We value ALL children’s rights and request that the Children’s Commissioner protect ALL these rights under UNCRC and not be selective of which rights are protected and upheld. CYPCS office have refused to uphold and protect Children’s Right Article 16.

We have experienced, like many parents, unlawful Local Authority investigation of our family, home, lifestyle, parenting, based on malicious and unevidenced wellbeing opinion rather than welfare, breaching children’s right to private family life. 

Under GiRFEC and Named Person Scheme, children and young people have been, and currently are, vulnerable to breaches of their UNCRC Article 16, 1 and 2, below, which, in relation to children and young people, is essentially ECHR Article 8, 1 and 2:

‘1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.’

 

The Supreme Court ruling on Named Person stated “that the sharing of personal data between relevant public authorities is central to the role of the named person. As we have explained, this may well constitute an interference with the article 8 rights of those to whom the information relates. We are therefore satisfied that the operation of the information-sharing provisions of Part 4 (in particular, sections 23, 26 and 27) WILL result in INTERFERENCES with RIGHTS protected by article 8 of the ECHR.” (SC ruling 2016, para 78) (Emphasis added.) 

 

“The promotion of the wellbeing of children and young people is not one of the aims listed in article 8(2) of the ECHR. At the most general level, it can be said to be linked to the economic wellbeing of the country... ...the more tenuous the link between the objective pursued by the intervention (eg. that a child or young person should be “achieving, nurtured, active, respected, responsible and included”) and the achievement of one of the legitimate aims listed in article 8(2), the more difficult it will be to justify a significant interference with the individual’s private and family life. (SC ruling 2016, para 89) (Emphasis added.)

 

“Nonetheless, it can readily be foreseen that in practice the sharing and exchange of information between public authorities are likely to give rise to disproportionate interferences with article 8 rights”. (SC ruling 2016, para 88.) (Emphasis added.)

Although GiRFEC wellbeing data processing under GDPR breaches rights to privacy and family life, and in some cases attacks on children’s reputations, CYPCS have intimated this to be an ICO and SPSO overlap.

A data processing investigation would be limited to information rights breaches as confirmed by ICO, while SPSO state they only investigate maladministration and procedure.

Both have written that they are limited in their scope for investigation and do not consider nor investigate breaches to Human Rights. It is the Human Rights aspect that we focus on in our request for an investigation into the systematic breaching of Article 16, and not the Information Rights or maladministration aspect. 

 

Wellbeing is not welfare and does not constitute a risk of significant harm, the current lawful threshold for interference in family life as upheld by the Supreme Court, and not Government-dictated outcomes based on vague and undefined GiRFEC and SHANARRI wellbeing concerns, which are open to subjective interpretation. 

 

Under GiRFEC and Named Person, historically and currently unlawfully run as it was legislated for in CYPS Act 2014 in many areas in Scotland, children are having/have had opinions created about their private lives, this data gathered and shared without their/their parents’ knowledge or consent. GiRFEC and Named Person Scheme is open to abuse as in our case.

The very nature of this GiRFEC information is deeply rooted in private and family life, and the processing of this information without subject’s consent, being acted upon, eg. early intervention, accessing private and confidential medical records, unlawful referral to Children’s Reporter resulting in investigation into private and family life where no child protection concerns exist, family members’ details and wellbeing concerns entered onto database - iVPD, etc., constitute BREACHES OF UNCRC Article 16, an ‘arbitrary and unlawful interference’ at lower than the lawful threshold for interference, and is a direct breach of UNCRC Article 16. 

 

Lead Professionals, Named Persons, Police and NHS have been gathering and sharing information, which breaches Data Protection Act 2018/GDPR, but it is not the breaching of data protection rights we request an investigation of as we understand from correspondence this to be ICO remit, and we understand it is not simply maladministration to be investigated under SPSO remit - it is the Human Rights breaches we request an investigation where the NATURE of the data, and subsequent ACTION taken by Lead Professionals, Named Persons etc. based on the unlawful data processing, that is the interference in private and family life and attacks on children’s reputation. The Supreme Court conclusion on Named Person stated that the ‘provisions..  ...(b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not “in accordance with the law”.’ (SC ruling 2016, para 106.)

 

My own children had malicious concerns invented about them (and us parents) when I complained about school staff. 

I called Police for assistance, who entered all of our names onto their iVPD as school staff misrepresented facts. The Named Person raised never previously recorded concerns based on his understanding (gossip) of our family, about our home, my provisions and ability, lifestyle and my children AFTER my complaining. I have never met this person and he has never seen our home. Prior to my complaining, we had never had any wellbeing concerns raised against us.

My children’s information was sent to an unknown member of the public’s address and opened. Four of our family members medical records were breached as the GiRFEC Team hunted for non-existent mental health concerns and more. Another Lead Professional requested concerns to be written about us in Child Assessment Reports and he gathered them. He then presented the concerns to SCRA who requested the Police concern forms, while attempting to hide his conversations with SCRA in Subject Access Requests. An investigation into malicious, discriminatory, ‘unsubstantiated, disproportionate and irrelevant’ wellbeing concerns superseded an investigation into child protection concerns I raised within school. Our private and family lives were under the microscope for 6 months, based on opinion, manipulation by many officials, and lies.

 

All this unlawful data processing resulted in a breach to our Article 8 rights, and our children’s Article 16 rights. Our family was scrutinised for months and we were investigated by Social Work, who completely exonerated us and went further to say that there were no concerns - the complete opposite in fact. SPSO have upheld my complaints and ruled that there were no grounds for referral to SCRA. 

Shortened version of outcome here:

https://www.spso.org.uk/decision-reports/2018/october/decision-report-201609423-201609423

 

This could potentially happen to any parent who complains about staff. The unlawful GiRFEC data processing, and any resulting early intervention would be an interference in family life through the processing of GiRFEC, potentially resulting in referral and investigation. Every child in Scotland, (and their family members,) is at risk of having a direct breach of children’s right Article 16 and ECHR Article 8 through GiRFEC.

Under GiRFEC policy, Children have no protection (Article 16 (2) against the opinion (attack on reputation) and any action thereafter (Article 16 (1) of professionals as described.

Children have the right to protection against this attack and interference, however, GiRFEC policy leads to a direct breach of children’s right Article 16 (2) yet the Children’s Commissioner’s Office has refused protection and refused investigation of these Children’s Rights breaches.

We therefore request that Mr. Adamson exercises his powers under section 7 of the Commissioner for Children and Young People (Scotland) Act 2003 as amended by Part 2 of the Children and Young People (Scotland) Act 2014, to conduct a general investigation due to potentially affecting ALL children in Scotland, and an individual investigation using new powers as having already affected my children, into the systematic breaching of UNCRC Article 16 in relation to GiRFEC and Named Person Scheme through unlawfully sharing private and personal information, actions of early intervention, i.e. referrals leading to investigations etc., contravening Article 16 AFTER unlawful data processing (which contributes to human rights breach as forecast by the Supreme Court) of GiRFEC occurred, with a view to support and uphold both parts of Article 16;

1). No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation at unlawful threshold based on previously unlawfully processed information, and,

2). The child has the right to the protection of the law against such interference or attacks.

Children have this right to protection against Authorities interference, this is the reason for Article 16 - to prevent this from happening.

If you uphold UNCRC Article 16, you will be protecting ALL children in Scotland, and their families, from having to experience similar traumatic interference as our family had to endure. If you do not uphold Article 16, every single child in Scotland risks an interference into private family life on low and undefined threshold of wellbeing, which will be in contempt of the Supreme Court ruling on Named Person.