What the Supreme Court decision teaches us about human rights and family support

In preparation for the IdeaSpace event next week on child protection and welfare, colleagues John Davis and Harla Octarra examine the implications of the Supreme Court decision on the Children and Young People (Scotland) Act 2014

THERE is no need for the Scottish Government to rip up the Children and Young People (Scotland) 2014 Act (see link to supreme court decision here)

It should be remembered that the 2014 Act was passed unanimously in the parliament – this is an act owned by all parties – all MSPs have a duty to amend their errors and when doing so, according to the decision, they should take a more human rights focus.

The problems the Supreme Court identified in the 2014 Act mainly centred on information sharing, but the decision masks a deeper problem in children's services and in our society. 

Find out more about IdeaSpace here.

Feminist campaigner and former social worker Maggie Mellon (see link here and here articles she has written on this) argues that the the likely hood of state intervention and compulsion has increased.

The 2014 act ran into trouble because it could have moved us to a position where information could be shared about us, without our consent and without us knowing. 

The Supreme Court decision reminded us that current child and family policy has failed in its intention to challenge surveillance cultures, performance indicator regimes (bullying), arbitrary decision making and top down hierarchical working that has plagued childhood institutions such as schools, social work services and residential care settings.

Indeed, the failure to get rid of Thatcherite surveillance, league table and top down cultures sends out a disturbing message concerning the bullying cultures in our wider lives and communities. 

A huge vote winner for the government would involve getting rid of the performance cultures that oppress all our lives and ensuring that 'managers' work on our behalf, not upon us.

The Supreme Court gave the Holyrood parliamentarians three things to ponder on when it stated: "The three overarching principles might appear usefully, for example, in section 19 which sets out the 'named person functions': in carrying out these functions children should be consulted, their welfare should be paramount, and any intervention (however early) should be the minimum that is necessary."

The re-working of the legislation provides a unique opportunity to liberate everyday people from the oppressive grip of unthinking, unreflexive and over-controlling professionals, managers and systems. 

The re-working of the legislation provides a unique opportunity to liberate everyday people from the oppressive grip of unthinking, unreflexive and over-controlling professionals, managers and systems. 

By connecting the redrafting of the legislation to values such as trust, collaboration and partnership, the Scottish Government should be able to promote a contemporary and up-to-date approach to children and families that compliments modern day human rights law and sets an example for the rest of Scottish society.

When working in the field of family support, children’s services or disability services, our approach should be flexible to the people and settings we encounter. 

We have to constantly question the concepts (ethos), relationships and contexts within which we work and begin from the perspective that children and families (not professionals) should make decisions about how they utilise our services, processes, structures and resources.

We would argue that it used to be the case that professionals would utilise person or child-centred approaches to enable children’s views and aspirations to be the starting point for service co-ordination – however, there is research evidence suggesting that children are no longer present during planning meetings and some professionals do not even consult children and young people during assessment processes.

When working in the field of family support, children’s services or disability services, our approach should be flexible to the people and settings we encounter. 

The Supreme Court decision reminds us of the importance of childrens' 'voice'. However, the decision is not necessarily a spanner in the works of the government’s plan to improve information sharing. 

Improved information sharing can still occur if children and parents give consent (as right holders) or where there is a significant risk of harm. As such, this judgement was a victory for those professionals who have always worked from a rights perspective, always sought consent and who have always worked to develop collaborative and supportive partnerships with children and families.

The decision tells us that the state can appoint a person to wait benignly to act where parents seek to collaborate or where a child is at risk. But, what the state cannot do is appoint a person to rake around and share sensitive information without the knowledge and consent of children and parents – no fishing expeditions here.

A collaborative model can only be fairly and honestly utilised if professionals start from the position that they aim to intervene as little as possible in the lives of families. 

Family support services work best when they utilise approaches such as strength-based thinking, informal networks, self-referral, active engagement, inclusive models, anti-discriminatory working and socially-just practice. 

The Supreme Court decision reminds us of the importance of childrens' 'voice'. However, the decision is not necessarily a spanner in the works of the government’s plan to improve information sharing. 

These approaches enable children and families to self-empower and develop their own solutions in partnership with community-based support.

The 2014 Act was a timid sticking plaster to issues of child poverty (see link here to a Reid Foundation paper on this issue which argues we need to enshrine the UNRCR into law). By failing to fully incorporate the UNCRC, Child and family policy in Scotland has not sufficiently and fundamentally challenged the root causes of Westminster imposed austerity, inequality and poverty. 

As feminist campaigner and former social worker Maggie Mellon points out (see link here): "Named persons have no power to offer resources, only 'interventions' in family life. This kind of 'prevention' is driving up, rather than down, the rate of referrals and 'investigations' of mainly poor families and the rate of children coming into care.

"This is 'child rescue', not social change ... we need a massive redirection of power and resources out of bureaucracy, assessment and 'interventions' ... The Named Person role and responsibilities do not come with any power to allocate homes, food, clothes, holidays, home helps, or even just therapeutic or health services."

The Supreme Court decision provides the Scottish Government with an opportunity to fundamentally shift the power relations of childhood and enshrine, in legislation, a child’s right to experience financial redistribution, material resources (housing, libraries, transport and play facilities), legal representation, privacy, compensation, social justice, etc.

Children specifically tell us they would like their parents to work less hours and not experience stress in the work place - by listening to them and working from a rights perspective, the government can promote a progressive approach to childhood and society as a whole. 

Participatory and collaborative working requires a thoughtful analysis of how hierarchy, power and politics works in the organisational systems around the child, parent, professional and community.

These progressive approaches should be connected to ideas concerning participatory local democracy promoted by think tanks such as Common Weal. It is this type of new politics, not surveillance, that communities need.

We need to support local professionals to collaboratively create spaces where vested interests, resource issues and power relations can be recognised, discussed and worked upon - in order to meet the needs of service users, providers and wider community members. 

It is important to re-state here, no one professional should be able to unreflexively impose their perspective on children and parents in ways that make their lives a misery.

In conclusion, the Supreme Court decision merely recognised what many of us already knew – participatory and collaborative working requires a thoughtful analysis of how hierarchy, power and politics works in the organisational systems around the child, parent, professional and community.

Our advice to the Scottish Government is that it needs to hold its nerve on the collaborative aspects of the Children and Young People’s Act and that it needs to be more radical in ensuring that this Act (and the planned Child Poverty legislation) enshrines the UNCRC in ways that enable children and families to access the resources they need in their lives. 

A longer version of this article can be accessed here.

Professor Davis, Maggie Mellon and Andy Bitson will take part in a panel session at IdeaSpace on Friday 14 October at 10am. Find out more here.

Professor John M. Davis has written two books on integrated and multi-professional working in children and family services that utilised case studies from practice to unpick the complexities of participatory and collaborative assessment, planning, delivery and evaluation for professionals and students. John co-ordinates undergraduate and post-graduate courses on integrated and collaborative working and has 20 years' experience of supporting local authorities to develop rights-based, inclusive, anti-discriminatory, socially-just and participatory approaches to child and family support.

Harla Sara Octarra is in her last year of a PhD in social policy at the University of Edinburgh. Her research interests are children's rights and public policy for children, and her PhD looks at inter-agency working in Scotland’s children services. 

Before coming to Scotland to do post-graduate studies, she worked for eight years as a researcher in her home country, Indonesia, investigating a range of childhood-related topics including the experiences of street children, children in post-conflict situations, and child-friendly city initiatives.

Picture courtesy of james goodman

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