15 September 2015



Child protection and the emperor's new clothes

By Erik Rolfsen
lawyer



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The original of this article was published in Norwegian in the newspaper Tidens Krav in Kristiansund on 27 July 2015, and in French (here and here) on 4 August 2015. It is published here in English by the kind consent of the author.
Translation by Marianne Haslev Skånland

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Barnevernet, the Norwegian Child Welfare Services (CWS)*, perform an important task and often carry it out well.

But the CWS also make mistakes. These mistakes often have enormous consequences for the lives of those affected, parents and children alike. It is therefore reason for concern that the system that is supposed to prevent such mistakes and guard the interests of the private parties is very expensive and at the same time ill suited to put right whatever Barnevernet (the CWS) might have done wrong.

When the authorities take a family's children into care, certain measures of legal protection are to become operative: the parents have the right to a lawyer, paid by the state, and a right to have the case tried before the courts. In the course of the process an expert psychologist is appointed who familiarizes himself** with the case and writes a report. As a result we have court cases – often running for three days – involving: 3-4 lawyers, two CWS employees, an expert psychologist, a judge who is a jurist, and 2-4 lay judges, often from child professions, all paid by the state. The judgment is frequently appealed, whereupon a similar bunch of people get together for a new round, again paid by the state.

If only this spending of money guaranteed security under the law for children and parents! That is not the way the system works today. There are particularly two obstacles to proper functioning of the system:

•  The expression 'the best interest of the child' has no content;

•  The professional experts are engaged and paid by one of the parties: the CWS (Barnevernet).

What we are witnessing here are the new clothes of the emperor: beautiful and expensive materials (read: expressions and processes) viewed from outside and quite irreproachable. In reality, it is hot air and playing to the gallery.

It sounds so fine, so right, to say 'in the best interest of the child'. The problem is that although 'in the child's best interest' indeed has the status of legal term and is found in the text of the law (the Child Welfare Act § 4-1), its content is undefined. There are no measurable, objective criteria. In addition, we should ask ourselves who is competent to decide what is the best for a child in a given situation.

In many cases of parents with serious addiction problems, serious psychiatric diagnoses or violent behaviour, it is not problematic to decide that a taking into care is in the best interest of the child. But the same concept is also used in cases where no such problems exist. Children are deprived of their biological parent (usually the mother) who is not a drug addict, a patient or a violent person, because the CWS hold that it will be best for the child.

If the mother resists transfer of care, the CWS engage an expert, usually a psychologist, who is to examine the case and come up with a report recommending some action. The expert is selected, engaged and paid by the CWS. The CWS instruct the psychologist about the case, decide what the mandate for his investigation is to be, and send him their case documents (often several hundred pages). As part of his work, he has 2-3 meetings with the mother and arranges one or two observations of mother and child together. Then comes the report, which practically always supports the opinion which the CWS held from the start.

When the case is heard by the County Committee (a court-like authority specially mandated to give decisions in child protection cases), the report is decisive for the outcome. No wonder, since how would a committee, headed by a legal professional, be able to run over an expert in the field of something as indeterminate as 'the best interest of the child'?

The mother's witnesses are usually her friends, her siblings and parents, maybe a public health nurse, who say she is a good mother. The CWS have their own witnesses, in addition to their own employees and an expert with 5-7 years of university education behind him and several years of experience. The mother doesn't stand a chance, and nobody questions the fact of the expert being engaged and paid by the CWS. The remuneration from such work tends to make up the larger part or at least a considerable part of the expert's income. The expert knows that the mother will never commission any report in future – the municipality (the CWS) commissions around 5-10 such reports a year.

Tragicomically, if the case is appealed to the district court, the same performance is repeated. The district judge will give decisive weight to the same report and the testimony of the same expert. So the outcome is the same.

Hundreds of millions of crowns are spent on experts, lawyers, committees and court processes, at the same time that a whacking part of the CWS resources is spent on preparing and taking part in committee and court procedures, without all this increasing to any degree the the parents' protection under a rule of law.

Something like an industry has developed, called 'child protection cases'.

That is probably the reason why nobody cries out: The emperor is naked!


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* The Child Welfare Services (CWS) is the official English title of the Norwegian government service handling child protection
(cf Wikipedia: Child Welfare Services (Norway))

** or 'herself', the psychologist being quite as often a woman.

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Erik Rolfsen, lawyer
Advokathuset Kristiansund, http://www.advokathuset-kristiansund.no
Tel: + 47 992 98 999, rolfsen@advokathuset-kristiansund.no


  

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