The UK Supreme Court has ruled that a scheme proposed by the Scottish Government to protect children through the appointment of a ‘named person’ breaches rights to privacy and family life. The appeal concerning the Children and Young People (Scotland) Act 2014 was brought by four registered charities with an interest in family and children’s rights, along with three individual parents.
The scheme, named ‘Getting it right for every child’, aimed to provide each child with one named person, such as a teacher or health worker, who would act as a single point of contact for that child. The intention behind this was to make it easier to identify at-risk children and to enable parents’ access services where a child is in need of protection. The creation of a new role of the ‘named person’ sought to provide an answer to complications arising from the pre-existing legal structure under which different statutory bodies, such as health and social authorities, were required to collaborate concerning the welfare of children. The absence of a “commonly agreed process for routine information sharing” between the relevant agencies had been identified as raising serious concerns with regards to confidentiality. Appointment of a named person for each child was put forward as a solution to this problem.
Further purpose behind the Act was to depend less on the intervention of public authorities once a child had been identified as at-risk, with a view to placing greater emphasis on early intervention and promoting the wellbeing of the child, encompassing all of the factors which may influence each child’s development. The named person system was designed as assistance to young people in navigating a complex system of professional services, as well as to provide families with a singular point of contact which they could avail of if and when they wished.
The appeal concerned the lawfulness of provisions in the Act concerning information sharing and data retention. In seeking to establish whether the legislature had acted within their powers, the Court first addressed whether the Act was compatible with the Data Protection Act 1998 and EU Council Directive 95/46/EC concerning the processing and free movement of personal data. On this matter it was held that requiring or authorising statutory bodies to disclose personal data is not in itself unlawful. The purpose of the relevant section of the Act was to promote and protect the wellbeing of children, which the Court recognised may in some cases necessitate the disclosure of sensitive information. Specifically, part 4 of the Act, dealing with the named person provision, sought to appoint a coordinating role governing cooperation between different institutional agencies dealing with young people, altering the legal framework of powers and duties, with the objective of addressing issues as early on as possible, to mitigate escalation into greater difficulty.
The Supreme Court then turned to the appellant’s challenge regarding the named person’s appointment in breach of the rights of the family as protected by Article 8 of the European Convention of Human Rights. Firstly, it was contended that the appointment breached the broad rights of parents under Article 8, exempting cases where such a worker has been nominated to protect a child from potential significant harm or where parental consent has been obtained. Secondly, the appellants challenged the legality of Sections 26 and 27, concerning the sharing of information concerning a child, under Article 8 of the ECHR.
In determining the interests protected by Article 8 of both family life and privacy, as they arise within the specific legislative context, the Supreme Court described the relationship between a parent and child as “integral to family life”. Previous decisions of the European Court of Human Rights were considered, detailing the wide spectrum of rights and responsibilities encompassed by Article 8 regarding the care of minors, and in particular the exclusive right of parents to exercise parental authority was recognised in decisions concerning the welfare of children.
The Supreme Court asserted the existence of an “inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies” and turned to the United Nations Convention on the Rights of the Child 1989 as a guide to interpreting Article 8 of the ECHR. Citing the preamble of the UNCRC, the Court adopted its assertion that the family is both the fundamental group of society and “the natural environment for the growth and wellbeing of all its members”, and further noted the position taken by the UNCRC that the best interests of the child, the invocation of rights under the Convention including rights to freedom of thought, conscience and religion, as well as the provision of necessary living conditions, within their financial capabilities, will primarily be the responsibility of the parents to uphold. The Court considered that several articles of the UNCRC make it clear that the role of the State is to assist parents in this capacity, but also to take steps to protect children from all forms of neglect and abuse.
Secondly, it was decided that the privacy of a child is also an important interest protected by Article 8 in this context. The UNCRC protects young people from arbitrary or unlawful interference with their privacy, which the court took to include personal data including health records, criminal offences, and other confidential information in line with the well-established concept of personal autonomy.
Turning to whether part 4 of the 2014 Act interfered with either of these interests under Article 8, the Supreme Court held that a named person would not breach this Article in carrying out their functions of providing advice, referral and support. However, with regard to the information sharing function of the role, it was found that the passing of personal data between public bodies constituted an interference with the data subject’s rights under Article 8. The Court went on to examine whether this interference met the criterion of Article 8 of being “in accordance with law”, however it was concluded that, owing to the wide discretionary powers conferred on service providers by the legislation, coupled with the lack of relevant safeguards, Part 4 of the Act could not be construed as in accordance with law. Particularly, the Court noted that the complexity arising out of conflicting legal rules contained between this Act and the Data Protection Act of 1998.
Lastly, the Supreme Court examined whether the interference with Article 8 rights was proportionate to the legitimate objective of the Act’s provisions. It was considered that the exchange of personal information between public authorities was likely to disproportionately interfere with the subject’s right to privacy. The Court accepted that improving the coordination of public services relating to child welfare is a legitimate objective which may at times justify limitation on rights to private and family life, but such a case here had not been established.
A further argument was contended on behalf of the appellants that the information-sharing provisions within the Act breached surrounding European Union law, however the Supreme Court was not satisfied that any breach of EU law had occurred beyond that included within the remit of Article 8. It was argued that the lack of a provision enabling a parent or child to seek the removal of data concerning a child from a named person’s database, once the information was no longer needed for the purposes for which initially collected or processed, constituted a breach of EU law. However, in the view of the Court, the data subject was sufficiently provided with a legal remedy and judicial protection as required by the recent case of Schrems v Data Protection Commissioner [2016], and therefore no further breach arose.
The Supreme Court therefore allowed the appeal, finding that the defective provisions within the Act fell beyond the powers of Parliament and consequently could not be lawfully enacted.
Since this finding, the Scottish Government have indicated that they intend to make the changes necessary in order to be able to proceed with the legislation.
Click here for the full judgement in The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland).