Children and Young People (Information Sharing) (Scotland) Bill

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A wreckage-clinging attempt by the Scottish Government to hang on to a discredited and widely-despised policy that wholly depends on stealing the personal data of every child and associated adult.

Call for Evidence

The Scottish Parliament's Education and Skills Committee is seeking views on the Children and Young People (Information Sharing) (Scotland) Bill.

The Bill was introduced in the Scottish Parliament on 19th June 2017.
Read the Bill and its accompanying documents.
The Scottish Home Education is forumlating its response and will post it here.
 

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Scottish Home Ed Forum submission to Education and Skills Committee

The Scottish Home Ed Forum submission can be found here.
 

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Charity in call to scrap revised law on Named Persons

No one seems at all interested in what we had to say about the new bill as we are obviously members of the 'excluded' club, but here is Clan Childlaw also coming out against it while claiming glory for the Supreme Court ruling (not for the first time).

Charity in call to scrap revised law on Named Persons

SCOTLAND’S leading child law charity has called for the Government to scrap a law intended to “fix” its controversial Named Person policy.

Clan Childlaw said the bill setting out how and when authorities can share confidential information about children was disproportionate and unnecessary. It also warned the legislation risked adding complexity to the system – when families and professionals instead need rules that can be easily understood.
Not much difference from our own grounds for continuing opposition (which has been completely ignored and we will no doubt continue to be sidelined).

Clan Childlaw was actually very late to the party. It was home educating families and grass roots groups who fought this vile scheme on behalf of all children and adults as human rights are universal, not selective.

Our version of events is researched and documented for 15+ years, starting with all the work done by ARCH on the childen's databases in England.

Article 8 was key to the 'named person' defeat last year, but hark at this distortion of facts in the Herald article:

"A coalition of Christian charities and opponents challenged the Named Person provisions of the Children and Young People (Scotland) Act 2014, on the basis they infringed parental rights and would interfere with family life. While most of these arguments were rejected by successive courts, the concerns raised by Clan were key to the decision by Supreme Court judges the Scottish Government must amend the law to make it compatible with the European Convention on Human Rights."
 
The comments to the article are worth reading. One poster by the name of Robert Sim is pushing the Government line very hard. Here's a comment on 'wellbeing':

"3. "The state, as thousands of Named Persons, will be required to intervene on the basis of every child's "wellbeing" and produce a Child's Plan where any "wellbeing" need is identified." "

If that's indicative of the Government attitude then they have seriously misunderstood the Supreme Court judgment:

48. It follows from those conditions that, prior to the entry into force of the 2014 Act, a data controller in Scotland can disclose information about a child or young person without her consent (assuming, in the case of a statutory body, that the disclosure is otherwise within its powers), if the disclosure is necessary to protect her vital interests (condition 4), a test which requires more than that it is likely to benefit her wellbeing;

The Named Person must obtain the consent of the parent before intervening. Simple as that.

What the poster indicates, and he does write like a civil servant, is that the Scottish Government is prepared to push the Named Person scheme irrespective of the Judgment.

They sound very like the Isle of Man Government. Same mindset, same narrow thinking. We know best and we'll brook no opposition.

What I don't undertsand is the political angle. The SNP lost ground in the last election. The Named Person policy is obviously deeply unpopular. Why don't they read the signs and scrap the policy out of respect for their own people? It might win them some votes.

What is it that Government really wants these days? They are seriously out of touch everywhere. If they can't sort out their own wellbeing how can they sort out ours?
 

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Our submission has been excluded / suppressed

The submission from the Scottish Home Education Forum has been excluded from the list of written evidence received on the parliament website.

http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/105563.aspx

It was sent in good time and had an email acknowledgment of its receipt.

We may be stakeholders but are clearly holding the wrong sort of stakes. Maybe it was something we said about current policy being not in acccordance with the law and they are deliberately suppressing it as we have incontrovertoble evidence that must be pretty inconvenient for them.

We appear to be living in a totalitarian regime after all.
 

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Care Inspectorate confession

This outfit has obviously failed to read the Supreme Court judgment and are part of the reason more people are rejecting regulated childcare settings which indoctrinate state-dictated experiences and outcomes.

Hark at this excerpt from the submission by the Care Inspectorate (or should that be the Share Inspectorate?)

We have found that a common challenge across the country was in ensuring children get early help when parents are reluctant to engage or resistant to change. Protocols were in place in a few areas to alert managers and relevant people in other services quickly when families did not engage with agreed supports or where cooperation started to wane. However, in most areas, these were not in place, or not working effectively.
Have they not realised that this is exactly what was ruled unlawful? Obviously not, or maybe they are quite comfortable coasting along the totalitarian route.

:jaw:
 

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Highlights and low points

Submissions to Education and Skills Committee

Well, we finally made the cut! Our Scottish Home Ed Forum submission has now been published with the others. A few links were stripped out and a question was raised over (our intentional) use of the term 'data rape' which was actually coined by a children's rights group more than 10 years ago to describe the assault on children's and parents' personal privacy and autonomy by databases such as ContactPoint in England. It was previously the subject of a Westminster parliamentary motion, as well as being adopted into usage by network security sorts and hackers.

Edited highlights (and low points)

The Children’s Parliament (who brought us the head gardener analogy, courtsey of the adults who run it) had not further consulted with children since 2012. It does not appear to understand the law, in particular competence to provide informed consent, and would wish to supplant parental responsibility for looking after the best interests of their children (the very thing the Supreme Court warned of in its ‘totalitarian’ reference).

“The Code of Practice as it stands is at risk of doubly discriminating against children with learning disabilities and give professionals permission to deem them incapable of being informed and having their say. It is surely the professional’s responsibility* and role to engage children under 12 in ways that are appropriate to the child. We cannot support practices that disempower the vulnerable child further.”
*It is categorically not.

And their parting shot:
“In the 2012 consultation children also told us that the Government needs to talk to parents and other adults about children’s rights, so that everyone can work together for children. One child said: “The politicians should have a discussion to the parent and decide what’s better and then look after you and protect you forever and discuss children’s rights”.”
Indoctrinating children to believe in the primacy of the state by distorting human rights instruments adopted post WW2 is both sinister and chilling for anyone with half a clue about modern European history, as Tony Benn observed and the Supreme Court emphasised

Dumfries & Galloway Council seemed to have spotted the glaring consent/threshold anomaly:

“..there remains some confusion regarding the differentiation between “promote, support and safeguard” specifically for practitioners and for the processes required regarding the previously articulated advice from the Information Commissioner’s Office that consent should not be asked for if information will be shared anyway.”
This council has already received complaints about data processing without consent or necessity in relation to its home ed policy, which have been escalated.

CELCIS actually quotes from the 2013 ICO guidance and Perth & Kinross's policy, both rendered unlawful in 2016. [Rather like the goverment's desperate repetition of lower Courts of Session judgments that were overturned by the UK Supreme Court in its superior and binding ruling]:

"We are concerned that without accessible, explicit guidance, recent progress in improving information sharing will be lost. With high-profile media attention on the subject, such as that surrounding the ‘No 2 Named Person’ campaign, and in the
absence of clear guidelines, professionals are likely to adopt risk-averse positions around*information sharing, preoccupied with concerns about breaching the confidentiality of parents and children. A long and harrowing series of Fatal Accident Inquiries and Serious Case Reviews have shown a consistent failing of the system of appropriate,proportionate information sharing, within the bounds of the law, at earlier opportunities."
The most recent SCR (Liam Fee) has shown that information was known, shared and not acted upon - as have the majority of others going way back to Maria Colwell (when I was a rookie). Child protection procedures were unaffected by the Supreme Court judgment and the confusion was deliberately created by the goverment and its cheerleaders conflating protection with wellbeing and resorting to shroud-waving in order to fool the public, all the while vilifying those who opposed GIRFEC / named person interference with all children and families.

"There are excellent examples of practitioner guidance on information sharing in existence, for example that produced by Perth & Kinross Child Protection Committee, cited as a good practice example on Scottish Government’s GIRFEC information sharing webpage. This example contains clear information about how to decide to share information, how and when to seek consent, what to discuss with line managers, and summarises the process in a simple flowchart."
Links from the Scottish Government webpage to Perth & Kinross Council's 'recommended' information sharing resources are dead, which is just as well. The guidance and flowchart referred to used the wrong threshold of 'wellbeing' for non-consensual data processing and was/is therefore an incitement to practitioners to break the law.

The National Parent Forum of Scotland (NPFS) (funded by the taxpayer, but blocks @homeedforums, parents and others opposed to GIRFEC/Named Person on social media):

“The GIRFEC messages, i.e. the intentions and overarching principles, are not understood by many of the parents we are in contact with. It is unfortunate that mainstream media has engrained political objectives alongside the GIRFEC message; Scottish Government must work to correct this.”
'Unfortunate' for the government that families found out after the mass data sharing scheme had been deliberately concealed from them. The genie has well and truly left the bottle.

SPTC identified the loss of trust between families and services:

“In short, the Children and Young People’s Act stopped being for parents and started being about them and thus not only became unworkable but also, in the Supreme Court last year, was identified as being unlawful.”
“The passage of the Children and Young People’s Act has been a bruising and damaging one for Government and lead to a great deal of confusion and concern for families and professionals alike. Most critically it is undermined trust between families and those who are in roles which should provide help and support where it is needed.”
Some excellent and thoughtful responses were submitted, several of them (including Edinburgh Uni and Maggie Mellon) referencing Allan Norman’s analysis of the weaknesses of the original legislation and the current bill. Others seemed to have missed the salient points that needed to be remedied for the legislation to be lawful.

The chorus line of children’s charities, whose support for the illegal bill was especially vociferous, was subdued and referred to a separate Information Sharing briefing from Together which did not appear on the list of submissions:

“Throughout the consultation for the 2014 Act and the subsequent consultation for the new Bill, it is clear that children and young people have had strong views on the issue of consent. It is not enough to rely on an undrafted Code of Practice to ensure that the views of children and young people are taken into account when sharing information about them.”
“It is wrong to allow a Bill to pass through the Scottish Parliament which is reliant on an unpublished Code of Conduct to meets its obligations to children’s human rights.”
It was wrong first time round too. And, lest we forget, human rights are universal and apply to adults as well as children. :nerd:

Conclusion: Not looking good for the governnment.
 

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Education & Skills Committee

The Pinocchio puppet show returns.

Education and Skills Committee, 6 September 2017

Offiial Report

Deeply disappointing performance in which there was no mention of the legal threshold for non-consensual data processing (which is not wellbeing).

Why has the government (and its lackeys) been allowed to keep claiming that (a) we all asked for it; (b) current policy and practice is legal; (c) wellbeing has a precise definition, rather than being a vague noition open to subjective interpretation by prejudiced professionals with no understanding of overarching legislation; and (d) the 'engagement' has been 'intensive' when so many 'stakeholders' were deliberately excluded?

And why was all the discussion of evidence held in private when the submissions are already in the public domain? Were they too feart that NO2NP taxidermists will tell them their parrot has snuffed it?

They have the brass neck to call the lack of representation of constituents and refusal to allow dissent 'building public trust'. I'd call it fascism.

:blah: :lie: :mad2: :argue:
 

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Late evidence submissions

Late evidence submissions for consideration by Ed & Skills Committee on 13 September.

Highlights:

NASUWT

8. The Supreme Court did not simply state that the information sharing provisions of*the 2014 Act were not ‘in accordance with the law’, if highlighted significant*difficulties in reading across the 2014 Act and the Data Protection Act (DPA):

‘The relationship between the Act and the DPA is rendered particularly*obscure by what we have described as the logical puzzle arising from*sections 23(7) and 26(11) when read with section 35(1) of the DPA… There*are thus very serious difficulties in accessing the relevant legal rules when*one has to read together and cross refer between Part 4 of the Act and the*DPA and work out the relative priority of their provisions.’

9. Inserting the phrase ‘consider whether the identified nformation/relevant*information could be so provided in compliance with the Data Protection Act 1998,*any directly applicable EU instrument relating to data protection, any other*enactment and any rule of law’ seems to be a very crude and ill-thought-out way of*attempting to address the concerns raised by the Supreme Court regarding*confusion, and fundamentally does not remove the need to read together and crossrefer*the proposed amended Act and the DPA. This approach will simply make*schools and teachers responsible for resolving the Supreme Court’s ‘logical puzzle’*in respect of the read-across between the Named Person requirements and the*DPA, presumably because the Scottish Government does not know how the puzzle*can be resolved in practice. In this context, it is hard to view the proposed draft as*any more than a blatant and cynical attempt at buck-passing, where the focus is on*protecting Scottish Ministers from further legal action, rather than providing*meaningful support to practitioners on how the Named Person requirements can be*implemented. If the highest judicial minds in the UK could not resolve the tensions*between the DPA and the Named Person, how are legally unqualified staff across*the education system expected to do so?
Scottish Womens Aid

A number of Women’s Aid groups currently engage with non-statutory Named Person schemes; they report that Named Person responses to cases of domestic abuse are patchy, and depend greatly on individuals’ training and awareness of the specific issues and complexities around domestic abuse. There have been extremely concerning cases where a Named Person has inappropriately shared information with a perpetrator about their child accessing Women’s Aid services, thereby increasing the risk to the child and their mother and leading to children being prevented from accessing specialist Women’s Aid services and support. This surely goes against the very ethos of the Named Person service to promote and support the wellbeing of children and young people.
 

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Named person legislation isn’t transparent (Third Force News)

Named person legislation isn’t transparent (Third Force News)

Lesley Scott believes Scottish ministers are not being open about Named Persons legislation

...ministers stated that they were withholding the information requested because it would be published within 12 weeks. However, what was eventually published turned out to be a series of meeting summaries, not detailed formal minutes.

... the government were definite in this respect: there are no formal minutes held by the ministers for any of the meetings, there are no formal minutes of the meetings held by any of the other host organisations; in short, no formal minutes were taken at any of the engagement meetings.

The Commissioner comments that: “this may raise broader questions about the way in which the ministers record (or do not record) information about meetings in which they participate.”

Crucially, the commissioner “accepts that there was a deliberate decision to create meeting summaries instead of formal minutes for the meetings relating to the information sharing provisions of the Named Person policy”. The views of one person who participated in the “intense engagement” regarding the meeting summary are included in the commissioner’s decision.

In terms of what was covered, the key points are there but it does not accurately reflect the range of views expressed. Many of those there expressed concern about NP where they had not previously.
 

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Education and skills committee agenda

EDUCATION AND SKILLS COMMITTEE AGENDA for Wednesday 20 September 2017

Interesting selection of 'witnesses', with later discussion of 'evidence' in private. Other oral evidence sessions are scheduled, but you can bet your bottom dollar home educators will be excluded as inconvenient stakeholders who know too bloody much.

1. Children and Young People (Information Sharing) (Scotland) Bill The Committee will take evidence on the Bill at Stage 1 from—

Kenny Meechan, Solicitor and member of the Privacy Law SubCommittee,
The Law Society of Scotland; and

Janys Scott, QC, Faculty of Advocates.

and then from—

Dr Alison McCallum, Director of Public Health and Health Policy, NHS
Lothian;

Professor Hugo van Woerden, Director of Public Health, NHS Highland;

Valerie White, Consultant in Dental Public Health, NHS Dumfries
and Galloway;

Jean Cowie, Principal Educator, NHS Education for Scotland;

Annette Holliday, Health Visitor and member of Unite; and

Lorna Greene, Policy Officer, Royal College of Nursing Scotland.

2. Review of evidence (in private) The committee will consider the evidence it heard earlier
 

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Delegated Powers & Law Reform Committee

Delegated Powers & Law Reform Committee

3. Children and Young People (Information Sharing) (Scotland) Bill: The Committee will take evidence on the Bill at Stage 1 from—*John Swinney, Cabinet Secretary for Education and Skills;*Ellen Birt, Bill Team Leader;*John Paterson, Divisional Solicitor, Scottish Government.

John Swinney disagrees with the Faculty of Advocates and the Law Society and considers himself above the law.

Data rape is officially the favoured approach of the Scottish Government.

MSPs are not looking convinced.
 
How to clear a minefield armed only with a code of practice and a lawyer on speed dial:

SNP 'state guardians' will have to have lawyers on 'speed dial' to avoid legal action from parents

http://www.telegraph.co.uk/news/2017/09/20/snp-state-guardians-will-have-have-lawyers-speed-dial-avoid/


Scottish headteachers will be forced to have lawyers on “speed dial” or risk court action from angry parents when they start carrying out the SNP’s ‘state guardian’ role, legal chiefs have warned a Holyrood inquiry.
The Law Society of Scotland and the Faculty of Advocates told MSPs that the Named Person role presented a legal minefield for those filling the post amid confusion over its duties.


. . . Named Persons will have to comply with the Data Protection Act, the European Convention of Human Rights and common law rules around confidentiality, despite not being lawyers themselves.


. . . Named Persons could end up in a "damned if you do, damned if you don't situation". She said they will be forced to weigh up whether sharing information will "result in a problem which is more serious than not sharing."
“The thought of a primary teacher sitting down at four o'clock in the middle of marking a load of books and thinking this one through without help and trying to make their way through a code of practice on things which I, as a lawyer, would find difficult in the knowledge that if they get it wrong, it's going to be raised in a court of law, that strikes me as something which would be unattractive,” she added.
It's official - we're governed by lawyers.:frusty:
 

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Education & Skills committee meeting

Education & Skills committee meeting (video)

Evidence session: Faculty of Advocates, Law Society and others trash the new bill and code of practice. Law Society appears to say that current practices have been outwith the law and dentists admit they have been using the wrong threshold under guidance. They really have been bubbled, but MSPs are still woefully ignorant of thresholds and conflate protection and wellbeing.

Children and Young People (Information Sharing) (Scotland) Bill: The Committee will take evidence on the Bill at Stage 1 from—
Kenny Meechan, Solicitor and member of the Privacy Law Sub-Committee, The Law Society of Scotland;
Janys Scott, QC, Faculty of Advocates;
and then from—
Dr Alison McCallum, Director of Public Health and Health Policy, NHS Lothian;
Professor Hugo van Woerden, Director of Public Health, NHS Highland;
Valerie White, Consultant in Dental Public Health, NHS Dumfries and Galloway;
Jean Cowie, Principal Educator, NHS Education for Scotland;
Annette Holliday, Health Visitor and member of Unite;
Lorna Greene, Policy Officer, Royal College of Nursing Scotland.
Named person data-sharing law ‘could lead to more legal battles’, warn lawyers (Holyrood Magazine)

The Scottish Government’s draft legislation to allow professionals to share information with a child’s named person could lead to further legal challenges, lawyers have warned MSPs.

Giving evidence to the Scottish Parliament’s Education and Skills Committee this morning, Kenny Meechan of the Law Society of Scotland and Janys Scott QC of the Faculty of Advocates said the law to fix the issue was based on an “inadequate” statutory code of practice, which is still in draft form.

Meechan said the code was “misleading at best” and would require a “deeper level of understanding” from professionals such as teachers.

“They will need their lawyer on speed dial,” he said.

Scott said parents may be reluctant to share info like their post-natal depression with medical professionals if they think it might get back to their child's teachers.

Meechan also said introducing the proposed law was a “near impossible task” while regulations around information sharing was “a moving target”.

Imminent introduction of General Data Protection Regulation (GDPR) at a UK level “changes everything” around consent, he said.
NAMED PERSONS PUMMELLED BY LAWYERS AND HEALTH PROFESSIONALS(NO2NP blog)

Janys Scott QC, on behalf of the Faculty of Advocates, told MSPs that if families don’t know what professionals are going to do with their personal information it may affect what they are willing to share.

She gave the example of a mum who may be hesitant to talk about her post-natal depression with medical professionals if she thinks it might be fed back to her child’s teachers. NO2NP has long argued that the invasive Named Person scheme would damage trust between families and professionals.

Both lawyers said the Scottish Government’s current plans could result in further legal challenges.

The lack of definition of the term “wellbeing” remained a central problem, and concerns were raised about potential confusion over the threshold for intervention by a Named Person.
 

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Late response from SASW leaves little wreckage for the government to cling to.

Statement for the Education and Skills Committee on the Children and Young People (Information Sharing (Scotland) Bill: call for evidence

We were concerned from the outset that the threshold for intervention into family life could be lowered because of the scheme, as there is a significant difference between acting on concerns about a child being “at risk of significant harm” and a concern about “wellbeing”. While the first concern is well covered within existing child protection legislation, the latter, despite best intent, allows for a wide interpretation which sadly may not result in the most desirable outcome.

SASW has expressed its concerns about the previous manifestation of the information sharing proposals, in related to the “Named Person” debate and the role of social work within the concept. Some of our members have strongly suggested this Bill has become toxic and should simply be
repealed.
It is evident that such is no longer under consideration; the Bill will proceed. We understand that amendments have been carefully considered since the judgement by the Supreme Court and are now reflected within the illustrative draft Code of Practice. We do not believe this Code is clear, and we fear it may leave our members confused and even worried about the action they should take.
We wish to focus on the moral legitimacy of support and its difference from intervention and the need to engage with and develop a family support project for the twenty-first century which the GIRFEC policy should allow for. This means that we should not confuse early intervention (which ideally should be available through targeted community based universal services which can be accessed by families) with child protection.
 

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First Minister repeated two big lies at FMQs in response to Ruth Davidson MSP, namely that the named person scheme was (a) about child protection, and (b) ruled by the Supreme Court to be legitimate and benign, which was categorically not the case.

Shoud've asked the Children's Commissioner to explain...



Letter sent by Education & Skills Committee Convener to John Swinney asking for clarity about how the scheme would work in practice and requesting a revised Code of Practice following evidence heard by the committee from lawyers and health professionals' bodies.

MSPs call for clarity over named persons system (BBC report)
 
From the Herald:

'Toxic' named person rules will make social workers 'agents of the state'

http://www.heraldscotland.com/news/...orkers__agents_of_the_state_/#comments-anchor
Families will increasingly view social workers as agents of state control if proposed guidelines on the controversial named person policy are approved, MSPs will be told today.
Some frontline workers now view the plans as "toxic" and believe they should be scrapped, according to the Scottish Association of Social Workers (SASW).

. . . In evidence to the Scottish Parliament's Education and Skills Committee, the association's manager Trisha Hall warned that new guidelines aimed at addressing concerns about information sharing are ambiguous and will result in named persons referring more cases to social work on a "better safe than sorry" principle.

As a result, many families contact with social workers will start with them under investigation. SASW says its members fear being “regarded as agents of state surveillance or control, as opposed to a service to support and protect”.

The association also says the proposals have left social workers uncertain about their own role, with many "confused and even worried about the action they should take”.

In written evidence, Ms Hall said workers feared being overwhelmed, and overlooking more serious child protection cases. “Our members are concerned that an increase in referrals may lead to a bottleneck in the system and subsequent overload, and this in-turn could result in child protection referrals not receiving the attention they should get.
“Some of our members have strongly suggested this bill has become toxic and should simply be repealed.”


So, basically, the Named Person scheme undermines the child protection service because it swamps the system with too many needless referrals.

When will the Government listen?
 
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