NOU 2023: 7 Safe childhood, secured future
The Committee’s mandate is to assess measures for strengthening the rule of law at all parts of the child protection system. The mandate includes assessing measures for ensuring that authority is correctly exercised and that reasoned and verifiable decisions are made at all levels of the child protection system. The Committee is also asked to assess whether there is a need for measures in a number of further specified areas. The mandate is comprehensive, and the Committee has reviewed the rule of law for children and parents in the different processes, measures and agencies of the child protection system.
The report is in seven parts. Part I concerns the composition, work and mandate of the Committee, as well as basic principles and considerations when assessing the rule of law for children and parents in the child protection system. The Committee’s approach to this work, interpretation of the mandate, important terms and delimitations are discussed in more detail in chapters 1 and 2 of the report. Among other things, an overview is provided of the criteria for legally correct decisions that are stipulated in laws and regulations for promoting good interaction between families and professionals. In order for a decision to be correct and fair, the case management procedures and processes must, at minimum, ensure that affected and relevant parties are included, that all relevant information, knowledge and facts have to be presented, that discussion and alternative assessments of the information base must be permitted – and there needs to be an opportunity for the parties to ask questions and clarify misunderstandings. Those who require help to express their views must also receive assistance and support for this. Finally, there need to be more than one person who makes a decision in child welfare cases.
Part II provides an overview of important background information and research that has been obtained and used by the Committee in its work on the report. The chapters in Part II provide no proposed measures, however the content is important for the assessments and proposals made by the Committee later in the report. The chapters describe the change processes that have been initiated in the child protection system over the past 10 years, and summarize statistics and key figures relating to various measures and processes in the child protection system.
Stronger position for children in the child protection system
Part III of the report addresses specific challenges relating to the rule of law for children in the child protection system, and the Committee’s assessments and proposals for meeting these challenges. The situation for children with minority backgrounds is addressed in a separate chapter. The rule of law for children when they encounter the child protection system is a main topic in the Committee’s work. This is because this has proved difficult to achieve, despite significant efforts from the authorities.
In its assessments, the Committee places emphasis on the fact that there is clear documentation that a child’s right to participation is not adequately safeguarded, despite children being afforded clear rights in the legislation. The problems are expressed in several areas. The children who receive help from the child protection system do not receive the information that they require, they cannot safely express what they feel, think and want, they are unable to ensure their privacy or to be involved in making decisions, and cannot appeal the decisions. There are many different persons who the children have to interact with, and there is also a high turnover among contact persons and other professionals. Relatively extensive deficiencies in children’s right to good and proper help have also been documented in a number of areas. For example, many children experience being relocated and instability in their care situation or that they are not doing well at the place where they are living. This problem is described in more detail in chapter 6 of the report.
The Committee considers the situation to be serious and urgent. The weaknesses in the current system and practices suggest that there is a need to make extensive systemic changes to ensure that children are protected by the rule of law and that they have an adequate level of participation. This particularly applies to children who have to move into foster homes and institutions. The Committee is less confident that “patching up” existing schemes through further clarification in the regulations, introducing more routines and new individual competence measures will have a significant effect.
In chapter 7 of the report, the majority of the Committee proposes the establishment of a Children’s Guardian Arrangement (in Norwegian “barnerepresentantordning” and abbreviated as “BRO”) that will solely focus on the rights of the child. BRO will ensure that children have independent representation in all cases in which it is assessed that children have to move out of their homes. The guardian shall have professional expertise from working with children to enable children to be understood, for children to feel they are being understood based on their circumstances and age, and that children receive care and assistance with their own development processes. The guardian will cooperate with a lawyer when legal expertise is required. The majority’s proposal entails that the guardian will follow the child from the point in time the decision to move the child from his/her/their home is assessed and made, and during the entire period while the child lives in foster home or institution. BRO will replace the arrangements which involve a spokesperson, supervisor for children in foster care and person of trust, as well as when experts have been used to obtain the opinion of the child. It is suggested that BRO be piloted before it is implemented nationally.
The Committee is also of the view that the position of children in the child protection system should be strengthened by lowering the age limit for a child’s status as a party to a case from 15 to 12, and by improving the opportunities for children to appeal and request a review in their cases. These measures are discussed in more detail in chapter 8.
The Committee is of the opinion that there are several parts of the child protection system’s work in which there are particular challenges relating to the rule of law for Sami children and children with other minority backgrounds. This is particularly addressed in chapter 9, while measures for improving the situation of children with minority backgrounds are proposed in various parts of the report. The Committee proposes that all unaccompanied minor asylum seekers receive the same services, the child protection service at state level, by removing the current age limit of 15 years.
Decisions in child protection cases
In Part IV of the report, the Committee addresses various parts of the decision-making process in child protection cases and Part IV begins with a chapter concerning the principle of the best interests of the child as a decision-making norm in child protection cases, see chapter 11. Furthermore, the Committee addresses investigations conducted by the local child protection service in chapter 12, decisions relating to voluntary placement in chapter 13, the child protection service’s emergency measures in chapter 14, the decision-making processes of the Child Protection and Health Board and the courts in chapter 15, and the use of experts in child protection cases in chapter 16.
The principle of the best interests of the child
The principle of the best interests of the child is the most important principle and the foremost decision-making norm for anyone who works in the child protection system. However, in Norway, there are few guidelines in the legislation for how decision-makers must assess the principle of the best interests of the child in child protection cases. The Committee is of the view that a broad framework for exercising discretion entails a risk that the principle will be subject to different interpretations. This in turn can lead to differential treatment of children and parents, and poor-quality decisions and measures. The Committee therefore proposes to establish the ability of decision-makers to exercise discretion by including a list of factors in the Child Welfare Act that specify important issues of assessment. The list of factors is not intended to be exhaustive and is not a counterweight to a professional discretionary assessment.
Investigations by the local child protection service
Investigations by the local child protection service are often the first encounter with parents and children, and are also decisive to what will occur in a case going forward. In its work, the Committee places an emphasis on the fact that challenges have been identified in the child protection service’s investigation work. This includes several factors, such as assessments in serious cases not being sufficiently extensive, insufficient progress and systemization in the work and that the scope of the investigations is not sufficiently adapted to the severity of the cases. The knowledge that is available also demonstrates that the services do not sufficiently involve children and the parents in the investigation. The Committee is also of the view that there should be further examination of the help that is provided to children and families in cases that are dismissed by the child protection system.
Firstly, the Committee proposes that measures should be initiated that increase the involvement of parents in the investigation. Among other things, this entails that parents can have a support person with them when meeting with the child protection system. Secondly, the Committee proposes the introduction of a new model for the investigation work that can contribute to improved progress, quicker clarification and better differentiation between serious and less serious cases in the investigation work. The Committee also proposes the introduction of a requirement that when the child protection service dismisses cases, assistance will be provided to the child or family in establishing contact with other agencies that can provide the right assistance.
Voluntary placements outside the home
Pursuant to law, the intention behind voluntary placements is that they are used when children are temporarily unable to live at home with their parents. In principle, voluntary placements outside the home can be good solutions and in the best interests of the child. It is a sign of the quality of the work that the local child protection service and parents and children are able to reach an agreement on what help is required. However, the knowledge that is available indicates that the practices of the local child protection service do not adequately correlate with the intention of the law. The Committee considers there to be grounds to question whether voluntary placements are used in the correct cases, whether the decision-making processes are sufficiently secure, whether the consent given by children and parents is genuine, and finally, whether parents and children receive adequate follow-up after a placement.
The Committee therefore proposes that the legislation more clearly specifies that voluntary placements are intended to be temporary. The Committee also proposes that more detailed guidelines are provided regarding how the local child protection service should follow up children and parents in these types of cases. It should also be investigated as to whether the Child Protection and Health Board can review the legality of decisions concerning voluntary placements and whether voluntary measures should be decided through a dialogue process.
Emergency placements of children are a highly invasive measure for both children and parents, and emergency situations in themselves can impose a heavy burden on the family. The scope of emergency placements is a topic that has been on the agenda for several years. At the same time, the Committee emphasises the fact that the number of emergency placements has decreased significantly in recent years. The results of data reviews do not indicate that emergency cases involve greater failures when concerning the rule of law. However, the Committee recognises that there are challenges in the manner in which children are followed up after emergency placements, and that many children remain living in temporary measures for a long time. This also applies to children who are subject to voluntarily emergency placement.
The majority of the Committee is of the opinion that there are presently no grounds for proposing changes to the manner in which emergency orders are processed. However, emphasis is placed on the fact that emergency placements are a highly invasive measure, and it is important that the Ministry monitors developments and the Child Protection and Health Board’s hearing of appeals of emergency orders. Efforts should also be made to implement professional recommendations in the services regarding how emergency situations can best be managed and followed up. It is expected that the introduction of the BRO will be important for strengthening the child’s position in emergency cases.
Consideration of child protection cases by the Child Protection and Health Board and the courts
The Child Protection and Health Board (formerly the county social welfare board) is responsible for decisions in the most invasive child protection cases. The parties to a case can demand that the courts conduct a judicial review of decisions by the Board. Knowledge of the Norwegian system indicates that the processes of both the Board and the courts are generally thorough and of a high quality. Nevertheless, the Committee is concerned about variations in terms of the quality of the decisions that are made, and the varying expertise of both lawyers and judges involved in child protection cases. The proceedings may also appear to be not particularly sympathetic and efficient, and it may take an unnecessarily long time before children and parents receive clarification in a case. The Committee also questions whether the dialogue process, which the Board can initiate, adequately safeguards the rule of law for children. This concern particularly relates to whether solutions are chosen that are to the detriment of the child’s needs, that insufficient emphasis is placed on the child’s participation, major regional differences and the time spent on the dialogue process.
The Committee proposes several measures to strengthen the rule of law for children and parents. These include developing criteria, guidelines and templates for processing cases to ensure more equal treatment, as well as measures that can better ensure that the stakeholders have the correct expertise. Further, the Committee proposes several measures that can contribute to shorter processing times and more considerate and efficient processing of child protection cases, among other things, through clearer procedures for preparatory proceedings before the boards and particularly deadlines for the hearing of cases concerning the youngest children. The Committee is also of the view that measures should be implemented that specifically address the dialogue process. Such measures include developing criteria for assessing what types of cases are suitable for a dialogue process and that there is a subsequent evaluation of the dialogue process. It is expected that the introduction of the BRO will be important for strengthening the position of the child in Board and court processes.
Use of experts in the decision-making process
Experts must contribute specialist expertise or shed light on a case from an independent point of view. In its assessments, the Committee has emphasised that there is a need for experts with the correct expertise for conducting good investigations of different types of child protection cases. The knowledge that is available indicates that this is not adequately ensured within the current system. There is poor access to experts with the correct expertise in various parts of the country and overviews of experts and their qualifications are inadequate. The available research indicates variation in terms of expert assessments, and this is reinforced by the fact that few guidelines have been issued for how the work has to be carried out. Many experts work alone without any form of internal quality assurance or collegial guidance.
The Committee is of the opinion that experts should primarily be used on assignment from the Boards and the courts, in cases which require an independent assessment to further elucidate the case. Other methods should be used to address the child protection service’s need for expertise in demanding child protection cases, through the Norwegian Agency for Children, Youth and Family Affairs (Bufetat) having to provide more assistance to the municipalities in connection with interdisciplinary specialist assessments. The Committee also proposes that clearer requirements be set for the expert’s mandate and report and for the expert’s qualifications.
Child protection measures
In Part V of the report, the Committee considers the rule of law in connection with child protection measures for children who cannot live at home. More than 30 per cent of the children who are subject to child protection measures live in a measure outside the home. When a child has to move out of his or her home, this is a serious intervention for the children and families involved. In chapter 18, the Committee addresses the right of children and parents to reunification and contact. Foster homes and institutions are respectively discussed in chapters 19 and 20. Chapter 21 addresses a child’s need for continuity, while in chapter 22, the Committee takes a closer look at aftercare and the transition of young people to adulthood.
The right of children and parents to reunification and contact
The European Court of Human Rights (ECHR) has documented violations of the rights of children and parents in matters pertaining to reunification. In its assessments, the Committee assume that there have been major changes in these areas in recent years, among other things, because the contact between children and parents has increased in scope, and there is a clear trend towards the goal of reunification being maintained in most cases. The new Child Welfare Act also contains several amendments and clarifications to counter the criticism from the ECHR. The current situation is therefore different to what it was just a few years back.
The Committee considers it to be a primary challenge that the follow-up of parents after a care order appears to be inadequate and not very systematic. The Committee is also of the view that it can be questioned as to whether sufficiently specific and individual assessments are carried out when determining contact and in cases concerning reunification. This concern particularly applies to whether the child’s needs are being adequately safeguarded. Nevertheless, in light of the steps that have been taken and the ongoing development processes, the Committee is of the opinion that there is no need to propose major new measures concerning contact. However, the Committee proposes several measures for strengthening the follow-up of parents after a care order. This includes clearer guidelines for the content of the follow-up, and who is responsible for this, and that the follow-up must continue after a child is returned. Parents should be offered therapeutic support shortly after a care order, and consideration should be given to whether the dialogue process can be used when establishing a plan for the follow-up of parents.
Foster homes and institutions
In its assessments of the need for measures relating to institutions and foster homes, the Committee focuses on ensuring that children and young people receive the right help and are able to fulfil their right to security, love and understanding. Care within the framework of a family is a stated goal and obligation for the child protection system. The Committee considers it to be of fundamental importance that children and young people involved with the child protection system have safe and good relationships with caregivers.
The Committee has adapted its work in this area because parallel processes are already underway. In 2018, the Foster Home Committee (Fosterhjemsutvalget) submitted its NOU (Norwegian Official Report) 2018: 18, and in 2023 the Child Protection Institution Committee (Barnevernsinstitusjonsutvalget) will submit its proposals for measures relating to institutions. The Committee expects that the ongoing work will contribute to better quality and rule of law when concerning services relating to both foster homes and institutions.
However, the Committee has taken a closer look at specific circumstances that could improve the care situation of children in foster homes and institutions. When assessing foster home services, particular emphasis has been placed on the foster parents’ role and position for being able to provide good care and to follow up the child on a day-to-day basis. Among other things, the Committee is of the view that there is a need to clarify the framework conditions for foster parents and their ability to make decisions on behalf of the child. In order to avoid relocation or to ensure relocation that is sensitive to the needs of the child, the Committee proposes the introduction of mandatory consultation with those who are involved.
The Committee also advocates for more children and young people being given the opportunity to live in foster homes rather than institutions. The reason for this is that the Committee believes that institutions as a measure cannot adequately address a child’s need for care, security and good relationships, and that the current institution services do not do enough to create positive change for children and young people. The Committee recognises that a stay at an institution may be necessary for some children, however, proposes that special grounds must be given in decisions from the child protection service and the Boards when choosing an institution placement. In order for more children and young people to live in foster homes, the provision of specialised foster homes must be expanded and developed and Bufetat should be obligated to offer this, so that more children and young people will have access to foster homes that are adapted to their needs. It is crucial that the measure is designed in such a way that the support system around the child and foster home is tailored and adapted to the needs and strengths of the child and the foster home. The introduction of the BRO will be important for children who live outside the home, and particularly for children and young people at institutions.
Continuity and stability for children who grow up in public care
Many children who live outside the home cannot move back home to their original parents. The children grow up in public care, with the child protection service acting as helper, inspector and decision-maker.
Research indicates that adoption has clear advantages when compared to care measures that are under the direction of the child protection system, because adoption gives children a sense of belonging, security and a framework for an upbringing in which the child belongs to the family and will remain with the family no matter what happens. However, the Committee finds that the child protection service has different practices in their assessments of permanent family solutions for children, and adoption is a measure that is not often employed. The Committee therefore proposes to legislate a clear duty for the child protection service to regularly assess whether the child’s situation suggests that decisions should be made that better safeguard the child’s need for continuity, sense of belonging and family life.
The Committee also proposes a new measure known as simple adoption (oppvekstadopsjon), which entails that, in the case of children who cannot be reunited with their original parents, the Board can decide to transfer parental responsibility from the original parents to the foster parents. Simple adoption may be applicable in situations where the child and the original parents request and have a need to retain legal ties and/or there are circumstances within the foster family that make adoption undesirable. The Committee is also of the view that the child protection service should continue to have a duty to assist the child and the family when required following ordinary adoption or a simple adoption.
A good transition to adulthood (aftercare)
Young people who have been in the child protection system may encounter serious challenges when transitioning to adulthood. Aftercare must contribute to them receiving the necessary help and support on the road towards independence and reduce the risk of marginalisation in the long term. However, many young people and young adults still often do not get the help they need from the child protection service.
The Committee therefore proposes that the right of young people to have a guardian through the BRO shall apply until the age of 25. The guardian will be a driving force in safeguarding the young person’s interests and ensuring he or she is protected by the rule of law. While awaiting the roll out of the BRO, young people who have lived in measures outside the home should be assisted by a lawyer when they approach the age of 18, to better safeguard their right to aftercare measures.
Systems for better rule of law and quality
In Part VI, the Committee assesses the need for changes to the basic systems in and around the child protection system, in order to strengthen the rule of law and quality in child protection cases. Chapter 24 discusses the organisation of the child protection system, while in chapter 25 the Committee considers the role of the child protection service in cross-sectoral cooperation. The system for supervision, control and learning is discussed in chapter 26. The Committee is asked to specifically review the need for approval of personnel at the child protection system, and this is discussed in chapter 27. The final part of the report discusses topics relating to transparency at and trust in the child protection system (chapter 28) and the need for more research and knowledge development in the sector (chapter 29).
The organisation of the child protection system
Strong and stable specialist communities are important for being able to ensure that good services are offered to children and families in all parts of the country. The Committee is concerned about whether the local child protection services have the prerequisites and framework conditions they require for being able to provide good services. Weak framework conditions can apply to both large and small municipalities, however appear to impact small rural municipalities the hardest. In the Committee’s opinion, small services have more difficult conditions for providing good help and services.
The Committee is of the view that the many measures that have already been implemented vis-à-vis the local child protection service could have positive benefits, for example, measures to strengthen the competence of employees. However, it is still highly uncertain as to whether the ongoing change processes will be able to solve more fundamental and structural problems related to a lack of stability in the services and inability to develop the necessary expertise and experience in demanding cases.
The Committee considers there to be a need for clearer requirements and expectations for the child protection service in the municipalities. This includes best practice, the framework conditions that need to be in place for the child protection service to function adequately and the expertise and experience required for being able to handle the demanding cases. The Committee is also of the view that there is a need to take organisational steps that both make it possible for the child protection service to meet quality requirements and make the services less vulnerable in the at-risk child protection cases. Among other things, the Committee proposes that Bufetat is assigned a duty to assist the services in the municipalities with demanding child protection cases. The majority of the Committee is also of the opinion that there should be an assessment of whether responsibility for child protection should, in the long term, be transferred from the municipalities and consolidated at one administrative level, possibly in combination with a few more municipalities being given the same opportunity as Oslo to take overall responsibility for the child protection services themselves.
Cooperation and early intervention
Cooperation between different services, professions and agencies is a major necessity in child protection cases. Several measures have been initiated in recent years that will contribute to better cross-sectoral cooperation in child protection cases. This includes clarifying the responsibilities of the municipalities through the child protection reform process (barnevernsreformen), and by trialling measures targeted at families with complex problems. Changes have also been made to the welfare regulations that clarify and harmonise the duty of the welfare services to cooperate and ensure coordinated services, and several guidelines have been prepared that address the child protection service’s cooperation with the health services and other agencies.
The Committee is of the view that the continued efforts should build upon the measures that have already been implemented. The Committee advocates for certain initiatives being strengthened with a view towards national implementation, for example, the Sammen på vei (Nurse-Family Partnership) initiative and the FACT Ung (FACT Young) methodology, as well as measures that have the objective of improving the school attendance of children in the child protection system.
The Committee has also specifically looked at the services offered to families with new-borns and infants in vulnerable life situations. These are groups that are particularly dependent on both assistive measures offered by the child protection service and measures from other sectors being available at an early stage and adapted to their needs. The Committee is of the opinion that there should be an assessment of how the child protection system can better cooperate with the health services with regard to pregnant women when there is a high risk that the child could be exposed to neglect following birth. Better follow-up services should also be developed for prospective first-time parents who themselves have been involved in measures provided by the child protection service.
Supervision, control and learning
Child protection cases can be complex and demanding, and errors can occur that could potentially have major consequences for children and families. The system therefore has to be organised in such a manner that errors are detected and remedied, and that the underlying causes of the error are rectified. The Committee has primarily assessed the role of the county governors as the supervisory authority in the child protection system.
The Committee considers the current system of supervision and control to be fragmented. This pertains to the fact that many stakeholders have overlapping areas of responsibility. At the same time, supervision is often carried out by sector or with the individual enterprise, which makes it difficult to identify deficiencies in the overall services offered to children and young people. Questions can also be asked about whether the supervision adequately results in learning and better-quality services. The Committee has also assessed whether supervision functions as a mechanism for the rule of law in individual cases. Many children and parents experience that they have a weak position if they want to file a complaint. It can take a long time before complaints are processed, and proven non-conformities do not necessarily result in errors being rectified in the individual case.
The Committee considers there to be a need to further examine whether the system can be made more simple, more transparent and more efficient, and proposes that the ministries review the various supervisory and control schemes in the welfare area. The Committee also proposes that the county governors are assigned a more active role and a clear assignment to assist with coordinating and making services accountable in cases where children require help from multiple agencies. This has already been trialled in some offices by using the model for supervisory meetings (tilsynsmøter). The Committee also proposes the establishment of more accessible schemes in which both children and parents can make contact and receive a quick response if they feel that the work of the child protection service is not in compliance with the laws and regulations.
Approval of personnel in the child protection system
The employees who work in the child protection service perform tasks and services that target particularly vulnerable groups. In connection with this, the Committee has assessed whether there is a need for mechanisms or measures which can ensure that the personnel who work in the child protection service are fit and suitable for the job. The Committee particularly assessed whether a scheme for authorisation and government approval of personnel should be introduced, however the Committee has also considered other schemes for suitability assessments that have already been established in the sector. The majority of the Committee found that there is not a need to introduce a requirement for authorisation, however instead proposes certain other measures that can prevent unsuitable individuals from working in the child protection service.
Transparency, dialogue and trust in the child protection system
The child protection system exercises government authority and can hand down decisions to seriously intervene in the family life of children and parents. These decisions must be able to be re-examined, justified and legitimised within the child protection system and in relation to not only children and families, but also to the population at large, the media and politicians. Some of the criticism of the Norwegian child protection system has precisely been that it is perceived as being a closed system that is both difficult to manage and to trust. The Committee accepts that transparency is a fundamental principle within the child protection system, however clear delimitations are still required to ensure that children are not harmed and to avoid violating the privacy of those involved.
The Committee finds that the child protection system enjoys a relatively high level of trust in Norwegian society when compared with the situation in other countries. This trust has also remained constant despite international and national criticism and the judgments handed down by the ECHR. However, the Committee is of the view that there is a need for more transparency and information regarding the work of the child protection system which is available to everyone. Relatively in-depth knowledge of the child protection system is now required to be able to know where to find relevant information. Fragmented and inadequate information about the child protection system also impacts the public and political debate. It is difficult to determine the actual state of the child protection system, and discussions about the child protection system are overly anecdotal and lack nuance.
The Committee is of the opinion that all information materials, statistics and overviews of the child protection system should be collated at one location, in a common child protection portal. Regular reporting should also be introduced regarding the status of the child protection area when concerning human rights obligations, and specifically in relation to the United Nations Convention on the Rights of the Child and the European Convention on Human Rights. It is also proposed that various forms of user forums be established where children and parents with experience from the child protection system can have more of a voice in the municipalities and the political debate.
Research and knowledge development
The Committee sees that there are weaknesses in the research efforts in the area of children and young people in vulnerable and difficult life situations. During the course of its work, the Committee has encountered challenges relating to several areas having an inadequate knowledge base. The Committee refers to a number of specific areas relating to practices of the child protection system that currently have major knowledge gaps. There are also deficiencies with regard to access to statistics, basic information about the child protection system, generalisable research and knowledge-based measures. One of the primary challenges is that there is often a lack of research into the experiences of children and young people. There are also weaknesses when concerning the experiences of parents. These deficiencies impact the quality of the help that will be provided to children and parents, and the ability to receive good, knowledge-based measures that work in the best interests of children and families. The Committee finds that better rule of law in the child protection system requires more in-depth knowledge and high-quality research, and the Committee is of the opinion that the research and knowledge development need to be clearer in terms of the child’s perspective.
The Committee therefore proposes both measures to strengthen research efforts in the area of child protection and the establishment of research and knowledge centres. There is a need to improve access to knowledge, and there should be a greater focus on research into the implementation of knowledge-based measures. It is the view of the Committee that strategies should be formulated to develop and disseminate knowledge-based methods in cooperation with the field of practice, children and parents.