Centre for Research on Discretion and Paternalism Bergen

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.

Projects: DISCRETION, ACCEPTABILITY

Newborn removals

In Austria, the empirical data used in the analysis consist of all (n=24) newborn removal cases decided in 2016 and 2017 in the district courts in a big City in Austria. The Child Protective Services of the City searched their case files, which contains the file numbers of the judgments, and provided us with a list of 51 judgment numbers for the City 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.

Newborn removals

For England, the empirical data used in the project consists of all publicly available (n=14) newborn removal cases decided in 2015-2017 (published in BAILII, British and Irish Legal Information Institute, database). This does not include care and placement orders, as placement order cases are in effect adoption cases and the court reasoning follows this line. For 2015, 2016 and 2017, there were 455 publicly available cases decided by the Family Courts (first instance). We manually reviewed these cases, and identified 14 cases concerning care order removals of newborns in England that meet our inclusion criteria. We also consulted non-published judgments, but this data collection did not yield any written judgments fitting our criteria for newborn removal cases.

Newborn removals

In Estonia, the empirical data used in the analysis consists of all (n=17) newborn removal cases decided in 2015, 2016 and 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 section 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 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 was requested from the four district courts. We received 51 judgments, which we manually reviewed, and 17 newborn removal cases fitted our inclusion criteria.

Newborn removals

For Finland, the empirical data used in the research consists of all judgements (n=25) of newborn removals decided by the Administrative Courts in 2016. For Finland, we requested and received access to all the court decisions from 2016 and 2017 of care orders made under paragraph 40 of the Child Welfare Act (Huostaanotto ja sijaishuoltoon sijoittaminen), aged 2 years or younger at the time of the decision by the administrative courts. We received 129 such cases; from these we have manually identified 53 cases that fit our selection criteria of newborn removals; 25 from 2016 and 28 from 2017. The full sample from 2016 was then selected as the material for analysis.

Newborn removals

In Germany, the empirical data used in the research consist of all (n=27) newborn removal cases decided between 2015-2017 in one large city. We have access to all judgments from the district court in that city, family division (Amtsgericht), concerning removals of newborns. These were identified by a search for care order judgments based on § 1666 BGB (German Civil Code, Kindeswohlgefährdung) where an interim order was made when the child was up to 100 days old and where the main proceedings (Hauptsacheverfahren) were decided between 2015-17 (including decisions made in 2018 where the child concerned was born in the previous year). This yielded a total of 74 cases. From these, we have manually identified the cases that concern newborn removals.

Newborn removals

For Ireland, the empirical data used in the project consist of all judgments (n=17) concerning removals of newborns published in 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 (as of September 2018). A total of 146 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.

Newborn removals

For Norway, we have access to all judgements (n=76) decided by the County Social Welfare Boards concerning removals of newborns in 2016, i.e based on the child welfare act § 4-9, (1), cf. § 4-8 (2) (temporary) followed by § 4-8 (2), cf. § 4-12 (care order) in 2016. To make sure we have the full sample, it was also a manual review of all cases filed under § 4-8 and § 4-12 where the child is 1 years or younger. We have ordered them chronologically after decision date, and selected every second judgements, and the randomized sample consist of 38 judgements.

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 case files relating to care order removals of newborns in 2016 and 2017 (n=16) . 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.