1. Introduction
1. The well-being of children
across Council of Europe member States is a subject that is of particular interest
to me as a father and politician. I have also been privileged to
have been appointed, by the Committee on Social Affairs, Health
and Sustainable Development as rapporteur on a number of different
reports on issues related to children’s rights in recent years.
In the present report, I will consider one of the most far-reaching interventions
that the State can make with regard to family life – the removal
of children from their parents and their out-of-home placement.
2. It is important to recognise the extremely difficult situation
that child protection agencies regularly face across Europe in keeping
children safe from harm. On the one hand, they may be criticised
for intervening in situations where children were not at serious
risk of harm. On the other hand, they may be criticised for intervening
too late where children have actually come to harm. There is a balance
to be found between ensuring that families are kept together and
that vulnerable children are protected effectively.
2. Focus of the report
“We do not help the children who
suffer awful violence, but whom we don’t find, by removing other
children from their parents who do not need to be removed”,
a Norwegian psychologist
3. From the outset, it must be
emphasised that the removal of children from their families constitutes
a significant disruption in the lives of both children and parents,
and should only be seen as an act of last resort where a child is
subject to a real risk of serious physical or psychological harm.
The United Nations Convention on the Rights of the Child (UNCRC)
is very clear on the gravity of this intervention, stating in Article
9 that “States Parties shall ensure that a child shall not be separated
from his or her parents against their will, except when competent
authorities subject to judicial review determine, in accordance
with applicable law and procedures, that such separation is necessary
for the best interests of the child”.
4. Furthermore, Article 8 of the European Convention on Human
Rights (ETS No. 5) makes it clear that citizens are entitled to
respect for their private and family lives. Expanding on this provision,
the European Court of Human Rights has said in the case of R.M.S. v. Spain that “[t]he Court
takes into consideration the fact that it is an interference of
a very serious order to split up a family. Such a step must be supported
by sufficiently sound and weighty considerations in the interests
of the child”.
5. The Parliamentary Assembly has previously recognised the importance
of the issue in its
Resolution 2049
(2015) “Social services in Europe: legislation and practice
of the removal of children from their families in Council of Europe
member States”. The Parliamentary Assembly notably registered its
concern about the violation of children’s rights when social services
take children into care too rashly and do not make enough effort
to support families before and/or after removal and placement decisions.
“These unwarranted decisions usually have a – sometimes unintended
– discriminatory character, and can constitute serious violations
of the rights of the child and his or her parents, which are made
all the more tragic when the decisions are irreversible (such as
in cases of adoption without parental consent).”
Ms Olga Borzova’s report
devoted several pages to an explanation
of the legal situation at international and national level, and
to an overview of the facts and figures, which I thus do not wish
to repeat here.
6. Against this background, I have been very concerned to learn
that there have recently been cases where child protection services
have taken children away in circumstances where the removal appears
to be an overhasty reaction to allegations, rather than a measured
decision on the basis of established facts.
7. Once again, we have to be conscious of the extremely difficult
nature of the work of child protection services. Due to the high
stakes involved, I understand that mistakes can be made when it
comes to taking away children in the interest of their own safety.
It is an unfortunate reality, but we have to acknowledge that child
protection services will not be right 100% of the time. In my view,
one of the essential questions will therefore be whether there are
sufficient safeguards in place in national child protection systems
to ensure that specific agencies are able to make the right decisions
about the possible removal of children.
8. In April 2016, a year after having presented Ms Borzova’s
report on social services in Europe to the Assembly in her absence
(in my capacity as then Chairperson of the Committee), I had the
opportunity to raise this matter with the then Council of Europe
Commissioner for Human Rights, Mr Nils Muižnieks, during his annual
activity report to the Assembly. His response was categorical, stating
that: “Taking children away from their parents is a broader issue
and here the utmost caution is required because we have to think:
what is the best interest of the child? The best interest of the
child is almost always to be with the parents. Only in extreme and
exceptional cases, where the child can come to serious harm because
of the parents’ behaviour, should a child be taken away temporarily
from the parents. We need to intervene to support families so that
they can remain together and children can be with their families.
Removing children from their parents should be done only as a last
resort and for a very short period.”
9. Without anticipating any judgments of the European Court of
Human Rights, I believe that we can already note that, as a basic
rule, child protection services across Europe should be subject
to robust checks and balances which i) minimise the risk of incorrect
decisions being made and ii) ensure that, if incorrect decisions
are made, they are reversed as soon as possible to minimise disruption
to family life and to effectively protect children from harm. In
the present report, I would like to examine whether these principles
are effectively applied in different Council of Europe member States.
10. I must underline that it is not my intention to focus on a
specific country in the present report; the matter is of concern
with a view to the practice of all member States of the Council
of Europe. However, Norway was highlighted in the motion for a resolution
as a country facing particular issues. I therefore decided to undertake a
fact-finding visit to the country on 7 and 8 March 2018, which was
excellently organised by the Norwegian delegation and its Secretariat,
to take a more general look at the national protection system without
focusing on the details of specific cases. I will describe the situation
in Norway in a separate chapter of this report.
11. Originally, I had also intended to examine in-depth the situation
prevailing in Austria, which seems to stand out as only very rarely
removing or restricting parental rights of one or both parents (and
as not admitting adoption after removal decisions), but due to budgetary
limitations, this proved impossible in the end.
3. The
situation in Norway: a case study
“Why are so many people so angry
with Norway?”, a Norwegian social worker
12. The case which prompted the
motion, and ultimately the report, was a decision taken by the Norwegian Child
Welfare Services in 2016 where, based on allegations of corporal
punishment (which is illegal in Norway), the five children (including
a three-month-old baby) of a Romanian-Norwegian family were taken
into care by the Norwegian Child Welfare Services in what I consider
troubling circumstances: The family’s two eldest daughters had already
been taken into emergency custody straight from school, when the
two eldest sons were picked up, whilst, on the following day, the
Child Welfare Services came back to take away the baby as well. Finally,
the children were split up and sent to three separate foster homes
around the country.
13. In this particular case, the response of the Barnevernet in taking away all the
children without any prior intervention or warning shocked the global
Romanian community, and there were large protests held at several Norwegian
embassies. Consequently, the Romanian Government decided to send
a special delegation to Norway to investigate the case, and after
a period of intense international pressure, the Barnevernet closed the case and
released the children back into the care of their parents. The family
has now left for Romania because of fears that the Barnevernet would take their children
away again.
14. In addition to this particular case, which made it into the
headlines of many European media, the European Court of Human Rights
has begun to look into various other cases – it has now communicated several
cases concerning the Barnevernet to
the Norwegian Government.
15. Allow me to share with you the information I gathered during
my recent fact-finding visit. While the aforementioned case prompted
the motion for a resolution at the origin of this report, the aim
of this report was not to look into this case. During my fact-finding
visit, I was able to gather a lot of information on how the system in
Norway is set up and functions, as well as on the statistics and
the most recent developments. First of all, allow me to note that,
at the end of 2016, 1.1% of children in Norway were living in alternative
care.
16. The Norwegian child welfare system, in its current form, was
created in 1992. It is a complex system with many checks and balances
and procedural safeguards, which, if described in detail, would
fill more pages than this report can devote to the matter. Central
to understanding its functioning is that, in Norwegian legislation, the
best interests of the child is held to be a fundamental consideration
in actions and decisions that affect children in Norway – this provision,
based on Article 3 of the UNCRC, was introduced into Norway’s Constitution
in 2014. Also central is the prohibition, since 2010, of all forms
of violence against children. This includes “violence in connection
with the upbringing of the child, frightening or annoying behaviour,
or other inconsiderate conduct towards a child”.
17. Perhaps the easiest way to explain the Norwegian system is
to follow the path of a hypothetical case of a child and its family
in the child welfare system: A child welfare case starts when someone
notifies the Child Welfare Services
(Barnevernet) in
the municipality of a concern regarding a child – there are 422
municipalities in Norway, and 295 municipal or inter-municipal Child
Welfare Services across the country. This “note/message of concern”,
as it is known, can come from a neighbour,
a friend or a relative, but also from public authorities such as
teachers, health personnel or police officers.
A
child welfare case can also start when the family itself asks for
assistance, but these are not the majority of cases.
The number
of “notes/messages of concern” increases every year, from just over
37 000 in 2008 to just over 58 000 in 2016. The municipal child welfare
service must, at the earliest opportunity, and within one week at
the latest, examine each “note/message of concern” it receives and
assess whether each individual report shall be followed up by an investigation.
18. In practice, relatively few “notes/messages of concern” seem
to be dismissed outright,
so that an investigation will
usually start; the originator of the letter may be contacted to
provide more information, or the child’s parents may be directly
contacted. The parents can be called to attend a meeting at the
Child Welfare Services’ offices, or the Child Welfare Services may
inform the parents (in advance) that they will meet them at the
child’s home. The Child Welfare Services will gather all the necessary
information, if necessary with expert assistance, in order to make
an informed decision within three months at the latest (up to six
months in special cases) on whether measures should be implemented
or the case should be dropped.
20. In slightly less than half of cases investigated,
the
investigation will lead to measures to assist the child and its
family at home (at the end of 2016, 22 000 children were receiving
measures from the child welfare services by the end of the year).
This
assistance can take several forms, from financial support, general advice
and guidance to support parental skills, to ensuring that the child
is given a place in kindergarten, etc. Mothers with young children
can also voluntarily agree to move into one of 15 supervised family
institutions (
Sentre for foreldre og
barn) for short periods of time, to be assisted – and
assessed.
These
measures, so far, have usually been voluntary, i.e. the parents
give their consent to them.
In 2016, amendments
were passed to the law which make it possible to impose such measures
on families without their consent (these decisions can only be taken
by the County Social Welfare Boards, and the possibility is rarely
used). Families can also agree voluntarily to have a child placed
outside the home.
21. If the
Barnevernet believes
that the child needs to be removed from its parents after the investigation,
it has to apply for a care order at the relevant “County Social
Welfare Board”, of which there are 12 across the country. These
boards are quasi-judicial and independent decision-making State
authorities composed of a judge,
an
expert (usually a psychologist) and a lay person. A care order may
be made if:
- there are serious
deficiencies in the everyday care received by the child, or serious
deficiencies in terms of the personal contact and security needed
by a child of his or her age and development;
- the parents fail to ensure that a child who is ill, disabled
or in special need of assistance receives the treatment and training
required;
- the child is mistreated or subjected to other serious
abuses at home;
- it is highly probable that the child’s health or development
may be seriously harmed because the parents are unable to take adequate
responsibility for the child.
22. During the course of 2015 (the latest year for which numbers
are available), 1 545 children were made subject to a care order
issued by a County Social Welfare Board. The number of new children
under the care of the Child Welfare Services increased by 52% between
2008 and 2012, followed by a reduction of 10% from 2012 to 2015.
23. A care order issued by a County Social Welfare Board can be
appealed to the District Court. I was informed during my fact-finding
visit that, in about 90% of cases, the County Social Welfare Boards
issue the care orders applied for,
and also that in about
90% of cases, the District Courts uphold these decisions. Few cases
can be appealed to the Court of Appeal or Supreme Court, as it is
necessary to receive leave to appeal.
Parents
can subsequently file for a revocation of a care order once per
year. In 2017, decisions for 508 children were handed down following
such revocation requests; 173 of the children concerned were returned
to their families (34%). Parents benefit from free legal aid throughout
the process, once the application for a care order has been made.
24. The parents I spoke to feel that they have little chance of
regaining their children once a care order is made, and this impression
is indeed borne out by the above statistics – though children are
eventually returned to parents in 50%-60% of emergency care orders.
My
interlocutors in Norway explained that this was because only the
most serious cases resulted in a care order in the first place.
I am certain that we can all agree that, indeed, in cases of serious
abuse, violence and neglect (including sexual abuse and/or exploitation),
it is in the child’s best interest to be taken into alternative
care promptly, and not to be returned to the parents unless circumstances
have changed considerably.
25. However, I was made aware of several cases which, like the
case which inspired the motion for a resolution on which this report
is based, and indeed the case at the origin of the latest judgment
by the European Court of Human Rights,
Strand
Lobben and Others v. Norway of 30 November 2017,
are
much less clear-cut. As one of the psychologists I spoke to (who
sits on one of the County Social Welfare Boards) remarked, “we do
not help the children who suffer awful violence, but whom we don’t
find, by removing other children from their parents who do not need
to be removed”.
26. Several of my interlocutors
with direct contact with children who had
been taken into care reported that these children usually believed
with hindsight that the care order had been the right decision,
and had, in some cases, even saved their lives;
however,
many had found the process of being taken into care unpredictable and
frightening. They also felt that they had had little possibility
to participate, and that their preferences – such as being placed
with their extended family – had not been listened to.
27. If there is a risk that a child will suffer material harm
by remaining at home, the head of the local Barnevernet or
of the prosecuting authority can immediately issue an emergency
care order without the consent of the parents. This order must be
sent to the County Social Welfare Board for approval, to be approved
by the Chair of the Board (the judge) as soon as possible, but normally
within 48 hours of receipt. If a decision is made by the County
Social Welfare Board to approve the emergency order, the parents
can appeal the decision. The County Social Welfare Board must, after
a hearing, consider and decide the appeal within a week. The parents
may also request a judicial review of the Board’s decision.
28. If an emergency order is made and the Child Welfare Service
finds it necessary to file for a care order, an application must
be sent to the County Social Welfare Board as soon as possible,
and within six weeks at the latest. 1 342 children were the subject
of an emergency care order in 2017. The number of children subject to
an emergency care order increased by 70% between 2008 and 2013,
followed by a reduction of 17% from 2013 to 2017. There are large
differences between counties in the number of children subject to
care measures and in the number of emergency placements.
29. The way emergency orders are implemented are often described
as stressful and “frightening” by both children and parents. Reports
give account of children being collected at unsuitable times or
taken out of class at school, and, in some cases, force and coercion
being used with or without the involvement of the police.
The
high number of children subject to emergency care orders (1 555
in 2015, against 1 545 “ordinary” care orders, many of which were
a follow-up to an emergency care order) begs the question as to
why the Child Welfare Services do not intervene earlier, in a way
which would be less traumatic for children and their families?
30. In this context, the fact that only 80% of all professionals
working in the Child Welfare Services have formal qualifications
(a Bachelor’s degree in child welfare as a minimum) is of some concern
– especially because the proportion of workers lacking formal qualifications
seems to be even higher outside Oslo. According to the psychologists
I met, the Norwegian Child Welfare Services have been applying complex theories
linked to child psychology and early development research (such
as the attachment theory) for the past years – sometimes out of
context. I believe it is quite possible that not all social workers
have the required training to understand such theories, and may
thus apply them incorrectly, with tragic consequences for children
who are wrongly assessed and do not receive the help they need,
and thus risk being removed too late from their families, or being
unnecessarily removed.
31. When a child is the subject of a care order (emergency or
otherwise), he/she will usually be entrusted to a foster family
if he/she is under 12. Children in the 12-18 age-bracket are usually
more likely to be placed in an institution. Nine out of ten children
in care are in foster homes.
While
foster care is usually less stressful for a child than institutional
care, on average, children move foster care homes 3.5 times during
their placement.
A
further problem is posed by the high number of siblings (6 out of
10) separated when being placed in foster care. Notwithstanding
practical problems of finding foster families willing and able to
take in large sibling groups, it bears noting that the European
Court of Human Rights has been particularly critical when siblings
were separated.
32. Like in other countries, the outcomes for children in alternative
care in Norway in general are not good – there are higher rates
of drug/alcohol abuse, suicide, violent death, etc.
However, recent amendments
to the Norwegian law encourage placement within the child’s “network”
of wider family and friends,
which
should lead to more stable foster care and better outcomes.
33. What struck me most in Norway regarding children in alternative
care were the extremely rare and short (as well as often only supervised)
visitation rights of the parents, often as short as two hours four
to six times a year.
This is particularly worrying
as I learned that there are cases in which babies are removed from
their mother’s care shortly after birth.
With such
short and rare visitation rights, the cards are stacked against
the natural mother to ever be reunited with her child (as in the
case of
Strand Lobben and Others v. Norway),
as the pure passage of time may change the best interest determination
for the child.
Adoption after placement is
relatively rare in Norway, except for children placed very young.
34. When a child is taken into care, Family Counselling Services
(a service independent of the
Barnevernet) has
been assigned a special responsibility to offer services to parents
who have lost custody of their child, although the
Barnevernet remains responsible
for following up on both the child and its parents.
Family Counselling
Services offers help with processing emotions, as “losing custody
of one’s child is among the most severe crises a parent can experience”,
advice and counselling, and support
groups and programmes.
35. Norway is halfway through a reform of its child-welfare system,
including probably, in the near future, a reform of the County Social
Welfare Board system (which may be given the status of a court),
and the development of a mediation system.
4. Developments
and concerns in Council of Europe member States
36. In her 2015 report, Ms Borzova
had identified several concerns in Council of Europe member States. First,
a lack of support to families with a view to allowing a child to
stay in the family or be reunited after temporary removal. In Ms
Borzova’s words: “There are a number of circumstances which can
make it difficult for parents to fulfil a child’s need to be nurtured,
recognised, empowered and to have a structured upbringing, when,
in principle, they would like to be good parents. These can be personal,
such as alcohol or drug abuse or psychological problems …, but also
socio-economic, such as extreme poverty (which can result from factors outside
parents’ control such as unemployment and discrimination).”
37. Second, Ms Borzova had pointed to a lack of resources and/or
qualified personnel in many member States: she believed it “crucial
to ensure that the personnel involved in removal and placement decisions
is suitably qualified, has sufficient resources to take decisions
in an appropriate (neither rushed nor delayed) time frame, and is
not overburdened with too great a caseload”.
38. Third, Ms Borzova identified and criticised a number of practices
“which can only be labelled as abusive, even if they are well-intended”,
namely the unwarranted complete severing of family ties, often in
combination with removing children from parental care at birth;
basing placement decisions on the effluxion of time; and recourse
to adoptions without parental consent.
39. Fourth and finally, Ms Borzova mentioned other problematic
issues, ranging from insufficient data collection via discrimination
to over-decentralisation in the organisation of social services,
and the separation of siblings.
40. Three years after the publication of Ms Borzova’s report,
I am afraid there are few positive developments to report in most
member States. Insufficient data collection resulting in incomplete
and difficult-to-compare datasets remains a problem which does not
facilitate the task of researchers and academics trying to compare different
models with a view to making recommendations to improve practices.
In a recent cross-country analysis of decision-making systems in
child welfare removals by the State, the authors remarked on the
dearth of data and of research on the removal/placement of children:
“It is striking that for such an important area of State power,
there is such an enormous knowledge gap. This should be of concern
to policymakers, legislators, and those with an interest in human
rights and the operation of the rule of law.”
41. As the authors rightly point out, this knowledge gap also
raises questions of how we can know that decisions regarding removals
are high-quality and legitimate: “Although child welfare systems
are all built on the principles of family preservation and the principle
of the ‘best interests/well-being of the child’, there are few systematic
empirical studies on how these principles are balanced … Neither
child welfare laws, development theory, or child welfare research
provide clear, definite answers concerning what is in the best interests
of children generally, not to mention of individual children in
a given set of circumstances. Laws, theories and research also do
not give exact answers in identifying
when to
intervene in a family,
which services
would help, and
when the risk
to a child is so great that the child should be removed from the
care of her or his parent(s), and
when this
removal should be permanent.”
It thus does not inspire confidence that,
for example, in England, the risk-prediction model that councils
have been using for assessments has been shown to be very inaccurate
– 97% of 10 000 parents whom the system would have flagged as potential
abusers did not go on to harm their children, while 17% of parents
who later did would not have been.
42. It appears that, in most countries, the number of interventions
and removal decisions has, if anything, gone up rather than down
in the past years. It is a bit puzzling that the preventive, “service-oriented”
approach of child welfare systems (such as practised in the Nordic
countries) has not led to fewer removal decisions; though “risk-oriented”
systems such as the English, Irish and Swiss ones have not fared
any better.
Several possible
explanations for these trends have been put forward:
- the high degree of “child-centrism”
in “service-oriented” systems (which often includes a zero-tolerance policy
for violence of any kind);
- a growing need for intervention due to a higher incidence
of unemployment, marginalisation and/or extreme poverty, and a cut
in services in “risk-oriented” systems making it impossible for
at-risk parents and families to cope;
- and growing risk-aversion among social workers in both
systems due to a few highly-publicised tragedies of children dying
at the hands of their parent(s).
Discrimination
and disadvantage may also play a part in the story: in most countries,
it is not the high class/ high income parents who end up most entangled
with the child welfare system, but rather the poor, the uneducated,
migrants and refugees, national or religious minorities, parents
with a history of mental illness or substance abuse, or a criminal
past, or single mothers. As one Norwegian lawyer told me: “If you
don’t fit the normal box, you have a problem.”
43. This problem is compounded by the fact that many child welfare
systems are working under enormous strain: even in Norway, a rich
country which has always invested heavily in children and their
welfare, 20% of social workers do not have the qualifications they
would need, and the lack of trust in certain quarters in the
Barnevernet adds to the strain of
a difficult job, sapping motivation. In England, social workers
(and courts) labour under even stricter time constraints than in
Norway: care proceedings (even those which will lead to a “forced
adoption” order) have to be concluded within 26 weeks. There is
also the question of attitudes – do child welfare officers see themselves
as helpers or inspectors? The Assembly’s 2015 recommendation that
States “ensure that the personnel involved in removal and placement
decisions are guided by appropriate criteria and standards (if possible
in a multidisciplinary way), are suitably qualified and regularly
trained, have sufficient resources to take decisions in an appropriate
time frame, and are not overburdened with too great a caseload”
seems far from being
fulfilled.
44. One of the central recommendations of the Assembly in 2015
was to end abusive practices (see paragraph 38 of this report),
including removing children from parental care at birth, completely
severing family ties and having recourse to adoptions without parental
consent except in the most exceptional circumstances. Unfortunately,
developments have gone quite the opposite way: in systems such as
the English one where child protection policy places front and centre
the child’s need for permanence, defined as a right to lifelong secure
relationships of care, recent years have not only seen an unprecedented
rise in care proceedings, but also in “forced adoptions”, raising
the question whether the official threshold bar – “when nothing
else will do” – is really being respected.
45. Indeed, there is cause for concern when nearly a quarter of
mothers in care cases have previously lost a child. England is currently
running two innovative pilot schemes aiming to change that statistic:
One is “Pause”, which runs in 18 of the 152 English local authorities
and aims to prevent mothers who have already lost one child to social
services having subsequent children taken away, by combining the
use of long-term contraceptives with counselling and support to
meet their housing and educational needs. A second initiative is
family drug-and-alcohol courts, which 22 local authorities offer
to addicted parents as an alternative to care cases and adversarial
hearings.
46. There is considerable controversy about the use of “s.20 voluntary
accommodation” powers in England to remove a new-born infant from
a mother’s care. It is not uncommon for the local authorities to
remove infants on this basis, given that care proceedings cannot
be brought prior to a child’s birth. A number of high-profile appeals
court cases have raised significant disquiet about action to secure
a mother’s agreement to the “voluntary” removal of her infant, within
hours of actual delivery.
47. This is not the only area where it is unclear how “voluntary”
voluntary agreements really are, in all Council of Europe member
States. If you know that the State can also use coercive powers
against you, and you know that “fighting” the State may be seen
as a lack of co-operation or a lack of understanding on your part
of your child’s rights and needs, you may be coerced into “voluntarily”
agreeing to measures (including removals) in the hope that the State’s
intervention may remain minimal.
5. Conclusions
and recommendations
48. As the researcher Karen Broadhurst
wrote last year: “The child protection legislative and policy landscape
is shaped by a battle of
ideas –
ideas that are theoretical, moral and political.”
In this battle
of ideas, the Parliamentary Assembly has come down squarely on the
side of the rights of the child: “Children have the right to be
protected from all types of violence, abuse and neglect. But they
also have the right not to be separated from their parents against
their will, except when competent authorities subject to judicial
review determine that such separation is necessary in the best interests
of the child. Even when such separation is necessary, children have
the right to maintain personal relations and direct contact with
both parents on a regular basis, except if it is contrary to the
child’s best interests.”
49. However, what is in the best interest of the child? Who determines
this, and on what basis? As we have seen (see paragraph 41), different
systems, different countries, and different people (social workers,
lawyers, legislators, etc.) will balance the children’s and parents’
rights differently at different times, and will also interpret what
is in the best interest of the child differently. There is no one
correct answer in my personal opinion: the answer will be influenced
by history,
culture, religion,
and other factors unique to every system. It
is easier to say what is not in the best interest of the child:
to suffer serious harm at the hands of their parents or to be removed
from a family without good cause. We have to recognise that no system
is going to be correct 100% of the time.
50. So the question remains: Where to draw the red line? 50 countries
worldwide, many of them Council of Europe member States, have a
zero-tolerance policy on violence against children. I can agree
that “even weak violence can be very harmful to children” (as one
of the judges presiding a Norwegian County Social Welfare Board
said to me). I am personally convinced, however, that measures must
remain proportionate. Thus, for example, “annoying behaviour, or
other inconsiderate conduct towards a child” should not, in and
of itself, lead to a child’s removal from its family, especially
not permanently. Measures should instead be taken in such cases,
in my view, to educate parents in non-violent, positive parenting.
51. In this context, I would like to underline that the UNCRC
gives the right to children as well as parents to stay together,
and all relevant United Nations and Council of Europe standards
and bodies agree that the removal of a child from his/her family
should be a last resort, and that the goal should be to reunite
the child with his/her family as soon as possible. This also encompasses
the State’s obligation to create the circumstances which will make
such a reunification possible, for example through a child keeping
a relationship with their biological parents through appropriately
long and frequent visitation and contact rights. Struggling families
need help, not punishment. As one psychologist I met put it: “Will
forcing parents really make them better parents, or wouldn’t it
be better to win their trust and convince them to change their behaviour?”
52. Indeed, the European Court of Human Rights has also underlined
that “it is in the child’s best interests that his ties with his
family be maintained except where the family has proved particularly
unfit … It is clear from the foregoing that family ties may only
be severed in very exceptional circumstances and everything must
be done to preserve personal relations and, where appropriate, to
‘rebuild’ the family. It is not enough to show that a child could
be placed in a more beneficial environment for his upbringing”.
In this respect,
I would also underline that – according to the psychologists I spoke
to – longitudinal studies have shown that long-term foster care
and “forced adoptions” are not a privilege, but rather a risk factor
for children’s life chances.
53. Coming back to the “battle of ideas” – there is a fair share
of ideology, not just competing ideas in the area of child welfare.
As one psychologist told me, if families are no longer deemed that
important, the government may harbour the illusion that it can provide
a “better” family for the child. What is the role of society in
this battle of ideas? Should families be required to accept help
to comply with what society believes the child needs? What is “good
enough” care in the eyes of society? – Are we becoming “overprotective”
of children, and thus demanding “perfect” parents? Are parents the
“last enemy” in a democratic, secular society where the social construct
is that you can “build” another family?
54. I think the only way we can ensure that the rights of the
child win this battle of ideas is to focus on the process. We need
to secure that the process is child-friendly throughout, and puts
into practice the relevant United Nations and Council of Europe
guidelines and standards. We need to pay more than lip service to
child participation. We need to have properly trained and educated
staff (such as child psychologists) speak to and listen to the child,
and we need to take the child’s views into account. We also need
to build better collaboration with parents (not at the expense of
the child, of course), because good communication can help avoid
possible mistakes based on misunderstandings, stereotyping, discrimination,
etc., all of which can be difficult to correct later on once the
trust has gone. We need to make sure child-removal decisions are
well-documented and that court proceedings are child-friendly and
accessible (personally, I am not convinced that adversarial procedures are
really always the best option, in particular at the start of a case).
55. We also need to look at the question of the dynamics in the
system: Are social services allowed to “lose” a case? How far are
social services allowed to go to “win”? Systems usually do not like
to be criticised – they will go on the defensive, and/or into denial;
the more closed the system, the more rule-oriented it is, the less
it will admit failure and show empathy. We should stop building
systems which “inspect whether families are good enough” behind
closed doors, and instead offer help and support to families, and
build open, transparent systems in which both children and parents
can have confidence. This also means truly putting an end to the abusive
practices described by Ms Borzova already in 2015: such as frequent
recourse to the unwarranted complete severing of family ties, to
the removal of children from parental care at birth, to basing placement decisions
on the effluxion of time, and to adoptions without parental consent.
There is a need for proper checks and balances which work in practice,
not only on paper. There is also a need for true independence in
these systems to ensure that there is adequate impartial oversight
of these life-changing decisions, and limiting mistakes and miscarriages
of justice as far as possible. I personally believe parliamentary
inquiry committees can also be helpful when things have really gone
badly wrong.
56. I hope to be able to count on your support for my proposals
based on these conclusions which I have included in the draft resolution,
with a view to finding the right balance between the best interest
of the child and the need to keep the families together, in the
interest of both children and their parents.