Centre for Research on Discretion and Paternalism Bergen

Legal Frame for Care Order Processes of Newborn Babies in 8 European Countries

An important empirical research area at the Centre is how state intervention into the family sphere is justified, and if these decisions can withstand rational scrutiny.

Children´s rights, as they are laid out in the Convention on the Rights of the Child (CRC), challenges the established role of the state and the family, and increases the complexity of the decision-making processes.

The child´s best interests must be safeguarded, but it is unclear what the best interests principle is, how it is best implemented, and how it should be balanced against other interests and rights. Protection of newborn babies demands high quality of the rationality and the justifications of the state intervention.

To increase our understanding of the legitimacy of the intervention and the decision-making mechanism in play, we study care order processes of newborn babies in eight countries:  Austria, Estonia, Finland, Germany, Ireland, Norway, England and Spain.

All interventions must be in accordance with law. Legislation is a structural frame that sets the standards for decision making, criteria for intervention thresholds, and the requirements to the proceedings. All eight countries under study have ratified the CRC and, seven of the countries (excluding Norway) are also members of the European Union.

These countries differ in regard of welfare state platform as well as type of child protection system. Legislation guide and instruct decision makers and the involved parties in child protection proceedings. Below is a brief overview of the legal criteria for child protection removals, with a specific focus on removals of newborns, for the eight countries we study.

About the overview

The overview was developed by Dr. Katre Luhamaa in November 2018,  with input and reviews from the following country experts: Prof. Tarja Pösö (Finalnd), Prof. Sagrario Segado Sanchez-Cabezudo (Spain), Prof. Marit Skivenes (Norway), Prof. June Thoburn (England), Dr. Jenny Krutzinna (Austria, Germany), Dr. Katre Luhamaa (Estonia), Dr. Thomas Meysen (Germany), Dr. Kenneth Burns (Ireland), Amy McEwan-Strand (Norway).

Austria has a federal legal system. The rights of the child are protected by the Constitutional Act on the Rights of Children of 2011. While the provision of social services and protecting the welfare of the child is the obligation of the states (Länder), federal level legislation regulates the removal of the child. The Child and Youth Welfare Act (CYWA) of 2013 regulates the removal of the child in danger; the criteria is the best interest and the wellbeing of the child (Art 181 and 138 of the Civil Code and Art 26 of the CYWA). The procedure of removal and authority of the Child and Youth Welfare Authority (Kinder- und Jugendhilfeträger) in the removal procedure is further regulated in Articles 211, 181 and 138 of the Civil Code.

The Children and Youth Welfare Authority has provisional custody rights (Art 211 para 1 of the Civil Code); it assesses the risks to the child and, when deemed necessary, removes the child from the family. Austrian legislation has no specific provision relating to the removal of the newborn child. Assessment and criteria for removal are regulated in the Art 138 of the Civil Code. Application to the court should be made within eight days from the time of removal. Full care provisions include care by close relatives, with foster carers and in residential institutions. The Children and Youth Welfare Authority decides on the extent of the contact between the child and birth parents.

The Austrian court system has four tiers. There are no separate family courts in Austria, thus, District Courts (Bezirksgerichte) with specialist family law departments have the first-instance jurisdiction in family law matters. A decision in care proceedings is usually given within 4-7 months from the time of application, depending on the province. Removal decisions are communicated to the parents but are not publicly accessible through the case-law database.

The legal acts of Austria are available in the Rechtsinformationssystem des Bundes (RIS) database. Care order decisions are not publicly available.

The European Convention on Human Rights including the right to family life is given effect through Human Rights Act of 1998 in the United Kingdom. The Act does not have a separate list of the rights of the child. Each nation in the UK is generally responsible for its policies and laws on child welfare.

Conditions for the removal of the child in England and Wales are regulated in the Children Act of 1989 and in  the Children and Families Act of 2014. It specifies the grounds for removal as well as the procedure of removal. Care orders are made by the court and is possible only when the child is suffering, or is likely to suffer, significant harm and when such harm, or likelihood of harm, is attributable to the care given (Section 31(2)). The welfare of the child is the paramount consideration (Section 1) and the court functions under the “no order principle” – i.e. it should not make an order unless it considers doing so would be better for the child than making no order at all (sec 1(5)).

The local authority initiates care order proceedings (sec 31), and it should include care plan for the child (sec 31A) including the arrangements for contact with the parents. There is no specific legislation relating to the removal of the newborn children.

The three-tier courts make decisions in care order cases in accordance with the Family Court procedure rules. The procedure includes the appointment of a guardian ad litem for the child; protecting the rights of the child in the proceedings and advising the court on the content of the care plan.

Legal acts of the UK and its nations are available in the government database. Under the transparency guidelines of 2014, selected care order cases are available on the discretion of the judge handling the case at BAILII database.

The legal system of Estonia is based on the Constitution of 1992, which among other rights states that the rights of the child are protected (Art 27(3)). The rights of the child are further enlisted in the 2016 Child Protection Act. Rights and obligations of parents and the grounds for removal and adoption of children are specified in Family Law Act (FLA). Central to them is the obligation to notify of children in need of assistance, and the guiding principle is the interest of the child.

Local Government is responsible for overseeing that the children’s rights are guaranteed and, when necessary, acts as a legal guardian and initiates a removal or adoption process. When the child is in danger, the local government has the right to remove the child prior to making an application to the court. The threshold for limiting the parental custody and removal of a child is the endangerment of the physical, mental or emotional well-being of a child by the parents (FLA Art 134 (1)). There are no specific provisions relating to the removal of newborn children.

The Estonian court system has three tiers. Civil cases relating to the relationship between children and their family, including removal decisions, are dealt with by the civil branches of the ordinary courts on the basis of the Family Law Act and the Code of Civil Procedure.

All Estonian legal acts are available in English in the Riigi Teataja. Removal decisions are not publicly accessible in the case-law databases for the protection of the rights of minors.

The Constitution of Finland includes several rights of the child; central to it is the equality of children in participating in the proceedings pertaining to them (Sec 6). Act on the Status and Rights of Social Welfare Clients (812/2000) sets the rights of the service-user for good client-centred service in social welfare, and the Administrative Procedure Act (434/2003) requires the application of “good public administration” principle.

Removal of the child is regulated in the Child Welfare Act 417/2007. According to Art 40, a care order can be made when the health or development of the child is at serious risk. Care orders are possible only when the in-home services are not suitable or possible or would not be sufficient and the placement in substitute care is likely to be in the best interest of the child. The guiding principle is the best interest of the child; there is no specific regulation relating to the newborn children.

The municipality makes care order decisions in cases where the parents or children who are 12 years or older do not oppose the care order proposal or the proposed substitute home. If the parents or children aged 12 or older object to either proposal, the case is decided by the administrative courts based on the application of the municipality. The court procedure follows the Administrative Judicial Procedure Act (586/1996).

Finnish legal acts are available via FINLEX database.

The German Basic Law Art 6(3) provides that children can be separated from their families against the will of their parents or guardians only pursuant to law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. Germany has a federal legal system. While the removal process is regulated at the Federal level, the municipalities or counties are responsible for the implementation and provision of child welfare services and are guaranteed autonomy and self-government in matters of child and youth welfare by the constitution (Art. 28(2)).

The German Civil Code (BGB) regulates the relationship of the child to the parents as well as the grounds and procedure for the removal of the child. Central to this procedure is the best interest of the child (Art 1697a BGB). Intervention to parental custody is possible when the physical, mental or psychological best interests of the child are endangered, and the parents do now wish or are not able to avert the danger (Art 1666(1) BGB). The civil courts decide removal and the proceedings relate to partial or full removal of parental custody of the child. Guiding principles in the proceedings are the least intrusive intervention and proportionality. In cases of emergency, the Youth Welfare offices in the municipalities and counties are the competent authority to take a child into care against the will of parents. If parents object, the Youth Welfare Office has to inform promptly the family court (sec. 42 Social Code Book VIII, Child and Youth Welfare).

The body responsible for initiating the proceedings is the Youth Welfare Office, and the care order proceedings are regulated by the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction. The case must be heard within a month after starting the legal proceedings by a single judge of a Family Court. The child is appointed guardian ad litem for the duration of the proceedings to represent its interests.

German legislation is available in the JURIS database; some English translations are also available (www.gesetze-im-internet.de ► Translations).

The Constitution of Ireland protects the family (art 41) and includes rights of the child (Art 42A). Art 42A of the constitution permits removal of a child in exceptional cases and prescribes adoption of the child when the parents have not fulfilled their duties. Guiding principles are the welfare of the child and the best interest of the child.

The Child Care Act of 1991 further specifies the criteria for making a care order. Article 18 enlist permitted grounds for removal. There is also the possibility of an emergency care order (Art 13) and an interim care order (Art 17). There are no specific criteria for the removal of the newborns. Principles guiding care orders decisions are reunification, the best interest of the child and proportionality. The welfare of the child should be the paramount consideration.

Removal can only be initiated by the Child and Family Agency (Tusla); the decisions are made by a single judge of the district courts in accordance with the Child Court requirements.

Selected care order judgments are available on the Courts Service webpage; Irish legislation of is available on the Law Reform database.

The Constitution of Norway stresses the importance of family life (Art 102) and includes several rights for children, central to which is the right to human dignity (Art 104). The constitution connects human dignity with the personal integrity of the child, the right to be heard, and the principle of the best interest of the child as a fundamental consideration.

The removal procedure is regulated in Chapter 4 of the Child Welfare Act of 1992. The best interest of the child has in such cases decisive importance and central in the removal is the work of the child welfare service. Article 4-12 of the CWA lists the grounds for removal; care orders can only be made when other supportive measures would not be sufficient for creating satisfactory conditions for the child. Article 4-8 specifically mentions that similar considerations relate to making a care order for a newborn child directly from the hospital.

Norwegian care orders are made by the county social welfare boards (including a judge, an expert on child matters and a lay person). These decisions can be appealed in the three-tier court system (Chapter 7 of the CWA).

Norwegian legislation is available in the Lovdata database; selected translations are also available, as well as a selection of decisions by the county social welfare boards.

Article 18 of the Spanish Constitution 1978 protects the rights of the family; Art 39 further stresses the protection of the rights of the child including the right to protection and references to rights of the child as protected in international treaties. Rights of the child are further protected by Organic Law 1/1996 on the Legal Protection of Minors. Central to the child protection is the best interest of the child (Art 2). The law makes foster care preferential type of care outside the family.

Removal and care orders are generally regulated by the Spanish Civil Code (Art 170 et seq). According to Art 172 removal is required in the situation of neglect. The prerequisite to the removal is the provision of family services. The procedure is overseen by the Public Prosecutor for Minors; removal of the child is decided by the relevant administrative body, and the precise procedure varies as it is regulated at the level of regions of Spain. There is no specific regulation relating to the removal of the newborns.

Autonomous communities of Spain have the authority to adopt regional laws. As an example, the Community of Madrid has adopted two regional laws in order to fulfil the legal framework for the protection of minor in its territory, Law 11/2003 of Social Services and Law 6/1995 on Guarantees of the Rights of the Children and Adolescence. The latter, includes the regulation of removal of the child (art. 52 et seq). Removal decisions in Madrid are administrative decisions in the discretion of the Child Guardianship Committee; the procedure is overseen by the Public Prosecutor for Minors. Parents have the right to challenge the care arrangements in civil courts.

Spanish legislation is published in the IBERLEX database. The care order decisions are not publicly available.

Additional information

In Skivenes and Sørsdal (2018) there is an overview of The Child´s Best Interest Principle in the eight Child Protection Jurisdictions.

In Burns, Pösö and Skivenes (2017) there is a general overview of child protection removal proceedings for England, Finland, Germany, Ireland, and Norway.

Overviews of the legal systems of the seven EU countries are available at e-justice portal.