It is unfortunate, to say the least, that two pieces of what should have been foundational legislation underpinning the way in which the interests of children and young people are protected in Scotland have ended up being contested in the UK Supreme Court.
Neither case has challenged the essential purpose of the legislation; the issues have been to do with jurisdiction and the powers of the Scottish Parliament. However, provisions of the Children and Young Persons (Scotland) Act 2014, concerning aspects of data sharing, have been ruled inoperable. There is an ongoing case covering aspects of the legislation which incorporated the United Nations Convention on the Rights of the Child which the UK Government claims lie outwith the competence of the Scottish Parliament.
As a result of the first ruling, the concept of the 'Named Person' introduced by the 2014 legislation can only be partly implemented, if at all, and the government seems content to see other parts of its GIRFEC (Getting It Right for Every Child) policy, launched with so much fanfare, gather dust. Meanwhile, the Scottish Child Abuse Inquiry continues its grim but essential work in hearing the testimonies of survivors of abuse who were failed by those who should have protected them as children many years ago.
In England, the parallel inquiry has recently published a searing report on the abuse of children in the so-called care of the London Borough of Lambeth, raising the uncomfortable question as to whether there could have been similarly catastrophic failures by Scottish local authorities.
Over two decades of senior leadership in schools in England, Wales and Scotland, I have seen some excellent practice in working with vulnerable children and safeguarding them and others from harm. I have also seen some shocking practice and have more than once made myself unpopular by pointing it out. Good practice in my book is characterised by professionals whose approach unequivocally and inexhaustibly put the interests of children first. To them, no child is merely a 'case' and their responsibility to them is no mere job, nor even a vocation – more like a way of life.
You would hope that professionals working with children would always be like that, and thankfully the majority are. But over the years I have sat in too many meetings where I and my school colleagues are the only people to have actually met the child being discussed, but those with fancier titles make it clear that they are in charge, pontificating and make decisions based sometimes on incomplete or misleading reports. In the past, I have been asked to supress information which might be embarrassing to other professionals, and was once asked to tell a straightforward lie to support a course of action that no reasonable person (and certainly no parent) would have thought right for the child.
Sometimes poor outcomes for a child are no-one's actual fault, but result from the structural incoherence of different systems and professional practice. Teachers work in the evenings and at weekends but it is often difficult to contact them during the school holidays. Police officers work shifts and take leave. Social workers often have massive caseloads and can be moved frequently from case to case. Medics have clinics full of patients to worry about and sometimes understandable ethical concerns about sharing medical information with other professions.
And, of course, there is always the question of resources. Many times, I have sat in meetings mentally calculating the cost of everyone's attendance whilst being told there is not enough resource to support the child's needs.
It is probably always going to be the case that resources will be outstripped by the demands placed upon them, but in particular the pressure on CAMHS (Child and Adolescent Mental Health Service) across the UK, even before the COVID-19 pandemic belied the rhetoric of concern coming from government.
It is instructive that it has been the third sector that has stepped in, with the NSPCC running the helpline set-up after the recent revelations about peer-on-peer sexual abuse on the 'Everyone's Invited' website. And, in England, the Children's Society has developed a programme called 'Support Rethought' to provide rapid access to mental health services for children who have experienced sexual abuse and support for their families and other carers.
It was for all these reasons that I was a great supporter of the incorporation of the UN Charter on the Rights of the Child into Scots law. If the legislation survives the detailed scrutiny of the UK Supreme Court (a scrutiny which surely the Scottish Parliament should have given the bill before passing it), it should set the tone for improvements in the experience of all children and young people in Scotland, and not least for those who are most entitled to expect that the state will protect their interests, wellbeing and personal safety.
The concept of the 'Named Person' was controversial because it implied an appropriation by the State of the responsibilities that, for all but a small minority of children, should be held by parents. This was made worse by the inept (and ultimately legally unsustainable) provisions which gave wide powers to professionals to share data, including about parents, without proper cause.
In theory, a Named Person should have been able to cut through bureaucratic barriers and do what is right for a child. But the reality would much more likely have been that they would have lacked traction in the system and, as one professional amongst many and outranked in the decision-making hierarchy, have been unable to steer decisions in the interests of the child.
However, a role that has responsibility without authority is only slightly better than one that has authority without responsibility. The child abuse enquiries have revealed a picture of local authority working where vested interests and a confusion of roles, for example as between a local authority as an employer, as the corporate parent of a child and as an organisation with a political agenda, enabled abusers to go undetected, or if detected unchallenged. In the Lambeth case, this happened in a huge local authority with political leadership distracted by political antagonism to the then Conservative Government. However, it is easy to see how a small authority of the size common in Scotland could also lack the 'bandwidth' to separate its different functions and allow vested interests to cloud the clear-sighted vision needed to put children first.
Change is coming for Scottish education and there should be an opportunity to ensure that children and young people's rights are to be enshrined in good practice as well as law throughout children's services. The current alphabet-soup of organisations and public bodies does not provide an integrated and well-aligned system that is designed to be 'fail safe' when, for example, an allegation of abuse is made against a teacher in a school. There are too many ambiguities and procedural uncertainties and still too much chance that the rights and interests of the child will not prevail, even if everyone is doing their job properly.
If the Scottish Government wishes to revive the idea of a Named Person, it should think carefully about how the role would best serve children's interests and protect their rights. The creation of a role with the professional standing to co-ordinate resources across the public, private and voluntary sectors, and the legal authority to challenge any indifference, inaction or incompetence which puts a child at risk, would be a real step in bringing to life the vision of a country where children are safeguarded and have their rights respected. The evidence sadly suggests that those fulfilling such a role would have plenty to do.
Melvyn Roffe is Principal of George Watson's College, Edinburgh