Our joint submission with Tymes Trust in relation to PE01692: Inquiry into the human rights impact of GIRFEC policy and data processing has now been published by the Scottish Parliament: PE1692/D: Petitioner submission of 10 September 2018 (390KB pdf)
We must insist that the Scottish Government ceases its intentionally misleading and
disingenuous conflation of the quote on “legitimate and benign” in terms of GIRFEC and the Named Person policy and would point to an analysis of the judgment by lawyer and social worker Allan Norman21 (who had predicted the outcome in his consultation response and was the instructing solicitor in the 2013 Haringey case, in which the established threshold for compulsory intervention was upheld, just weeks before the Scottish government circulated advice that they should ignore it):
“The Supreme Court held that nothing in Article 3 could extend the State’s powers to interfere with the negative rights in Article 8. The court also pointed out that in order to properly understand the child’s best interests, Article 18 of the CRC comes into play: ‘Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.’” [emphasis in judgment].
Whether or not the Children and Young People (Information Sharing) (Scotland) Bill “fully responds to the Supreme Court’s findings” has yet to be determined by Parliament and may well be subject to further legal challenge. Its provisions cannot be determined as “lawful and proportionate and fully respecting the rights of children and families” while it does not have a definition of “wellbeing” and a Code of Practice.
We note in the Scottish Government’s submission (para 19) the admission and acceptance of our stated position that its “GIRFEC policy” is “founded” upon “data misuse”. Breaching human rights to prevent undesirable outcomes is not only unlawful, but any such data-driven predictive social sorting carries huge risks, as a Surveillance Society report for the ICO found. According to former assistant ICO Jonathan Bamford:
“If your parents both have criminal records or you have a bad school attendance record because of poor health, even if you are the best-behaved kid in class, you will find that every teacher is likely to treat you with suspicion.”
Eileen Munro also observed the same
“risky assumptions: that professionals can accurately predict which children will be problematic, that they can intervene effectively, using coercion if necessary, to change the course of children’s development, and that there will be adequate resources to meet the needs identified through screening. It fails to consider what harm may be caused by the process of surveillance of families and by labelling children as future problems.”
On outcomes-based early intervention policy she concluded:
“Rejecting the rights approach to defining children’s needs that is embodied in the UNCRC, the government has opted for its own set of targets and performance indicators. These can be criticised for placing too much value on the needs of society (for well-educated, healthy, law-abiding citizens) compared with the needs of the individual child.”
The people of Scotland deserve to know the truth about how a Scottish Government national flagship policy that breached Article 8 of the ECHR and was ruled unlawful found its way on to the statute books. They deserve the opportunity to have their experiences heard and at least a semblance of justice delivered in regard to the early and ongoing implementation of that unlawful practice across Scotland.