Sacrificing education to health and safety?

We’ve often criticised the ‘Every Child Matters’ agenda on the basis that, as well as being an outrageous intrusion into children’s and families’ privacy, it sets up a dangerous confusion between child protection and more general child welfare concerns.

In today’s Guardian, an interesting comment piece points out the effects of ECM on education:

The French philosopher Montesquieu observed in The Spirit of Laws that education systems seem to transmit a main principle which informs both individual behaviour and a corresponding system of government, a principle for what Foucault would call “the government of self and others”. Education transmits the principles of honour in a monarchy, virtue in a republic and fear in a tyranny. If Every Child Matters is anything to go by, we can say that today’s society is ruled according to the principles of health and safety.

Well worth reading.

DNA issues

Some confirmation of something those of us working on DNA issues have long suspected:

Police officers in England and Wales have made arrests just to get people on to the DNA database, a retired police superintendent has claimed. He told the Human Genetics Commission (HGC) this was the “norm”. It wants new guidance for police to regulate when it is appropriate to take a sample of DNA

On the subject of the HGC, they currently have a consultation out on the development of a code of practice for the supply of DIY gene-testing kits. This is a particularly thorny issue where children are concerned: should a parent have the right to consent on a child’s behalf to gene-testing that is purely for ‘recreational’ purposes, rather than because of medical necessity? The HGC suggests:

p12 5.10 With the exception of paternity tests, genetic tests in respect of children when, according to applicable law, that child does not have capacity to consent should normally be deferred until the attainment of such capacity, unless other factors indicate that testing during childhood is clinically indicated. If postponement would be detrimental to the child’s health, or the management of the child’s health may be altered significantly depending on the test result, then testing should be organised by a genetics health professional who has responsibility for ensuring that any medical intervention or screening indicated will be arranged and proper arrangements made for any subsequent care.

To our minds, this doesn’t go nearly far enough. ‘Capacity’ is only one factor in obtaining a child’s consent; in order to be valid, consent must also be informed and voluntary. We will be addressing this in our response to the consultation.

Targets good, privacy bad

A couple of years ago, a great deal of fury was expressed at the intrusiveness of Ofsted’s ‘TellUs’ surveys. At the time, we said:

If schools and parents are angry now, we must warn that things can only get worse: LAs are planning to issue their own surveys in order to gather performance-indicator data

You need to go back and look at that post in order to understand what we meant, but, basically, we were warning that children’s services would need to step up their data collection so that they – and Ofsted – can assess whether they are meeting their PSA targets, derived from the ‘five outcomes’, the government’s aims for children:

Being Healthy
Staying Safe
Enjoying and Achieving
Making a Positive Contribution
Achieving Economic Wellbeing

(The latest full list of PSA targets and indicators can be downloaded here.)

Today, the Register gives an example of the way in which the task of PSA target-checking is being tackled:

The government obsession with collecting data has now extended to five-year-olds, as local Community Health Services get ready to arm-twist parents into revealing the most intimate details of their own and their child’s personal, behavioural and eating habits.

The questionnaire – or “School Entry Wellbeing Review” – is a four-page tick-box opus, at present being piloted in Lincolnshire, requiring parents to supply over 100 different data points about their own and their offspring’s health. Previously, parents received a “Health Record” on the birth of a child, which contained around eight questions which needed to be answered when that child started school.

The Review asks parents to indicate whether their child “often lies or cheats”: whether they steal or bully; and how often they eat red meat, takeaway meals or fizzy drinks.

However, the interrogation is not limited to intimate details of a child’s health. Parents responding to the survey are asked to provide details about their health and their partner’s health, whether they or their partner are in paid employment, and even to own up to whether or not their child is upset when they (the parent) returns to a room.

All of those questions link to PSA targets. The child’s foodie and health questions come under ‘being healthy’. The parental health questions are more likely to be about ‘staying safe’ – and also ‘enjoying and achieving’ because the answers may indicate that a child has caring responsibilities. Behaviour questions are almost certainly connected with spotting children of potentially criminal disposition for referral to early intervention projects (the ‘making a positive contribution’ strand, which requires children’s services to reduce the number of entrants into the youth justice system). Family income and housing questions are about ‘achieving economic wellbeing’.

The register article continues:

Completing the review is, according to a spokeswoman for Lincolnshire Community Health Services (CHS) “entirely the choice of the parent”. However, the letter accompanying the review states: “Please complete the enclosed questionnaire …and return it to school in the envelope provided within the next 7 days.”

There is no indication on the letter of a parent’s right to opt out, and parents we have spoken with have expressed fears that failure to fill out this questionnaire might mean their child’s access to health services would be diminished.

That’s disgraceful, but not surprising. As we discovered during the course of the ‘informed consent’ project, attitudes to consent/data protection in some local authorities can be perfunctory to the point of indifference. To give a recent example of what I mean, I bumped into this quote from a practitioner who has just started using Contactpoint and says that it has saved time:

“It’s useful to have all the information on one screen rather than having to ask the parents – they can find it frustrating and question why you want to know,”

In other words, perish the thought that parents should inconvenience practitioners by questioning their right to collect and share data. Who on earth do they think they are?

Compare and contrast

From Tony Collins we hear that:

An NHS trust at the forefront of work on the £12.7bn NHS IT scheme has called in police after a breach of smartcard security compromised the confidentiality of hundreds of electronic records.

Meanwhile, on another planet:

Millions of patient records are to go online in London after long delays to an NHS IT upgrade in the city.

…The records, which contain details of patient medications and allergies, will go live on Thursday following pilot studies across England.

It is hoped the system will allow data to be shared more easily.

I’m sure it will. The problem is, with whom?

Another one for the ‘at risk’ list

NICE is consulting on sharing information to identify families who live in the kind of homes where children might have an accident

Recommendation 1: identifying and prioritising households at greatest risk

Who is the target population?
Children and young people aged under 15 years at greatest risk of an unintentional injury, their parents and carers.

Who should take action?
Local strategic partnerships (LSPs), children and young people’s strategic partnerships (where they are not part of the LSP), local safeguarding children boards (LSCBs) and children’s trusts.

What action should they take?
• Use local information to identify and prioritise households where children and young people aged under 15 are at greatest risk of unintentional injury. Factors could include overcrowding, a low income and a lack of appropriately installed safety equipment. The data could come from surveys and needs assessments and existing datasets (such as hospital episode statistics). Or data could be gathered as part of routine practice (for example, during home visits by community practitioners).

• Consider establishing or using an existing database to share information on high-risk households with other statutory agencies. For example, social workers, GPs and health visitors could identify overcrowded dwellings and notify others via a database accessible to all statutory organisations.

Yet again, it seems that poverty trumps Article 8.

The consultation closes on December 2nd.

Spooked

For anyone following the media stories about increasing concern over the ‘Prevent’ programme, a new report: ‘Spooked: How not to prevent violent extremism’ is a compelling read.

‘Prevent’ is another government initiative from the at-risk stable. It is meant to target those, particularly young people, who are deemed likely to become terrorists. The government gave out £140m of funding last year to local prevention and ‘de-radicalisation’ projects and, as the report points out, the funding is in direct proportion to the number of Muslims within a local authority area, rather than being based on any specific evidence of risk. Thus we are potentially seeing the creation of a new offence to rival ‘driving whilst Black’: that of ‘being Muslim whilst young’.

In return for funding, the youth workers, YOTs and voluntary orgs are asked to sign an Information Sharing Agreement in order to supply the police with information about participants in the various schemes – hence the accusation that this is nothing more than an intelligence-gathering exercise.

The report also points out:

The atmosphere promoted by Prevent is one in which to make radical criticisms of the government is to risk losing funding and facing isolation as an ‘extremist’, while those organisations which support the government are rewarded.This in turn undermines the kind of radical discussions of political issues that would need to occur if young people are to be won over and support for illegitimate political violence diminished.The current emphasis of Prevent on depoliticising young people and restricting radical dissent is actually counter-productive because it strengthens the hands of those who say democracy is pointless.

Go and read it, and pass the URL on to everyone you know because it’s a smashing piece of research that deserves a wide audience.

Marper-dodging

As we were saying the other day, the Home Office is doing everything possible to avoid complying with the Marper judgment. Today the Guardian reports:

More than 90,000 innocent people have been added to the national DNA database since a landmark human rights ruling that keeping indefinitely the profiles of unconvicted suspects was illegal, according to new figures

While the Telegraph points out that we’ve passed the 10% mark:

Police forces in England and Wales have taken the profiles of 5.5 million people, meaning the proportion of the population on the system has passed a tenth for the first time.

‘Consultation’

I’ve just been reminded why ‘responding to government consultations’ sits at the bottom of our to-do list. The one on P2P file-sharing closed barely four weeks ago but, rather like the decision to appoint the new Children’s Commissioner regardless of anyone else’s views, the government appears determined to do exactly what it intended in the first place:

People who persistently download illegal content will be cut off from the net, Business Secretary Peter Mandelson has announced.

Speaking at a government-sponsored forum to debate copyright issues he said the UK would introduce a similar policy to France. It means persistent pirates will be sent two warning letters before facing disconnection from the network.

In the chorus of objections the government ‘consultation’ received, here are some of ours. On reflection, it appears that taking the dog for a walk should have been the higher priority.

Update: We’ve just received this link to the ‘Don’t Disconnect Us‘ campaign, started by Talk Talk, which has plenty of information about the disconnection proposals.

Business as usual

This item about the National DNA Database is tantalising for what it doesn’t say:

Civil liberty campaigners claimed a victory today after the government announced it is dropping current proposals to retain the DNA profiles of innocent people on the national database.

The Home Office has announced that its plan to keep the DNA profiles of those arrested – but never convicted of a crime – for between six and 12 years depending on the seriousness of the offence has been dropped from the policing and crime bill that is going through parliament.

To be honest, ‘claiming victory’ is putting it a bit strongly. We’re all wondering what it means in practice. Yes, it’s good news that the Home Office has – for now – abandoned plans to allow the Secretary of State to set out such ridiculous retention limits; moreover, in secondary legislation.

The bad news is that for the time being there appears to be no change to the current policy of hanging on to the DNA profiles of innocent people. Promising to introduce revised plans in the next session (Dear God, not another Crime Bill) is pretty meaningless because the likelihood is slim of such a Bill getting through before the election. Indeed, if the next set of proposals are anything like as draconian as the last lot, the government may prefer to avoid courting controversy in the election run-up.

All of which means that, despite all the noise about intending to comply with the European Court judgment in Marper, by the time anything actually gets done we will quite possibly be approaching its second anniversary without the Government having done anything whatsoever about taking innocent people’s DNA off the database – and in fact having added another few hundred-thousand innocent profiles.

About images

To follow on from our blog yesterday, The Register has picked up on the unlawfulness of making indecent images of children.

It’s extraordinary that anyone can argue that these are not really ‘images’. As one of our legal advisers has just pointed out: if a Rapiscan operator beamed what he could see to Piccadilly Circus, nobody would dispute that they were seeing images. And if they displayed people’s genitals, can you imagine the police would say “oh, it’s OK – they aren’t really images”?

Update Ah, a friendly phone call from someone at Manchester Airport this afternoon to say that they have decided to obtain legal advice and in the meantime children won’t be using the scanner. Since we’re fortunate enough to have a fair number of experienced lawyers in ARCH, we’ve offered them our assistance.

Dusting off the files

It’s so long since we’ve had any Rapiscan problems that we had to dig around in our archives to respond to calls today about Manchester Airport’s decision to start using the ‘virtual strip search’ scanner in its Terminal 2.

Here is chapter and verse on the law relating to the creation of images of naked children. It boils down to this: don’t even think of it.

The good news, the bad and the even worse

On Friday, we were feeling rather cheerful. It wasn’t just the latest piece of scientific vituperation about the ‘Human Provenance Project’ in Nature magazine. Better still, the UK Borders Agency announced the suspension of their plan to attempt to deduce nationality from DNA and toenail clippings – though they still intended to continue using DNA to carry out familial matching.

Had you visited their website on Friday, you would have seen this:

“The nationality swapping – Isotope analysis and DNA testing process has been has been temporarily suspended and the instruction withdrawn. Officers will be notified when the process resumes. Family relationship testing remains in operation. To access the asylum instruction, please click on the appropriate link below.”

I’ve just clicked on the link to that cheering news, only to find this has replaced it:

“Alterations have been made to the nationality swapping – Isotope analysis and DNA testing process. This process continues to operate. The present instruction has been withdrawn whilst amendments are made.”

In case you’re wondering what ‘the present instruction’ means, this was the guidance to immigration officials on carrying out the tests. It helpfully included the following wording to use when writing to someone who had refused consent to the tests (this is a ‘voluntary’ project, remember):

3. Where the applicant refused to take part.
‘When you attended the Asylum Screening Unit, you were asked to provide isotope and DNA samples to ascertain your country/area/clan of origin. It is noted that you refused to provide samples.’ [Case Owners should insert reason(s) why the applicant did not provide samples by referring to the Screening Officer’s comments on the consent form which should be attached to the HO file (if not, also check CID ‘Notes’).]
[Use where a reasonable explanation has been given]
It is considered that you gave a reasonable explanation for failing to provide samples.

[Use where no reason has been given or a reasonable explanation has not been given for refusing to provide samples (do not use this standardised wording in isolation – refer to 7.2.2 Addressing Refusal to Provide Samples, within the Refusal Letter)]
‘You did not give a reasonable explanation for failing to provide samples. It is considered that a person in genuine need of international protection would assist the authorities of a safe country in establishing the validity of his/her application for asylum. Your failure to do so undermines your claim to be a refugee.’

Coerced consent, anyone?

Horrifying, naive and flawed

Those adjectives don’t refer to UKBA, of course, but to their Human Provenance Project which is being chewed up and spat out in Science Magazine:

Scientists are greeting with surprise and dismay a project to use DNA and isotope analysis of tissue from asylum seekers to evaluate their nationality and help decide who can enter the United Kingdom. “Horrifying,” “naïve,” and “flawed” are among the adjectives geneticists and isotope specialists have used to describe the “Human Provenance pilot project,” launched quietly in mid-September by the U.K. Border Agency. Their consensus: The project is not scientifically valid–or even sensible.

Mobile Fingerprint Identification

Another of last week’s consultations concerned police plans to use mobile fingerprint scanners on the street. It’s worrying to see just how wrong the NPIA has got the law so far in relation to children and young people – somehow, one expects the police to do a bit better on these things.

Our response is here.

P2P Filesharing

Last week we have mainly been responding to consultations. The BIS (or whatever next week’s incarnation is called) consultation on illicit filesharing closed last Tuesday. Our reponse to their wizard wheeze to cut off Internet access can be found here.