 I welcome everyone to the 26th meeting of the Education and Skills Committee in 2017. Can I please remind everyone present to turn their mobile phones and other devices on to silent for the duration of this meeting? Apologies have been received from Tavish Scott. Agenda item 1 is a decision on whether to take agenda item 4 on a work programme in private. Is everyone content that agenda item 4 is taken in private? Thank you very much. The second item of business is two panels of evidence on the Children and Young People Information Sharing Scotland Bill. This is the fifth meeting where we will be considering the bill. We've already heard from the Scottish Government's bill team, members of the legal profession, health service professionals, local authority representatives in relation to education and social work again, nursery and early years education and from the information commissioners office. On the first panel this week, we have a focus on those who will be required to consider sharing information with the named person. The focus for the second panel is on children who are already involved with statutory agencies, whether it is looked after children or young offenders. I'll start off the session by asking a couple of questions, which are to the whole committee. Could you tell us the extent to which you expect your organisations will share information with a named person service? Is there anybody keen to start? I'm happy to start. At the moment, as part of our regulatory work for the care inspectorate, we would not be sharing information directly with a named person service. Our role is supporting and encouraging service providers to share information appropriately with named persons. When we're inspecting early years services, children's services, on a regulatory basis, we will be encouraging them to build good relationships with named person services and be sharing information as appropriate with them. That would be our main focus in terms of our regulatory responsibilities. In terms of our joint inspections of services for children, again, we will consider and we will become aware of situations in which there are well-being concerns getting in the way of a child's development, and our expectations there are that we will be expecting, again, partnerships, service providers to take action appropriately on that and make decisions about when it's right to share information rather than us doing that directly with named person services. Thank you very much. Before anybody else responds to my question, I apologise for not introducing you all first and saying that that was due to take the service manager strategic scrutiny, children justice care inspectorate. We also have Maggie Murphy, senior curriculum manager at Glasgow Kelvin College and representative of College of Scotland and Norman Conway, Detective Chief Inspector of Police Scotland and Megan Farre, policy officer, children and young people's commissioner Scotland. Thank you for answering that question. I would ask that during the course of this session, if anybody wants to respond to a question, if they just try and catch my eye, that would be great. Thank you for that. Anybody else wish to respond? The majority of our operations mean that we're not an information sharer, but we do have an inquiries line and we do get inquiries from children, young people, their parents, from professionals and sometimes from people who know the child in question. Unless there is a child protection concern, we don't share information without consent and we would expect that to continue to be the case. We have systems to record consent to the child and there's two parts to that, one giving us consent and the other giving the local authority or service provider consent to share information with us. An example is that last week we had a case where we were contacted by someone else in relation to an issue regarding a child. Didn't meet the child protection threshold but it was significant of a concern for us to want to discuss it with the local authority but we sought the consent of the young person before we contacted them. We would usually inform a child if we were going to share information even if it was a child protection matter and the only exception to that would be if the child or young person would be put at more risk by finding out. From the police, for ourselves following the Supreme Court judgement, we've carried out quite a lot of work in terms of our concern practice, really tightening up in terms of the duty to consider sharing information, justifying the share of that information with each different agency and we would very much see the name person service as just one piece of the jigsaw in terms of getting it right for every child. I think there's been some concerns expressed that there would be an avalanche of information going towards the name person service from a police perspective that wouldn't be the case. We would be looking at the best people in terms of sharing information acting within the law and some of that will be statutory agencies such as social work, maybe the name person service but there's also opportunities within the third sector. From a college's point of view, but at the college I represent, we support a high volume of vulnerable young people from 16 to 18. Many of them have statutory involvement with social work organisations and other support-based organisations and as a result of that we do share information and we do it from a consent point of view from the young persons directly being involved and we also do it from a person-centred point of view. In terms of a college, we would share information for the safeguard and betterment of that young person's involvement in college's life so we would do that and we would recognise the value of doing that on a fairly sustained basis. DCI Conway already talked on the next point about what sort of preparatory work in relation to the duty to consider sharing information of your organisations done? In terms of our college, we would support members of staff through training through safeguarding and corporate parenting and any changes in legislation they would be updated on so staff had an understanding of the responsibility of duty of care from a safeguarding perspective so it would be CBD for staff under safeguarding and corporate parenting legislation accordingly. Does anybody else want to come in at that point? We have looked at the duty to consider but the reality is that we already consider when we receive information from children, young people or other people whether or not this is a child protection concern that's part of our normal processes already and I think the evidence that's been heard previously suggests that's also the case for other organisations. Our other concern around the duty to consider is that it needs to be clear that this doesn't actually change the threshold at which non-consensual information sharing occurs. Anybody else? One last question then that I have is, in general, do you support the GERFEC approach in the provisions of a universal name person service and do you also agree that information sharing is important if we're to succeed in the objective of improving outcomes for children and young people in Scotland? Fundamentally agree. The college does take a GERFEC approach and we record young people's attainment and success using shenari indicators so we fully and wholeheartedly embrace that and it is case studies where young people have had multiple agencies in their lives whilst at college and we've shared appropriate information that those young people have gone on to thrive and succeed and articulate well so we would certainly embrace that. Likewise, we support getting it right for every child and we support the name person scheme. It will make a significant contribution to the realisation of children's rights in Scotland. It gives children and young people and their families a single point of contact to access services and that's an improvement on situations that occur at the moment. We supported the name person scheme in the joint letter from children's organisations that was sent to the Government in June 2016 but we have raised concerns around information sharing and the potential that information sharing thresholds were lowered during the passage of the Children and Young People Act 2014 so we did support the arguments that Clen child law made in relation to the information sharing and concern for children's privacy. Okay, thank you. We would certainly welcome the policy intention of the bill. We support the general principles that are to support practitioners in clarifying their understanding of the right point at which information should be shared below the child protection threshold and we also welcome the importance of professional judgement in making those decisions. From a scrutiny perspective, I think what we would be considering this within the context of, we've moved a long way from a position in which partner agencies are now very much having ownership of the need to both protect and promote children's wellbeing and recognising the role they have in that and we would not wish momentum to be lost in that, in how far that work has come and we would be able to identify what the levers are when we are out inspecting in terms of what promotes positive early intervention as well as what some of the barriers are. Okay, thank you. Likewise, fully supportive of getting it right for every child and the name person service and think that it's a real opportunity to bring a bit more consistency and practice across the country in terms of the legislation. Just now we have done a lot of work internally in terms of standards of information management taking the rights of the child as part of that assessment process and actually really justifying and recording the rationale for sharing information no matter what agency it's with but actually what we have just now across the country is a bit of a patchwork quilt in terms of where that information then goes. So I think it's a huge opportunity in terms of even getting back to Christy and the opportunity for us to deliver on the prevention agenda and get much better at picking up on the early warning signs. I think that's a great opportunity. Okay, thank you very much. Ross. Thanks, community. DCI common, particularly interested in how this affects Police Scotland given your relatively unique position within it. One of the objectives of name person is to improve consistency around information sharing and now that you're a national force I was wondering what your officers experience is of consistency when it comes to your relationship with social work, with schools, across the local authorities. I think that's been a challenge in how we've been able to drive consistent practice in terms of how we're managing information how we're assessing that information and how we're sharing that information and that's not sharing all information that we've really tightened up in terms of what's shared and who it's shared with. I think that the challenge is following the Supreme Court judgment is that it created a fair bit of uncertainty in terms of what could happen and there was different interpretations within the local partnerships of what that meant to them. So there was a bit of push and pull in terms of local partnerships in terms of their expectations of us in terms of when we would share and when we wouldn't share and actually we've managed to work through a lot of that but I think that the legislation would probably bring a bit more clarity around about the roles and responsibilities and functions of the name person service and actually give us, it would probably declutter the landscape a bit for us and help us ensure that children don't fall between the gaps. How much of a change to your current practice would it mean once fully implemented in some of your previous submissions to the Finance and Constitution Committee indicated particularly around the concern hub that you're essentially operating in line with the provisions in the proposed bill? Yeah, I think we're fairly comfortable in terms of a continuous improvement journey. I've heard examples of people quoting where things have maybe not been dealt with properly. Hopefully they're isolated and they're not a massive issue. I think that the challenge for us in terms of yeah, we've trained our concern hub staff. We really have started to embed the standards of information management and information sharing but the challenge for us is in terms of our operational practice and I think there's further training to be done with our operational officers because we deal with quite a high volume of child concerns on a weekly basis and actually the journey of identifying wellbeing concerns, recording the wellbeing concerns, articulating them to children and families all starts sometimes in a household at 3 o'clock in the morning so we need to make sure that our officers actually get that right at first point of contact. Thanks a lot. Okay, thank you very much. In Police Scotland's submission to the Finance Committee just to pick up on the point that you've just raised there were concerns about resourcing of this. Could you first of all tell us DCI Conway how much time of the officers' training would be spent on information sharing and knowing what is right and what is not right in terms of what they have to do? The Police Scotland have put significant investment in my project. This has been one of the work streams for the past three years or so so it's been a bit of a journey in terms of continuous improvement. What I would say is we're still working through what potentially the implications of GDPR are, what the implications of this bill and the code of practice are. We don't have a definitive in terms of what that training would look like in terms of our operational officers. There's some train of thought that we may be able to address it through e-training but actually we may need to address it through face-to-face training but actually a big focus will be on standards and information. It's really difficult to give in terms of resource commitment and time but what I would say, we did flag up in the reply to the financial memorandum that we felt that the Government should recognise that there have been no account-taking of Police Scotland training requirements but what I would say to caveat that is I don't think it's insurmountable and I think even if we didn't have this bill here I think we would still be having to train our officers in terms of standards of GDPR and explicit concern. I'm sure. Could you tell us how much money has been spent on this training already? It's difficult to put it. The project I'm involved in, the risk and concern project has been pretty wide range and there's been three work streams. We've been largely working on concern hub improvement, we've been working on the CYP Act and Bill and we have also had the vulnerable persons database. So we've had a project team that have been working on that for probably about three years, really difficult to put a cost against that in terms of stripping that out and what was spent where. In general terms, the work streams have all ran alongside each other and actually from a police perspective I think we're in a much better place now than what we were three years ago. Thank you for that. I'm just interested in the fact that obviously you've made quite a strong complaint to the finance committee that you don't feel the resourcing behind this is adequate and therefore to make that judgment you must have some idea of what it is that is required in order to make it adequate. Could you expand a little bit on what kind of money you think does have to go into this training? I don't necessarily think the complaint from the submission was in relation to resourcing in general. It was just for a recognition that there will need to be some level of resource committed to developing training packages and delivering the training packages. So what I'm saying is I don't think that that will cause us a huge issue. We thought that it would be worth flagging to the Government that that hadn't been picked up in terms of the financial provision for the rollout of the bill. But what I'm saying is in terms of our project taking things forward I think that the cost and resources could probably be subsumed in and amongst the other work that we're doing just now. Having said that, there was comment made that you were a bit surprised that the budget was given only for one year beyond implementation and you rightly made the point, or rightly in my view, that there will be on-going training for new officers. Have the police done any estimate of what that cost would be? We don't have any cost against that. If it was any best training package, clearly it would be much more straightforward to deliver that training. If it's going to be face-to-face training, there's probably more implications in terms of delivery and costs and resources. So we're still at the stage of considering what we actually need. It's not totally clear what GDPR is going to look like. We don't actually know in general terms we will be involved in the re-drafting of the code of practice. So it's very much a work in progress. It's really difficult at this time to actually see what that looks like in the future. I call me once you do know these details. Surely it would be practical and sensible to make a recommendation about how much money is required in order for you to do your job properly, because that's the implication of what's already been said to the finance committee. That's a fair point. Thank you. Gillian. I actually want to pick up on something you just said there. You already said that you will be involved in the re-drafting of the code of practice. That gives me an opportunity to ask what you feel from speaking to people in your organisations, what you feel should be in that code of practice and how that should look. I think in the written submission back we expressed some concerns with a heavy weighting towards consent. I know that there are strong viewpoints on consent. I'm not the first thing I'll caveat this with is I'm not an expert in information management. I'm not a lawyer, but I've spent quite a lot of time over the last year and a half looking at standards in information management, data protection act schedules 2 and 3. The point that we made back was that in terms of what's coming for GDPR, in terms of explicit consent, we find it really difficult in an operational setting to apply explicit consent. So we felt that the code of practice and its current illustrative draft had too much weighting on consent and actually there was other legal basis for police and partners to share information and we actually do that successfully just now. So we would like more clarity in terms of I think it's really important that we take a rights-based approach to children and young people. But if I have officers standing at 3 o'clock in the morning in a really challenging situation, the standards of explicit consent are going to be really difficult to obtain at that time because quite often the officers actually don't know what's going to come after. We join it up with the chronology within the concern of assessment process. So actually how can we tell them where we are going to share their information because the officers don't know. So in terms of the redrafting of that code, I think there needs to be more clarity. I think there is dangers in going for an exclusively consent-based model. I think that will cause real difficulties for the police and probably other emergency services. I think that it will probably cause us to actually hold information that otherwise could have been shared in terms of the current law. So I would like to work through that with the Government. I'm fully supportive, I'm quite comfortable that we can support the Government to redraft that code to be more reflective of the current law. And I'm not dismissing children's rights and the right for part of our training will always be to seek the views of children and young people. But actually if we ask a child or young person in a house at 2 o'clock in the morning if they give us their consent to share their information and then later on at part of the assessment, they say no. And then at our assessment stage we actually believe we've got a legal basis to share information. We've got that attention there in terms of what they said and what actually our duty is in terms of our statutory duties. So we're really comfortable with seeking views and actually taking the views of the child or the young person or the parent or the guardian into account as part of that assessment process. But actually I think there's some dangers in going for a practice model that could actually see child concerns being stockpiled and actually is not getting the right information to the right people at the right time. So that's just, that's from a police perspective, we really have difficulties and I think the ICO has represented that where public bodies will find it really difficult to make these standards. So we are not excluding consent, there will be circumstances where we will seek consent to share information. However, we will probably look for another legal basis to share the information rather than solely exclusively relying on consent and that's the bit that we just need to work through in the code of practice. That's really helpful, thanks. I wonder if anyone else wants to come in around? So come in so it'll be helpful for him to come in at this point and then the rest of them can answer them. I hear about you, say DCICOM made round consent in another sort of test. I just wondered what you think that test looks like. If we're talking about redrafting the illustrative code, do you have a suggestion for those of where that threshold would lie? I think in terms of the current legislation, in terms of schedules 2 and 3 and I don't want to become technical here but there is other conditions for processing information within schedules 2 and 3 that still allow us to satisfy the law. Consent is only one of the conditions for processing. So I think it's really important if we're looking for a practice model that's actually more consistent, focused on prevention, a shift towards family support rather than crisis responses, then I think we need to actually use the current law in its format, still be compliant with data protection, still be compliant with human rights, really tightening up on necessity, proportionality, justification and actually only sharing relevant information with the right people and that's not a blanket sharing of information. But in terms of our statutory duties under the police and fire reform act, in terms of our core purpose to improve the safety and wellbeing of people in places and communities and some of the core functions of the police constable in terms of prevention detection of crime, these are ways that we can look to share information and justify the sharing of that information to act in the best interests of a child. But we also can look at the receiving organisation in terms of their core functions and roles and responsibilities and actually make an assessment on whether they have a core function and a role and responsibility to help that child or young person. So I think that's really important in terms of the current law and the process to do that. There may be isolated cases that have been highlighted in terms of where we've got it wrong. I would like to think that a lot of that will be addressed through training and actually this is a content, nothing standing still. There's a lot of things happening and there's continuous improvement across the board and actually I just think the opportunities there to still act within the data protection act and human rights act without going for a solely consent based model. OK, that's helpful and interesting. What worries me, I mean I'm looking at paragraph 107 of the Supreme Court judgment where they're talking towards the end of it about a compelling justification for sharing that information and I cannot understand the argument you're making within the context of the police. But I appreciate for other people who might have to interact with this legislation who maybe don't have the background experience of a police constable, it'll be quite difficult to figure out what a compelling justification means in the individual circumstances. Do you accept that? I take your point. My understanding is that the code of practice when it's redrafted will be the high level document in terms of setting out the kind of standards but actually my understanding is the intention is that each of the organisations will actually develop their own practice guidance that will sit under that code of practice so it can't be rigid, there's got to be a bit of flexibility and I accept that there will be circumstances in a controlled environment where consent is the appropriate route. I just think that we can't forget about some of the statutory duties that the police and others have in terms of sharing information right now and actually there's a tension there because if we look at the children's hearing act and our duty to share information with the children's reported administration, in one hand we could be dealing with a child youth offender and actually have a statutory duty to share that information but at the same time asking consent to share their information with the name person service and actually what we're trying to do is actually make this practical so that we won't ignore the rights of children and young people but actually we'll take that into consideration as part of the assessment process to see whether we can lawfully share information. Ms Farr and then Tate. Thank you convener. I'd like to come in on a couple of minutes. DCI Conway's covered very well I think the situation that the police are in but there are a number of other service providers who will be sharing information about children and young people. We believe that the basis of information sharing should be consent in the vast majority of cases that sharing without consent should be exceptional and I think DCI Conway's given some of those examples particularly the situation of a child at 3am is very unlikely to be able to give consent in that situation but in the majority of cases with service providers who are dealing with children on a day-to-day basis and children that they know for example the NHS and within local authorities in schools and in social work we believe that these organisations should be able to provide an environment in which and a relationship with that child or young person and their family in which consent can be freely given that an explicit consent can be obtained. In the case of the NHS they do this routinely with children, young people and their families in respect of medical care so it's not a new concept. But to do so and then coming on to the questions regarding the code of practice and other guidance and we feel that there's been some evidence in earlier sessions I think given to you where there continues to be a lack of clarity and DCI Conway's also mentioned different practices between different local authorities and different interpretations at present. As a result I think we feel it's very important that the code of practice and other guidance puts consent at the heart, makes it clear that children's rights approach should be taken and children have a right, article 19 of the United Nations Convention on the Right of the Child that the state shall protect them, take all appropriate legislative, administrative, social, educational measures to protect the child from physical or mental violence, injury or abuse, neglect or negligent treatment. And that's the right under which children's rights to privacy and that information can be shared when they are at risk of significant harm. The code of practice needs to be really clear. It needs to be understandable for practitioners working at all levels and bearing in mind that people sharing consent are not going to necessarily be senior management. It needs to be in language that's understood also by parents and by young people because there's a need to build confidence in the arrangements that are happening under the children and young people at 2014 and to clarify exactly what's happened, exactly what will be shared and when and under what circumstances it will be done under child protection grounds. The information of commission's office have produced guidance in recent years that is easy to understand, that is still statutory guidance and we don't feel it's an insurmountable problem to produce a code of practice that meets these rights. Last month's father, and this goes back to the point that Gillian Martin was asked, are you going to get the opportunity to feed in? So the point that you're making to us will you have the opportunity to feed them in to the Government or have you already done so? We continue to, we met with the Government last week to discuss it. We'll continue to play the role that Parliament set us up to provide to make sure that children's rights are at the heart of the process and we'll continue to feed that into Government. OK, thank you. From a scrutiny perspective, what we see is where the performance of community planning partnerships is strong and positive. Practitioners are very reliant on good, clear guidance and I think that guidance and legislation are essential parts of the whole kind of network and framework of how children's needs can be best met. I think what underpins that is the presence of strong respectful co-operative relationships between partners and I think that will also support kind of positive and appropriate information sharing. What we see is that training is incredibly important but multi-agency training will have a really positive impact and not just once but revisited practitioners had opportunities to come together to tease out those difficult situations. The ones that are clear are clear and people know what to do and they take action. I think the ownership of the need to protect children means that that's very well understood now across services. But the ones that sit below that threshold which are tricky require good relationships to help to tease that out supported by good guidance to do that and supported by quality assurance arrangements within services that help managers and leaders to look back and say have we got that right? What can we learn about? How can we improve that? Guidance legislation has one aspect of being able to meet children's needs at an early point appropriately would be from our inspection findings. In relation to the underlying principles the code of practice I agree with most of what's been said it should be person-centred and it should take the young people's needs into consideration from the absolute outset. In terms of the college's point of view we work extensively with authorities and local partners to ensure that those young people's needs are upheld as best as possible but the code of practice also needs to have a practical element to it so that staff, whatever organisation they represent can interpret it, understand it and apply it with a reasonable level of consistency but if those principles are about the young person being at the centre then I feel that's got a better chance of being the outcome. It needs to be a practical document it needs to be a document that people can understand and use within their day to day so that they can learn an organisation and it ultimately needs to represent the needs of young people and I would strongly urge that that is kept at the forefront. Okay, Gillian started this off so I'll go back to her and then Joanne wants to come in. Yes, so do you agree? I mean what I'm getting from you that there's maybe an opportunity here to improve information sharing that you mentioned a patchwork situation as it stands at the moment but also from what you're saying as well it seems to me that there's an opportunity to do training jointly between people so that there's a greater understanding as to what each type of organisation faces and how would that be off the mark? You're all nodding so... Information will be happening on a joint basis as part of GERFIC implementation so across the country in our joint inspections we would see evidence there have been opportunities for joint training. What we don't see as often is that partners are able to come back together staff have come back together routinely and regularly to revisit that training now that they have become more familiar with it and with guidance. What is it like to put that guidance into operation? How do we kind of overcome some of the sticky points in that and areas that people are less clear about? So ongoing training I think and opportunities to come together are really important. So can I ask... In terms of the wellbeing information that's shared and obviously the concern hub you've been working on this sharing wellbeing information and that word seems to be right in the middle of this whole thing. How has that done and how do you see that being done as a result of the bill? How would that change? The standards we've applied to the information within the police just now won't necessarily change other than our obviously operational officer practice. What we'll probably find more consistency in terms of the bill and the code of practice is the routing of that information and where it goes and actually to pick up on your last point in terms of defining the roles and responsibilities and actually making it clearer where everybody fits into the bigger picture around about getting it right for every child. I think it's a good opportunity. Traditionally a lot of this information has went to social work and actually social work there's now an opportunity to actually look at what social work's role is in all of this what the name person's role is what the third sector's role is and actually I think there would be great opportunities through joint training to actually get that better understanding of each other's roles and responsibilities. To the information that's actually going to the person who really needs it the most rather than that. Right. Sorry, you wanted to come in. Just to concur within the college context we work with some of the most vulnerable and excluded young people in the most areas of deprivation in poverty and with that comes a whole range of issues. I can't do my job in isolation I have to work in partnership with a range of organisations it's pretty implicit in practice in the faculty that I work for in the team that I support to do so and the staffs have been encouraged to raise concerns in a regular basis regardless if they become full blown safeguarding issues and the code of practice needs to give staff the opportunity to recognise that they feel they can raise concerns and the collegiate partnership working is absolutely imperative to moving this forward successfully. We can't exist in isolation anymore. A specific point first of all to Megan Farre I think you said that there shouldn't be sharing of information that the test would be unless there's a significant risk of harm and I wonder how you think that sits with a view what we need is early intervention you seem to be suggesting don't share information until effectively there's a crisis and actually then there's a problem because you haven't done the things you could have done to prevent the crisis in the first place. Our view from a human rights perspective is that information shouldn't be shared without consent below the child protection threshold and at what age would the consent be given by the child and not their carer? The UNCRC the United Nations Convention on the Rights of the Child the committee's general comment 12 which deals with the issue of children's right to have their views taken into account states that children should be presumed to have capacity unless they're assessed otherwise. In terms of the current data protection legislation in Scotland an age of 12 is set at the ages in which the majority of children will have the capacity to consent to information sharing. In terms of early intervention with a family and just to be devil's advocate there's a young person under 12 that you have concerns about and you need to work early there's not a crisis but you can see there's a problem coming as a school teacher I would have seen maybe a deteriorating situation myself. You're saying that the adult responsible for the young person could withhold consent because there wasn't a significant risk of harm. That's the current situation and we feel that there isn't compelling evidence that children's rights under article 8 of the European Convention on Human Rights and their rights under the United Nations for the Rights of the Child should be breached. But their right to a secure family a secure family situation their ability to learn that the consent can be withheld by... If I care her, if I could understand... I want to be clear in terms of somebody who's under 12 where there are concerns and early intervention strategies you would want to come in early and try and support but you would say that the issue of consent is at the higher test. What we would say is that under getting it right for every child and the approach which should be happening is that families and should be working... well, service delivery organisations at schools the health service should be working in partnerships was talked a bit about partnership already. The partnership should include a partnership with parents and their children and there shouldn't be a situation where there isn't a relationship built up with that family already. Do you think there's ever a situation where there's the rights of the child and the rights of the carer are different then? There are. In those circumstances the exercise of consent by the carer may have an impact on a young person but you would still apply the same test. If on the balance of the rights of the child's rights to be protected outweigh the parent's right to exercise article 8 of the ECHR on behalf of their child if the child is below 12 on that basis we would say if the right to be protected would take precedence and in that case the information could be shared. That's the current... effectively it's expressed in human rights language but that's the current situation with regard to child protection. The more policy around early intervention clearly comes up against that can I ask maybe just one last question? This is a theme that has come up in other evidence sessions that the duty that's now going to apply may involve defensive practice involved in make decisions around information. If you've got a duty to share that's pretty straightforward. If you've got a duty to consider to share and there is some question about what you would have to evidence you to give to show you've done that it may lead in certain circumstances to people feeling to be on a safe side I'm not going to pursue this. Is this a concern that the end in the panel has? I think that's a concern we do have in terms of that we have heard in examples with issues which our child protection issues aren't shared but also examples where people don't share with their line management. Now that isn't information terms in the share of data protection that's how organisations operate for example a classroom assistant not informing the line manager of a concern that would be normal practice and isn't covered as processing under the data protection legislation. The college approach I mentioned in one of my earlier contributions that we offer training on safeguarding and corporate pairing to front line teaching staff, reception based staff support staff and take a holistic approach to understanding the underlying principles of safeguarding and we encourage conversation and we encourage information sharing as best as possible and we try and ensure that staff are given appropriate CPD so that they have an understanding of their role, the legislation and the jurisdictions around it accordingly to protect both them and the young people in our college campuses and I think that the principles are pretty clear. Do you think that the new approach as a consequence of their own by the Supreme Court would make the petitioner more cautious than it would have been with the legislation as it was before? I think that with the application of a good code of practice and the application of good training it won't. I would say that we've probably came from a place many years ago where we only shared protection threshold and then we came through that journey where the ICO guidance from 2013 we started to believe that we were in good grounds to actively share wellbeing information regarding children and actually what's happened following the Supreme Court judgment is that we have really tightened up in terms of individual rights we've really tightened up in terms of the information that's been shared but I wouldn't say that that's defensive practice in the rights of individuals with the need to act in the best interests of children so I'm fairly comfortable from a police perspective that there shouldn't be defensive practice but actually there is improved practice in terms of how we're dealing with the information regarding children and young people. I would agree that we've come a long way in terms of the ownership of partner agencies and understanding their responsibilities to look after children's wellbeing and promote that. I see from our scrutiny evidence that wellbeing concerns have been acted upon that for the majority of children will also improve their safety further down the line so the decision to share information coming to those conclusions for practitioners is a highly complex one they're taking into account a whole set of variables what they know about the child, the family the child's normal presentation child development, the impact of adverse events on children so a code of practice really does need to support professional judgment in coming to that conclusion but I would argue that although I think since the supreme court judgment there has been potentially a dip in confidence of people undertaking the role of named persons in terms of knowing what they should be doing and I would not wish any momentum to be further lost that actually the commitment to get that right at the right time, in the right circumstance is strongly held across the country OK, thank you very much Colin and Diana Joanne Rankin raised the question of wellbeing is there a common concept of wellbeing does everybody have the same understanding of what wellbeing means it's quite an important quite important thing I think that the wellbeing indicators have been a very helpful framework for practitioners we across the joint inspection programme have seen the evolution I suppose of confidence from my practitioners in understanding the holistic needs of children there will inevitably be some differences in an interpretation of responsible and respected and there are differences in terms of what that means of different children's ages but the more that practitioners come together to debate that and discuss that and consider what their role is in promoting children's wellbeing then the further down the road of having a shared understanding of language of what wellbeing positive wellbeing means I would support that I would say that probably the vast majority of the wellbeing concerns dealt with by the police are largely in relation to safety and health and the indicators are really good for us in terms of making that assessment of need in terms of where the information if we have the legal basis to do so where we would share that I would concur I think from a college perspective understanding of the principles of wellbeing are very consistent in what we do with secondary schools so there is seamless transition from young people who come from secondary schools to further education in that that is ever-growing we share a common understanding of wellbeing and we apply the scenario principles accordingly so I am pretty confident that we are consistent in our approach to the standards of wellbeing what we see is that there is a good understanding across different sectors and that those particularly the Shari framework has used to provide a holistic assessment of wellbeing and that it is a good way of ensuring that children's rights are realised Will I be correct in interpreting what you are saying is that there is a sort of a core of understanding of what wellbeing means with variations according to the disciplines that are using it to interpret it for the individual that is probably a bit clumsy the way I have said it but what I am trying to get at is there is a little bit of flexibility in it to how you are applying it Would that be fair? I think we recognise that we represent different organisations so we will see I don't see children, I work with young people so we will see young people in an educational context so the indicators for them will be seen in a classroom environment so my staff can pick up on any deterioration or issues in a classroom environment so I think there are nuances or differences but I think the principles are applied consistently I think from our perspective what has been helpful is that we have been reviewing plans for individual children as part of an inspection it may well be that education staff have been focusing on their role in supporting achievement I think as confidence with the wellbeing indicators has grown what we see is that different professionals recognise the whole range of contributions they can make across the wellbeing indicators so that children's plans will be recognising the teachers and the schools' contribution to respected and responsible as well as to healthy and active so it has broadened I think the understanding of how professionals can contribute to wellbeing I am interpreting a little bit here but would I be correct in saying that too rigid a definition of wellbeing if for example it was in the bill or whatever wellbeing might actually be counterproductive that that little bit of flexibility according to the different disciplines is perhaps the right way it should be I would agree with that in terms of a rigid definition could actually be applied in black and white and actually we could have practised making decisions that don't fit the definition I think the indicators allow enough flexibility bearing in mind that every concern regarding a child should be judged in its own merits they are only indicators so it's part of a whole assessment process in terms of a wider chronology regarding that child or young person and the changes that are coming in terms of GDPR and so on would that do you think affect any of your interpretation of wellbeing as a concept or does the core still remain unchanged I don't think that I mean off the top of my head I don't think it's going to have any impact impact in relation to consent but nothing I can think of in relation to the scenario indicators I agree, I don't think the principles should change because of the new regulation I think we should still operate from a position of wellbeing Thank you very much Daniel What we are currently looking at is information sharing on the basis of wellbeing I think we've established that on the basis of welfare information sharing already takes place and that also to some extent on wellbeing too on the basis of existing law so what I'm interested in what this current legislation that we're considering how it changes things so I was just wondering especially Judith Tate and Maggie Murphy if you could just explain what we currently share in terms of wellbeing and on what basis could you just bring that to life a little bit maybe give some examples Okay within our regulatory responsibilities when we're inspecting care services for children we will be discussing how well the service is recognising the wellbeing needs of the children they are providing a service for if we believe that our concerns for the child's safety then we will be directing the service to take action but we may also refer directly if we believe that threshold of child protection has been met where it sits below that our role will be to encourage the provider to take appropriate action and to share information with the name person service we do not share information in our joint inspection programme we will be reviewing records of vulnerable children these are the children who are already heavily professional for whom there is a multi-agency plan and therefore information has been shared kind of widely within the appropriate group of professionals for them already from a college perspective and in particular from the areas that I've got responsibility for the majority of young people who know with me will be on a referral and the referral will come from school or social work so from the outset there's information coming from another organisation to me and there will be key indicators and key pieces of information about wellbeing and associated factors within that referral document within the college environment a young person will also be in possession of an individual learning plan that they make significant contribution to in terms of their learning targets, learning goals that they want to achieve throughout the year and the staff who are part of that curricular area add relevant information into that individual learning plan young people from school also come in with a wellbeing and assessment plan so there's key indicators within that and we use the college experience to try and nurture them and develop them further so those are just two examples of where the college would work in partnership and share information accordingly so can I ask and this is for the whole panel I mean would that sort of information which falls below the children, the child protection criteria and tests ever be shared without consent and therefore does this bill actually really change the nature of what information can be shared and would be shared? I would say that what the bill would probably strengthen from my perspective is actually bringing in statutory functions for the name person service which is actually part of the assessment process under data protection for sharing information so actually defining what the functions and roles and responsibilities of a name person service are will actually bring more consistency in the models across the country so I think there's a positive I mentioned the patchwork quilt earlier that is the current position just now I think what the bill brings in terms of bringing the name person service on to a statutory footing and greater clarification around the information sharing arrangements will bring greater consistency in practice across the country and probably reduce inequalities and service provision To be fair the bill itself that clarity was really restricted to the duty to consider, do you think that's sufficient? I think it is in terms of the current law and as underpinned by the code of practice we need to get the code of practice right and I think that's been a common theme today so the bill the code of practice bringing the name person service on to a statutory footing will actually declutter the landscape for me in terms of the sharing of information and provide greater clarity I think that clarity is absolutely right so I'd just like to address my last question to Megan Farre specifically on that basis a new written submission I could just quote from it you say that you're concerned that the threshold for sharing information for a certain sharing data proposed by the CYP Act had been lowered to a point where there was a risk of the child's right to privacy might be violated and that the current bill does not add clarity to this could you just maybe expand on this and expand on your concerns about clarity and what changes would you think would need to be made to be able to give that clarity I think that what our concern was was that there wasn't clarity previously about whether or not and it's back to the question about whether there are concerns about well-being our view is that that should be done on the basis of consent and that is actually in line with how getting it right for every child should work we'd also be concerned at this point if the Patsforn 5 of the 2014 Act continued to be delayed because those are very important the name person service is an important way that children's rights will be realised in Scotland but the issue around thresholds created that was lower than the child protection threshold particularly if it was based around a risk of harm to wellbeing or at one point there was a phrase around a risk of being on a pathway to harm that wasn't clear I'm not sure the duty to consider which doesn't change the threshold it merely says that you need to think about whether it meets the threshold adds anything because that should be what is already happening that's good child protection practice and service delivery organisations practitioners are trained in child protection regularly and trained to be aware of what is likely to be a child protection concern now it may be that the child protection threshold needs to be adjusted but our concern with the 2014 Act was that it was potentially to be interpreted as considerably lower so just finally on those points that strikes me is that there are some key points of principle around information sharing which frankly are not on the face of the bill they're in the code of practice principally around consent and the rights of the child do you think those should be put on the face of the bill and given the importance of the code of practice do you think it should have a greater level of scrutiny rather than essentially being in the gift of ministers on the code of practice I think it is really important that it receives scrutiny to make sure that it is able to be understood by practitioners by older young people not all children will be able to understand it by families understood by everyone so I think it does need to be scrutiny I think it's going to be the most important aspect of this bill is putting a clear code of practice and clear guidance in the hands of practitioners who are sharing information so that everyone can have confidence that information is being shared appropriately and consent should be on the face of the bill that was the other part of the question in line with the Government's commitment to taking a human rights base a human rights base approach should be taken thank you thank you panel unfortunately I've got a question for DCI Conwy I'm sorry we've seen you've been targeting at yourself you had made mention of a concern hub who are unaware of what that is and how that functions could you tell the committee what that is sorry I should have explained earlier in terms of the vast majority of concerns we deal with with regards to members of the public aren't protection threshold concerns the vast majority of them are wellbeing concerns so there is a significant amount of information there that we need to better understand so we put concern hubs in place when we move to police Scotland as a concern hub there is dedicated staff trained in standards information management but actually it's not just all about the information management it's actually picking up on the early warning signs so we've got a strong evidence base going back many years where these repeat concerns come up regarding children and we actually don't pick up on them so the police don't pick up on them the partners don't pick up on them so the hubs and the staff within the hubs very much yes standards information management respecting individuals rights and balancing them we act when the best interest a child or an adult however they're also looking to deliver on early intervention and prevention so they're actually looking to deliver on getting it right for every child so the advantage in terms of us starting to record chronologies regarding children we don't have the information in a whole load of different places that is not visible we have it in one place and it helps us to make a better assessment on what services may best support or intervene rather than waiting to the kind of crisis responses or the protection thresholds that traditionally it's went wrong and it's far too late so it's a kind of focus on Christie trying to bring a better focus on early intervention prevention and a bit of information management and standards in relation to the data protection act so these are there's 13 of the hubs across the 13 divisions across the country and that's their daily role in terms of triaging the information in the morning researching it assessing it and then taking a decision on whether to share it and actually when they do take a decision on sharing it we put a strong emphasis on recording the rationale so that there's an auditable record of why something's went somewhere so that's a real tightening up in practice in terms of where we've previously been and in terms of this bill then do you think that this will you know will be advantageous to the concern hub is it's going to make things easier for Police Scotland in terms of that information sharing and being able to direct that information to the correct person I think that's the bit I don't think it will have a significant impact on the daily operation of the hub but it will have an impact on where the information is rooted and I very much think that the statutory name person service will only be a piece of the jigsaw so not all of our information regarding children will be going to the name person service we'll be looking at other routes and some of them will be done with consent particularly when we look at the third sector organisations that can have really strong services to support children I wanted to ask a bit about data protection and this morning I think I've probably heard that actually your evidence isn't that there's already information sharing going on and it's working well for you we have taken evidence previously that we're concerned about information sharing so I suppose I'd like to know how much of the sort of challenge if there are any challenges or concerns in your organisations are around GDPR rather than the specifics of this bill because obviously that's on the horizon and has an implication from a college's perspective we're slightly less concerned about GDPR the various documents and the information that we have in a college environment and that we're also comfortable that we share the right information at the right time with the right people and I think the focus on the children and young persons bill is the learner's approach to things and the young person being at the centre so I think GDPR will be a little later for us but I don't think it's seen as an impediment in any way I would say that GDPR is more of a concern to the police regarding explicit consent how that will operate in operational practice how we will actually inform people of their rights how we will actually have an auditable record of that consent and how we're going to do that in really challenging circumstances so I'm probably more concerned about GDPR than I am about this bill OK I think we'll continue to be interested in how well partners that we're inspecting are sharing information and using acting within their own policy and guidance so we'll be interested to see how providers are interpreting that as well as considering the impact for ourselves Will continuation look at GDPR in terms of children's rights as an organisation our provision of services isn't dependent on whether or not young people give consent so our current practice will continue which is certainly only very exceptionally share information with our consent Thank you Oliver, do you want to come on? Can you make it brief? It's brief as I can Oh, that's not good enough Sorry, it's quite technical I just want to refer to two bits of the Supreme Court judgment and then ask one further question just of Megan Farre following on from her evidence to previous questions at paragraph 79 of the Supreme Court judgment of Gillan vs United Kingdom and in that judgment it talks about who an instrument applies to and the number and status to those of whom it's addressed and I think you touched briefly on it being addressed to children 12 and above who might be looking to understand it and that links me on to paragraph 81 where again in the judgment they talk about sufficient for seeability to allow a person to regulate his or her contact and I just wonder whether the kind of flexibility and indicators that come with scenario and the kind of flexibility some other people are looking for in the the sort of information sharing range how, whether it's possible to have legal certainty and retain that flexibility in a statutory form I think there may be two questions there one regarding the age at which children have capacity we have existing legislation in Scotland dating from 1991 but the age of legal capacity and the age at which children have the capacity to make decisions about medical decisions that happens to coincide also with the age at which children in Scotland have capacity around age of protection and the age of protection at 1998 and that is 12 which is where that age of 12 currently exists in legislation from a United Nations Committee on the Rights of the Child would argue that children below the age of 12 could also have capacity and in fact that's also the situation with both legal and medical capacity so those tests around capacity are fairly well established in Scott's law in terms of the age at which children can make decisions so the second part of your question was about Shanaari indicators and wellbeing is whether they can be quantified in a way that meets the Supreme Court judgment but that also retains that flexibility that practitioners are looking for so the Supreme Court judgment talked about the information sharing that it may in practice result in a disproportionate interference between article 8 rights of children, young people and their parents in our evidence we talked about a balance and I mentioned earlier the balance between the protection of children and their rights to privacy and that's going to be a decision that is made on an individual basis the important thing is to go back to the code of practice which I think we've all agreed is really vital part of the legislation is the code of practice needs to be clear enough and guidance company needs to be clear enough to make those judgments on balance which rights need to be take priority. Does it not also need to be clear enough to allow children with capacity to make a judgment about what they choose to share in order to regulate their own behaviour to have that foreseeability? Our view is that the majority of service providers services to children on a daily basis social work, the health service third sector organisations work with the children should have an environment in which children can freely give explicit consent to share. DCI Conway talked about situations where the police aren't in that position but from a human rights perspective our view is that that should be possible for children with capacity and the analogy is that at the age of 12 a child can direct a solicitor to bring an action in court under Scots law already so that's not a new concept You also mentioned that you'd met with the Government to discuss concerns around the draft It was on a range of matters but we did discuss that and I reiterated what I've said today and what we said in our written evidence and they seemed receptive to changes to that I think they took my comments on board Thank you On that note, I'd like to thank the panel members for their time this morning and for answering all their questions I'll suspend for a moment or two to allow the witnesses to leave before continuing on to the second panel Thank you I now welcome the witnesses for our second panel Ben Frucia ahead of development and innovation centre for excellence for looked after children in Scotland Donna McEwn Practice Development Advisor Centre for Youth and Criminal Justice Director of Strategy and Innovation Scottish Prison Services Thank you for attending this morning I should explain to the panel from the outset that you should indicate to me if you would like to respond to a question and I'll call you to speak I'll start off by asking the witnesses how you would expect to be involved in the development of the final code of practice and whether you would expect any substantive differences between the code issued under part 4 and the code issued under part 5 the child's plan Could the same document cover both requirements? Would anybody like to start? Thank you Good morning and thank you very much for having us here today In respect to the first question we are a Scottish Government funded part of the University of Stratoclyde We were set up to support the Scottish Government with its realisation of its objectives around looked after children and child protection in our partners across the sector in their own efforts as well So in that particular aspect we would hope and expect to have a expect to have a contribution to the work that the Scottish Government is now going to undertake in terms of the code of practice and revisions to statutory guidance around parts 4, 5 and 18 We're an organisation that operates across the whole multi-agency partnership that works with children I think a valuable perspective to bring there about what information sharing and more generally practice to support children looks like in a multi-agency context and we're also across the whole country as well which also brings something important in terms of picking up from the earlier panel some of that patchwork element that we see across the country So being able to bring that information to bear into the next stages in terms of the code of practice revision We can talk about the first aspect and then go back to saying Just please excuse me so if I'm not speaking very clearly I apologise At the Centre for Youth and Criminal Justice we're very similar to Celsus in the Scottish Government funded agency However we support practitioners and the development of supporting children and young people and their families involved in offending behaviour across the country So we provide that support and about developing practice and understanding particularly when new pieces of legislation are coming in We hear from practitioners on the ground and take that back up along with lived experience and also from the legislation aspect and trying to support them to translate that into what happens in practice I actually met with the Scottish Government last week in relation to the proposed bill and the code of practice and they are keen to be involved and use our supports and our links with practitioners and perhaps that lived experience link as well to inform the code of practice moving forward which we think is important and crucial to our role in supporting the application of GERFEC and the development of GERFEC across the country Thank you From the Scottish Prison Service perspective we've worked very closely over the last few years in transforming practice within Pullman in particular which is where the majority of 16 and 17-year-olds would be located when they come into custody and we've developed a positive futures plan which is based on the Shannari principles and again informed by both organisations who are represented here today so we have moved towards the position with regards to both case conferencing and sharing information around the best practice principles that have been set out already so for us we have worked very closely and we are continuing to work closely with the Scottish Government in order to be part of and inform the code of practice revision going forward Okay, thank you In regards to the second part of the question about substantive differences between the code issued under part 4 and part 5 can you see the same document covered both requirements? Yes, I believe the same document can cover both parts I think there are distinctions between them I think that's particularly true of the populations of concern that Celsys works with and I think CYCJ and of course the Scottish Prison Service but I think the same document can cover them but not necessarily in the same chapter if that makes sense I would agree that the same document can be quite explicit around part 4 around the clarity and the different parts of legislation and supporting practitioners who are applying this to understand what that means in relation to decisions and also for the triggering of a child's plan and how that fits with the questions that have been raised by the role of the named person where people choose not to be involved with the named person as well in the code of practice Yes, I would agree with two previous speakers OK, well thank you Thank you very much for that, Liz Just on that point what specific changes do you foresee in the rewritten code of practice that is not there just now in the illustrative one? OK, happy to take that I think in speaking with practitioners and actually prior to the Supreme Court judgement working at the CYCJ we were actually involved in developing case examples in relation for the CYP Act coming into force last year which obviously it did not or these aspects did not so I would say that within the code of practice there really needs to be examples of well-being concerns and in relation to the different aspects of legislation the DPA schedules 2 and 3 and also Human Rights Act and make that clearly understandable for practitioners who are applying this but also as has been said this morning already children and young people in their families as well so I think using examples would be very beneficial for workers to actually see it in process Would you go beyond the Shinari indices then the well-being given that we were told in the earlier panel that there are differences within different professions? Actually when I heard that this morning I thought that was quite relevant I am a social worker to trade and other health professionals so our understanding of well-being will have the overarching principles but how we perhaps apply our professional knowledge and skills to that may have slight nuances so I think there does have to be some level of flexibility because I think there is the concern that if you make that definition too rigid that you rule out a universal and that is what we are talking about with well-being concerns we are looking for universal responses to prevent children and young people escalating into statutory services Thank you that is interesting you make that point some previous witnesses have said the opposite that they feel uneasy deciding when they should share information when they shouldn't share information because they are uncomfortable that the definition is not tight would you accept these concerns? I can accept that perhaps other professional disciplines might feel like that my experience as a social worker you are having to understand the presentations whether the well-being concerns or whether it is of a higher level of welfare concerns and you have to filter that through professional knowledge and understanding in relation to that individual child and the context for that child and what that might mean and then from there should you be sharing that information so as a professional social worker perhaps we make those decisions on a more regular basis dealing with perhaps more nuances than in other professionals that there is perhaps a stricter or tighter criteria so your advice would be to have different codes and different professions to get over that problem I think the same code of practice but a flexibility in the definition of well-being Thank you to the panel and I'd like to pick up a little bit on what Liz Smith was talking about there from my professional background as a healthcare worker I'm used to working with scenario principles and the principles of well-being and working very closely with social work and third sector organisations and I think those professions certainly there is a good common understanding of well-being and scenario principles but obviously the panel work with much wider professional groupings and other organisations and I was wondering if the panels would comment on those other professions are they do they see a difference in the interpretation of well-being in scenario and how do they see that working with other professions in terms of having a common understanding I can go on that question first perhaps I think and maybe I'll try and answer some of the questions before as well I think it was answered well in the first panel I think there is a core understanding and I think it was hinted by some of the questions that I think there is perhaps some divergence on the edges perhaps when you start getting into the detail of what well-being might look like in respect to some of the indicators I suppose there was an implication that the introduction of well-being has created confusion around when to share information I think the experience of our work is that that confusion has always been there about when to share information the introduction of well-being has given us a different narrative around that but professionals have wrestled with these questions all the time I suppose what we have tried to encourage I think through some of our work has felt appropriate in supporting professionals not to see well-being as a lowering of anything or a separate to welfare but as a way of trying to spread our lens, widen our lens about how we view children so rather than the specific context as a professional that you might be working with a child maybe concentrating on a very narrow bit of their life in the school or through your health work you might try and broaden that out and think about the wider context of a child which is what the scenario indicators are encouraging you to do and then that has implications when we are talking about child's plan about planning and assessment as well but I think it is easy and understandable why we can get caught up in conversations about welfare and well-being and different professionals understanding but I think broadly it's about an approach rather than trying to move professionals to a more holistic understanding of children rather than the introduction of a specific new category of need Sorry I was just agreeing with what Ben was saying there that makes sense to myself I think it is it's that holistic response it's recognising that children exist within their friends, their peer groups, their schools their home life, their community and what does well-being mean for each individual child and as professionals and I think it's come from child protection Sharnari has, we are all responsible for the well-being and the safety and protection of our children and I think there is that common ground in understanding of well-being and just widening it out around the edges and recognising the various professionalism that might have something more to bring and health might have something more to add than I would as a social worker and I think it's recognising those skills and knowledge as well And would the panel recognise perhaps, and I suppose I'm speaking from a personal professional point of view that actually Sharnari and Gurfwick has given professionals and others a common language to speak with when we're dealing with child well-being and child protection issues Certainly from Scottish Prison Service point of view with us being mainly a custodial organisation Sharnari gives much more clarity to the staff who are dealing with young people and gives that common language if you like therefore in case conferences and talking with other professions who are coming in and working in employment it means that not only the language but the understanding has definitely been increasing and is shared so that's definitely been an improvement for us Can I just come back on an earlier point about the code of practice and I think since we've submitted our evidence to the committee I think I've been advised and I've learnt more about the limitations on a code of practice because of its status in law and how much could be included in a code of practice and I suppose I just wanted to not to contradict my colleagues which I totally agree with their points about what needs to be available to practitioners but from my understanding there are limitations on what can be in the code of practice meaning that the guidance that accompanies it becomes particularly important I think that's actually an opportunity because with guidance statutory or not there's much more flexibility than I understand so I think our expectations now are perhaps less about seeing lots of changes and introductions to the code of practice as a document but what sits with it becoming even more important so what's available to practitioners I think that's not necessarily the evidence we've taken from others who feel that the legislation will stand or fall by the ability of the code of practice to give confidence to practitioners and to those whose information may be shared that it's going to be in line with the Supreme Court judgment I mean you spoke earlier about there being a chapter that would be different and I'm not sure again whether you think that's in line with what's being expected from the legislation but basically if you say it's a chapter you're just collating different codes of practice in the one place I'm not sure if that's... I think we do need both some distinction in the code of practice perhaps between parts four and five distinguishing those and having separate pages I think I was picking up on my colleague Donna's point about there being things like practice examples, some sort of case study work and everything else and my understanding is that it would not necessarily be the easiest thing to do to incorporate that into what is quite a legal document where the language used might be quite restrictive I think we definitely need a code of practice which is clear still and accessible still to professionals but I think that we'll have to be supplemented and work more generally because documentation and training alone are not going to move us to the culture of information sharing that we want to see in Scotland so it will need to be accompanied. Those things are essential but they're not sufficient on their own so it's about attending to structures of supervision in real time who can professionals turn to for advice and guidance about complex cases which we have established processes in social work and in health and in some of our best schools that things happen to it's about learning from those and ensuring that those are available to all professionals in all the relevant areas. We have the Cabinet Secretary here and it's a November and I'm sure that we'll get clarification about what's not exactly what will be in it but the sort of code of practice and the guidance that goes with it. You may have heard me asking the question to an earlier panel it's also a question that we've raised in previous evidence sessions that the situation the danger of the changes may lead to more defensive practice so rather than people being more confident about sharing information there may be more hesitant answers about how they meet the duty to consider sharing I wonder whether do you think that may be the case and do you think in terms of what evidence you need to provide for I've considered whether to share or not is that becoming extra burdening people in this area? Can I respond to that? From my previous practice as a social worker I was also involved in early and effective intervention which is part of the Scottish Government's whole system approach to supporting young people and children at risk or involved in offending early and effective intervention is where children are involved in low level offences between the ages of 8 and the day before the 18th birthday and in relation to sorry I've lost my train of thought it was about defensive practice wasn't it? Sorry my apologies in relation to that following the Supreme Court judgement there was from what I can say is that there was examples of people withdrawing from sharing information because they were anxious concerned they weren't sure about the situation following that that has been redressed because I think it's offered an opportunity to look at our practice and look at the information that we're actually sharing and making sure it's proportionate and it's appropriate and it meets the needs of children so I think there is a concern that there may be some defensive practice and people may have pulled back but I think this is really important that we get it right to make sure that we're sharing the right information to ensure that children and their families where they choose to engage with named person services can get the right supports at the right time to reduce the risk of it escalating and I think with clear code of practice and additional guidance that would support practitioners and children and families to understand what the situation is in relation to sharing information I agree with that in respect of ourselves we obviously have a moving towards a more rights based approach but all of our decision making we'll look at the proportionality of it and particularly with young people 16 and 17 year olds we're very aware of both the requirements to work with the young person and their family and the lead professional as well as ensuring the safety of the individual so whilst I think that certainly for us because it's a small proportion of what we do we will need to give our staff appropriate support and guidance I don't see that it would lead to any greater defensibility in terms of decision making I want to come in, I know that Daniel and Ruth have great questions but they can ask them when they ask questions later on I'd like to specifically ask about child's plan children and young people who are perhaps involved in the criminal justice system and also looked after children and young people many targeted interventions and a child's plan could well evolve from that to what extent is wellbeing information shared within the existing multiagency practice that so I think picking up on my previous answer if we conceive of wellbeing as being different components of a child's life so educational bits of information health information aspects about their home life and so forth then it is core to the child's plan and in relation to looked after children for there to be a child's plan has been a statutory obligation since 2009 and proceeding as well in different forms so for us in the looked after child world the introduction of a child's plan part 5 is just consolidating what should already be there and in relation to the different components of information which we would conceive of as wellbeing and are describing now a good plan talks to as many of those as possible in giving a holistic assessment of the child looking at parts 4 and 5 of the 2014 act in part 5 child's plan is a duty to share information in relation to the child's plan but in part 4 named person service the duty is to consider the shared information how is that working or how will that work I can have a first again I can have a first go but my colleagues might have different views so my area of expertise is around looked after children where they have a child's plan already and for the organisations who are under statutory obligations to provide a range of services and support for those children information has to be shared in that context for them to undertake their functions and that is one of the permitted areas on which public organisations can both store and process information so in relation to the child's plan aspect we are comfortable with that duty because it reflects current practice and current statutory obligations in relation to the consider that seems appropriate for us it reflects the contribution we gave to this committee back in 2014 when the original children and people bill was being considered and our concerns that a duty to share for named persons would put at risk what you heard about very eloquently earlier on in terms of children's rights to privacy and so forth so we think a duty to consider adds emphasis on professionals to be thinking about whether this is something they should be talking to other professionals about or more appropriately probably in the first instance with other professionals in their organisation which is not information sharing as defined by law and then with the family as well Do the other witnesses have a comment on that? I wouldn't the focus at the moment would be that the child's plan would be shared when somebody comes into custody if they're a looked after child or if they're a child plan exists plus the criminal justice social work report would be shared with us as well so there already exists a case conferencing system which allows that sharing of information and our positive future plan which supports the individual's journey through custody is also based on the scenario principles so about wellbeing so in terms of the information that's being shared around about the child's plan and during the period in custody we're much focused on wellbeing and supporting that individual in relation to the name person as I said earlier we will require to support our staff and it's going to be our level of name person will be a senior management level to work through the decision making process and to ensure that they are making appropriate decisions based on proportionality and the rights of the child what we base our work on is about positive engagement and absolutely we would work to get consent from the individual in terms of sharing the child's plan are the changes that are coming down the line from Westminster in terms of GDPR is that going to impact on that at all or won't it I was just going to say it I'd be perfectly honest I have not explored the GDPR at this point in time focusing on the Child and Young People Act and why we're here today so that's something I would have to go away and look at and consider further I think we we welcome I think what the GDPR is again the added obligations it is going to require I think more process and more policy for a number of organisations I think we heard from police and other organisations who are going to have to think through what that means for them and maybe increase or change the way they do things I think in relation to sensitive personal information I think that's entirely appropriate I think it builds on what the Data Protection Act laid out for the UK and I think our focus at Celsus is to support our organisations to introduce the necessary mechanisms to meet the GDPR requirements in a proportionate way Could I actually sorry just come back in? Obviously the GDPR I've heard more about listening this morning and listening to previous committees and I think the notion or the importance of consent and explicit consent within that particularly when we're talking about well these lower level concerns that do not require statutory intervention I think consent and explicit consent and the child's voice and their rights and the family rights are absolutely crucial and if that's what the GDPR is taking forward then that's a positive step and again that's absolutely in line with GERFEC the intentions of GERFEC as well If I give you a scenario of a young person who may be getting picked up by the police and it's low level stuff there's a bit of a concern about them would the current or the situation being proposed would prevent the police with the guidance staff and say I think maybe with an issue here can we bring the family in and where does consent then how does that apply when actually what you're trying to do you're seeing just a bit of behaviour early intervention by the police working with the housing department or with the school or whatever to speak to the family you're saying that you would require consent for that sharing to I suppose I'm wrestling with I get the need to protect appropriately but I'm wondering whether it's inhibiting that very low level early intervention the signs of stuff coming up here when we need to speak to somebody I think I would recognise that concern but I think there's also there has to be that balance between we also have to recognise that parents have a role and a responsibility to support those children so in the first instance if a child's been involved or had contact with the police you would expect the police to speak with that parent and actually the parent carer or guardian to take appropriate action to support their child now quite often if I go back to the early and effective intervention process that I spoke about before quite often what was found at the police would in contact with a child speak with the child and their parents advise about the EEI process and about information being shared and quite often what we found was that parents were actually quite happy for that information to be shared and for that response but there was also the aspects of that where there was no other concerns this was an incident that a young person or a child had been involved in and a parent had dealt with that appropriately there was no further action required and that absolutely recognised their choosing to engage in that process and also their actions within that circumstances where support interventions were provided but we had engagement and consent from the parents the police would gather that at the first contact and then that was taken forward but I think the proposed bill is making us explore that in more detail as to how we gain consent and the full meaning of explicit consent making sure that people understand that I just think that maybe a young person can be a bit troubled something happens out in the community actually he spoke to the school and said there is something happening here we're not bringing up huge alarm bells but we need to have a conversation about it I'm just wondering whether you think this legislation makes those conversations more or less likely I'm not talking about speaking to parents because obviously they would do that but that kind of it's not just an incident it's actually a pattern of behaviour that's developing and people aren't picking up the clues and I'm just I suppose my concern is which I'm looking to have laid by you is that it wouldn't inhibit that normal let's well work with the guidance teacher or whomever is this something that's happening in school as well and that then forms in fact probably the conversation with the family as well that you framed it in terms of would it inhibit or would it encourage that kind of information sharing I think the legislation that we're looking at today I think would encourage on that side but it would also and that's why the code of practice is so important it would encourage that it's done in an appropriate and legal way I think maybe some of the concerns in the end that were dealt with by the Supreme Court were about previous versions of the duties put at risk certain other rights of children and their families I think in this context I think it's encouraging professionals to be thinking about when it's appropriate to reach out to other professionals and again most importantly to the family and others First of all can I just ask the bold blunt question given that this legislation doesn't change what can be shared it's about essentially obligating practitioners to consider sharing do you think that the legislation we're looking at helps practice or hinders it or makes no difference I think the fact that we're sitting here today I think the fact that the legislation is generating a debate although a difficult debate at times but I think a necessary one I think the opportunity that the code of practice and subsequent guidance all gives us I think are essential for us moving forward with clarifying and creating what I referred to earlier as an information sharing culture that is positive for securing the best outcomes for children so although I think an analysis might say that the existing legislative framework is robust enough and sufficient for this work to go on which I think is what was implied by your question I think this bill in the Scottish context adds extra emphasis for GERFEC and encouraging professionals to be thinking about the focuses on the child and how can I secure the best outcome for this child so I think I'll welcome it on that basis I think the proposed bill I think I've already said this one I think it's very difficult as a practitioner that you would have to have the Children Young Person Act the Human Rights Act and the data protection and data protection schedule 2 and data protection schedule 3 and people have already mentioned GDPR that's coming in as well and I can be perfectly honest and say my head is confused and I think it is not easy to make that decision and I think that's where we sit with the emphasis is on the code of practice it's not that this should not be going through or taken forward but I think certainly the code of practice and any additional guidance will be what actually makes this applicable and its implementation in the real world I would agree with that I listened in to some of the commentary earlier from practitioners and I think it is welcome it strengthens what's already there it will provide more clarity and I think that that will be positive and improve outcomes for younger people So just coming back on that a little bit I mean I think what you're all saying is that essentially it's useful to have the discussion and debate talk about what good practice looks like Do we need legislation to facilitate that or should we be looking at a policy led we not just do this by encouraging better practice better policy and doing it through those means rather than bringing forward legislation We've come to the conclusion we submitted a response which articulated our feeling, I think reflected in other responses that the current legislative framework would probably be sufficient but I think we've come to the conclusion in relation to this bill that it can make a positive contribution to continuing to build in Scotland what we need in terms of appropriate positive information sharing in the boundaries of both the data protection act and in the future the new directors from the European Union are just very slightly confused by your response there because in your written submission in the second paragraph you say that unfortunately the bill are more importantly the draft code of practice do not achieve and it's referring to clarification of the complex issues and at random information sharing and that you're saying that that lack of clarity is putting at risk the wider Garfack agenda are you saying that you've subsequently changed your mind you're asking me about the legislation so that very much in relation to the code of practice that so we will not and continue to be not entirely happy with the language that was used I think as you've heard from a range of evidence but I understand having followed this process that you've been under that there's already been concessions I think we heard from this morning some organisations already involved in the redrafting of that and thinking about what goes beyond that I think in that response we were coming at that and thinking that the code of practice that would be available for people around information sharing and now subsequently we understand that that would be the case so finally given the importance then of the code of practice not just in terms of practicality for practitioners but really actually in terms of making this work and being compliant with all the other bits of legislation that Donna McEwn was just outlining do you not think that its status within the bill needs to be elevated rather than it just essentially being a creature of ministers that it should be subjected to wider parliamentary scrutiny because of its importance and centrality to making this work both practically and legally that's the whole panel can I clarify the question which is that should the core elements of the code of practice be incorporated into the law as that was it would be subject to parliamentary scrutiny so I'm going to have to take guidance from you I suppose in respect to what the 40 days of what I interpreted as parliamentary scrutiny actually looks like so as I understood there was already a requirement for the Scottish Government to lay before Parliament for 40 days the code of practice I don't know what process then is undertaken in terms of subject to parliamentary approval so it's just for your comment and feedback I think it's important that it gets proper scrutiny I'm not sure I have a firm view on whether that needs to be at this level of detail I think a range of organisations are already engaging in a very active way both the Scottish Government and through this process and others to try and ensure that what is published by the Scottish Government is robust we've seen over the past four years that this is an area that a range of organisations take extremely seriously and I will go to the furthest length possible to try and ensure that both children's rights and families' rights are maintained so I suppose I'm working on the basis that that scrutiny will continue to be applied to these next stages and finally Ruth Thank you Good morning and thanks for being here I've appreciated all your evidence so far so it was a bit challenging coming in at the end because we've covered so much ground but I think we have touched on this thinking about moving to that culture of information sharing that Ben mentioned there I think we all agree that effective and proportionate information sharing is important and improving outcomes for our young people and children just what further progress do you think we have to make in that regard and I suppose the crucial bit for me is how do we best create confidence amongst practitioners to do that to share information better and to improve outcomes for looked after young people and young people in the criminal justice system I think in the main there is for young people already involved in the criminal justice system and looked after on the comedy channel so that's certainly not my area of knowledge so Ben will be able to add to that there is in the main good information sharing by the very fact that a child has appeared in court being found guilty and there's a social work report being requested or a referral to the children's report a children's panel being called on offence grounds then there's those duties to share information so I think in those situations and I think we already said there is good information sharing and again it comes down to relationships with the individual and being clear about what information and who you're going to share with or who you're going to speak to and as far as possible having fully understand who's going to know what and what people are not going to know which is also really important I think practitioners on that level again are quite confident it's the the non-status of the non-duty situations and I think being clear case examples speaking to practitioners they value case examples and it's not to give them a tick box exercise it's to give them different ideas as that they can look at and identify with their own practice and I think absolutely being clear about the role of consent and the importance of consent and explicit consent within sharing information at those non-statutory non-duty sharing levels I think that for us there is a good structure already in place I think it's about more clarity around about pathways and obviously consistency and approach and I think that consistency and approach can also only lend confidence to the young person in terms of their engagement not only with the child's plan but obviously with the plan whilst they're in custody I'm smiling because I suppose it's what we do on a day-to-day basis itself organisations to move to that new culture or to sustain that great culture that they've already got I think what I took from your question is what more do we need to do learning from those places where they are doing it well and I think our experience of those areas both geographical or organisation or do it well are those who have attended to different aspects in terms of their structure are they structured well do they have proper processes of supervision and support for professionals do they have good systems in terms of data storage and data recording meeting their requirements that will be enhanced now through the new EU directives that concentrate on ensuring that their professionals can build positive relationships as was spoken about with families and with children and I think that would be true of the adult sector too a lot of the questions that we're rightly discussing fade away where there is good trust and good relationships between professionals families and children understand that information is being stored and shared for their benefit not for the benefit of services and if we can and if we can create systems in each of our sectors whether it's education social work or health that operate on that model then we go a long way to moving through some of these concerns thank you very much that's the end of the question session I'd like to thank the panel members for their time this morning and for answering all their questions and that concludes the public part of the meeting today I should spend for a moment or two to allow the witnesses and anyone observing in a public gallery to leave before continuing on to the next item of business in private thank you