GIRFEC 'independent' panel minutes (Continuing Chronicles of SHANARRI )

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Excerpts from the Continuing Chronicles of SHANARRI

Here is the minuted story so far of John Swinney's so-called ‘independent’ panel which is stuffed with those whose organisations are funded by the government or who want to preserve power-over relationships with service users.

Getting It Right For Every Child (GIRFEC) Practice Development Panel

“The Panel will be responsible for producing a draft Code of Practice for information sharing, by consensus. This will be presented to the Deputy First Minister, who will then forward an authoritative draft of the code to the Education and Skills Committee in September 2018 thus enabling them to resume Stage 1 of the Children and Young People (Information Sharing) (Scotland) Bill.

“The Panel will ensure that a version of the draft Code offered to Committee is also suitable to operate on a non-statutory basis in relation to information sharing by practitioners under the current law, ahead of the commencement of Parts 4 and 5 of the Children and Young People (Scotland) Act 2014.

“The Panel is also invited to provide recommendations on the Statutory Guidance for Part 4 and 5 and other support materials ahead of the resumption of Stage 1 of the Bill in September 2018.”
John Swinney attended the first meeting of the clique which includes some of those who caused the data theft problem in the first place.

GIRFEC Practice Development Panel: minutes February 2018

Panel chair is
“Chief Executive of the Health and Social Care Alliance and leads them to achieve the ALLIANCE vision for a Scotland where people who are disabled or living with a long term condition and carers have a strong voice and enjoy their right to live well. He is also a Non-Executive Director of NHS Ayrshire and Arran Board and East Ayrshire Health and Social Care Partnership. Ian is also a former teacher and is a father to a learning-disabled adult son.”
Ian Welsh, Chair
Deputy First Minister, John Swinney MSP
Professor Paul Martin, University of West Scotland
Mike Burns, Social Work Scotland
Norman Conway, Police Scotland
Maureen Falconer, Information Commissioner’s Office
Sally-Ann Kelly, Coalition of Care and Support Providers in Scotland
Jennifer King, Association of Directors of Education Scotland
Annette Holliday, Community Practitioners and Health Visiting Association
Joanna Murphy, National Parent Forum Scotland
Norma Shippin, Central Legal Office, NHS National Services Scotland
Chris Creegan, Scottish Commission for Learning Disability
Juliet Harris, Together Scotland
Susan Quinn, Educational Institute of Scotland
Helen Malo, Royal College of Nursing, attending on behalf of Lorna Greene

Apologies:
Lorna Greene, Royal College of Nursing
Ann Houston, Child Protection Committees Scotland
Eddie Docherty, Scottish Executive Nursing Directors
Peter Hessett, Society of Local Authority Lawyers and Administrators
The deputy first minster was permitted to address the ‘independent’ panel and make a now-familiar misleading statement to the effect that
"too many historic cases where wellbeing had not been safeguarded, promoted and protected, and where poor information sharing had been part of the reason why.”
This is categorically false in the case of all the dead children in Fife and Highland whose data was flowing freely across boundaries.

“The Chair informed the Panel that a legal focus group including a small number Panel members with legal expertise will be established to work in lockstep with the Panel. This focus group will look in detail at the technical, legal aspects of drafting the Code and will include Panel members Norma Shippin, Peter Hessett and Maureen Falconer. In addition, Alison Reid, Child Clanlaw who is not a member of the Panel, has also offered her assistance with these legally focussed discussions.”
The membership does not inspire confidence, especially the inclusion of the ICO whose ‘joint working’ with the GIRFEC team resulted in breaches of the law since 2013. All are funded by the government (i.e. our money).

“It was confirmed by officials that the liability for duties are on the Named Person Service provider, not on the individual practitioner.”
It is clear that people are more worried about their own liability than breaching the rights of children and families by ‘just following orders’. Regardless, they will be named and shamed by victims and subject to disciplinary action if they fail to get it right. Trust has already been irrevocably lost due to misuse of data and bullying tactics.

“Panel members discussed consent. Some highlighted that informed consent is the basis of current, best practice and the members wanted this be reflected more clearly. Others highlighted that that consent has to be only one of the options, as it would not be suitable as a mandatory requirement. Some members expressed interest in a potential amendment to the Bill on consent, particularly in relation to the changes under GDPR. While the Chair noted that amendments to the Bill are outwith the remit of the Panel, he noted that further consideration of consent would be helpful.”
But GIRFEC has been flogged to the public as being consent-based. Has the story changed, or was it never straight in the first place? If consent is not now to be the legal basis, children and families surely cannot trust any practitioner with their information, given the evidence of wrongdoing that has already been obtained via SARs. There is also the matter of the blatantly unlawful 'pathway to wellbeing risk' threshold (scored by box tickers) that has been left uncorrected in official public sector information sharing guidance, including the NHS – see below example from Orkney, but Fife and others also get it wrong.



Information sharing bill and legal framework presentation February 2018.pdf (pdf download)

GIRFEC Practice Development Panel: minutes March 2018

“Juliet Harris, Together asked for a legal perspective on consent being included in the Children and Young People Information Sharing (Scotland) Bill. John Paterson, Scottish Government Lawyer, stated that, if consent were included on the face of the Bill, it would need to also provide that consent was not required where the Data Protection Act and GDPR do not require it, adding extensive detail. Some members suggested referring to the importance of consent in the Code of Practice instead.”
Consent as a legal basis will be resisted all the way as they want and need the data on everyone for surveillance, profiling and remediation purposes.

“One member highlighted they did not think that parents were aware of their rights under Data Protection laws when engaging with public services. Members discussed the potential for power imbalance between families and public service providers.”
Clearly they haven’t been paying attention to the current evidenced abuses of power by public service providers and others, and the ICO’s failure to do anything at all about them.

“Some members raised the point that there should be clear information provided to children, young people and parents that the Named Person Service is not compulsory for families and young people to use, but is an entitlement which can be accessed when families want or need it. Members requested that information should be provided to families on how they can opt out and back in to the service.”


Maybe they should try telling this to public service providers and others who are ‘just following orders’ in the form of unlawful guidance and inadequate training by other useful idiots, like former policemen who make it up as they go along.

“Members discussed thresholds between child wellbeing concerns and child welfare concerns as key for decision making about information sharing for the Named Person service. ACTION: Officials and the Legal Focus Group to provide further advice on what would constitute a wellbeing, welfare and child protection concern as these are all terms used in Scottish legislation and guidance.”
They should start with the Supreme Court judgment, which upheld the significant harm threshold for non-consensual information sharing (as the vague ‘notion’ of wellbeing does not constitute an Article 8(2) exemption). Also the Bara judgment from 2015 which precludes sharing between administrative bodies without advance notification. Under GDPR, data subjects have the right to object to processing or refuse to provide information about themselves or third parties who have not consented to disclosure.

Claiming there is doubt about the threshold and lack of reference to the limiting provisions of the ECHR demonstrates that the ‘independent’ panel is nothing of the kind, not that that was ever in any doubt, given the vested interest invitees.

“The Chair invited the Communications Manager from the Getting It Right For Every Child team to facilitate a forward planning workshop on stakeholder engagement. Members split into 3 groups to discuss 4 key points:

What do you want to achieve from engaging?
Who do you need to engage with and when?
What are the opportunities and gaps in current GIRFEC engagements programme?
What is your role and responsibilities in engaging?
The members provided their suggestions and ideas for the 4 questions which will be incorporated into a more extensive engagement programme in due course.

ACTION: Scottish Government officials to plan and design a comprehensive stakeholder engagement plan.”
If Scottish Government officials are planning the stakeholder engagement, it will not be independent and will be strictly controlled by the deputy first minister, who has already been accused of nobbling witnesses and whose staff have since been accused of pressurising parliamentary clerks.

This presentation was also delivered by one of the ‘independent’ panel members who has been the subject of complaints of ‘lacking independence’: General Data Protection Regulation – relying on consent.pdf (pdf download)

GIRFEC Practice Development Panel: minutes April 2018

The latest minutes from the echo chamber aka the ‘independent’ panel seeking to circumvent the GDPR and human rights. Of note is the attendance of Mr Proportionality himself: Alan Small, Vice Chair of Child Protection Committees Scotland (on behalf of Ann Houston, Child Protection Committees Scotland).

Rather than deal with the thorny issue of consent, ‘non-binding’ flowcharts are seemingly the way to go (seriously?), and there are yet more references to the ‘liability’ for getting it wrong lying at the door of the ‘service’ rather than the individual practitioner (who will be named and shamed regardless).

Maria Galli, Child Protection Officer from South Ayrshire Council labours under the mis-apprehension that GIRFEC is rooted in children’s rights when it is actually rooted in compulsory state-dictated outcomes for every child, whether they agree with them or not.

Ms Galli informed the Panel that the Group recommends the production of Interim Guidance to be issued to all those with duties under Parts 4, 5 and 18 (Sec 96) of the Act to ensure those working in the system are clear about their roles, responsibilities and current procedures while the Bill completes its passage through parliament.
Let’s hope it bears some resemblance to the law and gets the threshold right, which current guidance does not.

ACTION: Alice Bayles, GIRFEC Policy Team Leader to be invited to the Panel meeting in June to provide an overview of the current understanding around existing good practice that could inform the development of wider guidance for Parts 4 and 5 of the Children and Young People (Scotland) Act 2014.
and

Members discussed whether an information campaign highlighting current good practice in terms of the GIRFEC approach would help to mitigate confusion and reinforce confidence amongst practitioners and families before an authoritative draft Code of Practice is presented to the Education and Skills Committee, or not.
Existing good practice? If based on current guidance, uncorrected since the Supreme Court judgment, all practice which mandates information processing below the child protection threshold remains unlawful in the absence of informed consent. There is no confusion to mitigate, only lies on the part of government.

Members discussed the risks associated with having a legally binding flowchart, namely, that missing a step could result in a breach of the law. Some members felt that a non-binding flowchart would however be very helpful and requested that this could be enhanced as a decision making tool with additional focus on human rights, and a wider focus on the wellbeing of the child, rather than child protection. Members from a practitioner perspective welcomed a more detailed flowchart explicitly covering consent, clarity on who they should seek advice from when sharing information and clear information on decision making at a wellbeing level.
How many more times do they need to be told that consent is everything at the subjective ‘wellbeing level’, and that no means no? Otherwise we have to call it what it is: data rape.

Members suggested that the National Guidance on child protection was a good example of helpful and accessible guidance for practitioners.
Except the current national child protection guidance, revised in 2014, cites the wrong threshold for non-consensual information processing because it was copied straight from an ICO ‘memo’ issued to CPPs in 2013 (without legal basis or parliamentary scrutiny), which had to be withdrawn following the Supreme Court ruling in 2016. The plot has been thickening ever since as repeated attempts are made to circumvent the law.



Here's a couple of wee reminders for the 'independent' panel from the (2004) 19th report of the UK Parliament's Joint Committee on Human Rights (for which no equivalent exists at Holyrood where a 'tribal' committee system has failed to properly scrutinise legislation for human rights compliance):

We are concerned that, if the justification for information-sharing about children is that it is always proportionate where the purpose is to identify children who need child welfare services, there is no meaningful content left to a child’s Article 8 right to privacy and confidentiality in their personal information.
...the Minister argued that the “outcomes do not conflict with [children’s] rights under the CRC, but should be seen as a practical complement to those rights”. We are not altogether persuaded by these claims. Indeed, we are disappointed by the tone of the Government’s message that “rights-based” is a negative concept—we have stressed again and again in our reports that a culture of respect for human rights is one in which the emphasis is laid on the positive obligation on the State to advance the rights of those in its jurisdiction.
It all sounds so familiar: rebranding rights as wellbeing outcomes and confusing the public sector duty to offer 'services' as a power to compel their uptake.

As we have repeatedly reminded GIRFEC proponents, rights are not synonymous with state-dictated wellbeing outcomes. Furthermore, the legal necessity test needs to be met before interference with Article 8 rights becomes permissible - and even then, such interference must be foreseeable, proportionate and the minimum required to achieve the intended aim (which must also satisfy Article 8(2) of the Convention). Whereas child protection constitutes a legitimate aim in which there is clear, substantial public interest, imposing state-dictated wellbeing outcomes does not meet the applicable tests for non-consensual information processing, as confirmed by the UK Supreme Court. No matter how legitimate the aim, it may not be pursued by totalitarian means.
 
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