CHILDREN who look for help with personal problems could soon have no expectation of confidentiality when they speak privately to adults, according to critics of a proposed new law.


A charity which champions the rights of young people is set to join a legal challenge to the controversial legislation over fears that it could cause children to turn their backs on services such as helplines, mental health charities, pregnancy advisory services or legal advice services.

A Scottish Government consultation on the implementation of the named persons policy has just closed.

The policy is currently being challenged by the Christian Institute on the grounds that it will diminish the rights and responsibilities of parents. Critics have focused on fears the law is introducing state-appointed 'guardians' for every child and impinging on family life.

But now Clan Childlaw, which gives legal help to children and young people in Scotland, is bidding to intervene in that court case because of fears about confidentiality and the rights of children.

The charity says the bar for possible state intervention is being set so low that no child will ever be able to confide in a third party, without fearing their situation will be reported.

The current legal test for whether information can be shared without someone's consent is if there is a "risk of significant harm" to a child.

But under the new Children and Young People Scotland Act, anyone in possession of confidential information about a child can breach that confidence if the information would be 'relevant' to the role of the named person. A named person can share information with other agencies, including breaking a confidence, if there is simply "concern for a child's wellbeing".

This means confidential information can be shared much more readily, even if the child doesn't consent, the charity argues.

It describes this as "unlawfully interfering with a child's right to privacy as protected by article 8 of the European Convention on Human rights," and warns that "this act creates a serious risk that children will not engage with confidential services when they are in need of help".

Alison Reid, principal solicitor of Clan Childlaw, said: "There is a risk that some children who require help will not engage such as with mental health services, support services such as Childline, pregnancy advisory services, sexual health services or other confidential services such as legal services like our own.

"We all want to make sure that children and young people in Scotland are protected and recognise that when child protection issues arise, these need to be shared appropriately among professionals.

"However where there are no child protection concerns a child, like anyone else, should be entitled to a level of confidentiality when accessing advice."

The Christian Institute's bid to prove the named person law was incompatible with human rights was rejected by Lord Pentland in January, following a judicial review. However an appeal against the decision will be heard next month.

The charity is now applying to intervene in that appeal - arguing that there is a public interest in having the court examine the fresh issues raised by Clan Childlaw. A decision on whether it will be permitted to do this is expected on Monday.

However the charity is not the only agency concerned that the balance has shifted too far towards sharing information.

Responding to a recent consultation over the issue, the Scottish Association of Social Workers (SASW) raised concerns about the cost of the named person policy, at a time when family centres and resources supporting children are threatened by cuts.

But Trisha Hall, SASW manager said social workers were also concerned about the changing threshold for intervening in a young person's life: "We are concerned about what we perceive as an escalation; we are effectively raising the threshold from "significant harm" to "concerns about welfare," she said. "We remain unconvinced that the named person provision will make the difference intended"

A spokeswoman for the Scottish government said: "In January Lord Pentland rejected the petition against Named Person on all grounds and ruled it did not contravene ECHR rights or EU law.

"We have been clear that information should only be shared in a manner that is proportionate and respects the views of children and young people and existing legal frameworks. The Information Commissioner's Office fully supports the information sharing provisions in the Act and has advised these are fully compatible with the Data Protection Act.

"The Scottish Government continues to defend the appeal."