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Incompatible With A Free Society

by | Tuesday, 31st January 2017
The Scottish Government's Named Person Scheme for compulsory state guardians - supervising the upbringing of every child - has been ruled unlawful. Nevertheless, the Minister responsible claims that only a "tweak" is required for compliance with European law.

This week, a large crowd assembled in the University of Dundee to hear three speakers rail against this scheme. The following is the transcript of one of the speeches. It is by Lesley Scott of the Tymes Trust.

Who’s read the ‘Secret Garden’ by Frances Hodgson Burnett?

It’s considered a classic of children’s literature, published in 1911, about family secrets and privacy; with no Named Persons in sight.

The ‘Secret Garden’ was mentioned in a programme on Radio 4 recently called “Family Secrets” that charted the trend away from discretion and privacy towards openness and transparency within society over the course of the 20th Century. How “secrets within the home and within relationships have come to be seen … as suspicious.

Claire Birchall, a senior lecturer in Contemporary Culture, King’s College London noted in the programme the “odd situation” where we “have governments talking about being transparent” but it is “conducted towards societies” rather than a transparency of government. And she warns that if transparency “cannot accommodate those who want no part of it” then it “begins to look less like democracy and more like totalitarianism”; which actually brings us nicely on to the GIRFEC legislation, otherwise known as Parts 4, 5 & 18 of the Children and Young People (Scotland) Act. The historic ruling from the UK Supreme Court that sent the Scottish Government back to the drawing board last year notes:

“The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families and indoctrinate them in their rulers’ view of the world.”

Part 18 of the GIRFEC legislation begins with “Assessment of Wellbeing” – which requires a person to assess whether a child’s wellbeing “is being or would be”:

  • Promoted
  • Safeguarded
  • Supported
  • Affected, or
  • Subject to an affect

This assessment of wellbeing is to be made “by reference to the extent to which the child or young person is or … would be"

  • Safe
  • Healthy
  • Achieving
  • Nurtured
  • Active
  • Respected
  • Responsible
  • Included

This second list is otherwise known as the SHANARRI indicators.

But, as the Supreme Court noted in its unanimous decision against the named person legislation, “wellbeing is not defined.”

The ruling states that “the only guidance as to its meaning is provided by […] eight factors …. known under the acronym SHANARRI…” and points out that “these factors are not themselves defined,” calling them “in some cases […] notably vague.”

Yet practitioners up and down the country have been, and continue, collecting information on ALL children and their families - on all aspects of their lives - in order to assess us against these undefined vague subjective measures.

How do they gather this data? 

Pre-birth “Parental Capacity to Provide Wellbeing Assessment” used to measure prospective parents against the SHANARRI indicators;

Universal Health Visiting Pathway for Pre-Birth to Pre-School which includes “Routine” enquiries about family finances/money worries by your health visitor;

On the Trail with the Wellbeing Snail – a board game for primary aged children used to teach them what the state considers good wellbeing to be;

The ‘What I Think Tool’ – used in nurseries and schools which recommends that nursery workers use snack time to gather information through their chat with the children to inform on their wellbeing;

Wellbeing Cootie Catchers from Scottish Borders, a new slant on an old game that asks children, among other things, “what makes you feel loved”;

The Children Count Surveys aimed at children aged 9 and over which includes questions like “do you feel close to your mother or father”. It also asks S1 pupils if they have “sold illegal drugs, been arrested … been drunk, on drugs or high at school?”

In fact, any interaction between you, or your child, and the state means assessing you, your child and your extended family against 304 wellbeing outcomes and 222 risk indicators.

It’s then up to the Named Person to decide if your child has a wellbeing concern that requires a targeted intervention by the state. If a concern is identified, then Part 5 of the GIRFEC legislation comes in to play and a Child’s Plan is initiated. The problem from here is how to then extricate your child from that state “assistance”.

Because it is up to the Named Person - not you - to decide, not only upon any review of a plan, but also whether to revise any of the following:

  • the wellbeing need of the child
  • a targeted intervention
  • the manner on which the targeted intervention needs to be provided or
  • the outcomes which the plan is intended to achieve.

It is the Named Person's decision whether to end the plan

Significantly, the ruling from the Supreme Court recognised that such a process as this runs the “risk that, in an individual case, parents will be given the impression that they must accept the advice or services which they are offered …and … that their failure to co-operate with such a plan will be taken to be evidence of a risk of harm.”

All five judges agreed that that this impression of “compulsion”, whether “express or implied” taken with the assumption that non-cooperation is evidence of a risk of harm, “could well amount to an interference with” article 8 of the ECHR. They further questioned the GIRFEC approach by adding that trying to justify such interference “might be difficult “ given “the very wide scope of the concept of “wellbeing” and the SHANARRI factors.”

And right at the heart of all this we have Part 4 of the GIRFEC legislation, the Named Person.

The ruling from the UK Supreme Court highlighted that “one of the principal purposes of Part 4 … was to alter the existing law in relation to the sharing of information about children and young people, […] to enable information about concerns about their wellbeing, held by individual bodies, to be pooled in the hands of named persons and shared …”

“The information-sharing provisions of Part 4 of the Act …are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not in accordance with the law …”

“The information sharing provisions of Part 4 … are not within the legislative competence of the Scottish Parliament.”

Crucially, the ruling also noted that “the sharing of personal data between relevant public authorities is CENTRAL to the role of the named person.”

Therefore, ruling the data sharing unlawful not only renders the named person itself unlawful - as that is the rationale behind it - but holes the entire GIRFEC agenda below the water line. Mr Swinney may talk about ‘tweaks’ but the reality is that a fundamental root and branch redraft is needed to make this comply with the Supreme Court ruling, both in terms of named person provision and the GIRFEC approach that Parliament has championed so wholeheartedly.

Parts 4, 5 &18 of the Children and Young People (Scotland) Act - the very parts deemed undefined vague and unlawful by the Supreme Court - are the GIRFEC legislation. Why do I call it that?

Because that is how the Scottish Government’s own GIRFEC team refer to them.

Yet, despite this, Mr Swinney, in his statement to Parliament, insisted that “the judgment itself does not require current policy to change. The judgement relates only to the information sharing provisions that were intended to come into force under the 2014 Act, not to current practice under GIRFEC policy ... So my message to local authorities and health boards is a clear one – please continue to develop and deliver a named person service in your area…”

So Mr Swinney continues to insist, against all evidence to the contrary, that current GIRFEC practice, including Named Person provision, bears no relation to the ‘GIRFEC’ legislation ruled unlawful by the Supreme Court.

By pushing for the continuation of the named person provision and the GIRFEC-led information gathering and sharing processes, it seems that the Deputy First Minister is in danger of encouraging unlawful practice by state bodies.

Nicola Sturgeon’s apparent adoption of the approximately 15,500 kids in care; addressing them in a recent letter as “My Children”, gives an indication of the worrying degree to which the state has already appropriated the guise of ‘parent’. But taken together with the state’s bullish intent on subverting parents in the raising of their own children through the Named Person and GIRFEC approach, this sets us on a dangerously authoritarian path that is incompatible with the rights of a free society.  

Lesley Scott

Tymes Trust Scottish Officer

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