The Children and Young People Bill

28/03/2014

The Scottish government’s Children and Young People Bill, which was approved by MSPs last month has come in for severe criticism in some quarters. This is primarily due to the proposed introduction of a “guardian” for each and every child in Scotland from birth until they reach the age of eighteen (save for children who are over the age of 16 and have joined the military).

It is envisaged that the role of these guardians will be performed by people such as midwives, health visitors and senior teachers, depending upon the stage of life which the child in question has reached. It is intended that the guardian will be someone who the child, or their parents, can contact in the event that any issues arise with the services, such as healthcare and education, which are available to the child. However they will also be expected to investigate any concerns which they may have about the welfare of the child and, if necessary, discuss these concerns with the social work department.

It is this last aspect of the guardian’s remit which has been objected to by a number of individuals and organisations, principally because it is seen as being an example of the state interfering with parents’ right and ability to raise their children. Some of the loudest criticism has come from the Christian Institute, who have stated that it is their intention to have the nascent legislation judicially reviewed.

The proposed basis of this challenge would appear to be that the new law will breach parents’ rights under Article 8 of the European Convention on Human Rights (ECHR) to respect for their private and family life. This is a right which, in terms of the Convention, can only be infringed upon where it is necessary for one of several reasons, including the protection of health and morals or prevention of disorder or crime. It is the government’s position that the Bill is compliant with ECHR, firstly because the child or family will not be bound to accept any advice which is given by the guardian.

The second safeguard which the government has cited is the fact that any actions which the guardian does decide to take must be fair and proportionate and balance the rights of the child with the guardian’s duty to protect their welfare. One would imagine that the hope is that the introduction of an official, independent guardian will help to prevent tragedies of the sort which befell Brandon Muir and Caleb Ness. If the new legislation can achieve that goal then it is certainly arguable that it will be a worthwhile addition to the statute book.

The existing powers which are currently available to individuals and local authorities to protect the welfare of children appear on the face of it to be robust. In the most urgent and exceptional of situations, where a court is satisfied is suffering or will suffer significant harm as a result of the treatment or neglect which they are being subjected to, they can on an application by any person order that the child in question be produced or removed to a place of safety. Such an application can also be made by the local authority if they can show that as well as the risk of significant harm, they are making inquiries to allow them to decide what steps should be taken to protect the child’s welfare and those inquiries are being obstructed unreasonably.

In other cases where concerns exist in relation to the welfare of a child, any person who has reason to believe that intervention is required can inform a Children’s Reporter. A matter can also be referred to the Reporter by the court. Before the Reporter can consider the case, he or she must be satisfied that one of a number of possible grounds of referral is satisfied. The possible grounds include:-

  • the child being exposed to moral danger;

  • a lack of parental care meaning that the child’s health or development is likely to be impaired in a way which would otherwise be avoidable; and

  • the child has failed to regularly attend school without a reasonable explanation.

If one of the necessary grounds does exist, the Reporter will investigate the matter. After doing so, he or she may decide:-

  1. that no further action is required;

  2.  refer the case to the local authority so that social work support may be given to the family, or

  3. if satisfied that more serious steps are required, arrange for a Children’s Hearing to take place and instruct the local authority to prepare reports on the child and their social background.

In the latter case, a panel of 3 members will be assembled to consider the case. The child has the right to attend at every stage of the Hearing, but their parents or any other individual who is regularly in charge of the child can be excluded for parts of it if their presence is likely to cause distress to the child. After considering the case, the Hearing has broad powers to make such orders as are necessary to safeguard and promote the child’s welfare. These can include requiring the child to reside at a particular location, including local authority accommodation, and the regulation of contact between the child and their parents.

As far-reaching as these powers appear, they have been shown to not be capable of absolutely ensuring that tragedies such as those mentioned before do not take place. Indeed it is open to question whether the state can ever make absolutely certain that children are completely protected and if this aim cannot be achieved then the question which will inevitably follow is whether they are justified in taking steps which, regardless of the safeguards, will have an impact on parents’ ability to raise their children.

Certainly if a challenge is to made to the proposed legislation, then it will be a dispute of considerable interest to those both within and outwith the legal profession.