Incompatible with a free society

Has anyone read The Secret Garden by Frances Hodgson Burnett?

Published in 1911, it is considered a classic of children's literature about family secrets and privacy and features no named characters.

“The Secret Garden” was the subject of a recent Radio 4 programme called “Family Secrets”, which explored the societal shift over the 20th century from discretion and privacy towards openness and transparency: “how secrets in families and relationships came to be seen as suspicious”.

Clare Birchall, senior lecturer in contemporary culture at King's College London, noted in the programme that we have a “strange situation” where “the government is talking about transparency, but it's not government transparency, it's society,” and warned that if transparency “cannot accommodate those who don't want to be involved in it,” it “starts to look more like totalitarianism than democracy.” This actually links nicely to the GIRFEC Act, also known as Parts 4, 5 and 18 of the Children and Young People (Scotland) Act. The historic UK Supreme Court ruling that set the Scottish government back on track last year stated:

“The first thing a totalitarian regime does is attack children, remove them from the destructive and diverse influences of the family, and indoctrinate them with the ruler's worldview.”

Part 18 of the GIRFEC Act begins with a “welfare assessment”, which requires an assessment of the child's “present or future” wellbeing.

• Promotion
• Protected
• support
• Affected, or
• Affected

This assessment of well-being is made with reference to “how happy the child or young person is or will be”.

• safety
• health
• Accomplished
• Raised
• active
• Respected
• Person in Charge
• What's Included

This second list is also known as the SHANARRI indicators.

But as the Supreme Court pointed out in its unanimous decision against the nominee bill, “happiness is undefined.”

The ruling states that “the only guidance as to its meaning is provided by eight elements known by the acronym SHANARRI,” noting that “the elements themselves are not defined” and are “in some cases (…) significantly vague.”

But experts across the country continue to collect information about every child and their family, about every aspect of their lives, in order to rate us against ill-defined, subjective measures.

How do they collect this data?

The prenatal “Capacity to Provide Parental Well-Being Assessment” is used to assess future parents against the SHANARRI indicators.

A universal health visiting pathway for children from pre-birth to pre-school age, which involves health visitors asking ‘routine’ questions about families’ finances and money worries.

Well-Being Walk the Trail with a Snail – A board game designed to teach elementary school children what the state considers good well-being.

The ‘My Thoughts Tool’ – used in nurseries and schools, encouraging nursery staff to use snack time to talk to children and gather information by informing them about their wellbeing.

Wellbeing Cootie Catcher in the Scottish Borders is a new take on an old game that asks children questions such as, “What makes you feel loved?”

The Children Count survey is aimed at children aged 9 and over and includes questions such as, “Do you feel close to your mother and father?” It also asks S1 pupils, “Have you ever sold illegal drugs, been arrested, or been drunk, drugged or high at school?”

In fact, every interaction between you or your children and the government means assessing you, your children and your extended family against 304 wellbeing outcomes and 222 risk indicators.

The designated person will determine whether there are concerns about your child's wellbeing and whether targeted intervention by the State is required. If concerns are identified, Part 5 of the GIRFEC Act will be applied and a Child Plan will be initiated. The question now is how to remove your child from the “support” of the State.

This is because the designated person, not you, will be responsible for reviewing the plan as well as deciding whether to amend the following:

• The Need for Children's Well-Being
• Targeted interventions
• how targeted interventions should be delivered; or
• The outcome that the plan is trying to achieve.

It is the nominee's decision whether to terminate the plan.

Importantly, the Supreme Court decision recognised that such procedures “carry the risk that parents in their individual cases will be given the impression that they must accept the advice and services offered and that failure to cooperate with such plans will be seen as evidence of a risk of harm”.

All five judges agreed that this impression of “coercion”, whether “explicit or implied”, “likely amounts to interference” under Article 8 ECHR, given that non-cooperation is evidence of a risk of harm. The judges further questioned GIRFEC's approach, adding that justifying such interference “may be difficult, given the very broad scope of the concept of 'well-being' and the SHANARRI elements.”

And at the heart of all this is Part 4 of the GIRFEC Act, designated persons.

The UK Supreme Court ruling emphasised that “one of the main purposes of Part 4 is to amend existing law on the sharing of information about children and young people so that information held by individual organisations about concerns about their welfare can be collected into the hands of, and shared by, designated persons”.

“The information-sharing provisions in Part 4 of the Act are not compliant with the law and are inconsistent with the rights of children, young people and parents under Article 8 of the European Convention on Human Rights…”

“The information-sharing provisions in Part 4 are outside the legislative competence of the Scottish Parliament.”

Importantly, the judgment also noted that “the sharing of personal data between relevant public authorities is central to the role of the named persons.”

Thus, ruling data sharing unlawful would not only make the appointees themselves illegal (which is the logic behind it), but it would also submerge the entire GIRFEC agenda. Swinney may talk about “tweaks,” but the reality is that both the appointee provisions and the GIRFEC approach that Congress has wholeheartedly supported would need to be rewritten from the ground up to comply with the Supreme Court's ruling.

Parts 4, 5 and 18 of the Scottish Children and Young Persons Act (the parts that were found by the Supreme Court to be poorly defined and unlawful) are the GIRFEC Act. Why are we calling it that?

Because that's what the Scottish Government's GIRFEC team calls them.

But despite this, Mr Swinney maintained in a statement to Parliament that “the judgment does not, in itself, require a change to current policy. The judgment only relates to the information sharing provisions that will come into force under the 2014 Act and not to current practice under the GIRFEC policy… My message to local authorities and health boards is therefore clear: continue to develop and deliver designated person services in your area…”

As such, Swinney continues to maintain, contrary to all evidence, that current GIRFEC practice, including the nominee provision, has nothing to do with the “GIRFEC” legislation that the Supreme Court ruled unlawful.

By pushing for the continuation of the designated persons provision and the GIRFEC-led information gathering and sharing process, the Deputy Prime Minister appears to be at risk of facilitating illegal activities by state agents.

That Nicola Sturgeon has apparently taken custody of around 15,500 children in care, and referred to them as “my children” in a recent letter, is a worrying sign of how adept the state has already become at using the guise of “parenthood”. But when taken together with the state’s bullish intention to prevent parents from raising their own children through designated persons and the GIRFEC approach, this sets us down a dangerous authoritarian path that is incompatible with the rights of a free society.

Leslie Scott

Times Trust Scotland Officer