Some of the NO2NP team enjoyed a festive lunch in Stirling in December for one of their regular catch-up meetings since the UK Supreme Court ‘named person’ judgment in July 2016. We never tire of dining out on that!
David Scott, Nigel Kenny, Lesley Scott and Alison Preuss
Alison Preuss (Scottish Home Ed Forum) and Lesley Scott (formerly Tymes Trust)
As ever, we all had tales of woe to share regarding the ongoing misrepresentation and mis-application of the law in the wake of our landmark victory, which meant that Parts 4 (Named Person) and 5 (Child’s Plan) of the Children & Young People (Scotland) Act 2014 never came into force. A significant number of professionals appear not to have caught up with the actual law, however, and have frequently embarrassed themselves by claiming to rely on nullified provisions.
In summary, GIRFEC is a contested ideology that many families roundly reject, given it is founded upon the rights-antithetical enforcement of state-dictated outcomes on every child. At its core has always been non-consensual data collection and sharing on the basis of a subjective ‘wellbeing’ threshold which falls far below the established and uncontentious child protection intervention level historically upheld by the courts.
As highlighted in the 2016 judgment, the nebulous notion of ‘wellbeing’ has no agreed or lawful definition and SHANARRI objectives are ‘notably vague’. Furthermore,
‘the promotion of the wellbeing of children and young people is not […] one of the aims listed in Article 8(2) of the ECHR’.
Thus, data gathering and sharing, in the absence of informed consent, by box-ticking professionals on the basis of subjective ‘wellbeing’ concerns and arbitrary state-conceived risk indicators was held to breach Article 8 of the ECHR.
Despite drawn-out protestations and outright denial, and following the humiliating defeat of an ill-conceived new bill designed to circumvent the judgment, the Scottish government finally had to climb down, albeit valiant attempts were made by the then Deputy First Minister to re-nail his decaying parrot to its shoogly perch.
For the avoidance of doubt, the legal position remains that GIRFEC data processing must be consensual unless the child protection threshold is met (and shown to be met) or another lawful basis can be properly demonstrated.
There was always going to be a delay before Parts 4 and 5 of the 2014 Act were formally repealed via ‘tidying’ legislation, but finally the Children (Care and Justice) (Scotland) Bill is making its way through the Scottish Parliament to right these particular GIRFEC wrongs and is shortly due to complete its passage.
So here we have it:
While it is a welcome attempt at Putting It Right For Every Child (PIRFEC), it is far from perfect when professionals still have so much catching up to do and remain wedded to the non-statutory GIRFEC policy that, in case anyone hasn’t noticed, has demonstrably failed to improve the lives of children and families in Scotland.
