Centre for Research on Discretion and Paternalism Bergen

Discretion and the Child’s Best Interests in Child Protection

The DISCRETION-project conducts the most comprehensive cross-country comparison of child protection systems to date, funded by the European Research Council.

The research project “Discretion and the child’s best interests in child protection” aims to unlock the black box of discretionary decision-making in child protection cases by doing a comparative empirical study of how discretionary decisions are made and justified in the best interests of the child.

There are huge research gaps in this important area of the welfare state, with a great deal of uncertainty concerning how, when and why discretionary decisions about the child’s best interests differ between decision- makers, both within and between different child protection systems.

The main objectives for this project are to reveal the mechanisms for exercising discretion, and to improve the understanding of the principle of the child’s best interests. These objectives will be reached by systematically examining the role of institutional, organizational and individual factors, including regulations of best interests principles; professions involved; types of court; types of child protection system; demographic factors and individual values; and the populations’ view on children and paternalism.

DISCRETION employs an innovative methodological approach, with multilevel and cross-country studies. By conducting randomized survey experiments with both decision-makers in the system and the general population, it will generate unique data on the possible causal mechanisms explaining differences in discretionary decisions.

The outcomes of DISCRETION are important because societies are at a crossroad when it comes to how children are treated and how their rights are respected, creating tensions in the traditional relationship between the family and the state. DISCRETION will move beyond the field of child protection and provide important insight into the exercise of discretion in all areas where public interest as well as national interest must be interpreted.

Principal investigator is professor Marit Skivenes. Skivenes was awarded the ERC Consolidator Grant for the DISCRETION project. The ERC Consolidator Grant is designed to support excellent Principal Investigators (PIs) in consolidating their independent research team and program.

The ERC’s frontier research grants operate on a ‘bottom-up’ basis without predetermined priorities. In particular, they encourage proposals of an interdisciplinary nature, crossing boundaries between different fields of research, pioneering proposals addressing new and emerging fields of research, or proposals introducing unconventional, innovative approaches and scientific inventions.

Facts

Project period

  • July 2017 – November 2022

Funding

  • ERC Consolidator Grant

Countries

  • Norway
  • Estonia
  • Ireland
  • Spain
  • Austria

Research team

Affiliates

  • Sagrario Segado Sanchez-Cabezudo
  • Katrin Križ
  • Kenneth Burns

In conjunction with the Discretion-project, we have gathered information on:

  1. Legal frame for care order processes of newborn babies in eight European countries
  2. Legal frame for adoption from care proceedings in eight European countries

Click on the link above to go to the overview.

Newborn judgements

To study the thresholds for intervention, the rationale and justification for a decision about removal of a newborn baby, we have collected all the first instance court judgements from eight countries for one year, and sometimes several years. Below a brief overview of the data material collection from each country is presented.

Austria
Newborn removals

In Austria, the empirical data used in the analysis consist of all (n=24) newborn removal cases decided in 2016-2017 in the district courts city of Vienna, Austria. The Ministry of Justice has granted the project access to all the judgements related to child support and custody (Kindschaftsrecht) in Vienna for 2016 and 2017. The Child Protective Services of the City of Vienna searched their case files, which contains the file numbers of the judgments, and provided us with a list of 51 judgment numbers for Vienna in total for their cases related to child removals of newborns for 2016 and 2017. Among these, we have identified 24 cases that meet our selection criteria.

Estonia
Newborn removals

In Estonia, the empirical data used in the analysis consists of all (n=17) newborn removal cases decided in 2015-2017 by the district courts. The Ministry of Justice in Estonia compiled a list of relevant cases for newborn removal based on the 1) reference to article 135 of the Family Law Act of 2009 (removal provision); 2) the DOB of the child being a of one calendar year before the date of the decision. The number of care order cases of children under 1 year from all district courts for one year is low: 24 cases decided in 2015, 18 in 2016 and 9 in 2017. Based on this list, access to the decisions from 2015-2017 was then requested from the four district courts and we asked the courts to confirm that the orders concerned children up to 1 year old. We received 51 judgments, which we manually reviewed, and 17 newborn removal cases fitted our inclusion criteria.

Ireland
Newborn removals

For Ireland, the empirical data used in the project consist of all judgments (n=17) concerning removals of newborns published on the public Irish Courts Service database from 2012-2018. Our search has included all care proceedings under the Child Care Act 1991 published in the database, which includes cases from 2008-2018 (Sep 2018). A total of 147 judgments decided by the District Court have been published on the Courts.ie website (as per 20.09.2018). Out of these, 139 judgments are child care proceedings (though not all cases concern care orders) and 7 cases are Public Prosecutions that concern a minor. Out of these 139 judgments, 21 cases concern newborn removals. None of these were decided before 2012.

Norway
Newborn removals

For Norway, we have access to all judgements (n=76) from the county board concerning removals of newborns, i.e. based on the child welfare act section 4-9, (1), cf. section 4-8 (2) (temporary) followed by section 4-8 (2), cf. section 4-12 (care order) in 2016. To make sure we have the full sample, we also did a manual review of all cases filed under section 4-8 and section 4-12 where the child is 12 months or younger. For 2016, this resulted in a total of 76 judgments.  We have ordered them chronologically after decision date, and selected every second judgment. The randomized sample for analysis is 38 judgments.

Spain
Newborn removals 

For Spain, we have access to all judgements in one of the autonomous regions. In this region, we have been granted access to all case files relating to care order removals of newborns (n=16) in 2016. Decisions are made by the Child Custody Commission and the decisions are of a different format than in other countries included in the project. Rather than a full length written decision, the Commission ratifies or refuses to ratify the case made before it by social workers. In our analysis, we have therefore included the Child Protection Commission proposal.

Adoption judgements

Austria
Adoptions from care

In Austria, the empirical data used in the analysis consist of all adoption from care cases decided in 2016-2017 in Austria. The Ministry of Justice has granted the project access to all the judgements related to child support and custody (Kindschaftsrecht) in Austria for 2016 and 2017. Most of the Child Protective Services in the States searched their case files, which contains the file numbers of the judgments, and provided us with a list of 44 judgment numbers in total for their cases related to adoptions from care for 2016 and 2017. Among these, we have identified 15 cases that meet our selection criteria.

Estonia
Adoptions from care

In Estonia, the empirical data used in the analysis consists of all (n=25) adoption judgments against the wishes of the parents decided between 2013-16 in one district court. The Ministry of Justice in Estonia compiled a list of all adoption judgments for 2013-2016 as decided by the four district courts. We requested access to the judgments from the four district court. One of them granted access to the judgments and reviewed the list of the Ministry based on our inclusion criteria. We received a total of 28 judgments from this court. We manually reviewed the cases for the inclusion and excluded 3 of the judgments as they did not fit our inclusion criteria.

Ireland
Adoptions from care

Data collection is currently pending.

Norway
Adoptions from care

For Norway, we have access to all judgments (n=58) from the county board concerning child protection adoptions, i.e. based on the child welfare act § 4-20. For 2016, it was a total of 58 judgements. For some analyses we only use a randomized sample of 29 judgements, based on ordering the 58 judgements chronologically after decision date, and selecting every second judgement.

Spain
Adoptions from care

For Spain, we have access to all judgements relating to adoptions from care (n=13) from one of the regions in Spain in 2016. Decisions in that region are made by the first instance court. In Spain, the decisions are of a different format than in other countries included in the project. Rather than a full length written decision, the Court ratifies or refuses to ratify the case made before it by the Child Protection Commission. In our analysis, we have therefore included the Child Protection Commission proposal, and the Court decision.

Surveys

To be published.

Interview guides

To be published.

Books & Mongraphies

Langford, M., Skivenes, M. and Søvig, K. H. (eds.) (2019). Child rights in Norway: Measuring Compliance. Oslo: Universitetsforlaget.

Skivenes, M. (Ed.), Søvig, K. H. (Ed.). (2019). Child Rights and International Discrimination Law. London: Routledge, https://doi.org/10.4324/9780429020926

Peer-reviewed articles

Burns, K., Križ, K., Krutzinna, J., Luhamaa, K., Meysen, T., Pösö, T., Segado, S., Skivenes, M., & Thoburn, J. (2019). The Hidden Proceedings – An Analysis of Accountability of Child Protection Adoption Proceedings in Eight European Jurisdictions, European Journal of Comparative Law and Governance, 6(4), 339-371. doi: https://doi.org/10.1163/22134514-00604002

This project has received funding from the European Research Council  (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement no. 724460)