BLOG: Is there a solution to secure equal justice for children in child protection? Yes, we can look to the English family court system and establish a Children´s Guardian arrangement.
Blogpost by Professor Marit Skivenes, Director of Centre for Research on Discretion and Paternalism.
In a child-centric society as Norway, it is a mystery that children´s participation and involvement still is a thorn in the side for Norwegian child protection authorities. Although children have strong and clear rights, formulated in legislation and in the constitution, in line with the Convention on the Rights of the Child (which is national law in Norway), research has continuously reported on serious deficits.[1] Experts by experience have repeatedly criticized lack of children´s involvement and participation in a broad specter of child protection areas, such as for example care order proceedings; residential units; contact arrangements.[2]
The Committee on the Rights of the Child (2018) highlighted lack of respect for the views of the child as a main concern in its most recent concluding observations on Norway. The Committee recommended to increase the efforts to strengthen compliance in practice with the child’s right to be heard (p. 4).
The problem includes that children are not informed about what is going on; children are not heard; children are not spoken with – or they are spoken with about non-relevant matters; their view is not obtained – or their views are not given weight.
It is also a problem that decision-makers typically do not provide reasons or justifications for why children are not involved. Reasonable arguments can be made for why a child should not be consulted, but it cannot be any doubt that professionals and decision-makers must provide a well-founded argument for excluding a child.
For example, in an analysis of cases about adoption from care, it is reasonable for a judge to assert that a baby is not heard because the baby is too young to comprehend the situation. However, that argument does not make sense for a 10-year-old without further justification (see Helland, Križ & Skivenes, in review).
Thus, this situation induced the Norwegian Parliament to instruct the government to «ensure that the child protection law is in accordance with the UN Convention on the Rights of the Child on children’s right to information, to be heard, decisions in the best interests of the child and children’s right to privacy.” (Decision 637 of May 28th, 2020).[3]
A Children´s Guardian arrangement
Norway is, however, not alone in massively violating children´s participatory rights – on the contrary, there are many European countries that have similar problems and often the situation is even more discouraging in other countries, see for example Kriz et al, in press.
The research literature identifies a mix of structural and individual factors that explain the problematic situation, see this blogpost for an overview. More research and knowledge about these factors are needed, but it is also necessary to find solutions.
English Family Courts are pioneering in their child-centric orientation and are exemplary because of their Children’s Guardians.
Marit Skivenes
The solution I have in mind is to look to England and their family court system. This might come as a surprise since there is a lot to say about England and their approach to children, and unfortunately some of it is not go od at all. I am for example thinking of the cultural acceptance of corporal punishment of children,[4] and a criminal system allowing for the arrest and charge of children as young as 10 years old for alleged crimes.
However, the English Family Courts are pioneering in their child-centric orientation and are exemplary because of their Children’s Guardians. In all family court cases involving children, a Children´s Guardian is appointed to ensure that all solutions, decisions, and arrangements that concerns the child, are in their best interest, that their welfare is secured throughout the process and that the child is protected. All children, from newborns to 17-year-olds, are appointed a Children´s Guardian.
Ensuring the child’s best interest in the short and long-term
An important feature with the system is that Children´s Guardians are independent and does not answer to the child protection agency nor to the family court. In child protection proceedings in which a care order or an intrusive intervention is considered, the child has a Children´s Guardian that is responsible for making independent examinations and enquiries. Furthermore, she or he shall review the child protection agency´s plan for the child to make sure the child is protected, safe and that all actions are in their best interests – both on a short-term basis and on a long-term basis.
Information and explanations are imperative for children to be able to use their rights to participate and be involved in their own case.
Marit Skivenes
The Children´s Guardian shall explain for the child what is going on during the process and the child protection proceedings, and make sure that the child understand what is going on. Information and explanations are imperative for children to be able to use their rights to participate and be involved in their own case.
A Children´s Guardian shall make sure the child´s wishes and feelings are represented in the cases, as well their assessment of the child’s best interest.[5] It the Children´s Guardian´s responsibility that both these dimensions are covered. The Children´s Guardian also appoints a lawyer (trained specifically in child protection matters) to present the case in court. The Guardian instructs a lawyer to represent the child, and act on instructions of the Guardian and work the case and present the case in court. The lawyer may also meet with the child.
Children may instruct the lawyer
If the child disagrees with the Children’s Guardian, for example about the suggested living arrangement or the Children´s Guardian´s assessment of the child´s best interest, the child may instruct the lawyer. The condition is that the child is “competent” to instruct, which mean an assessment by the Guardian and the lawyer of the child’s level of understanding of the issues involved and their age and maturity. This is a safety mechanism that make sure children’s views are heard, respected and given due weight in proceedings. Of course, the blind spot lies in the discretion and leeway decision makers here have in this assessment.
Combining expertise on children and the law
This tandem model that the Family Courts have established rests on social worker knowledge about children´s needs and legal knowledge about the law and the legal system. This combination of expertise is probably the key to its success and why the Parliament’s watchdog, Ofsted,[6] in 2018 praised the arrangement in the following way:
“Children’s guardians’ effective and authoritative practice adds value and leads to better outcomes for the majority of children. This is in relation to both local authorities and instructed ‘expert’ assessments. Inspectors saw some highly sensitive, well-informed work in relation to children with gender identity issues, resulting in well-considered risk analysis and child-centred recommendations. In addition, guardians use their knowledge of case law and their own authority effectively to challenge other professionals’ position, resulting in children being placed in settings that meet their needs.” (p. 9)
Implement a Children´s Guardian
In my opinion, based on many years of research, the Norwegian child protection system (and other countries as well) should implement a Children’s Guardian arrangement in all removal proceedings. This system should build on the core elements from the English Family Court model and be made appropriate for the Norwegian system.
A system with a Children´s Guardian will secure children´s rights and equal justice for children in the child protection system. A Children´s Guardian will have time to build a relation to a child – which is key for making the child feel safe and able to tell what is really going on and how s/he feels. Establishing a Children´s Guardian arrangement in Norway will adequately address the critique that have been raised from a range of central actors in the child protection field. It is an arrangement that takes children´s rights seriously and meet standards of rule of law and human rights.
For the Norwegian system, I believe we need a Children´s Guardian for all removal cases.
Marit Skivenes
For the Norwegian system, I believe a Children´s Guardian should be appointed in all removal cases. The instance the child protection agency considers it necessary to initiate a care order proceeding, the child should be appointed a Children´s Guardian. When a child is placed out of home without a care order (voluntary placement) it should be a Children´s Guardian in place. In all emergency removal cases, children should have a Children´s Guardian. In all cases in which the child is placed in a residential unit, the child should have a Children´s Guardian (until the child is 18 or the child does not need it anymore).
It is long overdue to make changes in how child protective systems meet and treat children.
Marit Skivenes
It is long overdue to make changes in how child protective systems meet and treat children. An arrangement with Children’s Guardian will provide the necessary tools for the Norwegian child protection system (or any other child protection system) to secure children’s fundamental rights to equal justice and participation, and it will honor the Norwegian Parliament´s instructions to improve children’s right to participate.
[1] For example, Barnett, 2020; Havnen et al, 2020; Lamb et al, 2007; Strandbu & Vis, 2008; Christiansen, 2012; Lindboe, 2013; Vis & Fossum, 2013; Bakke & Holmberg, 2014; Vis, 2014; Berrick et al, 2015; Magnussen & Skivenes, 2015; Strandbu & Thørnblad, 2015; Strandbu, Thørnblad & Handegård, 2016; McEwan & Skivenes, 2020; Križ et al, in press.
[2] See Change Factory 2019; 2020.
[3] See Stortinget 2020.
[4] 35% of the English populations find corporal punishment acceptable, compared to 7% in Denmark and Norway (see Helland, Pedersen & Skivenes, in preparations).
[5] See Archard & Skivenes 2009.
[6] Ofsted is the ‘Office for Standards in Education, Children’s Services and Skills’ and an independent and impartial unit that reports directly to the Parliament. Ofsted reviews all organizations that are providing education, training and care services in England to ensure they adhere to the highest quality standards for children and students.
References
Archard, D. and Skivenes, M. (2009). Balancing a Child’s Best Interest and a Child’s Views. International Journal of Children’s Rights, 17(1): 1-21.
Bakke, I.M. & Holmberg, L. (2014) Barns deltakelse i omsorgsovertakelser [Children’s participation in care orders]. Tids N.barnevern 4-19.
Barnett, A. (2020) Domestic abuse and private law children cases. London: UK Ministry of Justice Analytical Series.
Berrick, J.D., Dickens, J., Pösö, T. & Skivenes, M. (2015) Children’s involvement in care order decision-making. Child A. & Negl. 228-41.
Change Factory (2019) Rett og Sikkert. [Fair and Safe]. Oslo: Forandringsfabrikken.
Change Factory (2020) Forstå det viktigste [Understand the most important]. Oslo: Forandringsfabrikken.
Christiansen, Ø. (2012) Hvorfor har barnevernet problemer med å se og behandle barn som aktører. Tidsskriftet Norges barnevern (1):16-30.
Committee on the Rights of the Child (2018) Concluding observations CRC/C/NOR/CO/5-6.
Havnen, K., Christiansen, Ø., Ljones, E. Lauritzen, C., Paulsen, V., Jarlby, F. & Vis, S.A. (2020) Å medvirke når barnevernet undersøker. Barne-, ungdoms- og familiedirektoratet.
Helland, Kriz & Skivenes. In review. Gauging the Child’s Presence and Voice in Adoption Proceedings of Children from Care in Seven European Countries: Applying a Child Equality Perspective, in Children’s Involvement in Adoption Decision-Making. Research Handbook on Adoption. An Edward Elgar Research Handbook in Family Law Series.
Helland, H., Pedersen, S. & Skivenes M. In review. Comparing Population View’s on State Responsibility for Children in Vulnerable Situations – The Role of Institutional Context and Socio-Demographic Characteristics. Journal of public child welfare.
Kriz, Krutzinna, Pösö & Skivenes. Accepted. The Invisible Child: A Comparative Study of Newborn Removal Judgments from a Child Equality Perspective (CEP). International Journal of Children´s Rights.
Lamb, M., Brown, D., Hershkowitz, I., (…) (2018) Tell Me What Happened: Questioning Children About Abuse. Hoboken, NJ: Wiley-Blackwell.
Lindboe, K. (2013) Barns stemme i fylkesnemnda og ved rettslig overprøving. T. for familierett, arverett og barnevernrettslige spørsmål 11(2):81-82.
Magnussen, A-M. & Skivenes, M. (2015). The Child´s Opinion and Position in Care Order Proceedings: An Analysis of Judicial Discretion in the County Boards’ Decision Making. Intern. J. of Child. Rights 23(4): 705-723.
McEwan-Strand, A. & Skivenes, M. (2020) Children’s capacities and role in matters of great significance to them. The International Journal of Children’s Rights, 28(3), 632-665. https://doi.org/10.1163/15718182-02803006
Ofsted (2018) Children and Family Court Advisory and Support Service (Cafcass). https://www.cafcass.gov.uk/wp-content/uploads/2018/11/09-b-Appendix-1-Cafcass_national_inspection_report_2018.pdf
Stortinget (2020) Vedtak 637. Redegjørelse av barne- og familieministeren om situasjonen i barnevernet, 28.05.2020. Tilgjengelig fra https://stortinget.no/no/Saker-og-publikasjoner/Vedtak/Vedtak/Sak/?p=79799.
Strandbu, A. & Vis, S.A. (2008) Barns deltakelse i barnevernssaker. Tromsø: Barnevernets Utviklingssenter i Nord-Norge.
Strandbu, A. & Thørnblad, R. (2015) Hva star på spill? – Barns deltakelse og budskap i mekling. Fokus på familien: 271-291.
Strandbu, A., Thørnblad R. & Handegård. (2016) Involvering av barn i foreldremekling. Tidsskrift for familierett, arverett og barnevernrettslige spørsmål: 360-385.
Vis, S.A. (2014) Factors that determine children’s participation in child welfare decision making. Tromsø: University of Tromsø. PhD-Thesis.
Vis, S.A. & Fossum, S. (2013) Representation of children’s views in court hearings about custody and parental visitations – a comparison between what children wanted and what the courts ruled. Children & Youth Services Rev. 35(12): 2101-2109.