Commentary to the proposal of new law on rights of children in Norway

1. Introductory remarks

This commentary concerns a draft law, which is referred to as Barnevernslov (hereinafter: Draft)[[1]] and which is intended to replace the current law of July 17, 1992 on protection of children - Lov om barneverntjenester (barnevernloven – hereinafter BVL)[[2]].  The provisions of the BVL currently in force provide a comprehensive regulation of legal status and methods of conduct regarding children living in conditions which endanger their life, health or psycho-social development. The law addresses also fundamental questions connected with foster care, procedures regarding intervention in the family life and the organizational structure of social services – especially the Office for the Protection of Children (­Barnevernet) and county councils of social welfare (fylkesnemnemnda for barnevern og sosiale saker), as quasi-judicial institutions controlling the activity of Barnevernet and performing the tasks determined in its provisions.

The draft of the law which is to replace BVL was prepared by the Norwegian Ministry of Children and Equality (Barne- og likestillingsdepartementet) and presented for social consultations on April 4, 2019[[3]].  As was pointed out, the currently active law became effective over 25 years ago, in 1993, which forces development of a law adequate to currently existing social needs[[4]].  Work on the Draft started in 2014, when a special committee was established to assess the possibility of simplification and introduction of amendments to the currently effective law[[5]].  The product of the work, report NOU 2016: 16 – Ny barneversnslov (hereinafter NOU 2016: 16)[[6]] was published in 2016.  BVL provisions were in turn partially modified in 2018[[7]].

2. International criticism of the Barnevernet activity

The activity of Barnevernet has been subject to criticism for a significant time now, both by Norwegians themselves and by international organizations.  The Norwegian system of protection of children has a long standing tradition, and the law formerly governing this area – Lov om barnevern – became effective in 1953[[8]].  It was already this law that was subjected to thorough criticism[[9]], which was at least partially upheld by the ruling of the European Court for Human Rights (hereinafter: ECtHR) in Johansen v. Norway, stating that the decision denying Adele Johansen contact with her daughter and depriving her of her parental rights was issued in violation of article 8 of the European Convention of Human Rights (hereinafter: ECHR)[[10]].

In 2015, the currently effective law was criticized in an open letter signed by over one hundred Norwegian specialists from various areas – lawyers, psychologists, social workers and academics.  At the same time, further widely publicized cases of unjustified intervention of Barnevernet in the life of families with origins from outside of Norway shook the public opinion in many European countries and in the United States, particularly the case of the Norwegian-Romanian family of Bodnariu, whose five children were taken away and placed with three different foster families[[11]].

A Moldovan politician, V. Ghilethi presented on the forum of the Council of Europe a report entitled Striking a balance between the best interests of the child and the need to keep families together, based on the case of this family.  This report became the basis for the adoption a resolution of Parliamentary Assembly of the Council of Europe number 2232 (2018) of June 28, 2018 under the same title[[12]].  The report confirmed that Norway violates the rights of children by unjustified deprivation of their parents of custody over the children, execution of foster and institutional care and application of procedures as foreseen by the BVL provisions.  Meanwhile, on June 6, 2018, the ECtHR issued a ruling in the case of Blondina Jansen, a Norwegian citizen of Roma origin, clearly confirming that forbidding the contact of biological parents with a child placed in a foster family is contrary to the goal of foster care, which is of gradual return of the child at the care of its biological parents.  Therefore such practice constitutes a violation of right to respect of family life protected under article 8 of the ECHR[[13]].  The Grand Chamber of the European Human Rights Court found Norway in violation of article 8 of the Convention also in the verdict of September 10, 2019 in case of Strand Lobben and others versus Norway, underscoring at the same time that the Norwegian authorities did not sufficiently consider the best interest of the biological family of the child when undertaking an intervention in the family life of Trude Lobben and her son and consenting to the son’s compulsory adoption[[14]].

3. Main shortcomings of the BVL provisions and Barnevernet activity

The weakness of the Norwegian system for the protection of children’s rights transpires on two fundamental levels, which are mutually interwoven, i.e. the normative and institutional level and the level of practical operation of Office for the Protection of Children.

Among the main normative weaknesses which could be identified through the analysis of the current legal situation the following come forward:

1. insufficient mechanisms of safeguarding the rights of children placed in foster care, including absence of a provision forbidding the separation of siblings, who in practice are placed in different foster families, and insufficient safeguarding of the rights of children from national, ethnic, religious and linguistic minorities, who are placed in foster families without sufficient competencies to assure preservation of national, ethnic, religious and linguistic identity of the children;
2. insufficient mechanisms of safeguarding the rights of the parents, including in particular the absence of provisions setting the minimum standard for the number of meetings with the child, to which the parents deprived of custody over the child are entitled and absence of provisions which would precisely and exhaustively identify situations in which a compulsory adoption of the child without the consent of the parents would be admissible;
3. defective systemic and institutional mechanisms, including especially permitting the functioning of private care institutions, funded by public money, whose owners (in economic sense, as the institutions operate under various legal forms) are frequently involved in unclear personal relationships with the employees of the Barnevernet.  Such institutions should only be of public nature and such particular “privatization” of the tasks of the state in this area is completely inadmissible. 

Further shortcomings were identified in the practical application of the BVL provisions by Barnevernet and other institutions charged with the task:

1. arbitrary interpretation of the BVL provisions (including in particular § 4-6 and 4-12 BVL, which provide basis for a direct intervention in the family life), leading to depriving parents of the custody of their children in situations where their life, health, development and well being is not endangered.
2. redefining the rules of the best interest of the child by assuming that the criterion for this interest (well being of the child) should be assessed in detachment from the biological kinship of the child and basing solely on the assessment of alleged developmental benefits, which may flow from a stable relationship with various caregivers, while no developmental benefits are attributed to the child remaining under the care of biological parents[[15]];
3. intervening in family life by means which are disproportionate to the gravity of circumstances, including in particular excessive application of the procedure to remove the child from care of the parents under a emergency order (§ 4-6 BVL), but also the use of excessive force by the police, who assist the Barnevernet employees.

4. Fundamental assumptions of the Draft

As declared by the authors, the main objective of development of the Draft was to improve the protection of the rights of children by strengthening preventive mechanisms and powers of the institutional social services connected with undertaking interventions at an early stage[[16]].  These would now be executed under the principle of mildest intervention (mildeste inngreps prinsipp)[[17]].  However, the declaration is highly doubtful considering the fact that the NOU 2016: 16 report pointed rather to a great importance of interventions specified in § 4-6 BVL, indicating at the same time – which is particularly surprising – towards a necessity to meet international obligations and fuller implementation of constitutional norms by Norway[[18]].  The goals of the new law were specified in § 1-1 of the Draft and they do not provoke major reservations, containing a set of rather pompous declarations concerning the provision of children and youth who live in conditions where their health and development could be endangered with the necessary help, care and protection at the right time.  Still the fundamental directive of acting in “the best interest of the child”, which aims to determine how all the provisions proposed (in § 1-3 of the Draft) will be implemented remains deprived of material normative content.  This signifies that authors did not abandon the current understanding of the principle of best interest of the child which disregards its emotional ties to biological parents.  Understanding which does not flow from the law but was imposed institutionally (i.e. determined by the NOU [2012:5] report).  This causes fundamental reservations, especially considering the judicature of the ECHR, according to which the best interest of the child should be determined with the consideration of both maintaining the ties between the child and the biological family and a duty to assuring development of the child in a healthy environment[[19]].  The resolution of the Parliamentary Assembly of the Council of Europe nr 2232 (2018)[[20]] has an analogous understanding of the child’s best interest. 

It also seems that this Draft opens a field for further abuse in the application of the intervention mode (see current § 4-6 BVL), especially through explicit authorization to use it in relation to new born babies even before the mother and the child leave the hospital (see § 4-2 of the Draft).

The catalogue of conditions allowing for depriving the parents of the custody of the child has been significantly extended.  Currently this area is regulated by § 4-12 BVL, which authorizes the county council of social welfare to decide on depriving the parents of the custody of their child in case one of the following conditions is diagnosed:

1) there are serious shortcomings concerning provision of daily care of the child or personal relationship with the child or sense of security, which the child requires according to its age and stage of development;

2) the parents do not satisfy special needs of a child with an illness, disability or oligophrenia in terms of required treatment and rehabilitation;

3) the child is mistreated at home or otherwise seriously abused;

4) if there is an overwhelming probability that the health and development of the child may be endangered due to lack of resourcefulness of the parents.

According to § 5-1 of the Draft, such decision could be taken not only in the four above mentioned situations but also if:

1) it is in principle probable that a newly born who was taken away from its parents in an intervention described in § 4-2 of the draft will find itself in a situation described above;

2) moving a child who lives outside of the family home may lead to one of the situations described above, even if the move has the consent of the parents;

3) the child lived outside of the family home for more than two years with the consent of the parents and it became so attached to the persons and the environment in which it lives, that the move to the family home may cause serious problems for the child.

The above mentioned conditions allowing for a radical interference with the family life are worded outrageously, against any standards one could expect from regulations on such important matter.  This includes most of all the use of highly unspecific terms (“serious problems”) and references to circumstances which are not objective in nature, i.e. bearing characteristics of a potential and not actual situations of endangerment, which only “may” and do not “have to” happen and which may concern unspecified “serious problems” or state in which the development of the child may be “endangered due to lack of resourcefulness of the parents”.

Enlarging the catalogue of conditions which allow for depriving parents of the custody of their children may lead to very far reaching abuses, especially against persons whose work involve frequent travel and staying away from home (as sailors, drivers, drilling platform personnel, construction workers with remote place of employment), who are at the same time single parents.  In such situations, leaving the child under the care of close relatives (grandparents, siblings) or neighbors may lead to an intervention by Barnevernet.

A small and rather symbolic improvement is noted in the area of the rights of parents to maintain contact with their child.  Existence of such right was clearly confirmed (see § 7-1 of the Draft).  However, it is illusory in nature, because the county council of social welfare may decide to forbid such contacts and do so in essence in a arbitrary way, as the regulations do not provide for any concrete conditions (§ 7-2 of the Draft).  This means that the current state will be maintained de facto (see § 4-6 and § 4-19 BVL).  The decision of the council in this area may be only verified once every two years and exclusively at the request of the parent and not automatically.  Even if the parent keeps the right to maintain contact with the child, such contacts will happen according to a plan set by Barnevernet (§ 7-3 of the Draft).  Such plan will not be considered an administrative decision and will not be subject to higher instance control.  This means that the employees will have full freedom in this area and constitutes a case of depriving parents of their rights (see article 6 of the Convention).  Obviously the Draft does not set the minimum standard regarding the number of meetings between the child and the biological parent.

Placing a child in foster care (either foster family or in institutional care) requires considering the place of residence of the child’s family and whether members of the biological family can perform the functions of a foster family (§ 5-3 and § 9-4 of the Draft).  This proposal is positive.  However the standards for the protection of rights of children from national, ethnic, religious or linguistic minorities did not improve in any way whatsoever.  The Draft (in § 5-3) includes only a general directive, similar to the one currently in force (see § 4-15 BVL).  Among the competencies required from foster parents (see § 9-3 of the Draft) there is no such items which would concern skills required to really preserve the  cultural, linguistic or religious identity of a child originating from a minority.

5. Criticism of the Draft by the Norwegian journalist environment

The Norwegian Media Association (Norsk presseforbund), Association of Norwegian Publishers (Norsk Redaktørforening) and the Norwegian Journalist Union (Norsk Journalistlag) submitted an Opinion of August 1, 2019, (hereinafter: Opinion)[[21]] regarding the Draft, within the process of social consultations (consultation meeting number 19/1565).  The Opinion points out that among the most important shortcomings of the Draft is the absence of mechanisms, which would assure sufficient transparency of actions undertaken by Barnevernet, which attracted the attention of not just Norwegian but also global public opinion.

In the assessment of the journalist community the proposed solutions only perpetuate the current state of affairs, in which many leaders of the Barnevernet units on municipal level refuse to provide information about their activity, using the clause of secrecy of information for the protection of the institution and its employees to the detriment of the children and their parents (see point 3 of the Opinion).  For this reason, the journalist organizations propose for the clause to not include the protection of public administration employees or public or private care providing institutions (ibidem).

Secrecy clause may also concern the parties to the proceeding (i.e. parents and not officials).  The journalist organizations propose specifying the reading of § 12-5 of the Draft, which permits withholding from a party access to documentation when it may expose the child or other persons to a loss or danger.  According to the proposition of the journalist organizations, this rule should only concern such situations, when the threat is is probable and specific (point 4 of the Opinion).

Another suggestion of the journalist organizations is to liberalize the provisions on the access of media to meetings of the county councils of social welfare, which are more restrictive than similar provisions regarding general courts and to improve the quality of documentation regarding the child (points 5 and 6 of the Opinion).  The last proposition of the journalist organizations is to grant a child who turned 12 a status of a party in the proceeding (currently the case for children over 15 years of age), which is consistent with the conclusions formed in report NOU 2016: 16 (point 7 of the Opinion).

Conclusions

The proposed changes are a result of domestic and international pressure exerted on the Norwegian authorities.  They are however inadequate to the scale of problems diagnosed by social organizations and international groups.  The problems are connected not just with certain weaknesses of Norwegian legislation, but also with axiological (value) assumptions lying at the foundation of Barnevernet functioning and the practice of how it operates.  They are therefore structural in nature and require comprehensive reconstruction of the institutional system and legal regime, within which the Norwegian state realizes the duty to provide protection to children.  The proposed Draft law is likely to deepen the existing problems, and in particular it will enable further reaching interventions in the family life of inhabitants of Norway.  It is likely to generate new problems without resolving the existing ones.  Therefore, the assessment of the proposed reform of Barnevernet has to be negative.

Author: Bartosz Zalewski, attorney-at-law