Scottish Law an Unprecedented Usurpation of Parental Authority

July 11, 2014 by Robert Franklin, Esq.

The government of Scotland has established a program of intervention into family life and parental decision-making that is unprecedented in Western culture. Here’s one article (Spiked, 6/25/14). The law, entitled the Children and Young People Act, goes into full effect in August, 2016, but has already done so in certain areas. It requires local governmental authorities to establish a “Named Person Service.” That service will appoint a person, who cannot be the child’s parent, to, in essence, oversee the parenting of the child, to act, as it were, as a sort of “shadow parent.”

If the named person (who ironically need not be identified) decides the child “has a wellbeing need,” the named person can cause an intervention into the child’s life and the family’s affairs. What’s a “wellbeing need?”

A child has a wellbeing need if the child’s wellbeing is being, or is at risk of being, adversely affected by any matter.

Could they have defined the term any more loosely? According to it, any named person can intervene in a child’s life and the parents’ decision-making at any time for any reason. Did the child fail to study for tomorrow’s test? He/she is clearly “at risk of being adversely affected by any matter,” so it’s time for the state to step in. Did he/she walk outside barefoot? Ditto.

The named person has the power to review any records and gather any information about anything that could possibly relate to the child’s wellbeing. And anyone providing services to the child, i.e. school officials, doctors, nurses, hospitals, therapists, babysitters, parents, grandparents, etc. is required to provide those records and that information.

If the named person decides the child’s wellbeing is at risk “by any matter,” how does he/she decide whether an intervention is necessary? He/she,

is so far as reasonably practicable to ascertain and have regard to the views of—

(i)the child,

(ii)the child’s parents,

(iii)such persons, or the persons within such description, as the Scottish Ministers may by order specify, and

(iv)such other persons as the responsible authority considers appropriate.

So, if it’s “practicable,” the parents are to be asked their opinion on the subject, but if not, pretty much anyone else will do. And of course the parents’ views are given no special weight in the matter. After all, they’re just the ones who care for the child 24 hours a day, seven days a week, 52 weeks a year. What do they know?

What special training, education, experience, or other qualifications are these named persons required to have? We don’t yet know. That’s to be decided by “the Scottish Ministers.”

In a nutshell, beginning two years from now if not sooner, every child in Scotland (with a few minor exceptions) will have a named person who has the power to oversee all aspects of his/her life. If anything seems to the named person to be amiss or to possibly become so at some point in the future, the named person can cause an intervention to occur irrespective of the parents’ wishes. That intervention can involve any part of the child’s life – schooling, health, mental health, recreation, religion, friends, relatives, neighbors, anything.

The problems with this governmental meddling are almost too numerous to count. To begin with, there’s the little matter that the legislation was passed supposedly to promote the United Nations Convention on the Rights of the Child. But of course the Convention is quite clear on the value of parents to children. For example:

Article 5: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention…

Article 7: The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents…

Article 14: States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

It is beyond ironic, indeed it is hypocritical, that the Convention, with its clear support for parental rights and recognition of the value of parents to children, should be used by the Scottish government as an excuse to radically diminish those rights.

Privacy? Nope. The act does away with the child’s right of privacy altogether and, to a great extent, the parents’ as well. A complete stranger has the power to look into every nook and cranny of the child’s life. Does the child see a psychotherapist?  Under normal circumstances, those sessions are private and the state may not compel the therapist or the child to divulge their contents even with due process of law. Now some random individual can know all with no court oversight. And of course that directly contravenes the Convention that supposedly forms the basis for the Act.

Article 16: 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, 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.

Perhaps worst is the fact that, unlike child protection agencies, the named person services don’t wait for a complaint to be made before asserting state power over family life. No, in Scotland, named persons will act as all-purpose, free-lance spies. They can look at anyone any time for any reason or no reason. Is the child’s doctor satisfied that all is well and that the child is progressing nicely in its treatment for some medical condition? Too bad. An untrained named person may view the matter differently and intervene.

Or consider this: Scotland has a population of about 5.3 million people, of whom about 1.2 million are minors. So, given that each and every one of those children will soon be appointed a named person, how many named persons will there be? That is, what will be the “caseload” of each named person? The article informs us that the budget for the program will be about £40 million. Now, if every shilling of that were spent to pay named persons (which of course it won’t be), that comes to about £34 per child per year. In other words, for a named person to make that his/her job, he/she would have to handle a caseload of about 800 kids.

This of course raises a good many questions. Obviously no one can handle such a caseload and do any child any good. So perhaps these named persons will be volunteers, in which case their focus on the job comes into question. Or maybe they won’t do it as their sole means of making a living, allowing them to handle fewer cases. But that raises the same question; if it’s not their main calling, just how much time and attention will they be paying to the wellbeing of their many charges?

On the other hand maybe we should view this as a bad news/good news situation. The bad news is that the law was passed; the good news is that it can’t possibly be implemented.

And speaking of caseloads, we know that child protection agencies are notoriously incompetent at what they’re supposed to be doing – protecting children – and one reason is high caseloads, sometimes numbering as many as 40. And those are kids about which at least one complaint about their welfare has been made. So CPS workers have at least some reason to believe there’s a problem and therefore to take the matter seriously. Even at that, they are well-known for overreacting in many cases and underreacting in many others.

So how will named persons carry out their duties to an enormous population of kids, a few of whom need help but most don’t? The idea that they’ll do a better job than CPS workers who have at least some training and education looks like pure fantasy to me.

Finally, let me be as clear as I can be; the state does a poor job of caring for children. It does a demonstrably worse job than do parents. Studies indicate for example that foster care, i.e. that chosen by the state, is worse for children than parental care even when the parents are somewhat abusive or neglectful of the kids. In other words, in all but the most extreme cases in which parents are abusive, incompetent or both, the government does a worse job of raising children than do parents.

There are many reasons for that, but one stands out. Parenting is a full-time job. To be a parent, is not to be simply a decision-maker, it’s to establish and maintain a relationship with your child. That relationship is perhaps the most complex in all of humanity. It involves the physiological bonding of parents to their children and the attachment of children to their parents. It involves establishing love, trust and respect. It involves the day-to-day, minute-to-minute making and enforcing of rules. It involves helping, nurturing, challenging, educating, soothing, expanding horizons, cautioning, punishing, etc., ad infinitum. It involves doing that non-stop every day, every week, every year.

Parenting is not an ad hoc function. It doesn’t decide one issue and then move on to other things. It decides the issue and stays around to see the consequences, good, bad or indifferent. Not so the state. As conceived of by the Children and Young People Act, named persons will simply substitute their own decisions for those of parents and then move on. They have no ongoing relationship with the child, its siblings, parents, friends, extended family, teachers, etc. and therefore no stake in their own decisions. Did a named person make a flagrantly wrong call about one child’s care? Not to worry; he/she won’t be around to pick up the pieces. That’s the parents’ job.

It has ever been the natural tendency of governments to expand their powers at the expense of the governed. Our supposed concern for the wellbeing of children is the latest and perhaps the most effective excuse governments have of doing exactly that. For the most part, it’s a sham, and the Children and Young People Act is the most graphic example of that I know.

This law will not make children’s lives better, but it will unquestionably make parents’ lives worse. Imagine having your every decision second-guessed by a stranger. But the main effect of the law is the unconscionable and entirely unnecessary intrusion of the state into the family. This law is a waste and a disgrace. It is bad for everyone involved, including the Scottish taxpayer. It should be repealed before it goes into effect.

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