A leading human rights lawyer, Aidan O’Neill QC, has told three judges that Scotland’s controversial Named Person scheme is “worse than the nanny state because the nanny is at least responsible to the family.”
He was speaking at the appeal at Scotland’s highest court in Edinburgh by campaigners challenging the plans, which are part of the Children and Young People (Scotland) Act.
The Christian Institute is one of the parties to the legal action.
Mr O’Neill pointed out that assigning a named person to every child under the age of 18 is “incompatible with the fundamental rights of a democratic society”.
He said the state should support the family in the upbringing of children as it is the fundamental group unit of society and entitled to state protection.
Mr O’Neill told the court the scheme did not require families to give consent and offered no chance to opt in or out.
“For the state to assume a responsibility for every child regardless of need or threat of harm is to go beyond what we properly expect from a democratic society that respects families and respects diversity”, he said.
Referring to Scottish Government guidance, he noted: “Not only can you not opt out of the scheme you have to positively co-operate with the named person otherwise you could be characterised as ‘hostile’ or ‘non-engaging’ which leads to further state involvement.”
He argued that the compulsory nature of the law and the need to collate data on every child would result in “white noise” meaning “those who do need help get lost”.
He recognised that there are conflicting issues between respect for the family and responsibility for protecting children from harm.
Subverts family life
But he said: “The overwhelming majority of children are not neglected and the Named Person scheme subverts family life and supplants parents.”
The scheme was drawn up to promote ‘wellbeing’ but Mr O’Neill said that is the job of parents, not the state.
“We accept there is a legitimate state interest in the protection of the vulnerable, but this is not just dealing with the vulnerable, it’s dealing with all children”, he explained.
State knows best
He said the central assumption behind the scheme is that “the state knows best” whereas families “are the breeding ground of diversity and individuality”.
The appeal has been mounted by a group of concerned parents and organisations following a decision earlier this year by judge Lord Pentland to dismiss their judicial review.
Representing the Scottish Government, Alistair Clark QC argued that the aim of the scheme is for the wellbeing of children to be promoted and safeguarded by a professional who can be a single point of contact if needed.
He also claimed that the named person will not be involved in day-to-day monitoring of children, and that all children are potentially vulnerable.
The hearing before Lord Carloway, Lord Malcolm and Lord Bracadale finished yesterday.