Analysis Of Responses To The Consultation On Draft Statutory Guidance For Parts 4, 5 & 18 (Section 96) Of The Children And Young People (Scotland) Act 2014

3 Cross-cutting Themes

Introduction

3.1 The analysis of the responses to this consultation identified a number of recurring 'cross-cutting' themes. These themes arose repeatedly in relation to different questions, suggesting that they can be seen as 'underlying' or 'underpinning' issues. They are summarised here, while the focus of subsequent chapters is on the points made in relation to the individual questions.

3.2 Responses from organisations and responses from individuals were, to a large extent, qualitatively different. In general, organisational respondents addressed the consultation questions (or a subset of the questions) as posed. In contrast, most individual respondents did not engage with the consultation questions; rather they used the opportunity to state their opposition to the legislation and their reasons for this. The views of these latter respondents are captured under the final cross-cutting theme below; the other cross-cutting themes relate to the organisational responses and to the small number of individual respondents who addressed the questions.

Aspects of the Act and the draft guidance that respondents found helpful

3.3 Respondents across all organisational sectors were generally supportive of the Act. They particularly welcomed the strong focus on the wellbeing of the child, and the focus on hearing the child's 'voice'.

3.4 Respondents across all organisational sectors also commented positively on many aspects of the draft statutory guidance, and welcomed the clarity which the draft guidance provided. However, in many cases, respondents also went on to ask for more clarity and for further guidance on specific aspects, and / or to identify a range of concerns with the draft guidance, as set out below.

Clarification of key concepts / definition of key terms / overall coherence

3.5 There were many comments made by all groups to the effect that key concepts and key terms within the draft guidance (and indeed within the legislation itself) were not well defined. There was repeated reference to key concepts and terms being 'vague', 'too general' or 'unclear'. This was seen to be problematic, in that it would lead to confusion and inconsistency in the application of the guidance.

3.6 Respondents asked for greater clarity about the definition of key terms, for example 'wellbeing', (and concepts related to wellbeing such as 'wellbeing concerns' and 'risks to wellbeing') and 'targeted interventions'. They also queried certain phrases (e.g. 'as far as reasonably practicable', 'relevant and proportionate', and 'likely to be relevant'), and asked for consistency in the use of other phrases (e.g. 'wellbeing need' vs 'wellbeing concern'; 'initiate a Child's Plan' vs 'produce a Child's Plan').

3.7 There was comment that the overall coherence of the draft guidance would be improved by making more explicit the linkages between the section on wellbeing and other parts of the draft guidance. This would allow the document to bring out the importance of the concept of 'wellbeing' to the proposals contained in the Act (and the guidance).

Presentational issues relating to the draft guidance

3.8 All groups made suggestions about the presentation of the guidance, and how it could be improved. Comments related both to the style and content of the guidance.

3.9 It was recognised that the guidance was covering complex material. However, it was thought the guidance would benefit from 'a general edit' to simplify the language, limit the use of legal terminology, reduce repetition and improve flow. The headings / subheadings structure was seen as overly complex.

3.10 There were different views about the preferred length, and amount of detail in the guidance. Respondents frequently suggested that some aspects of the guidance would benefit from the inclusion of more (and better) examples, or case studies to illustrate the points being made, as well as more flowcharts and diagrams to improve understanding and increase readability. However, others suggested that the guidance should be made more succinct, and focus at a higher level on the statutory issues. This latter group sometimes suggested that additional examples would be more appropriate to include in the context of operational / practice guidance (see below).

3.11 Respondents found the use of cross-references to other legislation, guidance and conventions difficult and confusing. They wanted the guidance to be more self-contained.

The need for practice guidance / local guidance / and information materials

3.12 In general, respondents across all groups highlighted the need for practice guidance / operational guidance / local guidance, accompanied by appropriate training.

3.13 Respondents also emphasised the importance of appropriate information materials for children, young people and parents and thought these should be developed in partnership with these groups.

A nationally consistent approach vs local flexibility

3.14 There were differing views on the extent to which the guidance should allow local flexibility in relation to implementation. Whilst some favoured a national approach, which focused on achieving maximum consistency, others thought a more local approach would be appropriate. A third suggestion was that a national protocol should inform guidance at the local level.

3.15 Respondents were keen to see national approaches to, in particular: training; information provision; 'standards' of wellbeing; thresholds and timescales for action; holiday cover; and information sharing.

Guidance on accountability and governance arrangements

3.16 There was thought to be insufficient guidance in relation to the accountability and governance arrangements which would underpin this legislation. This was most often requested in relation to the Named Person service.

3.17 These requests were sometimes prompted by the observation that the role of the Named Person and / or the Named Person service was very wide ranging, or by the observation that the powers of the Named Person were not clear (especially in relation to the development of the Child's Plan, and the role of the Named Person in getting other professionals to provide information, and agree to deliver targeted interventions). Respondents therefore asked for accountability arrangements to be put in place to clarify the powers of the Named Person as well as aspects of the relationship between the Named Person and the Lead Professional, to ensure that any decisions made could be challenged, reviewed, and appealed.

3.18 The arrangements would also: make clear how parents / families could 'opt out' (of the Named Person service); clarify the circumstances in which parents could legitimately be excluded from decision making; describe the safeguards which would be set up to prevent or minimise breaches of privacy; and set out the approach to be taken if the relationship between a Named Person and a child / family breaks down; and set out provision for a complaints procedure.

3.19 Respondents also wanted to see monitoring and evaluation arrangements put in place to assess the impact of the legislation and whether targeted interventions are achieving the outcomes expected.

Concerns about information sharing

3.20 Concerns about information sharing were raised in relation to all parts of the draft guidance, but especially in the sections which focused on this issue. Respondents were often unclear about the arrangements, and how they did (or did not) reflect the provisions of the Data Protection Act. There was concern about potential breaches of privacy, and about confidentiality. It was thought to be difficult (and possibly unrealistic) for large numbers of people (including all those who are appointed as Named Persons) to have an in-depth knowledge of the law in this area.

Guidance in relation to specific subgroups

3.21 Respondents often asked for more detail and clarity about the arrangements for specific subgroups, particularly for those who were vulnerable, or who had complex needs. The list of specific subgroups mentioned in this context included: those with disabilities (especially those with learning disabilities and communication difficulties), those who are looked after, care leavers, those excluded from school, those who do not attend school (including those who have left school), those who attend a school outside their local authority area of residence, those in secure care or prison, and those who move across borders.

Guidance on transitions - geographic / life course / systems

3.22 Respondents highlighted that transitions of different kinds could result in a lack of continuity, or a breakdown in services or provision. They therefore requested more guidance in relation to how the arrangements would work across transitions of geography (where children and young people move from one place to another), of life-course stages (from, for example, early years settings to school, or from child to adult services), and of systems (from, for example, secure accommodation to residential or foster care).

The role of the third sector

3.23 There was comment, mainly from the third sector but also from other organisational respondents, that there needed to be more consideration given to the relationship between the statutory sector and the third sector (particularly in relation to the role of the third sector in delivering services, acting as Lead Professional and in relation to information sharing).

Congruence with other legislation and systems

3.24 Throughout their responses, respondents commented on the extent - or lack - of congruence between this legislation and other extant legislation and systems. The comments most often related to the Data Protection Act (in relation to information sharing) or to the European Convention on Human Rights. Respondents also offered comments on the congruence with other legislation including: the Education (Additional Support for Learning) (Scotland) Act 2004, the Education (Scotland) Bill, the Children (Scotland) Act 1995 and the Social Care (Self-directed Support)(Scotland) Act. Legislation focused on child protection was also noted.

3.25 The relationship between the guidance and existing regulations and systems (e.g. child protection systems and procedures, the Children's Hearing system, compulsory care and existing referral routes for services) was also raised.

Issues relating to implementation, workload and resources

3.26 Respondents repeatedly raised questions about issues of implementation, especially in relation to the availability (or lack of availability) of capacity and resources to deliver this legislation.

3.27 The professionals who were most likely to have the role of Named Persons (health visitors and teachers) were thought to be stretched already. Respondents questioned how they could take on this additional responsibility without compromising their existing duties. More generally, respondents discussed the support and training which Named Persons would require.

3.28 It was also thought that resources would be required for: IT infrastructure and systems; systems for communicating with the general public, with children, young people and their families about the legislation; and administrative support for those carrying out Named Person duties.

Views held by those opposed to the legislation

3.29 Individual respondents to the consultation were, in most cases, opposed to the Act and to the Named Person service in particular. These respondents did not generally engage with the consultation questions as posed, but rather repeated their reasons for opposing the provisions of the Act at almost every question. A few organisational respondents also made similar comments.

3.30 The main reasons given for their opposition were that: i) the definition of 'wellbeing' is vague, which will lead to a high degree of subjectivity in decisions to intervene; ii) the threshold for intervention is low and there will be widespread - and often unnecessary - intervention; iii) the views of parents have been side-lined which was seen to be inappropriate given their primary responsibility for the wellbeing of their children; iv) the right to 'opt out' of the Named Person service had not been made clear; and v) the legislation gives the state too much power and conflicts with Human Rights legislation which provides the right to a private family life.

3.31 A small number of the respondents within this group also expressed some concerns about the guidance and / or its implementation. They thought that: i) teachers, health visitors and other potential Named Persons are already stretched / under pressure and they cannot take on this role without compromising their other responsibilities; ii) the Named Person has been given very wide powers, and it is not clear how they - and the Named Person service - will be made accountable; iii) offering a universal service will prevent resources being directed at those who are genuinely in need of support; and iv) the guidance is impractical, overcomplicated, unrealistic, legalistic and too vague / unclear. These latter points were also sometimes made by those who did not oppose the legislation per se.