Contrary to Scottish government spin, duly disseminated by the usual cheerleading suspects, children’s rights were neither upheld nor extended by the sections of the Education (Scotland) Act 2016 which came into force in January 2018.
The fake news narrative suggests that children aged from 12 to 15 now have the same rights as their parents and over-16s to act on their own behalf in order to have their additional needs identified and suitably met, but this is categorically not the case.
The exercise of these allegedly new rights by under-16s is in fact conditional upon their submitting to assessments by ‘professionals’ to determine their capacity, as well as any potential adverse effects on their ‘wellbeing’.
Such assessments are based around state-defined ‘SHANARRI’ indicators, which are open to highly subjective interpretation and have already been deemed ‘notably vague’ by the UK Supreme Court.
In other words, a strict gate-keeping system will be maintained in relation to young people’s rights to have their additional support needs assessed and addressed. They will be prevented from using their rights if/when a gatekeeper considers they lack capacity and/or it might hinder their wellbeing journey as mapped by the state.
Families already bruised by an under-resourced and uncompromising system are predicting even longer delays and/or denial of access to support as an additional hurdle has been introduced dressed up in UNCRC clothing as the latest bit of GIRFEC gimmickry.
And it is not just families who are concerned.
This piece of legislation (ASL) is the first time @scotgov SHANARRI indicators have statutory force. Shame it could potentially be used to deny a child’s rights says Iain Nisbet from @cairnlegal Food for thought….
— Máire ( Moy-ra) McCormack (@soundings2004) March 23, 2018
Statutory force in the absence of statutory definition is, of course, enormously problematic.
In another disturbing departure from genuine respect for children’s rights, the same SHANARRI assessors will also have the power to reduce the learning hours of schoolchildren where ‘relevant circumstances’ apply, namely where they consider that a pupil’s wellbeing would be adversely affected, or where it is ‘impracticable’ to ensure the prescribed hours are made available.
Naturally, the creative use and abuse of the government’s (statutorily undefined) wellbeing indicators provides a handy get-out-of-jail clause for schools seeking to exclude pupils – most often those with disabilities or challenging behaviour – by the back door.
Meanwhile, these same children are presumed – with no assessment of potential adverse consequences – to have capacity to hand over their own and other family members’ personal information, and compelled to complete intrusive ‘wellbeing’ surveys in power-over school settings, without informed consent (even when they have been expressly opted-out by their parents). Double standards or what?
The Scottish Children’s Commissioner was taken to task on Twitter for deleting a social media thread in which several commenters had challenged the fake claims and highlighted the conditionality of the allegedly new rights.
I posted a comment too and they have all gone. There was very on point criticism there. What's happened to free speech? I saved some for my records.
— SpeyQuine (@speyquine) January 11, 2018
To the credit of CYPCS, a link to the summary of the commissioner’s own criticisms, which chimed with those of others, was tweeted in response.
Sorry about this. We discussed it in our office and decided that promoting Reach's site might give the view our office has been fully supportive of this Act, which isn't true. We had several criticisms of it, which are summarised here: https://t.co/Dzqc6G1Rz1
— Children and Young People's Commissioner Scotland (@CYPCS) January 11, 2018
Surely it would be appropriate to allow informed comment on the resource in question to encourage discussion? The critique offered was in keeping with your own concerns about barriers to the exercise of children's rights and creation of back door disability discrimination.
— Ali White (@Leahurst66) January 11, 2018
Translating from the new ‘shared langauge’ of Scotspeak, the unpalatable reality neverthless remains that young people are effectively prevented from exercising their allegedly ‘new rights’ unless they submit to subjective wellbeing assessments and final decisions by the gatekeepers of resources, which are increasingly scarce and strictly rationed. Many who understand the in-built data theft elements of SHANARRI and GIRFEC will not wish to do so, which means that these rights are rendered null and void.
It seems the Scottish Parliament once again failed to notice the blindingly obvious, legislating weakly with weasel wellbeing words, as opposed to giving meaningful effect to children’s rights under the UNCRC.