Centre for Research on Discretion and Paternalism Bergen

In the Best Interest of the Child?

NEW ARTICLE: Researcher at DIPA, Hege Stein Helland, studies the justification and rationality behind adoption from care decisions in the Norwegian Supreme Court.

Adoption from care is uncommon in the Norwegian child welfare system. Less than one per cent of children placed in foster care are adopted each year. Since 1993, the apex of the Norwegian judicial system has only delivered seven judgments in adoption from care cases, four of which occurred in the short timespan between 2015 and 2019. In such cases, decisions to adopt should, according to the European Court of Human Rights (ECtHR), strike a balance between the interests of the child and that of his or her parents.

In a ruling from 2019, the European Court of Human Rights decided that Norway had violated Article 8 on the right to respect for private and family life when consenting to the adoption of a young boy without the biological mother’s approval. Moreover, 13 cases concerning adoptions without parental consent is communicated to Norway by the ECtHR. Only one of these has been tried by the Norwegian Supreme Court, posing important questions about how the Norwegian legal system reason and attribute weight to different arguments and principles in adoption from care judgments.

Being one of the most intrusive measures of the welfare state, Helland asks how do the Norwegian Supreme Court justify its decisions on adoption from care and to what extent these decisions are based on rational arguments?

Discretion and inconsistencies

By critically examining four judgments on this issue, Helland finds that conclusions are guided by norms of biology, vulnerability, and stability for the child. However, while the decisions display consistency in terms of similar pragmatic reasoning, they differ substantially in terms of how individual arguments are substantiated and balanced, revealing how discretion is exercised differently across decisions.

– Although we cannot dismiss the individuality of circumstances in each case, inconsistencies are problematic in terms of providing clarity of the law, explains Helland.

Children’s views are missing

The article also reveals important weaknesses in all four judgments when it comes to children’s perspectives. While Norway guarantees children’s constitutional right to have their best interests considered in matters that concern them, the principle is notoriously ambiguous and indeterminate, providing ample space for decision-makers to exercise discretion. When children are not heard in these matters, the legal approach is flawed at best.

– Despite delivering rational, well-reasoned and thorough judgments, an important blind spot is that the views of the child is not included. This fundamentally challenges the legitimacy of the decisions, regardless of how rational the arguments may seem.

Helland has worked extensively on the legitimacy and acceptability of judicial decisions in adoption from care cases. The article, published in the prestigious International Journal of Children’s Rights, is open access and you can read it by clicking the link below.

Helland, Hege Stein (2021) “In the Best Interest of the Child? Justifying Decisions on Adoption from Care in the Norwegian Supreme Court.The International Journal of Children’s Rights, 29 (2021), 609-639.

(Photo: Colourbox)

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