All’s not well with the legal duties on wellbeing

17th June 2016 at 01:00
Blurring the lines of child protection with Scotland’s Named Person legislation risks eroding civil liberties, overloading the system and scapegoating teachers

There is an old saying in home-education circles that “parents make difficult and dangerous prey”. Given the belated but bitter backlash against the Named Person surveillance scheme, it is a warning the government would have done well to heed before ploughing ahead with legislation that usurps the role of parents in their children’s lives.

Perhaps they thought we would be fooled by the “single point of contact” spin, or by the more emotive line about “protection for our most vulnerable children” (who, incidentally, don’t even merit a mention in the legislation). Perhaps they also believed that the audacious grand-theft data grab that underpins the scheme would pass unnoticed. Well, they got it wrong on both counts and the NO2NP (No to Named Person) genie has absolutely no plans to return to its bottle.

As if teachers are not under enough pressure implementing Curriculum for Excellence, they are about to have new – yes, new! – statutory responsibilities foisted upon them as named persons’ little helpers. Claims that the scheme simply formalises existing practice and that busy teachers won’t have time to interfere in families’ lives ignore the fact that the role is statutory, therefore non-negotiable, and extends far beyond the professional duty of care that already mandates reporting of child-protection concerns.

Not only will teachers be legally obliged to gather personal information on pupils and family members in order to identify and record wellbeing concerns, but they will also be expected to apply predictive risk indicators and initiate any relevant action in order to promote the wellbeing of children for whom they are responsible. None of which is going to be conducive to maintaining trusting relationships with pupils and parents.

Legal arguments around Named Person and the mass data collection on which it relies have finally been heard by the Supreme Court, the judgement of which is expected before scheduled implementation in August.

Nevertheless, many local authorities have been prematurely operating it without statutory vires, including those areas in which several recent high-profile child deaths have occurred. Having a named person didn’t save even one of these children, but the named person is likely to become the local authority’s sacrificial scapegoat when getting it right goes tragically wrong.

Data debate

While practitioners have been busy spinning their Shannari wellbeing wheels (safe, healthy, achieving, nurtured, active, respected, responsible and included), Police Scotland’s warnings about the loss of focus on acute cases have gone unheeded, as have representations by legal advisers and civil liberties campaigners about human rights infringements – an inevitable consequence of amassing and sharing the personal information of children, parents and third parties without informed consent.

The intervention of children’s legal advocacy service Clan Childlaw in the judicial review of the legislation further highlighted the deterrent effect on young people accessing sensitive services for which there is no longer an expectation of confidentiality.

Among the most vociferous cheerleaders for the scheme are the big children’s charities, all of which receive substantial government grants for providing getting-it-right-for-every-child-related services (Girfec). By contrast, serious worries have been raised by smaller, independent grassroots groups, including the Tymes Trust and the Scottish Home Education Forum, whose service users have reported myriad problems dealing with over-zealous named persons. These have included receiving wrong or misleading advice, interference in parenting and educational choices, and even referral to the Children’s Reporter or social-work services for having a “different perception” of an alleged wellbeing concern. Meanwhile, those seeking support to help meet their children’s needs are languishing on long waiting lists – think child and adolescent mental health services (CAHMS) referrals – or simply being fobbed off in time-honoured fashion.

Dismissing Named Person opponents as scaremongers from fringe groups smacks of desperation when factual evidence is readily accessible in the public domain, such as the highly intrusive “parental capacity to provide wellbeing” assessments, first completed during pregnancy, with reference to no fewer than 221 state-defined wellbeing indicators.

Non-consensual data sharing has now been mandated at the much lower level of a “wellbeing concern”, as opposed to the longestablished, uncontentious threshold of “risk of significant harm” to a child. We know of training delivered by a senior data-protection officer and a local authority child-protection officer, both of whom insist that anyone whose work involves contact with children and families – even taxi drivers – must now report low-level concerns to the named person. Data subjects should not be told, however, as they “might think they have a choice”.

Rights gone wrong

Lowering the threshold for data sharing to “wellbeing”, which is not statutorily defined and open to subjective interpretation by non-specialist practitioners, means that Scottish citizens now enjoy less protection under reserved UK and European legislation than their counterparts south of the border.

Indeed, Girfec Programme Board minutes from 2013 reveal that a memorandum jointly agreed between the Scottish government and the assistant information commissioner sanctioned this unilateral departure more than three years ago.

That really is a big deal; previous attempts in England to blur the boundaries between child protection and wellbeing outcomes – also in the name of early intervention that promised to predict and prevent issues purely on the basis of statistical probability – were promptly thwarted by civil liberties campaigners.

A similar policy in the Isle of Man also had to be scrapped when children’s services collapsed due to over-referrals; the associated database was subsequently declared unlawful by the data-protection supervisor.

Adding more hay to the stack is never going to make small needles easier to find, but government orders must nonetheless be followed by named persons – even at weekends and in the school holidays, which may yet prove to be the straw that breaks the camel’s back.

It’s time for teachers to become difficult and dangerous prey, and reclaim their profession before it’s too late.

Parents will support them.

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