New named person bill still fails to ‘get it right’

The Scottish Home Education Forum has warned that the government’s latest attempt to revive its controversial named person scheme will fall foul of the same overarching human rights and data protection laws that led the Supreme Court to overturn key sections of the Children and Young People (Scotland) Act 2014 in a landmark ruling last year.

In a submission to the Scottish Parliament’s Education and Skills Committee [pdf] the national home education support group described the Children and Young People (Information Sharing) (Scotland) Bill as a “wasted opportunity to ‘get it right’” by failing to enshrine the established legal intervention threshold (risk of significant harm) in statute, below which point consent should be sought prior to sharing personal data.

The group warned: “Failure to build the requirement for consent into primary legislation will have the effect of discouraging disclosure of personal information and limiting families’ engagement with health and other services due to concerns about excessive data processing. Children and young people will be especially reluctant to use confidential services if they have no control over who can access their most sensitive information.”

Their submission went on: “Our forum receives numerous reports from parents about health visitors, nurseries, schools and third sector agencies using ‘wellbeing wheels’ and indicators to indoctrinate children into accepting the validity of government outcomes on all aspects of their lives, which essentially infringes children’s rights to privacy and self-determination as sovereign human beings. Children do not belong to the state, but to themselves, and parents are presumed to give effect to their rights within the family until they have capacity to make their own informed decisions.

“It is misguided to mandate one true ‘universal pathway’ to ‘wellbeing’ and ‘getting it right’ when ‘wellbeing’, ‘it’ and ‘right’ have all been pre-determined by the state and are not open to debate or challenge. If, as is claimed, the aim of this legislation is to give effect to children’s rights under the UNCRC, imposing state-dictated wellbeing outcomes does the polar opposite”

They also felt that the new legislation was “an attempt to circumvent the court ruling by simply restating the primacy of overarching legislation while shifting responsibility (and blame) on to individual practitioners who are unlikely to have a grasp of the interface between human rights and data protection laws, let alone the concept of proportionality (which the GIRFEC information sharing lead struggled to explain on national radio).”

“A Code of Practice is not a substitute for primary legislation, which demands precision so that citizens are afforded protection from abuse and suitable statutory safeguards to ensure access to justice in the event of over-reach” , they submitted.

Criticisng the “crucial omission” from the bill of access to justice which was independent and affordable, the group said: “Public services which misrepresent the law and/or act beyond their powers must be held to account, and be seen to be held to account, if public confidence is to be restored.”

They also warned that current non-statutory named persons and ‘partners’ were already overstepping the mark: “Vexatious referrals to the children’s reporter or social work services are commonly-used tactics when parents exercise their rights, only to be labelled as ‘hostile’ or ‘non-engaging’ and therefore a ‘risk’ to their child’s ‘wellbeing’. Disregard for the law and children’s rights is overt among council-allocated ‘named persons’, many of whom seek to impose their own ideas of how children should be educated and how their ‘wellbeing’ should be safeguarded, when their role is in fact limited to taking prescribed actions in the event of parental failure.”

They concluded: “We have no reason to believe this bill will do anything to help rebuild the trust and confidence that has been lost as a result of the government’s determination to cling to the wreckage of a discredited policy and force it on families who are philosophically opposed to it (nearly 37,000 Scots at the last count). Scottish ministers have made no more a case for its necessity or proportionality than has been made by UK ministers for the snoopers’ charter, which is also the subject of a human rights challenge and which, for the record, is also opposed by our forum.”

The group said it had been excluded from taking part in the stakeholder ‘engagement’ that preceded the bill’s introduction, despite having specialist knowledge and expertise based on more than 15 years of research and campaigning in defence of children’s and families’ civil liberties.

[Public forum discussion thread here]