Redd Våre Barn
10 July 2012
Child protection and the law
by Joar Tranoy
This article was first published on 4 July 2012 by Pravasi Today in Delhi:
Joar Tranoy is a Norwegian research scholar, psychologist and criminologist who has written a number of books and articles on social history, on abuse of power in the field of psychiatry and psychology, on child protection at present, and on the history of child protection in Norway. He has held a research position at the University of Oslo, and is now working in the Agency for Children, Adolescents and Families of a Norwegian municipality. Mr Tranoy has functioned as an appointed expert before county committees and courts in child protection cases and as an expert witness for the families in further cases.
This article gives a summary overview of some points demonstrating how 'the rule of law' is implemented for children and parents in cases concerning child protection. Norway is my example, but conditions are recognizably much the same in the social work of the western world.
Working out a report in a child protection case can be compared to the work of a police investigator. Both have as their task to find out the facts. The police should arrive at a conclusion of whether or not the suspect should be charged with a view to getting him sentenced, the child protection professional is to recommend whether the child should be removed from its family.
No rules regarding information or documentation
The investigating police officer's role is strictly defined in the Criminal Procedure Act and additional regulations. Child protection cases are conducted differently: Rules of obtaining information are altogether lacking. The individual case worker decides freely whether conversations with implicated persons are taken over the telephone or by personal meeting at the social office. Telephone is used a lot. The person whom the case worker talks with is not given the opportunity of having what the case worker writes down from the conversation read back to him. The information given is often written down by the case worker without asking a single validation question to re-check whether he has understood correctly.
Information about an individual should in principle be obtained from the person himself. He knows best what the problem is and how the situation should be described. Information comprises both facts and opinions: anything from descriptions of oneself, of actions, situations in general, context, experiences, to reactions, expectations and wishes.
The interviewed person's autonomy: the right to self-determination, the acceptance of the person's intrinsic worth and dignity, and the right to confidentiality, are all professional ground rules and values pointing to the fact that the person concerned must be considered the main source of the information needed by the case worker. An example of violation of professional ethical rules is a case sent to the board of professional ethics of Norsk Psykologforening (The Norwegian Psychological Association). The complaint was over a professional expert opinion requisitioned by the Child Protection Service (CPS). The plaintiff says inter alia that "the investigative report was based on information from the child protection agency and the expert's own assessments. I have on several occasions tried to correct this information from ..... , but have been met with avoidance and lack of interest. Therefore, the basis for psychologist S.R.'s report rests on largely incorrect information. It must be emphasised that S.R. has written his report about me without having had any conversation with me."
Expert witnesses and others are put under pressure by the Child Protection Service
Expert witnesses are pressed or discredited if they give evidence in court which is positive for biological parents. Suspicion is thrown on such witnesses by the child protection agency and municipality, claiming that the expert "lacks understanding of the problems", or "does not have professional distance to the client".
In some cases, home consultants engaged by the CPS are similarly accused if they report anything to the family's advantage. One recent example was that of a young mother who had been assessed by the CPS psychologist, who concluded that the child should be taken from her. The mother said yes to so-called 'aid measures in the home'. The aid measure consisted of advice, control and checking by a home consultant until the case should be decided with a conclusion in the County Committee (a county committee makes a first decision in social cases involving the use force, before the matter may be brought before a court). However, this home consultant took time to get to know the mother. After some weeks the consultant's reports were clearly positive for the mother. Just before the case came up before the Committee, the municipality tried to have the home consultant excluded from the witness list since she no longer expressed the same views as the CPS. She was accused by the CPS of having 'befriended' the mother. Such accusations of having become 'friends' with the biological family fit into a pattern repeating itself. Case workers and consultants who enter into a dialogue with parents and get to know them well – 'going native' – are discredited.
Tendentious presentations of biological parents and their children
Discriminatory differential treatment is often observable in reports describing the relationship between parents and children. An example is a CPS observer wanting to express interaction between parents and children as inadequate. This can be formulated in artfully different ways. The following example may show how linguistic manipulation can blow up differences and give a tendentious picture of situations:
"Only when father and the children were doing 'Nabbi pearls' did they sit together quietly and without particular conflicts. Father and Kristian spent some time blowing up balloons together .... Both Tea and Kristian are in great need of stimulation, linguistic and cognitive. The parents seem to stimulate the children only to a very limited degree. During the last visitation they spent a long time sawing up firewood. I felt that there was little stimulation. The children seem to have to take the initiative themselves to a considerable extent. The adults speak to them but have little dialogue with them."
Foster parents "play with the children". Biological parents do not; they are "busy doing things". Sawing firewood is interpreted as "not stimulating". The expert is unappreciative of the various qualities in children and adults being together and carrying out useful, normal tasks together. Stimulation is more than just verbal contact. Besides, if one is going to go into finicky detail of interaction between children and adults the way the CPS-appointed observer did, a more complete evaluation would be that the sawing of firewood did in fact include cooperation and communication since father and son used the same saw. Furthermore, foster parents are paid very handsomely and may therefore have more free time to just play with children than is normal for parents.
Another example concerns the use of observation to prove parental incompetence when it turns out that the parents are unable to set limits to the children's behaviour in the situation: "I experienced a great difference in Tore's behaviour at home and in the foster home. Especially in the first home visitation he was very unruly. He ran around and jumped up into the chair and the beds in the children's bedroom. He did not listen when he was talked to." – The example is taken from a situation where little children who had been kept away from their parents for nearly 3 months had the opportunity of being with their parents. The separation from the biological parents is not discussed by the observer as a possible reason for the excitement of the children. Nor are possible effects of the observer's presence mentioned.
Descriptions of observations in foster homes, after observation of the children together with their biological parents or after the children have been kept separated from their parents over a long period, are often tendentiously different and uniformly positive.
Child protection cases are often based on anonymous reports
Many child protection cases start by someone giving the local CPS a tip-off. These reporters may be unknown even to the CPS or the CPS protects their anonymity so that the family and the family's lawyer are not allowed to know who they are. The CPS nevertheless institutes a full-fledged CPS case based on the anonymous allegations.
Such reports are practically impossible for the family to defend itself against, because they do not know the source of the allegations, whether the source is reliable, whether the source has first hand knowledge or is in turn only repeating more or less loose rumours, or whether the source has an antagonistic relationship to the child's family.
The role of experts
The court or the county committee may appoint professional experts, or such experts are appointed by the CPS, without previous contact with the private party. Quite often the engaged experts are chosen from lists which have been made by the CPS, or they have close contact with the CPS on a regular basis. Psychologists who are frequently engaged, often meet with the CPS without the private party being present, and receive from the CPS very one-sided information. Thus the starting-point of their assessment is negative information about the family and it is acquired before the beginning of their interaction with the family. An expert can in this way write his report on a factually incorrect basis.
An additional problem is the frequent shift of functions which many psychologists take part in: They may be engaged by the CPS to assess a family in one case, and at the same time be one of the expert judges on the county committee or the court, even in the same district, in another case.
Article 6 of the European Convention on Human Rights states that every individual is entitled to a fair trial. This of course includes CPS cases before county committees and courts, cases involving forcible taking into public care of children, possible return of a child to its family, and visitation rights. Psychologists have a very special function in these cases. They are paid by the CPS for taking part in the case and the decisions. The extent and size of the remuneration which many psychologists draw from CPS cases are such that it raises the self-evident question of whether their reports, but indeed also their vote in court or committee, are influenced by their financial interest in securing further new jobs for the CPS. This perspective seems so far not to have bothered county committee leaders, our courts, or the Ministry in charge of the CPS.
Sources of error and early intervention
Expert opinions frequently bristle with sources of error. It follows that reports on the basis of which a court decides something as serious as whether a child is to be taken forcibly from its parents, are often invalid. Today's political approach in Norway is 'early intervention' and increasingly frequent use of forced public care as a 'help measure', even to prevent parental failure which in the opinion of the CPS may likely come later. The question of a conflict with human rights conventions on this point apparently does not bother our authorities either. The concept of 'attachment' has been widened to include children's superficial relation to paid helpers, to justify the separation of children from their families.
Attachment theory has been strongly criticized because of severe methodological constraints, such as the difficulty of conducting large scale detailed studies, and the problem of verifying the ecological validity of the 'Strange situation' of John Bowlby and others, and of attachment patterns. There are basic problems which have not been answered in application of such a theory: How should an attachment pattern be assessed in later childhood, in adolescence and in adulthood? How are multiple attachment figures such as father, siblings, relatives and others integrated in the child's ongoing experience? What is the impact of culture on attachment? What is the impact of the child's history on its attachment?
Are CPS prognoses borne out at all? Depriving a child of its biological parents or depriving parents of their children on the basis of an assumption held by the CPS that care failure may arise some time in the future is not the right way to go. Rather, families should receive a maximum of support and follow-up if they need it, so that they have a real opportunity to give their children a good childhood. Research shows clearly that foster children very rarely have better lives as adults than they would have if they had remained in their biological families. A child's prognosis is almost always best if it grows up in its own biological family.