proportionate, but only if the information needs to be passed. The risk is that article 8 is breached if the law allows more information than is necessary to allow the service provider to make the judgment is to be shared. ‘

The 2014 Act gave professionals discretionary power to ignore the need to collaborate (seek child or parent consent) when sharing information during processes of service co-ordination.   Allan Norman also raised the issue of consent in relation to the concept of non-cooperation.  He argued that the Supreme Court decision reinforced the no compulsion threshold of “significant harm” that we had been using before the 2014 Act and that non-cooperation should not in itself indicate a risk.  The Supreme Court decision is very considered on the point of non-cooperation:

‘An assessment of non-cooperation as evidence of such a risk could well amount to an interference with the right to respect for family life which would require justification under article 8(2). Given the very wide scope of the concept of “wellbeing” and the SHANARRI factors, this might be difficult. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help which are offered under section 19(5)(a)(i) and (ii) and the Guidance should make this clear.”

The Supreme Court decision returns us to where we have always been (at least in the last two decades).  Consent is required unless there is risk of significant harm. In the vast majority of cases (e.g. where disabled children are seeking to access services) children and parents will be happy to give consent for information to be exchanged between services as this will stop them having to be ferried round agencies and having to experience multiple assessments when a single assessment can be carried out.  We were doing this type of information sharing (consent-based information sharing) before the 2014 act and we will continue to do this.

The Supreme Court decision is wonderful for those of us who had always taken a sensible approach to information sharing.  However, it adds to the complexity of information processes in local authorities.  For example, professional had begun to think about how to adapt their codes and procedures for information sharing where more than one professionals was involved.

The Supreme Court decision requires either consent or a very good reason for sharing information between professionals.  But we should listen carefully to the ruling:

‘In turn, the assessment of that wellbeing under section 96, as explained by the RDSG, involves the use of very broad criteria which could trigger the sharing of information by a wide range of public bodies.. …and also the initiation of intrusive inquiries into a child’s wellbeing. In our view, the criteria in sections 23(3), 26(2) and 26(4) by themselves create too low a threshold for disclosure… …and for the overriding of duties of confidentiality in relation to sensitive personal information…’

The court decided that the government needed to address the circumstances in which the child, young person or parent should be informed of the sharing of information or the circumstances in which consent should be obtained for the sharing of information, including confidential information.

They concluded that if information was to be shared without consent it would require a compelling justification, clear legal rules, the provision of safeguards and the ability for decisions to be challenged and assessed. This returns us to the traditional position that there are risks involved when professionals share information with each other and the decision requires professional judgement.

The Supreme Court decision explains the way things should be when we adopt a reflective and considered approach to our work – information can be shared in exceptional circumstances where a child is at risk, otherwise consent should be sought.  The Supreme Court decision is not a spanner in the works of the government’s plan to improve information sharing.  Improved information sharing can still occur if children and parents give consent (as right holders) or where there is a significant risk of harm.

As Perthshire community worker and SNP activist Nicky MacCrimmon tells us (in another Common Space article link here), where there is a genuine risk of harm it is still appropriate for professionals to intervene:

‘Police, social services and health services all have powers to take certain actions for a child’s wellbeing. I think the vast majority of people would agree this is a societal necessity. The Named Person service is an improvement on this situation as it ensures all those conversations take place in one setting, that one person is responsible for recording agreed actions and puts in place a mechanism for children and families to have their voices heard in that process.’

This is still the case after the Supreme Court decision.  In most other cases, as long as parents and children agree, information will be shared to provide more streamlined processes of service assessment, planning and delivery:

‘Processes of information sharing are complex not least because different agencies may have different approaches (Walker, 2008). Information can be shared where a child is at risk of significant harm, were there is reasonable cause to believe they are experiencing significant harm or where significant harm may be prevented (Walker, 2008). Confidential information can also be shared where consent has been given after clear explanation of an agency’s policy (Walker, 2008)’. (Davis 2011).

Sensitive data should only be shared when a child has given his/her explicit consent to the processing of the personal data; where it needs to be shared to protect the vital interests of the child (or another person); where it relates to a medical situation; or where it is necessary for the exercise of a statutory function (not simply that it is relevant to that statutory function)

This judgement was a victory for those professionals who have always worked from a rights perspective and who have developed collaborative and supportive partnerships with countless children and families.  The professionals who do not make it into the newspapers because the children and families they work with are happy with the way the process worked.

The Supreme Court decision clearly sets this out:

‘It follows from those conditions that, prior to the entry into force of the 2014 Act, a data controller in Scotland can disclose information about a child or young person without her consent (assuming, in the case of a statutory body, that the disclosure is otherwise within its powers), if the disclosure is necessary to protect her vital interests (condition 4), a test which requires more than that it is likely to benefit her wellbeing; or if the disclosure is necessary for the exercise of a statutory function (condition 5(b)),’

Guidance and Training:

Prior to the 2014 Act, Kenneth Norrie argued that service providers would need proper guidance and training on how to keep that judgment within the bounds of proportionality.  The Supreme Court decided that the government had failed to sufficiently address this issue.  We are of the view that this (how we share information) is one the key aspect of the Act that needs reform (the other aspects relate to rights and redistribution).  Indeed, the Supreme Court decision pointed out that the public interest in providing a key person to interact on behalf of the family with a range of service was obvious:

‘The public interest in the flourishing of children is obvious. The aim of the Act, which is unquestionably legitimate and benign, is the promotion and safeguarding of the wellbeing of children and young persons. As the Dean of Faculty submitted, the policy of promoting better outcomes for individual children and families is not inconsistent with the primary responsibility of parents to promote the wellbeing of their children. Improving access to, and the coordination of, public services which can assist the promotion of a child’s wellbeing are legitimate objectives which are sufficiently important to justify some limitation on the right to respect for private and family life.’

The state can appoint a person to wait benignly to act where parents seek to collaborate or where a child is at risk.  What they cannot do is appoint a person to rake around and share sensitive information without the knowledge and consent of children and parents – no fishing expeditions here.

Legal blogger Allan Norman wrote a short article (link here) and a longer blog post (link here) explaining that the aim of the Act was found by the Supreme Court to be benign but that the function of the named person scheme (to share information in ways that infringed the ECHR and DPA) had infringed human rights law:

 ‘To put it another way, the wish of the Scottish Government to provide a broad and co-ordinated range of services that promote the wellbeing of children is benign, and the creation of a named person service to facilitate that is legitimate… ..But the question was – and I argue the question still remains – whether it is possible to construct a universal scheme that monitors the wellbeing of all children, irrespective of any indicators of harm. In particular, how can such a scheme operate within the law on information-sharing? All information-sharing is data-processing, which is subject to national and EU law…. …The benign intentions segue into totalitarianism where there is insufficient regard for individual difference, and where state interference is arbitrary, and lacks procedural safeguards’

This is one of the key problems the government is now faced with when amending the 2014 Act – they have to produce new guidance and training that solves the tension between information sharing, compulsion and collaboration.  However, all is not lost because prior to the Act we had sensible approaches to information sharing, as the Supreme Court points out:

‘In our view, given this role of the information holder, it cannot be said that the operation of the information-sharing duties and powers in relation to any of the named person’s functions will necessarily amount to a disproportionate interference with article 8 rights. But for the problem in relation to the requirement that the Act be “in accordance with the law” (paras 79-85 above), we consider that the Act would be capable of being operated in a manner which is compatible with the Convention rights.’

Legal blogger Allan Norman argued that parents are different from each other (subjective) and that they should be enabled to parent in the way they so choose.  He questioned that there were any objective measurement of a ‘child’s best interest’s or of ‘good parenting’ that applies to all social circumstances and argued that the Supreme Court put the whole act in peril.  However, we would argue, we do not need to rip up the Act and start again – we need to return to sound, well tried and trusted ways of working collaboratively.

In fact the recent FIESTA research project on disability inclusion, transition and integrated working (see link here) argued professionals needed examples and case studies to help them work through the everyday practicalities of integrated working and we would conclude that professionals who are going to be named persons need similar case-based training.

For example, we have for many years employed step-by-step case-based examples of the BA Childhood Practice qualification (for early years, out of school and family support professionals).  We need to return to what we know best and as both Maggie and Kenneth encourage us to do, avoid conflating a need for compulsion with a requirement for professionals to ensure parents and children have easier and collaborative access to services.  When professionals analyse step-by-step case-based examples – they come to realise that the jigsaw puzzle can only be put together by collaborative process that involves several professionals, parents, children, administrators and often technology (e.g. databases, emails and other systems).

A collaborative model can only be fairly and honestly utilised if professionals start from the position that the aim to intervene as minimum as possible in the life of families.

Early And Minimum Intervention:

Pat Dolan UNESCO Chair of Youth and Civic Engagement at NUI Galway defines integrated working as a style of work, a set of circumstances  and a range of ‘principles’ that should be underpinned by partnership, minimum intervention, clarity of focus, strength-based perspectives, informal networks, accessible/flexible services, self-referral, active engagement, inclusion, diversity, and best practice (Dolan 2006a and b).

Family support services work best when they: enable service users to stop negative chain reactions, self-empower, become more analytical, develop their own solutions in partnership with community-based support; see the capabilities/assets/strength of the child/family (Dolan 2006b, 2008) and adopt practices of anti-prejudiced/anti-discriminatory working (Davis 2011, Dolan et al 2006).

The Children and Young People Act was supposed to address the fact that a child protection model had too narrowly focused resources ‘downstream’ on crisis cases – the aim of the Act was to shift professional resources to earlier in the process so problems were solved earlier and cheaper (to some extent and in some cases there is anecdotal evidence that this was achieved without the Act in local authorities such as Midlothian where family support teams adopted politically nuanced strengths based working and minimum intervention approaches and reduced e.g. the need for acute foster care provisions for children.

This raises the question what are services for. Do professionals understand the range of service and solutions that children and families are looking for? Gilligan (2000, 13) describes three levels of family support: Developmental Family Support (building universal services locally to support all children and families) e.g. schooling, health visiting, leisure etc.  Compensatory Family Support breakfast clubs, Sure Start Projects, Home – School- Community Liaison project in Ireland (Ryan, 2000) and various Aberlour Trust initiatives (Scottish Government, 2008).

Protective family support work sought to promote a positive view of families; explore a range of needs; identify/remove barriers to coping, take account of families’ aspirations and enable families to define the support they needed.  Dolan encouraged professionals to analyse, understand and engage with local power relations.  Power relations always exist in people’s everyday activities.  Some parents fear the loss of autonomy and self-determination when engaging with service providers.  The solution is to engage in dialogue about how power exists, how power is operating and how power is made obvious in the relationships and processes of service assessment, planning and delivery.

Protective family support work has received criticism in cases where service providers ignore the power/politics of their roles, where services do not meet families’ needs; where services are organised around the providers’ rather than recipients’ needs; where services are built on the premise that the child or family is ‘deficit’ and where services fail to understand the impact of structural issues (e.g. local professional vested interests).  This later point required us to realise that that practitioners (and their prejudices) are part of the problems that children and families encounter.

Protective family support services were also criticised for merely being a sticking plaster for issues such as poverty, gender, race or disability (Brown and White 2006; Chaskin 2006), for making communities helpless through stigmatisation and for forcing deprived areas to compete for limited resources (Cowburn, 1986; Power, 2001).  This points to the academic basis for Maggie Mellon’s critique of the Children and Young People (Scotland) Act 2014:

‘Although the approach aims to redress economic injustice, it leaves intact the deep structures that generate class disadvantage, thus, it must make surface reallocations again and again. The result is to mark the most disadvantaged class as inherently deficient and insatiable, as always needing more and more’ (Frazer 1997:26)

The Children and Young People (Scotland) 2014 Act has also been criticised for not comprehensively requiring professionals, services and society to take account of children’s rights and for using the term wellbeing in a vague way (Davis et al 2014).   Currently, some professionals seem confused as to whether their role is to enable child-led participatory change (Child Rights Discourse), promote family employment (Social Integrationist Discourse); to intervene/punish people for letting ‘bad’ things happen (Moral Under Class Discourse), to provide service users with resources they lack (Redistributive Discourse), to support community cohesion (Social Solidarity Discourse) or to combine all of these in collaborative and complex approaches (Social Dynamic Discourse) (Davis 2007, 2011, Davis and Smith 2012).

Case-based training needs to enable professionals to focus more on how they enable children and parents to define service outcomes and less on setting up bureaucratic processes, structure and mechanisms that miss-direct resources (including time, money and human spirit).

The media seem similarly confused, by focussing on whether a named person can coordinate services and how information should be shared, media commentators missed one of the greatest injustice of our time, that is, that the 2014 Act failed to address the fact that children have no ‘right’ to a life without poverty.

The 2014 Act may have failed to address child poverty because at the time civil servants had a problem with resources e.g. Scotland is not an independent country and the Scottish government lives on a tight budget constantly being cut (lowered by 5% in recent years) by Westminster austerity governments. Kenneth Norrie when arguing against the full incorporation of the UNCRC into the original Children and Young People bill because:

1. The UNCRC was not drafted as a legal legislative act of law (hard law), hence it is drafted as guidance (soft law) that cannot easily and directly enacted (The UNRCR is too difficult to enact without the government also developing a lot of guidance to go with it).
2. That we should not have law deciding the extent to which the states resources are used – that’s what governments are for.
3. There are technical difficulties with incorporating the UNCRC as some aspects are in existing legislation enacted in Scotland where as other aspects are covered in the existing European Humans Rights Legislation e.g. ECHR
4. Parts of the UNCRC confer duties that are aspirational rather than rights that can be challenged in law

‘Take Article 4, for example: “With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.” There are at least two problems with that. First, what are “economic, social and cultural rights” Secondly, do we really want judges to be determining “the maximum extent of [states’] available resources”

Norrie spoke here as a lawyer and not as a person seeking to ensure children poverty is are fully addressed by redistributive government policies.  What is so wrong with ensuring that children have a right to a minimum standard of living that is above the poverty line? The Scottish government seemed to have realised Norrie’s error and have moved on from his advice to develop a Child Poverty Bill (see link here to the consultation).

They are doing so because people argued in the run up to the referendum that wellbeing as a concept was simply a sticking plaster to issues of poverty (see link here to Reid Foundation paper on this issue).  Had we enshrined the UNRCR into law in a way that attended to issues of social justice, children, young people and their families might have had greater access to: for example financial resources, process of local conflict resolution and legal aid.

They may now have seen: a reduction of injustice in their lives (e.g. bullying by professionals), an increase in local collaborative relationships and more effective anti-discriminatory practice.  The problem was (and still is) that the bill neither offered a social justice approach to childhood nor gave children and families the right to redistribution of societal resources.  As Maggie Mellon points out (see link here):

 ‘Named persons have no power to offer resources, only ‘interventions’ in family life. This kind of ‘prevention’ is driving up, rather than down, the rate of referrals and ‘investigations’ of mainly poor families and the rate of children coming into care. The latest Scottish Government statistics show that Scotland has the highest rate of children becoming ‘looked after and accommodated’ (coming into care) in Britain. This is ‘child rescue’ not social change.  Casework on an industrial scale is not the answer. Instead of named persons assessing and writing individual plans for every child in the country, we need a massive redirection of power and resources out of bureaucracy, assessment and ‘interventions’.

Maggie Mellon puts her finger on the potential limitations of the named person scheme in an article that questioned the legal advice given to the Scottish government and the government’s subsequent legislation:

‘It ignored the concerns of the Scottish Parent Teacher Council, and of many other smaller organisations including the Scottish Association of Social Workers who warned of confusing child protection with wellbeing, and of diverting resources from the most vulnerable… …. Has it completely misunderstand the difference between a universal service and a universal imposition? The NHS is a service free at the point of need. Demanding weekly medicals from every citizen is an imposition.  Prevention means public services should serve the public, not that the public have to serve the services. Maybe there is a bit of all of that. But the explanation that I find most plausible is that if a government does not have the will, or the necessary bottle, to fundamentally tackle poverty and inequality, then promoting ‘child rescue’ is very attractive.’

Prior to the Supreme Court decision Maggie also highlighted that those complaining about the named person scheme may be starting at the wrong end of the stick.  She suggested that we should think more carefully about what is not in the named person scheme:

‘The Named Person role and responsibilities do not come with any power to allocate homes, food, clothes, holidays, home helps, or even just therapeutic or health services. There are fewer services on the ground providing practical help and those that do are facing the biggest cuts.’

The Children and Young People (Scotland) Act 2014 was criticised for failing in its aim to make rights real and for ignoring research that demonstrated that full incorporation worked well (Lundy 2013, Tisdall 2015). Despite its focus on wellbeing, the term is actually incredibly vague (Davis et al 2014, Tisdall and Davis 2015).

As the Supreme Court pointed out, wellbeing is a very broad term.  The key GIRFEC assessments of wellbeing are enshrined in eight some-what woolly ‘SHANARRI’ wellbeing indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included do not ensure that children’s rights are upheld – they involve a lower threshold than rights (Davis et al 2014).  Unfortunately GIRFEC assessments can often be carried out in apolitical ways that lack local political nuance.  Assessments can fail to promote honesty, trust and dialogue in children’s services concerning the capacity for professionals to actually deliver the services children and parents require.

Worker capacity, professional motivation, local cultures, a lack of existing collaborative structures and a dearth of personal relationships all have a bearing on the extent to which planning processes deliver speedy solutions; the degree to which service providers recognise the assets, capabilities, and strengths of children; and the extent to which professionals adopt notions of minimum intervention that enable children and parents to develop solutions to their own life issues (Gilligan, 2000; Moss & Petrie, 2004; Malone & Hartung, 2010; Davis, 2011; Davis & Smith, 2012, Davis and Tisdal 2015)’

The Children and Young People’s 2014 Act Supreme Court decision came about because the act had tried to bring about a fundamental shift in the power relations of childhood – where professionals would no longer seek consent to share information. The Scottish Government now has the potential to enable a similar fundamental shift in the power relations of childhood, but, in the other direction.

For example, by enshrining children’s right to experience financial redistribution, legal representation, privacy, compensation, social justice etc. – the government cam promote a progressive approach to childhood.  This requires the government to set out minimum thresholds, respond to claims and set out duties in the amended Children and Young People Act (Davis et al 2014, Tisdal and Davis 2015).  (The can also do this in any subsequent legislation such as the child poverty Bill).

This will require the government to balance professional, parental and child rights.  Allan Norman highlighted the supreme courts use of previous judgements when discussing rights:

‘The noble concept in article 1 of the Universal Declaration, that “all human beings are born free and equal in dignity and rights” is premised on difference. If we were all the same, we would not need to guarantee that individual differences should be respected. Justice Barak of the Supreme Court of Israel has put it like this (in El-Al Israeli Airlines Ltd v Danielowitz [1992-4] IsrLR 478, para 14):

“The factual premise is that people are different from one another, ‘no person is completely identical to another’ … Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences.”

Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.’

This was a direct criticism of the SNP Government – the best response will be to unequivocally recognise childhood as a time involving complex identities and boundaries (Hill 2005); to make clear the tension between control and self-realisation in child-adult relationships; and to recognise the diverse definitions children and young people have of rights and social justice.

By enshrining the range of social justice issues that children and young people raise into law the Scottish Government would recognise the issue that was at the heart of the Supreme Court decision – universal services need to be flexible and attend to human rights.  In so doing, the government would be able to recognise the range of social justice issues that children and families wish to address in their lives and would promote collaboration and dialogue to achieve those aspiration.

What Issues Do Children And Families Want Addressed:

For example, the issues that children and families wish to be addressed include access to: employment, legal advice, formal/informal learning, the right to vote, material resources (housing, libraries, transport and play facilities), appreciative adults and environments where their assets/skills/capabilities are recognised, etc. (Davis et al 2014, Davis 2007, 2011, Davis and Smith 2012, Dolan 2006a, Gilligan 2000, Konstantoni 2011, Percy-Smith et al. 2001, Thomas 2009, Vincent  2003).

Children specific tell us they would like their parents to work less hours (e.g. where they are required to do two jobs to pay their bills); to have access to employment (where they are unemployed) and to not experience stress in the work place.  We need to understand that childhood definitions of social justice are diverse, complex and dynamic (Davis 2011, Davis and Smith 2012, Elsley et al. 2013, Davis et al 2014). This raises the question for the named person and for family support services; whose role is it to enable change and where best do we start the change process?

Anti-hierarchical approaches to family support would let children, parents and communities answer that question.  Anti-hierarchical approaches to family support can be connected to approaches to participatory local democracy promoted by think tanks such as the Common Weal.  It is this type of new politics that the Scottish Government needs.  Indeed the government has tied its prospectus for independence to the mantra that it intends to ‘make Scotland the best place for children to grow up’.  If this mantra is to be achieved (as well as talking poverty at its root cause using redistributive policies) one key step would be for the government to support communities and local professionals to create spaces where vested interests, resource issues and power relations can be recognised, discussed and worked upon in order to meet the needs of service users, providers and wider community members.  This approach might also require professionals to be more open to the strengths and limitations of informal forms of support that do not require brutal state intervention (Dolan 2006b, Dolan and Brady 2012).

Central to this perspective is the idea that we need to create checks and balances in the systems of children’s services by enabling spaces of dialogue where professionals’ can recognise their own limitations and collaboratively interrogate their judgment with children, parents and other professionals (Smith 2009, Davis and Smith 2012).  It is important to re-state here, no one professionals should be able to unreflexively impose their perspective on children and parents.  For example, there are examples where a rise, a local authority area, of labelling of children with ‘ADHD’ could be attributed to one health professional.  This type of example would not occur where multi-professional and participatory working is operating effectively.  The 2014 Act made a distinction between a named person service and a named person who works in that service.  This suggests that the execution of the functions of the ‘named person; involves more than one professionals.  This issue (how many professionals provide support) has been missed in media debates about the totalitarian power of a single person over a family – it should be extremely rare that service decisions are made by one person.

In conclusion, the Supreme Court decision merely recognised what many of us already knew – participatory and collaborative working requires a thoughtful analysis of how hierarchy, power and politics works in the organisational systems around the child, parent, professional and community.

Collaborative working requires professionals to move away from thinking of child and adult rights as in opposition to each other, towards utilising the complementary and collaborative potential of ‘human rights’ to create opportunities for children, parents and professionals to sensitively work out issues of disagreement or conflict (Davis et al 2014).  If we clarifying the politics and systems of children’s services and develop plural, relativist, complex and reflexive frameworks we can stimulate innovative and flexible practice that recognises the emotional context of family support.

We can develop approaches that recognise the spontaneous nature of our work and that understand why we should prevent any single professional perspective from dominating the process through which solutions are achieved (Bauman 1993, Lawler and Bilson 2010, Davis and Smith 212).

This blog encourages professionals to question concepts such as authority and truth; to recognise the expertise of all service users and to support the ability of all human beings to define their own socially-justice, inclusive, anti-discriminatory, rights-based aims.

This blog’s advice to the Scottish government is that the government needs to hold its nerve on the collaborative aspects of the Children and Young People’s Act, then the government needs to be more radical in ensuring that the legislation enshrines the UNCRC and finally the government needs to attend to issues of rights and social justice when ensuring the Child Poverty Bill sets out to eradicate poverty.

If only such a task was so easily achieved…..