Public Petitions Committee

Meeting date: Thursday, June 28, 2018

Official Report 787KB pdf

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New Petitions

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Getting It Right For Every Child Policy (Human Rights) (PE1692)

I welcome everyone to the 12th meeting in 2018 of the Public Petitions Committee. We have apologies from Brian Whittle; Maurice Corry is attending as a committee substitute.

Item 1 is consideration of new petitions. The first petition for consideration is PE1692, on an inquiry into the human rights impact of the getting it right for every child policy and data processing. The petition was lodged by Lesley Scott and Alison Preuss on behalf of Tymes Trust and the Scottish home education forum. The committee will take evidence from the petitioners this morning. I welcome Liz Smith MSP, who is in the public gallery to hear the evidence.

As members will be aware, I am the deputy convener of the Education and Skills Committee, which is currently involved in the scrutiny of the Children and Young People (Information Sharing) (Scotland) Bill. It is the convener’s role to facilitate debate so, in considering the petition this morning, I will chair the item but will leave it to my colleagues to ask questions.

I welcome Lesley Scott and Alison Preuss to the meeting. You have the opportunity to make an opening statement of up to five minutes, after which we will move to questions from the committee.

Thank you. We will split the five minutes between us, if we may.

I thank the committee for inviting us to the meeting.

Tymes Trust—or the young ME sufferers trust—is the only national ME charity dedicated to children and young people who have the neurological disease ME and their families. In recent years, the trust has seen an escalation in calls to our advice line about families being referred and situations being escalated to child protection services. On further investigation, not one of the more than 200 families who have faced such a situation and contacted us has been found to be at fault. However, those interventions can cause catastrophic trauma to the families involved, whether they be families with ME or not. Some families never recover from the overbearing and traumatic experience and become terrified of approaching services for help. The evidence that was submitted to last year’s “Postcards from the Fringe” event confirms that.

The petition asks for an independent public inquiry into historic and current practice under the GIRFEC approach. As the Scottish Parliament information centre briefing states:

“This petition relates to the current legal situation rather than the prospective legislation from the 2014 Act and 2017 Bill.”

The 2016 ruling from the United Kingdom Supreme Court found that aspects of the Children and Young People (Scotland) Act 2014 were unlawful and breached article 8 of the Human Rights Act 1998. As a result, parts 4 and 5 of the 2014 act could not be implemented, but the Scottish Government continues to encourage local authorities, health boards and other organisations to prepare for implementation of the act by continuing to implement GIRFEC. However, parts 4 and 5 of the 2014 act are the getting it right for every child approach. It is as though the UK Supreme Court ruling had never happened.

Wellbeing as a concept lies at the heart of GIRFEC. Despite the Supreme Court’s ruling that wellbeing is undefined and that the safe, healthy, achieving, nurtured, active, respected, responsible and included—SHANARRI—indicators are undefined and, in some cases, notably vague, wellbeing remains the threshold at which practitioners gather and share information on families in far too many cases. When families object or question such an approach, they are often escalated to child protection procedures on such spurious bases as non-engagement.

The UK Supreme Court judgment records that

“personal autonomy is an important principle underlying the guarantees of the ECHR”,

which states that

“the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”

In practice, GIRFEC is the antithesis of those principles, and a full public inquiry is needed to reveal and correct the on-going assault on family life.

I reiterate Lesley Scott’s thanks for the opportunity to come before the committee.

It is hard to condense what has become our lives’ work into a few minutes. Home educators have been at the sharp end of the SHANARRI stick right from the outset, and we have evidence of multi-agency professionals getting it wrong and acting outwith the law.

Home education might be a minority activity but, when the rights of minorities are trampled on, the rights of everyone are trampled on—that is a basic founding principle of human rights law. Home educators recently conducted a survey in which it was found that the major drivers for home education were unmet additional support needs, including chronic illness and disability, safety issues in schools and the GIRFEC cult, which has also led to parents abandoning nurseries and other care settings because of excessive data gathering that amounts to profiling. For example, background checks on home-educating parents have no legal basis, but they have found their way into local policies. Entire families have had their health, police and social work records accessed without their knowledge. That is contrary to national guidance, the general data protection regulation and convention rights.

In mid-May, I wrote to the education directorate to raise serious concerns, but I have had no reply. We have found that being ignored by public bodies is quite commonplace and that even lawyers’ letters now go unanswered—we might say that that is due to non-engaging professionals. The problem is that they are all working to practices and policies that have remained uncorrected since the Supreme Court judgment, including the 2014 child protection guidance, which shifted the threshold for data processing without consent.

We found from the minutes that it was a series of backroom deals that caused the threshold to be dropped to the subjective notion of “wellbeing” from “significant harm” in 2013. That was a year before the Children and Young People (Scotland) Act 2014 was passed and three years before the data processing provisions were due to come into force—they never did, of course. The minutes also said that the public were deliberately kept in the dark because there might be an adverse effect. We sounded the alarm at the time, but we were completely ignored and excluded from the debate.

The Government needs to get its story straight. Either GIRFEC data collection and sharing is consent based below the risk of significant harm or it is not. If it is, that is absolutely fine and the higher GDPR threshold will apply. If it is not, we have been misled and there still needs to be a legal basis that satisfies article 8(2) of the European convention on human rights. “Wellbeing” does not cut it, as the Supreme Court said.

Human rights are self-defined whereas SHANARRI wellbeing outcomes are state dictated, as parents have found, and are open to dangerously subjective interpretation. Families have been denied remedy for wrongdoing, having been told that it was all legal when it was not. Even if they had a spare £15,000 for judicial review, legal time bars might well have kicked in.

Meanwhile, inaccurate information is still being peddled by public and third sector bodies, which adds insult to injury. I stress that our evidence is comprehensive and that it comes from public records, freedom of information responses, families’ subject access requests, correspondence and recordings.

We need an independent inquiry into this debacle. There is also a need for victims to relate their experiences to MSPs privately rather than those experiences being paraded in the national press before another assault on human rights is voted through.

Thank you very much for that. We will move on to questions.

Good morning, Lesley and Alison. In your petition, you refer to numerous public meetings that have been held since 2013. Can you give us some details about those meetings, such as who was present, who arranged them, and whether Scottish Government representatives were present?

The NO2NP campaign, which we are heavily involved in, organised the meetings to raise awareness among the public about what was happening on the ground. Lesley Scott and I both spoke at the meetings. I cannot tell members offhand how many meetings there were, but there were several, and they were all over Scotland. They were very well attended.

Were any Scottish Government representatives present?

No. They were welcome to attend, but they did not come.

Were they invited?

They were open meetings.

Yes—they were open meetings for anybody who wanted to go to them. I believe that John Mason came to one in Cathcart.

Yes—some MSPs came.

If people from the Scottish Government wanted to go, they could have.

How many meetings were there, roughly?

I would guess that there were between 30 and 40.

How well attended were they?

They were very well attended. As we went on, in some cases, we got more than 80 people, I think.

There were more than 100 at some of them.

It varied, depending on where we were. We went all over Scotland—right up to the north and right down to the Borders. It depended on where we were.

What was the result of the meetings? Was any action taken at the end?

We compiled evidence from families who attended the meetings. Several of them spoke about their experiences. They spoke publicly to an extent, but obviously they did not want to compromise their children’s privacy, so they sent us details of what had happened afterwards, which we have kept as evidence.

The meetings gave families an opportunity to know that they were not alone and to speak to people about what was happening to them and look for ways to counter that. In a lot of cases, there was actual harm as a result of data being shared and the consequences of that. I dealt with one family who were referred to the children’s panel four times in one academic year. A sick child was involved, as well. In a lot of cases, the effect is traumatic.

Good morning. To follow on from Rona Mackay’s questioning, you have said that, in all the meetings since 2013, you have heard about unlawful data collection and sharing that has led to a loss of trust in services among families. You have given us one example, but can you give us any other specific cases—without mentioning any names or details, obviously—with regard to the circumstances around data being shared?

I can think of one recent case involving a family who had been referred to social work for the first time, allegedly on child protection grounds, although it was based on wellbeing concerns, because the family declined the services of a health visitor whom they did not get on with very well. The family lived in social housing in the east end of Glasgow, and the health visitor then alerted the housing service, which came to inspect her house. The family found that violating and humiliating. The children’s panel had already thrown that case out in previous years, but it was escalated further. There was a determination to build a case against the family, whose only wellbeing need was a bigger house because they were overcrowded, but that did not appear. There was no practical help whatsoever.

Eventually, the case was escalated to an initial conference, at which I advocated. I was delighted that social work maintained the threshold that should be maintained, which is the risk of significant harm, and that no further action was taken. That was totally traumatising for the family, who have six children, two of whom are grown up. They really want their voices to be heard.

Will you expand a little on why people have said that the issue has led to a loss of trust?

I am with a charity that deals with the neurological disease ME, and we find that, in that situation, information from parents is not given any weight, but the information from any professional involved is. That is repeated with people who do not have ME. Part of the point of the process is that people do not have to repeat their story to professionals—it is taken once and then the professionals repeat it and share it among themselves. However, if the information is wrong, the wrong information is shared and repeated, and parents are not given the chance to correct it. They lose confidence in the processes and practices around them and they lose trust, because the resulting procedures and actions do not help; they actually harm families.

I was at one of your meetings in East Lothian, which I found very useful. Following on from Rona Mackay’s question, I would like to know about the 90 written submissions that you got. Were they part of those meetings or were they separate? Did you go directly to people or did people come to you?

09:30  

That was a separate thing that Alison Preuss and I set up. Tymes Trust and the Scottish Home Education Forum were excluded from giving evidence to the Education and Skills Committee at the time so we decided to take our own evidence because parents were not being given the chance to tell their stories, which is why we feel we need a public inquiry. We set it up on our own and we put out the word that if people had a story about their information being shared illegally or if there was an experience that people would like us to know about related to GIRFEC, they could give it to us. We set up a website; we also had a public meeting. Evidence flooded in through the website.

So you gathered evidence directly through the website.

Yes. NO2NP put out an email and Facebook posts as well, inviting people to give evidence to us. It was a direct request to parents and families to tell us about their experiences.

I am slightly puzzled. You refer to the “intense engagement” that the Deputy First Minister committed to and you

“question the extent to which the organisations engaged by the Scottish Government fully reflected the range of views on these matters or focussed on organisations who were supportive, in principle, of the ‘wellbeing’ agenda and compulsory named person scheme underpinned by GIRFEC and the CfE.”

I am slightly confused by that. Are you supportive in principle of GIRFEC and the curriculum for excellence?

No, because we have seen what is resulting from practice on the ground.

Anybody would say that getting it right for every child is great, but there is no definition of “it” and there is no definition of “right”. That is the problem; once the state decides what “right” and “wellbeing” mean, we have a major problem because they are open to such wide interpretation.

Did your organisation make an effort to contact the organisations that the Government was engaging with to tell them about what was happening?

Yes—we work quite a lot with various third sector organisations that support children and families but they all seem to have bought into the legislation, apart from Clan Childlaw, which expressed the same concerns as we did about it. We had a significant legal opinion from someone who was instructed in an important case in Haringey just before the threshold was lowered in Scotland. We pointed that out to all the other organisations, to the Government and to MSPs, but it was dismissed. It turned out that the lawyer we commissioned to write the legal opinion that we submitted in the first stage of the consultation on the 2014 act used exactly the same case law and exactly the same arguments that the Supreme Court finally agreed with.

Wellbeing sits at the heart of GIRFEC and, as the Supreme Court said, wellbeing is undefined. SHANARRI is used to define it, but SHANARRI is undefined. It is totally subjective. In the evidence that has been given to the Education and Skills Committee by many practitioners, there is no universal definition of wellbeing that everybody accepts. Groups of people within an organisation may have a collective understanding of what it is within their own group. Outwith that group, you are met with another definition. You cannot base anything on something that is so totally undefinable.

Can I clarify whether you are supportive of GIRFEC but question its wellbeing aspect?

We are supportive of promoting the safeguarding and wellbeing of children—who would not be supportive of that? The Supreme Court was. However, we are not supportive of the measures that are being implemented to direct parents to promote wellbeing in a specific way. That is where the problem lies and that is why the judgment went the way that it did.

I do not want to get bogged down in legal terminology, but—

Sorry—the judgment referred to the data protection and data sharing element; it did not refer to—

It referred to human rights and how human rights interact with data protection.

Good morning, ladies. In the petition, you mention that

“many families were unaware of the roll-out of the scheme, let alone the existence of any single point of contact in so-called ‘trial’ areas.”

Do you have any view as to why people were unaware of the scheme?

We have minutes from a meeting that show that it was purposely rolled out quietly so that it could be implemented before families were told about it.

It was to be embedded across services before families were told about it. That is in Government minutes.

So it was to be slipped out.

The Highland pilot was much lauded but nobody knew who the named person was or who the point of contact was. People had services forced upon them that they did not want and met gatekeepers to services that they did want. That is where the problem lay, really.

We held a meeting in Inverness a few years after the supposed implementation and people there had no idea about the scheme. They just did not know what a named person was and had never met one. The named person is meant to be the central contact when you have an issue or problem, but if you do not know that they exist, how can you approach them with the problem?

Did many people know who their named person was?

No; they did not even know that the named person existed.

As a home educator, I know that families have had to submit freedom of information requests to find out who the point of contact is for home-educating families. We have had redacted information back just giving us the director of children’s services. There is supposed to be a point of contact—that has been the case since 2007, under statutory guidance on home education—but we still do not know who they are.

Did you contact Highland Council, which clearly knew what the named person scheme was, and put your concerns to it?

Yes. Various people made complaints but they were never recorded anywhere. With certain local authorities, we still find that complaints that are made by parents are not recorded as such and are ignored. That means that the Scottish Public Services Ombudsman cannot take on the case because it has not gone through the complaints system. If an authority will not accept an issue as a complaint, the parents have to go to judicial review—there is no alternative. Therefore, there is no complaints system and no acknowledgement that parents are complaining.

That responsibility lies with the local authority.

Yes—well, we would like to think so.

For clarity, did you say that the complaints that were made to Highland Council were not acknowledged?

They were not acknowledged by the head of services at the time, who said that nobody had complained about the named person scheme, which was not true. We have copies of complaints from parents to Highland Council that went unacknowledged and unresponded to.

Thank you. It is good to get that on the record.

As you identify in your petition, the Education and Skills Committee is the lead committee for the scrutiny of the Children and Young People (Information Sharing) (Scotland) Bill. That committee has concluded that it cannot give further consideration to the bill until it has an opportunity to scrutinise the accompanying draft code of practice on information sharing. What is your understanding of any progress on the code of practice and the membership of the expert panel that has been set up to guide and oversee its drafting?

The situation that we are talking about is happening and has happened so, although what happens with the code of practice is important for the future, it does not affect historical and current practice, which is what we are talking about.

We want the wrongdoing that has happened in the past and that is happening currently to be acknowledged and addressed in some way so that parents have access to justice, which they have been denied.

How do you envisage an independent inquiry working? What should its remit be? Is there a standard that you would establish for what a public inquiry would look like? What sort of timescale would it work to?

We have discussed that. We feel that an independent Queen’s counsel with a track record in human rights would be the ideal person to chair such an inquiry and invite evidence from people who know about the issue—lawyers, because it is the law that is important in this context.

How human rights and data protection interact is the bit that people are finding difficult, which is why the independent panel is struggling. If you read the minutes, which are partial, you can see that there is obvious tension between the law and policy. I think that committees have been wrestling with that, too.

It is a very specialised area. I have spent the past 15 years looking into it, because I worked on the contact point campaign in England—the contact point database was abolished in 2010. I also campaigned against the snoopers charter, which raised the same issues: a legitimate aim, with totalitarian measures to implement it.

We would not want a long timescale. GIRFEC has been operating on the ground in practice for quite some time, and families have been waiting a long time for recompense. I do not know what the shortest timescale would be, but the shorter, the better.

As Angus MacDonald said, the Education and Skills Committee has said that it cannot reach a conclusion on the bill until it has been able to consider the draft code of practice. Ms Scott, will you expand on what you said in response to him?

We are asking for an inquiry into historical and current practice. The code of practice and the deliberations about it do not affect current practice, because GIRFEC is in place and has been for a number of years. Implementation has varied across Scotland. The whole purpose of the legislation was to provide for consistent implementation, rather than to introduce new practice, because the practice was already happening on the ground. We are asking for an inquiry into that. Whatever the draft code looks like does not affect the current or historical situation. Families need to be heard and they need recompense, and the practices that have gone on need to be brought to light.

Should the bill have been considered earlier?

The approach should not have been implemented. The legislation came after it had been implemented.

I thank the witnesses; that was an interesting exploration of the issues. Do members have comments or suggestions for action?

In the first instance, I think that we need to seek the Scottish Government’s view on the action that has been called for. It would also be helpful to write to the Information Commissioner’s Office, to seek its views on the petition.

I think that the point that we would want to make to the Government is that the issue is not future solutions but what the Government will do to address the concern that practice drove certain behaviour, which had not been legislated for at that point. It would be worth writing to the Scottish Government and to the ICO, as you said.

Alison Preuss mentioned an unanswered letter to the education directorate. I do not know whether there is anything that we can do to get the information that has been requested.

My constituency member of the Scottish Parliament has taken up the issue. She said that she would write to the directorate. I have not heard back yet.

We can flag that up in the correspondence. Not responding is different from responding in a way that the questioner does not like; it is frustrating in itself.

We will write to the Scottish Government, indicate the issues that have been raised and ask it to respond. We will underline that this is not about the future but about what the Government is going to do to address what has happened—if it agrees that that there is a concern about what has been flagged up. We will write to the Information Commissioner’s Office as well.

When the responses are received, the petitioners will have an opportunity to reflect on them and put a further submission to the committee.

I thank the petitioners for their attendance today. It has been a useful session. I suspend the meeting briefly, to allow the petitioners to leave the table.

09:45 Meeting suspended.  

09:46 On resuming—  

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Title Conditions (Scotland) Act 2003 (Review) (PE1691)

PE1691, on a review of the Title Conditions (Scotland) Act 2003, was submitted by Christopher R Hampton on behalf of the steering group of Bowman’s View.

Members have a copy of the petition and the briefing prepared by SPICe and the clerks, which provides background information on the Title Conditions (Scotland) Act 2003. The briefing also notes that the Scottish Government has recently indicated to SPICe that it has no current plans to amend section 64 of the 2003 act as it applies to sheltered housing complexes or otherwise.

Do members have any comments or suggestions for action?

I was an MSP when the legislation was considered. There are interesting issues about burdens in relation to certain housing complexes and the inability to move to another factor, including the provision that there needs to be a two-thirds majority to remove a factor. I remember at the time that the issue was highly technical and there were a lot of concerns and issues about protecting the characteristics of a sheltered housing complex.

I find the argument in the petition compelling.

I agree. I was surprised to see that property owners can only vary the terms, rather than remove a factor altogether. There are also minimum age requirements. There is a case for taking the petition forward.

Judging by my case work, I think that there is a strong argument in support of the petitioner’s viewpoint. I am struck by the Justice Committee’s report from 2013, in which it noted that the complexity of the current law can create barriers to switching property factors. However, in its response to that report, the Scottish Government took the view that no change to section 64 of the 2003 act was required. It may be time for the Government to look at that again, and I am therefore happy to move the petition forward.

I agree with Angus MacDonald. The petition raises important issues. I had not realised the effects on sheltered housing. There is a more general concern about factors and how democratic the process for changing them is.

It is time that we moved the petition on. We could ask the Government, the Scottish Law Commission and the Law Society of Scotland for their views, and move it on from there.

We agree to write to the Scottish Government, the Scottish Law Commission and the Law Society of Scotland, seeking their views on the action called for in the petition. The petitioners will be able to respond to those submissions.

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Child Funeral Fund (PE1697)

The last new petition for consideration is PE1697, by Michael McGuire, on the child funeral fund. The petition calls for the Scottish Government to establish a child funeral fund similar to the fund that the UK Government has established in England and Wales.

As members will be aware from the clerk’s note, the Scottish Government has recently announced funding that will remove all local authority charges for burials and cremations for people under the age of 18. The petitioner has indicated that the Government’s announcement addresses the action that he is calling for in his petition and he is therefore content for the petition to be closed.

In correspondence received by the clerks, the petitioner expresses his gratitude to the Scottish Parliament for the consideration given to his petition. He also highlights the impact that the Government’s decision will have on many people and he states that that is reflected in the comments section of his petition.

The petitioner also wishes to highlight his personal experience as a bereaved parent. He explains that, when he lost his son, Kyle, he had to go back to work three days after the funeral for financial reasons. The petitioner states that, because of that, he missed out on vital time to grieve over the death of his son and to be there for his wife, which is an impact that he still feels, nine years on. The petitioner is of the view that the Government’s announcement will be

“far reaching and help so many families at a time where the lights have simply gone out in their lives”.

Do members have any comments before we reflect the wishes of the petitioner in closing the petition?

I note our sympathy for the petition. We can tell by some of the petitioner’s comments how strongly he felt about the issue and how he felt that he was speaking on behalf of many other people in the same situation. I am pleased that the Scottish Government has announced that it will remove all local authority charges for burials and cremations for those under 18.

Given that the petitioner has indicated that he is content for us to close the petition on that basis, I suggest that we do so.

Does the committee agree to close the petition on that basis?

Members indicated agreement.

We close the petition under rule 15.7 of standing orders, on the basis that the petitioner wishes to withdraw it.

It is good to note that the petitioner is withdrawing the petition not out of frustration but in recognition that he has secured progress. I am sure that we want to thank the petitioner. It is never easy to take your individual experience and use it to try to make a difference for other people. He has managed to make that difference out of his dreadful experience. We are grateful to the Scottish Government for responding to that because, as the petitioner says, it will make a difference to the lives of people who are grieving.

09:52 Meeting suspended.  

09:54 On resuming—