19 March 2016
Child protection: A contribution to a much needed discussion
By Øivind Østberg, Barrister, Oslo
The article is an edited version of an article published on Document.no. That article is in turn an expanded version of a talk held at a meeting hosted by The Polytechnical Association, Norway, in Oslo 29th of February 2016.
The article is published here with the generous consent of the author.
Norway has a child protection agency (barnevernet) which commands considerable powers and resources. It does a lot of work which is incontrovertibly positive, but this article brings up a part of its activities which is riddled with conflict. No other country has a child protection agency which so frequently removes the children from parents by means of coercion. Not even close. Of the 10.1 per 1000 children placed in foster care by the CPA , in 71% of the cases this occurs without the consent of the biological parents. In Germany the corresponding figures are 9 and 10%, in Sweden 8.2 and 26 %. (The government web-site. https://www.regjeringen.no/contentassets/c77ded32c4b949259c39a26e3cc44dc1/marit-skivenes.pdf Data taken from a forthcoming book by Burns, Pösö & Skivenes)
Does this show that there are particularly many useless parents in Norway? Does Norwegian children suffer and is the well-being of children in Norway generally low? Hardly. And definitely not according to UNICEF, who places Norway near top of the list, only after the Netherlands, in their comparative measurement of child well-being in various rich countries. http://www.unicef-irc.org/publications/pdf/rc11_eng.pdf
Is this quite okay then, or are there fundamentally problematic aspects of Norwegian Child Protection, other than the odd mistake, which is unavoidable in any system?
Absence of political debate
When setting out to analyse Norwegian child protection, it is quite striking not to find many signs of political debate about the sector. At any rate, there is no debate between the political parties which supposedly are the main vehicles for shaping and channelling different points of view. The minister from the Progress party (FrP), considered right-wing, who is currently in charge does very little, if anything, which her predecessors from the Socialist Left party (SV) could not have done if they had continued to occupy this post. The Progress Party may speak more of ”legal guarantees”, SV rather more about ”the child´s best interests”, but overall the salient feature is that not much is spoken at all, except for that which relates to carrying on ”business as usual”. It is quite typical that neither the Ministry nor Barneombudet (the Children´s Ombudsman) wanted to take part in the present meeting. They shy real debate.
The (former) editor of the mainstream newspaper Aftenposten, Ms Hilde Haugsgjerd, sums it up in an op-ed article from February 2015, pointing out that Frp, after they gained a place in government, have ridden themselves of the strongly critical view of child protection as previously championed by their formidable spokesman (now passed away) Mr John Alvheim. http://www.aftenposten.no/meninger/kommentarer/Nye-takter-fra-Solveig-Horne-7891170.html
Ms. Haugsgjerd describes a turnaround which, in her view, is ”unreservedly positive”, since ”Child minister Solveig Horne seems genuinely concerned about the child´s best interest and concerned with strengthening the public child protection.” Notice how the two, to care about the child’s best interest and strengthening ”barnevernet”, are presented as one and the same thing, demonstrating clearly where the political correctness stands on this issue and accordingly which position is most convenient to adopt. A consequence of this convergence between the two mentioned parties, supposedly belonging to opposite wings of the political spectrum, is that public ideological debate has become all but non-existent on a topic which relates to what´s most important in people´s lives, and which generates strong feelings and conflicts. Or rather, debate takes place on different fields. One debate goes on at the official level, another debate takes place ”underground” between the critics, and the two debates are not interconnected.
Two opposing ideological positions
Despite the lack of serious debate, it is possible to identify two fundamentally different ideological positions in the field.
One position is that children belong to the parents and their family. Only in extreme cases of total neglect from the family, including the extended family, could the question of the authorities taking charge of the children legitimately arise.
The second position is that ”children is the society’s responsibility”. If parents are capable of giving their children the best care, they may maintain the guardianship. If they are not capable, then “the biological principle shall not prejudice the children´s need for conditions of growing up that are secure and supportive of development” to quote from the party program of SV. Put bluntly: The children belong to the State.
The latter position is closely linked to the notion that it is possible by way of political action to create a perfect society. It carries within it the seed of totalitarianism. Even if few people in Norway, and certainly not those who voted the current minister into power, would subscribe to this position, I would say this is the direction towards which we are drifting. The lack of ideological debate favours this. It is backed up by nice sounding slogans about ”what´s best for the child” and ”the independent rights of the child”, slogans which are hard to argue against in our society even if they lead, by their inherent logic, to absurd conclusions. Where to draw the line for what the authorities can permit themselves to do if ”what´s best for the child” is the sole criterion? Why then not remove the new born child from its poor parents and give it to the childless middle class family? Surely that would give the child a better environment to grow up in. And as for the autonomy of the child, somebody – and who would that be if not the state? – must necessarily represent this autonomy to make sure it´s real. We get a state paternalism, whereby the government not only acts to the best of the child, but is actually representing it.
The inherent tendency of the bureaucracy itself pulls in the same direction. Bureaucrats typically tend to believe they should have more power and resources, and that this will be for the public good.
The tendency is limited in practice by lack of resources, rather than ideologically and principally founded objections.
Barnevernet meets immigration
The Norwegian barnevern has become infamous as the object of extremely strong criticism from abroad. In countries in Eastern Europe it is jokingly said that there are three words from Scandinavian languages that everybody knows: Volvo, Lego and barnevernet. We have seen coordinated demonstrations in a number of countries against Norwegian barnevern http://www.nettavisen.no/nyheter/europeiske-demonstrasjoner-mot-det-norske-barnevernet/3422790876.html
This reflects the fact that the immigration to Norway has produced a collision with barnevernet. I hold the view that this confrontation with the system has put sharply, and HAS brought to the public, certain problems that are of the utmost importance to discuss independently of whether immigrants are involved or not (There are, however, specific issues involving certain, and large, groups of immigrants, a subject which I will return to).
Many immigrants, both from western or non-Western countries, carry with them cultural attitudes which deviate considerably not only from Norwegian attitudes, but also from Norwegian legislation. This is particularly the case with respect to the use of physical methods of punishment in child raising. Here Norway is, along with a few other countries, a special case. By virtue of the governing zero-tolerance for physical intervention against children, not only as punishment, but event to some extent as a measure to prevent children causing harm to themselves or others, we are an exception, an extreme case.
In many of the cases which have caused rage against barnevernet abroad, this cultural conflict has been central, but it is not the only question which arises. In my view, we can sort out three main issues.
The first subject, then, is whether it is actually a good idea to base ourselves on a norm which is so absolute in its zero-tolerance for any kind of physical force by parents against their children. Norway has been through a fast development. By the amendment to the Children Act § 30 in 2010, pushed through by the Minister from SV, Audun Lysbakken, it was firmly established that even light slaps as a correctional means was banned. The effect of this is to stimulate a virtual phobia against setting physical boundaries for children in any form or even enforcing boundaries at all. Another side-effect is that other forms of child abuse, which really could be much worse than an occasional slap, are overlooked. It is so much easier to clamp down on any physical transgressions.
The second subject is how much weight to give to the use of physical force when making assessments as to whether or not barnevernet shall intervene. Even when a zero-tolerance norm is proclaimed, it does not necessarily follow that barnevernet should take custody. This is a question of threshold for intervention. In practice, we have witnessed that the so-called zero-tolerance has gone hand in hand with a development in the direction of lowering the actual threshold for taking custody (without any formal modifications of the criteria laid down by the law). Not so strange: If one holds the view that all violence is very serious, then the occurrence of this will tend to trump all other arguments and justify public intervention. Still, it is possible to maintain that violence is unacceptable, but that the reasons for letting children grow up with their parents nevertheless is more important than one slap too many.
The third subject is about which norms should prevail for evidence and which level of legal security should be afforded to parents in cases involving taking custody. What standards should we set for admissible evidence (in itself a question harbouring many subjects), to the investigations made by barnevernet, to the competence of the case handlers and division of roles, to the possibility for parents to contest and correct the assertions made against them. Barnevernet is in a special position here. Norms for procedure and for evidence which are not acceptable in any other field, are applied as a matter of course. The underlying ideology which has brought us to this, can be nothing else than the idea that ”safest for the child is that the officials takes over”. Therefore, it is not quite as bad to err on the side of taking a child too many than to err in the direction of letting a child remain with the parents.
Recipe for abuse
The worst cases, presenting as the most obvious cases of child protection abuse, typically contain a combination of these aspects in the following way:
A sacred conviction that a slap or a firm grip of a child is a serious abuse, coupled with an underlying idea that the surest thing for a child is to be in quality controlled foster care home financed by the public purse. Add a lacking culture for critical evaluation of evidence, low competence of case handlers and a legal framework which provides for emergency placement decided by a leader of the municipal barnevern if there is considered to exist ”a risk that a child will be significantly adversely affected if it remains in the home” (bvl § 4-6).
An emergency placement, meant to be temporary, can too easily go on to be a permanent transfer of custody. Even if the parents after closer scrutiny are considered to have acceptable custodial capacity. Formally, a decision of custody take-over, as opposed to temporary placement, requires a decision by the County Board according to the stricter criteria laid down in § 4-12. But when a temporary placement has been made, the case for custody take-over will tend to be strong. And at a later stage, a reversion of such a decision is much tougher for parents since it then will be decisive not if they have if “the child has obtained such attachment to persons and environment where it is, that there may, by an overall assessment, be serious problems for the child it is moved.“ (§ 4-21)
A case in which my own law firm has been engaged is illustrative of how badly it can turn out. This case was in an earlier phase much mentioned in the media, but they didn´t follow up. Nina Witoszek, a philosopher of Polish origin living in Norway, wrote an article in February 2012 in Aftenposten with the telling title ”Tyranny of goodness” http://www.aftenposten.no/meninger/kronikker/Godhetens-tyranni-6764286.html
Two young Polish parents came to Stavanger, Norway, bringing along their two children, in order to seek employment. The children had special needs as one son was autistic and the other later was diagnosed with Asperger`s syndrome. After a short time in Norway they were reported to barnevernet on the allegation that there had been violence in the family. Reporting was made by an accidental witness who seemed to have fallen out with the family. Because of this, the children were urgently placed in a Norwegian contingency home. The children did not speak Norwegian, nor did their parents. The contingency home quickly gave up, not surprisingly as the kids of course were demanding. So the boys were moved, to different homes. Not only were the brothers removed from their parents, they were also split.
The case went to the County Board, which corroborated the transfer of custody. But the parents appealed to the District court and won, supported by the expert testimony that found no significant objections to the parents’ qualifications. But barnevernet insisted they were right and the municipality appealed the sentence to the Court of Appeal. They also achieved a stay, meaning that the court decided for the children to remain in custody pending sentence from the Court of Appeal. This could be called a sickening piece of cowardice, but more pointedly it is a demonstration of how pervasive the idea that the safest thing, or ”default option”, is to keep children under public care, as long as it is not finally decided by the courts that the family after all is an acceptable alternative.
In the Court of Appeal barnevernet won, but one judge dissented. Time works for barnevernet, because if custody transfer was wrong to start with it can later be ”in the child´s best interest” to uphold it, since the child now is established in a different environment. Of course the children learned to speak Norwegian in foster care, and soon they were unable to communicate with their parents. The parents got ”right of access”: 4 times a year, two hours each time. Once custody transfer is established, it is all about establishing attachment and stability in the foster home (except that moving from one foster home to another is quite common)
Acquitted for what motivated the custody transfer, but do not get the children back
A case was instigated against the parents, since violence against children is a crime. The district court sentenced them according to the indictment, but they appealed. In the autumn 2013 there was a full new hearing of the case. The court made a thorough and critical review of the evidence, concluding that they could not be convicted. Both parents were fully acquitted.
Let me add: The worst they might have done was to give the children some slaps they shouldn´t have. No grounds for a general failure in providing care was presented.
But they will never get their children back, and barnevernet has continued to make it difficult for the parents even to get their limited contact. This is one of the cases which explain why the Polish Embassy has stated that barnevernet i Norge represents the most difficult topic in the bilateral relation between Norway and Poland.
Nina Witoszeks article appeared at an early stage of the case, but her bitingly sarcastic conclusion is no less to the point:
“To prevent new victims, I suggest that barnevernet in Stavanger posts a board at Norwegian airports saying : "All immigrants with children putting foot on Norwegian soil should take note of the following:
1 You shall not think you have power over your children. The State has power over you.
2 You shall not slap your children on the rear, otherwise they will be confiscated by the State.
3 You shall make sure the children smile when they are at school otherwise they can be taken by the State.
4 You shall not believe you are anything.”
Mass immigration from non-western countries
Immigration creates other challenges for barnevernet where the main problem is not their early intervention.
The Stavanger case is representative of experiences made by many immigrants from Eastern European countries. But Norway has a large immigration of people from countries in Africa, The Middle East and Asia, with a cultural base even further from the Norwegian culture. Many of them are Muslims, and the Muslim families typically have numerous children. Their conceptions of the relation between children and parents, of boys vs girls, of methods of child upbringing and a number of other matters is hugely different from that which has emerged in Western culture, and not least Scandinavian culture in recent years. This group is also characterised by a lack of resources in terms of income, education, network etc.
The meeting between this group and barnevernet in the world´s least accepting country for corporal punishment, results in huge challenges. In principle, of course, barnevernet shall apply the same standards for these immigrant families as they do for Norwegian families. Inevitably, the resources of barnevernet become disproportially directed towards those groups (keeping in mind that barnevernet offers a lot of services to the benefit of struggling families.)
Still, the limitation of available resources mean that barnevernet cannot cope with every deviation from the ”Nordic norm” in municipalities of high concentration of such immigrants. I have great sympathy for the barnevern employees who have to deal with this situation.
One type of response, of course, is to cry for more resources, which has been granted. Just as immigration has caused an increase in public resources devoted to all kinds of social welfare, health care, employment, police and court apparatus etc. But resources are limited and must be provided from somewhere. This topic is naturally part of the wider discussion of how much immigration of this category a country like Norway should aim to handle. But there is also another kind of response.
The cry for “cultural competence” - a cover for cultural relativism
When the challenges barnevernet face regarding this group are raised, it has often resulted in the conclusion that what is needed is more ”cultural competence” and diversity training. http://www.aftenposten.no/nyheter/iriks/--Innvandrere-frykter-barnevernet-7410451.html
In part, I consider this as a way of trying to cover up reality. On the one hand I think this is a cover-up of the fact that barnevernet should mend its ways also in a ”Norwegian” context. On the other hand it is a cover-up of the fact that we are, on a large scale, importing cultures whose standards are such that they cannot and should not be met by increasing our ”understanding”. Of course, in theory it could seem hard to draw the line, or even appear self-contradictory, if one accepts my basic proposition that children belong to the family. In practice, it is not so difficult to argue that customs such as regular abuse of children, female genital mutilation, forcing one´s children into marriage, taking children out of school and send them to Quran schools in Islamic countries, forbidding daughters to take education or to have Norwegian friends are unacceptable.
Faced with such practices, what is needed is the will to stand up and say no, and to enforce the abolition of that which is beyond the pale. Norwegian authorities are having big problems doing this, since the ideas of cultural relativism have such a strong position, and especially so with regard to the Islamic world. Society should not tone down the criticism of said practices by turning them into questions to be solved by way of strengthening the social workers´ ”cultural competence”.