BLOG: An ongoing puzzle is to explain why children in the child protection system are not participating as the Convention of the Rights of the Child (CRC) and Norwegian law prescribes.
The problem is equally relevant in other child protection systems in Europe and the USA. I believe an important driver for this is the decision makers’ adultism and lack of a child equality perspective. A part of this is what a young person involved in the European Council workgroup on children’s rights so pointedly remarked: “adults “underestimate children’s opinion and do not understand the benefits of their participation” (2016 p. 4).
First, it is no doubt that children have a right to participate. Children’s right to participation is one of four fundamental rights[1] in the CRC, which means that this is a right that is of importance for the interpretation and implementation of all other rights (CRC Committee General Comment (GC) no 12, 2009).
The term participation is not used in article 12, but has become the easy accessible label used in policy, practice and research, to describe that article 12 “…assures, to every child capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with age and maturity.” (GC 2009). Furthermore, this is particular important in “…any judicial or administrative proceedings affecting him or her.” (Ibid).
Second, the presumption in the CRC is that children are capable of being involved in matters of importance to them, as elaborated on in the CRC Committee’s General Comment no 12, 2009, para. 20 and in much scholarship. It follows from the rights perspective that it is children’s capacities that should set the threshold for the child’s ability to form an opinion, not for example their age (GC 2009; Archard 2019; Kilkelly 2001; Lundy 2006). Still, age is used in Norwegian legislation.
Third, the right to participate is also a necessary condition to find out what may be in a child’s best interests (CRC General Comment no 14, 2013; see also Archard & Skivenes, 2009a, b), because only the individual her/himself can determine what makes her/him happy and feeling well. As one of the children involved in the expert by experience report with 130 children who have experienced violence and/or abuse, makes this point clear: “I think that little me, as a five-year-old could have been involved in the decision-making. I knew a lot about how it felt to be me. Decision makers would have needed to know this. ” (FF, 2019 p. 18).[2]
It is no doubt that children have a right to participate
Marit Skivenes
Of course, this does not mean that best interests only shall be determined by the child – but in collaboration with the child. Findings from an analysis of child protection legislation in 14 countries/jurisdictions show that children’s participation is a factor that must be considered in determining the child’s best interests in all but one law (Skivenes & Sørsdal 2018).
Fourth, in spite of all the legal arrangements and good intention to secure children’s participation in child protection, much research displays that children are not sufficiently involved in their own child protection case; reports form children themselves confirm these findings (Berrick et al., 2015; FF, 2019; Landsforeningen for barnevernsbarn, 2017; Križ et al, in preparation; McEwan-Strand & Skivenes, 2020; Vis & Fossum, 2013), and public reports repeatedly point this out (Fjeld 2020; NOU 2017:12; Helsetilsynet, 2019). Thus, the question that requires an answer, is why this is so.
Fifth, the barriers that are usually mentioned as obstacles for involving children include decision-makers’ (and adults’) desire to protect children from potential re-traumatisation and to relive pain they have experienced. Furthermore, decision-makers do not want to place the child in a difficult conflict of loyalty, or further burden the child. They have thoughts of the child as vulnerable, and that they should not give the child additional experiences they cannot handle. Many decision-makers believe that children do not have sufficient ability and maturity to get involved or to have reasonable perceptions about a case or the matters at stake.
There may be a perception among decision-makers that it does not matter to the decision whether the child participates or not. If the risk to the child is considered high, the decision-makers may think that one must do what is necessary – regardless of what the child thinks. Decision-makers lack the competence and training in talking about difficult and sensitive issues with children. Furthermore, there are not sufficient organisational structures or bureaucratic case management rules for involving children, and the decision-makers may have high time pressure and physical surroundings designed for interacting with adults (see Skivenes, 2018 for details on barriers).
However, sixth, underlying the various barriers is, what we at the Centre believe to be the decisive reason for the discouraging results in terms of children’s participation, namely normative understanding of children. Together with colleagues, Katrin Kriz, Jenny Krutzinna, Tarja Pösö, I argue that we need a child equality perspective. This is a perspective that focuses on the child as a moral individual on an equal footing with other individuals in society.
In practical situations, this includes professionals, decision-makers and institutions, considering the child’s situation and position in addition to teasing out an opinion or a viewpoint through direct or indirect testimonies. Participation is, in an equality perspective, built on a normative platform that starts out from a moral perspective as formulated by Archard & Skivenes:
«It is a right of all individuals to be involved in a process whereby their own future is determined even if their view of that future has no weight in any final determination of matters; and even if they cannot hope to persuade others of their ability to make their own decisions. Thus an interpretation of the child’s opinion as either authoritative or consultative does not capture all the reasons for hearing the child.” (Archard and Skivenes, 2009b: 19-20).
Clearly, the expectations and the requirements for children’s participation are far more demanding in this perspective, and resonate with what children themselves express is important for their involvement – the billion-dollar question is how we can transform our cultural beliefs and traditional views of children from non-equals to equals. However, if a change in culture actually helps to secure children’s participation in child protection so that children themselves feel respected and involved – are empirical questions that must be examined.
REFERENCES
Archard, D. (2019) “Respecting Age: Discrimination against the Young and the Old” in Skivenes, M. and Søvig, K.H. Child Rights and International Law – Implementing Article 2 of the United Nations Convention on the Rights of the Child (pp. XX-XX). Abingdon: Routledge.
Archard, D. and Skivenes, M. (2009a) Hearing the child. Child & Family Social Work 14(04): 391-399.
Archard, D. and Skivenes, M. (2009b) Balancing a child’s best interest and a child’s views. International Journal of Children’s Rights 17(01): 1-21.
Berrick, J.D., Dickens, J., Pösö, T. and Skivenes, M. (2015) Children’s involvement in care order decision-making: a cross-country analysis. Child Abuse & Neglect 49 (SI): 1228-141.
Committee on the Rights of the Children (2013) General comment no 14 on the right of the child to have his or her best interests taken as a primary considertation. New York: Convention on the Rights of the Child.
FF (2019) Forandringsfabrikkens Kunnskapssenter. Rett og Sikkert. Om anmeldelse, avhør i barnehus og rettssak Fra unge som har opplevd vold eller overgrep. Oslo: Forandringsfabrikken.
Fjeld, Sasaoka, Madland, Skivenes and Øvreeide (2020) Gjennomgang av ti særlig konfliktfylte barnevernssaker i Bergen kommune. Accesed 12.08.20. Available from: https://www.discretion.uib.no/wp-content/uploads/2020/03/2020-Fjell-Skivenes-et-al.-Rapport-barnevern-Bergen-kommune.pdf
Helsetilsynet (2019). Det å reise renser øynene. Gjennomgang av 106 barnevernsaker. [Report] Available from: https://www.helsetilsynet.no/globalassets/opplastinger/publikasjoner/rapporter2019/helsetilsynet_rapport_unummerert_gjennomgang_106_barnevernsaker.pdf
Kilkelly, U. (2001) The best of both worlds for children’s rights – Interpreting the European Convention on Human Rights in the light of the UN Convention on the Rights of the Child. Human Rights Quarterly 23(02): 308-326.
Lundy, L., and U. Kilkelly (2006). “Children’s rights in action: using the UN Convention on the Rights of the Child as an auditing tool.” Child and Family Law Quarterly 18.3 (2006): 331-350.
McEwan-Strand, A. and Skivenes, M. (2020) Children’s capacities and role in matters of great significance to them. International Journal of Children’s Rights.
Skivenes, M. (2018). “Barneperspektiv i fokus” [Child perspective in focus, in Norwegian] in Steinrem, I. and Toresen, G. (eds.) Barnas Barnevern [Childrens Child Protection, in Norwegian] (pp. 14-19). Oslo: Universitetsforlaget.
Skivenes, M. and Sørsdal, L. (2018) “The child’s best interest principle across child protection jurisdictions” in Backe-Hansen, E. and Falch-Eriksen, A. (eds.) Child Protection and Human Rights – Implementing the CRC in Policy and Professional Practice (pp. 59-88). London: Springer.
Vis, S.A. and 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 Review 35(12): 2101-2109.
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[1] The others are right to life (article 6); child’s best interests principle (article 3) and non-discrimination (article 2).
[2] «Jeg tenker at lille meg som fem år kunne vært med å bestemme. Jeg visste mye om hvordan det kjentes å være meg. Det hadde de som skulle bestemme trengt å vite.» (FF, 2019 p. 18).