30 Aspects of the Decision-Making Systems Concerning Compulsory Child Protection Measures in the Netherlands, Denmark and Norway Hanne Ingerslev Hanne Ingerslev is social worker in charge of a district child protection office in Oslo. She is currently on a sabbatical year attached to the Regional Child Protection Research Unit in Trondheim. Introduction This article is based upon my dissertation for my Masters study at the European Institute of Comparative Social Studies (Ingerslev, 1998) where I compared some elements of the decisionmaking procedures in compulsory child protection measures in the Netherlands, Denmark and Norway. My interest in this topic is based upon years of experience as leader of a child protection office in one districts in Oslo. In my work I have experienced two different systems of imposing child protection measures upon families. Up until 1993, a board of politicians and a judge from the city court were responsible for taking these decisions in Norway. From 1993 onwards a new decision-making body was created at county level, and at the same time new procedures were introduced. This change in the Norwegian system lead to an interest in how other countries were organising the same tasks. By doing a comparative research, studying the practice of other countries I also hoped to be more aware of underlying values in the Norwegian practice. Child protection can take place in either a collaborative or a conflictual relationship with families. This study is concentrates upon those situations where intervention in the families occurs without the consent of the parents (or child). In each European country the element of compulsion has resulted in the establishment of certain provisions to regulate the state s intrusion in the family sphere. I have focused upon the direct meeting between the decision-makers and the family members. I call this meeting the decision-making meeting, independently of whether the decision is actually made in this meeting or not. This meeting can be of a relatively short duration, contrasting with the often longer lasting relationship between child, protection workers and family members. It is my view that parents and children are affected by the procedural framework of the meeting as well as the interaction between themselves and the decision-makers within the meeting itself. This meeting has its own significance regardless of how correct the decision is for the child (Ericsson, 1994). The study was rather broad and concerned the differences and commonalities in the decisionmaking process with regard to compulsory child protection measures in the Netherlands, Denmark, and Norway. The study focused upon: m how children and parents can express their views before the decision is taken, and m elements in the interaction between decisionmakers and the family members. In this article I will give an account of: m the place given to the voice of the children in the decision-making meeting; m the procedures followed in the meeting; m the focus of interest in the meeting and prevailing characteristics of the interaction between decision-makers and family members. I will relate these items to central issues concerning legal protection. Additionally, I will suggest the possible impact that the different kinds of procedures and interaction can have upon the family members. The three countries I chose to compare are different with relation to their respective emphases on equal rights for each family member and the position of the family. Denmark and Norway, both countries with a Scandinavian welfare model, are characterised by great emphasis on equal rights for each family member (Esping Anderson, 1990). The Netherlands have a more mixed welfare model. This is developed in close co-operation with strong religious groups where the position of the family is relatively strong. It has an emphasis on consensus as one important aspect which is connected to catholic social theory (Hill, 1996). I anticipated that a comparison between these three countries would
31 give me new insight in the complex field of child protection where a balance must be struck between family values, the child s right to protection from abuse and neglect, and the child s and the parents right to protection from illegitimate intervention from the state. The three countries have different kinds of decision-making bodies. In the Netherlands the authority for making compulsory decisions is given to one person in the judicial structure: the Children s Judge in the district Juvenile Court. In Denmark the authority is given to a board at a municipal level called the Board for Children and Young Persons. The board consists of five members: a judge; three local politicians and one expert on psychology or pedagogy. In Norway the authority is given to a board at a county level: the County Social Welfare Board which also has five members, a lawyer, two experts on psychology or social work and two lay persons. The research The study is a descriptive and exploratory case study. I triangulated information from multiple sources, semi-structured interviews, observations and the study of literature, documents and booklets. My informants were researchers with extensive knowledge of the decision-making systems, the decision-makers themselves, representatives from the child protection agency requesting orders, and parents. Unfortunately I did not succeed in finding parents willing to be interviewed in the Netherlands. Parental experience of the systems is therefore only available for Denmark and Norway (there were two mothers from each country). I chose not to interview children due both to time limits which did not allow opportunity to develop the relationship that would be necessary to conduct such interviews with children, and the complexity of obtaining formal permission from the responsible persons to conduct interviews with children. Basically my work relied on reading national descriptions and interviews. However, observation of real-life situations gave me a more thorough understanding of the meaning behind the descriptions. Being a foreigner, shaped by another culture, enabled me to observe interaction in the meetings in the Netherlands and in Denmark with a degree of scientific detachment. Moreover, because I was abroad for almost a year whilst undertaking this research, I was then able on my return to Norway to view the Norwegian reality with some distance as well. In the Netherlands I observed the hearing of six cases, in Denmark four cases, and in Norway one case. The difference in the number of observations in each country was related to the different duration of the meetings which will be accounted for later. I had the opportunity to conduct interviews with the leaders of the meeting after the observations to discuss my findings and impressions. These interviews had the purpose both of checking my observations for possible misunderstandings, and also of discussing whether the interactions that I had observed in the meetings were typical. Although my observations of the meetings could not necessarily be considered as representative of all meetings in the decision-making bodies, these interviews became a sort of control of my observations. The findings The research produced information about the organisation of the child protection field, the organisational placement of the decision-making bodies and the legal framework of the decisionmaking meeting such as, for instance, necessary criteria for placement without consent. This will not be accounted for here. What I will present is the formal procedures followed in the meeting, and an exploration of how the participants in the meeting act within these procedures. The main structures of the legal framework for the decision-making can be seen in Table I which highlights the main differences between the three systems. The voice of the children in the decisionmaking process The United Nations Conventions on the Right of the Children (1989) asserts the principle of a child s right to express itself freely in all matters affecting it, particularly in judicial and administrative proceedings (art. 12). Also stated (art. 9) are the rights of both a child and parents to participate in proceedings concerning the separation of children and parents. Expression of views and participation in proceedings can be accomplished in different ways. Here I am interested both in the actual possibilities for expression and participation, and
32 Table 1. The legal framework and prodcedures The Netherlands Denmark Norway The authority to impose a child protection order Name of the meeting between decision makers and families Purpose of the meeting Duration of the meeting/hearing Time between hearing/meeting and information about the decision Role of child protection office Use of lawyers Use of witnesses Main procedure (The main procedures in Norway are laid down in legislation. The accounts of the procedures in Denmark and The Netherlands are based on interviews and observations and may differ from legislation) Complaint possibilities (also discretion) Children s Judge in the Juvenile Court Hearing Give the judge an oral explanation of points where he needs more information and give parents and children the possibility to express their own views before the decision is taken 15 to 60 minutes some days advising the judge Rarely. Free if under a certain income level Almost never The judge asks family members questions based upon the request and the dossier Court of appeal The Board for Children and Young Persons Meeting Give the Board an impression of the parents and children and the opportunity for the parents and children to express their own views before the decision is taken 45 minutes 5-10 minutes party Offered free legal assistance Sometimes psychologists and doctors The parents lawyer presents the view of the parents incorporating explanations from the parents, supplemented by questions from the Board to the parents based upon information from the meeting or the dossier Social Complaint Board County Court The County Social welfare Board Meeting of oral negotiations Give the Board all necessary information to take a decision. Allow the parties to hear and dispute the arguments for and against the requested order 1 to 4 days, normally 2-3 days within 2 weeks party Obligatory, free On average about 7 witnesses, professional and private Oral reviewing of the case for the request, refering to documents as proofs presented by the lawyer/child protection office followed by information and proofs from the counterpart. Questions from the Board to the parties. Hearing of witnesses and experts City Court High Court Supreme Court
33 what kind of opportunities these possibilities give for developing a sense of being a legal subject as opposed to being merely a legal object in the proceedings. By legal subject I mean a person s sense of being an active participant in the decisionmaking process. When studying the national legislation and practice in this matter I concentrated upon children of 12 years or above. I looked at whether children were heard directly by the decision-makers, whether children participated in the decision-making meeting and at what age they were given party rights. In the Netherlands, children of 12 years and above are automatically invited to express their opinion to the Children s Judge, either in writing or by coming to the decision-making meeting. Sometimes the children write back that they will not come, sometimes they come. If the child does not attend, the judge can say that he wants the opinion of the child and then issue a further invitation. Sometimes there is a second meeting, or the meeting is postponed because the child has not attended. Sometimes the judge makes a temporary decision and parents or a guardian are asked to bring the child to the next meeting. The judge can also talk with the child outside the court session (judge, interview). Children were heard in the meeting in 5 of the 6 cases I observed. The child does not get formal party rights. Also in Denmark, children of 12 years or above are invited to express themselves directly to the Board for Children and Young Persons. The talk with the child starts 15 minutes before the ordinary decision-making meeting. After the talk the child is asked to wait in a neighbouring room until the ordinary meeting is finished and the decision made. Children of 15 years or above are given party rights and are invited to attend the ordinary decisionmaking meeting. If the child attends the meeting they will be assisted by a lawyer. In Norway it is mainly the leader of the County Social Welfare Board (plus eventually a board member with special competence) who will speak with the child if the child s own view is not sufficiently described in the dossier concerning, for instance, if there has been a recent talk between an expert and the child about the issue of the meeting. This talk between decision-makers and child takes place independently of the decision-making meeting. If the child is younger than 15 years the Board can appoint a spokesman for the child. The spokesman will give an account of the child s point of view and comment on this view in the meeting. Children of 15 years or above are parties to the proceedings which includes a right to have a lawyer. Children below 15 years are parties when there is a request for an order which implies special measures because of the child s behavioural problems or there are special circumstances related to a request for custody. Normally children attend the meeting only when there is a request for an order based upon behavioural problems. Consideration of differences As we have seen, each country has provisions for hearing the child. The difference is mainly whether the child actively express its own views directly to the decision-makers (the Netherlands and Denmark,) or whether child views are expressed to the decision-makers through social workers, experts or spokesmen (Norway). In the Netherlands, all the efforts that are made to invite the child to the meeting establish the position of the child as the reason for the meeting. The children are the parties, it is about children. This statement from a Children s Judge clearly demonstrates one principle behind the Dutch system. Neither the statement nor the practice however, are reflected in the legislation which does not accord children party rights. Also in Denmark children of 12 years or above are automatically invited to the meeting with the board. But as the members of the board speak with the child outside the ordinary meeting, the position of the child as a legal subject cannot be viewed by the other participants in the meeting in the same way as in the Netherlands, except when the child attains the age of 15 and has party rights and is invited to the meeting. In Norway the procedures to secure the child s right to express itself emphasise the child s right to be heard in the decision-making process. The child s own view is however mainly transmitted to the Board through social workers, appointed experts or spokesmen except when the requested measure is linked to the child s behavioural problems.
34 I contend that, in creating a sense of being a legal subject in the proceedings, practice is more important than formal rights. I have defined being a legal subject as being a direct participant in the decision-making process. If this connection between direct participation and the sense of being a legal subject is valid, it means that children in the Netherlands and Denmark have better opportunities than children in Norway to experience a sense of being a legal subject. A child s wish to take part directly in the proceedings is dependent on many factors, among which are the kind of procedures followed in the decision-making process, the issues focused in the discussion between the child and the decisionmakers, and general values in each country concerning a child s need and abilities to express its own views. Participation can create a sense of control and self-efficacy, but it may also contribute to an increased conflict of loyalties between a child s own feelings and those of the parents. What weight is, and should, be given to the child s own voice in the decision-making process, as well as how they themselves want to express their views should be explored in further studies. Procedures followed in the meeting The procedures in the meeting represent the framework where the state authorities represented by the decision-making body meet the family members. The procedures are linked to the purpose of the meeting (shown in table 1). In the Netherlands the purpose of the meeting is to give the judge an oral explanation of points on which he needs more information, and at the same time give parents and children the opportunity to express their views before the decision is taken. The meeting is called a hearing. The dossier, which also includes the child s and the parents point of view, represents the main source of information for the decision-maker. In Denmark the purpose of the meeting is to give parents and children the opportunity to express their views. The dossier represents the point of view of the child protection agency, although it also includes the parents and children s point of view in the words of the social workers. The meeting is the place where the family can express their views and, in addition, the board members can get a first hand impression of the parents and children (interview, chairman of the Board for Children and Young Persons). In Norway the purpose of the meeting is to give the board all necessary information for making a decision. The dossier is made available for the board members only one hour before the meeting starts. The leader of the board, however, examines the dossier some weeks in advance when preparing the meeting. The meeting is called a meeting of negotiations. The different purposes of the meetings is reflected in the length of the meeting which in the Netherlands lasts for between 15 and 60 minutes, in Denmark for about 45 minutes and in Norway between 1 and 4 days, usually 2-3 days. Within each country the structure of proceedings within the meetings is related to the respective national purposes. In the Netherlands the hearing is informal and consists of questions from the judge to the participants. In the hearings I observed in the Netherlands the judge started by stating how he understood the child s situation and what request he was asked to decide upon. The judge then addressed the child and thereafter the parents. The judge ascertained that everyone had read the report written by the child protection agency (Raad Voor de Kinderbescherming) and asked everyone for an opinion on the requested measure. The child protection agency was asked to give comments during the hearing. The use of lawyers representing parents or child is rare. A lawyer was representing the parents in one of the six cases I observed, and in that case the lawyer was given the opportunity to speak after everyone else had given their opinion. The procedures in the Netherlands can also start with a presentation of the latest information about the child. This is done by the agency which has requested the order (in the Netherlands there are various agencies that can ask for an order). Afterwards the parents get the opportunity to tell their side of the story and give an account of why they oppose against the request for an order. According to my observations in Denmark, the main procedure in the meeting involves a presentation by the parents lawyer giving the view of the parents. This presentation is supplemented by explanations from the parents to questions asked by the lawyer. Additionally, members of the Board ask questions to the parents based upon information that emerges in the meeting as well as information
35 from the dossier. Sometimes the lawyer refers to documents in the dossier, sometimes not (chairman, observations). Representatives from the child protection agency (Barne- og Familieavsnittet) do not normally give their opinion during the meeting. In Norway both the private and the public parties are represented by lawyers in the meeting which is a process of parties. The meeting of negotiation starts with the lawyer representing the child protection service giving an account of the background for the request, referring to documents and the journal in the dossier as proofs. His or her task is to present the case on behalf of the municipality and convince the board about the need for the requested order. Afterwards the parents lawyer gives an account of why, and in what way, the parents disagree with the request. The parents lawyer presents or refers to additional documentary information. The pleadings of the two lawyers are followed by the testimony of the child protection worker who gives an account of the most essential points behind the request. The child protection service must present all facts necessary to inform the board, not only facts which support the proposed request. Afterwards the lawyer for the parents is given the opportunity to ask questions. The members of the board also ask questions. The board examines the child protection worker about the use of discretion and the work done in the family. After this testimony of the public party there follows the testimony of the private party according to the same procedure. After the explanations from both parties someone - usually an expert who has been engaged by the child protection agency - gives an account of the child and the parents abilities to meet the needs of the child. Thereafter witnesses are heard. Ultimately both parties represented by their lawyers give their final speech. Consideration of differences In considering these different procedures I will here highlight the use of lawyers and their roles, as I regard this as one of the main distinguishing features. In the Netherlands lawyers are virtually absent in the decision-making meeting. In Denmark and Norway lawyers occupy a dominant position. In general lawyers can either have an advisory role or the role of a spokesman for their clients (Lindboe, 1994). Legal assistance can be seen as a means for citizens to protect themselves against compulsory intervention. When the state intervenes in a family to protect a child against the will of the parents, legal protection of those directly affected by the intervention must be considered. In that sense, legal assistance represents a contribution to an equalising of balance of power (Eriksen & Schiveland, 1998). On the other hand, a lawyer can create a distance between the authorities and the family members in the sense that the direct contact between decisionmakers and family becomes so formal that the individual does not feel as if they are a legal subject in the proceedings. Decisions concerning out-ofhome placements should be made in close understanding between the decision-makers and the parents. If parents get the feeling they are not really listened to in the decision-making meeting, and the involvement of the decision-makers is experienced as rather distanced, then the outcome of the placement has less chance to work out successfully (Ydebo, interview 1 ) The feeling of not being a legal subject in the proceedings may be illustrated by an utterance from one Danish mother: They (the board) did not say anything to me, they spoke with my lawyer. I was there just to be there. I felt I could have skipped it. You are sitting there just to sit there. According to this statement, parents experience of being heard can be undermined by the position given to the lawyers. As shown, both the Danish and the Norwegian systems give a dominant position to lawyers. In the Scandinavian countries this reflects a general emphasis on legal protection. Lawyers are also supposed to contribute to the clarification of facts necessary for making decisions (Lindboe, 1994). There is, however, a certain difference between Denmark and Norway over whether or not parents are explicitly given time to speak themselves in addition to their lawyer. In Norway parents are given explicit time to express themselves in the 1. Ydebo, Ib, a retired doctor in law, with about 40 years of experience in child protection, including 8 years as judge/chairman of the Board for Children and Young Persons in Copenhagen, a contributor in the work of drawing up the main principles in the Act of Social Assistance 1993 (Denmark).
36 witness box. When they are in the witness box there is a direct communication between parents and the members of the board. Resent research about parents opinions concerning their experience with the decision-making system in Norway shows that the private parties were satisfied or very satisfied with how their own views had been expressed (Iversen, 1996). The two mothers I interviewed expressed different views concerning this matter. One felt she had the opportunity to express her views directly to the decision-making body and that the decision-making body had listened to her. The other mother felt she could not express her views properly. This was not due to the position of lawyers but because the leader of that meeting did not allow her to comment during a meeting of three days duration. Such strict handling of the procedures is, however, neither common nor obligatory. In Denmark parents are not explicitly given time to speak for themselves. The lawyers in Denmark are supposed to speak on behalf of the parents and this was also made visible in the room by the judge s instructions that the lawyer should sit directly opposite him and the parents at the lawyer s side. The lawyer is seen as spokesman for the parents. If the Board members do not consider it necessary to ask questions of the parents, no dialogue is forced (judge, interview). The Dutch practice is an example of a decisionmaking procedure characterised by direct communication between decision-makers and family members. The reasons for the absence of lawyers in the proceedings of the Juvenile Court in the Netherlands can be many. It can be because of a lack of automatic legal aid; parents feeling able to speak for themselves; or parents feeling that objections to the authorities are not given weight in the decision-making process anyway. Since I did not get the opportunity to interview parents in the Netherlands I do not know their views in this matter. Two of my informants ( a judge and the leader of a child protection agency) assumed that the reason for not using lawyers was merely a result of parents own choice to speak for themselves rather than because of economic barriers. As mentioned, a lawyer was present in only one of the six cases I observed. In this case the lawyer had the role of an advisor and not that of a spokesman. This probably suggests that parents do not use lawyers because they feel able to speak for themselves. However, my material does not allow me to draw any strong conclusion on this matter. The focus of interest in the meeting and prevailing characteristics of the interaction between decision-makers and family members On the basis of my observations in these three countries, I will here concentrate on two elements which relate to the focus of interest in the meeting. Firstly, whose life situation is mostly discussed in the meeting; the child s or the parents? Secondly, is the focus mostly upon the future or the past? Thereafter I will identify some differences in the way the decision-makers are interacting with children and parents. In the Juvenile Court in the Netherlands the child is exclusively the focus. In the other two countries the focus is divided between the child and the parents, sometimes with a balance in favour of the parents. In the Netherlands it is the future of the child that is focused upon, while proceedings in Denmark and Norway are more heavily weighted towards the difficulties which constitute the grounds for the order - i.e. the past - and partly upon arguments for and against the proposed measure - which represents the future. As for the way the decision-makers act towards the parents and child, the differences can be described as an active searching for co-operation and consensus concerning the requested measure in the Netherlands; a one-way hearing of views in Denmark; and, in Norway, a hearing and searching for all necessary information before taking a decision. In every meeting the Dutch judge asked the opinion of everyone concerning the requested order and, when there were disagreements, sought a cooperation in solving the child s problems from different angles. The importance of the opinion of the child to the requested order was stressed. The judge was aiming to find solutions which the child could live with (judge, interview). He was searching for solutions in the sense that he was trying to get co-operation from the parents around what he thought was the necessary measure for the child.
37 The judge stated in the interview that he tried to be a mixture between someone who liked to understand the young person in front of him and, at the same time, be a judge - a mixture of authority and closeness. Personal authority was, according to the judge, important because he did not consider it to be good for children to be ordered by anonymous authorities. He was therefore aiming at creating a sort of personal relationship with the children. This is in contrast to the practice in Denmark and Norway, where there is a general rule that the board shall stay neutral during the meeting, not showing any opinions. This general rule does not, however, prevent the board members from asking parents to consider their parenting abilities in relation to certain pre-conditions. These questions may sometimes reflect the direction of the opinion of the board members. What consequences may these differences have for the family? The relationship that the Dutch judge tries to build between himself and the child can increase the commitment of the child to its own life and thus, in the long run, lead to an improvement of the life of the child. When the judge uses his personal authority in the dialogue with the child, he tries to put himself in the child s situation. The direct relationship between the child and the judge can be seen as strengthening the position of the child as an individual. This individualistic approach to the child can be a demonstration of the strong individualistic element in Dutch society found in the research of Hofstede (1997). This individualistic element is, however, not visible in the legislation which, as mentioned, does not give party rights to the child. The Dutch judge s active searching for cooperation from the parents can signal to the parents that their attitude and co-operation are crucial for the outcome of the measure, and thus the future of the child. This can be a signal to parents that even if the child must live away from the family, the parents are still important to the child. This searching for co-operation can thus be viewed as an emphasis that is placed on the maintenance of bonds between child and parents. This relates to the pro-birth family perspective described by Fox- Harding (1991). The pro-birth family perspective emphasises that a child s bond to the biological family shall be maintained wherever possible. The searching for consensus in the decision-making meeting can also be linked to one aspect in procedural legal protection described by Eriksen and Schiveland (1998). Because the best interest of the child is a normative question, it needs the approval of the involved parties on what a better life for the child should be. It should however be questioned whether the consensus achieved in the Juvenile Court is a real consensus since it is based upon the premises laid down by the person with legal authority to decide what is the best interest of the child. The focus on the past in Danish practice, concentrating upon alternative explanations for the events described in the dossier, as well as the amont of time taken up with parents dissatisfaction with the work of the child protection agency, can, in my opinion, be an obstacle to discussing improvements in the child ssituation. This missing discussion of improvements in the future may be an obstacle to the parents participation in the decision-making process. Together with what I will call a one-way hearing of views, the Board members staying neutral and not showing their opinions, this may create a feeling of powerlessness in the parents. When the focus is upon parents and/or parents and child, together with the problems in the family (the past) as is the case in Denmark and Norway, this can lead to a feeling of guilt and aggression in the parents. These feelings of guilt and aggression can have consequences for their ability and motivation in working in a collaborative relationship with those persons responsible for the accomplishment of the measure. A co-operative relationship between parents and, for instance, foster parents may be made difficult. When entering into, or staying in, a co-operative relationship it is of great importance to feel recognised by the person you are co-operating with (Aamodt, 1997). The exposition of parents difficulties in coping with the child s problems in the meeting can thus be a disadvantage in the creation or maintenance of a fruitful relationship after the meeting. Also the exposition of the children s problems rather than the parents can have some consequences. One of mothers I interviewed in Norway said that her son with behavioural problems had reacted strongly upon the reviewing of all his problems in the meeting. The mother questioned how the professionals could maintain or create a good relationship with her son after having
38 exposed his problems in such detail in the meeting. The boy was extremely aggressive towards his mother after the meeting and did not show up in the second day of the meeting. This example suggests a problematic aspect in the Norwegian decisionmaking system - i.e. to convince the Board of the need for the order requires the public party to expose the problematic elements in the life of the child/parents. Underlying values of the decisionmaking systems I have found it fruitful to search for an interpretation of the differences between the decision-making meetings by reference to some key elements in two different thought systems. One thought system, sometimes called the ethics of rights, accentuates rights, freedom and the individual. The other thought system, sometimes called the ethics of care or responsibility, is linked to contextual moral philosophy and accentuates responsibility and relations (Ericsson 1994). It can be said that child protection authorities have to combine both the ethics of rights and the ethics of care or responsibility. Child protection authorities must represent a child s right as a citizen to be protected from abuse and neglect. This task must be accomplished without violating the rights of parents as citizens. In that sense child protection follows principles of justice and legal protection connected to the ethics of rights. These principles are to be followed when interacting with and intervening in a social system which operates upon a different rationale - that of the family. A family is built upon the maintenance of personal relationships, care and responsibilities. The child protection authorities have to secure a child s right to be taken care of by adults who are capable of meeting the child s need for that kind of personal relationship which is necessary for supporting the sound development of the child. This means to secure a child s right to be a part of a context, a family. This is related to ethics of care or responsibility. The decision-makings systems in the Netherlands, Denmark and Norway may be considered to combine and accentuate the two systems of ethics in different ways. The Dutch system can be regarded to be most closely connected to ethics of care. The way the Dutch judge acts when discussing the future of the child, can be viewed as an accentuation of a personal responsibility; both the judge s own responsibility as well as the responsibility of both the child and the parents for improving the child s life situation. This effort to build relationships with the family may be viewed in relation to the fact that in the Netherlands the most common order, the family supervision order, has to be reviewed every year by the judge. The building of relationship between the judge and the child may, however, also be one way of strengthening the position of the child. The child is not seen as an appendage to the parents but as an independent individual capable of entering into relationship on its own. This is related to the ethics of right. The dialogue between the judge and the child may consequently have links to both systems of ethics. The searching for consensus in the Dutch practice is tending towards a contextual approach. A decision should represent a solution which can be accepted as much as possible by the important persons for the child. Seeking to gain the acceptance of parents to an out of home placement for the child, can represent a view that parents are still important for the child, thus another aspect in still looking at the child in relation to its parents, a contextual approach. In my view the Dutch way represents a transferral of values from the family system into the civil society, or, in other words, establishes provisions for regulating the relationship between state and family based upon family values. The Danish decision-making system can be considered to have the intention of combining elements of both ethics. Parents and children can express their views to the decision-makers and are given automatic legal aid in doing so. This is related to ethics of rights. Links to ethics of care or responsibility are mostly to be seen in the process leading up the decision-making meeting where the need for parents participation and co-operation in investigating the situation of the child is stressed. This is, however, not accounted for here. In the decision making meeting itself, the practice of reviewing the order every year, as in the Netherlands, can be seen as accentuating the decision-makers responsibility in following the child and controlling the need for maintenance of the order.
39 The Norwegian decision-making system emphasises the rights of the parents and children in protecting them from illegitimate intervention by the authorities. Parents and their lawyers are given extensive time to express their views to the decision-makers. Children have a range of possibilities to let their views be known. This is closely connected to the ethics of rights. Qualities related to the keywords from ethics of responsibility can hardly be found. The decision makers are not trying to create a relationship between themselves and the family members, nor does the structure lend itself to that. There are few opportunities for building relationships between decision-makers and the family since there is no requirement for reviewing an order every year. If cases are heard several times by the board, there is no effort made to gather the same members again, nor is there an established a system of giving feedback to the board about the consequences of the order. In that sense the meeting stands as a single event both for parents and children and for the board itself. I regard the Norwegian system as having the strongest emphasis upon legal protection which is closely connected to ethics of rights. The Dutch system has the strongest connection to the keywords in ethics of responsibility although it also contains elements of individualism related to ethics of rights. Denmark contains elements from both ethics in its emphasis on both expression of opinions and direct involvement in the process leading up to the decisionmaking meeting. Each of the three systems creates different problems and opportunities. No system represents the ultimate fulfilment of either the requirements for legal protection or ensures that the best decision is taken on behalf of the child. Each system is integrated in the general relationship between state authorities and the citizens that obtains in that country. Families can, however, perceive and assess the systems differently due to individual experiences as well as capabilities. Some parents and children will feel comfortable with the system in their country. Some will feel violated by it. There is a variety of different decision-making systems, ranging from family conferences, mediation committees, decision-making boards and court trials. However, as we have seen, the established framework may contain other possibilities than at first sight appear. For instance, the court session in the Netherlands deciding upon a request from child protection agencies (organised directly under the administration of the Ministry of Justice) is more informal, has fewer lawyers involved in the proceedings and allows for a more direct dialogue between the decision maker and the family than does the Norwegian decision-making body, which is organised outside the court system but, by and large, follows formal court procedures, and decides upon a request from agencies organised under the Ministry of Child and Family, but where the child itself is rather invisible in the proceedings. Decision-making regarding the protection of children will never be an easy task. The decisions must be based upon facts, but which facts shall be chosen? How does the decision making system influence the selection of facts? How do the cooperation between child protection workers and family prior to the decision-making meeting influence the assessment of the parent s upbringing abilities and opportunities? When hearing the child and/or giving the child extensive rights to participate in the decision-making process, how much weight should be placed upon the child s utterances? May extensive rights that are given to children and parents respectively be a hindrance for helping the child? Child protection raises a lot of ethical questions. Comparative research can be helpful in clarifying our understanding of the rationale behind our choices, and may stimulate awareness of alternative thinking and actions as well as raising new questions. References Aamodt, L. (1997) Den gode relasjonen - støtte, omsorg eller anerkjennelse, Oslo: Ad Notam Gylendal. Ericsson, K. (1994) Barnevernet mellom to sosiale verdener, in Sandberg & Syse (eds.) Barnevernet og barnevernloven, Oslo: Ad Notram Gylendal. Eriksen, E. & Shiveland, M. (1998) Om å fatte riktige beslutninger I barnevernet, Tidsskrift for samfunnforskning. No. 3. Esping-Anderson, G. (1990) The Three Worlds of Welfare Capitalism, Cambridge: Polity Press Fox-Harding, L. (1991) Perspectives in Child Care Policy, London & New York: Longman. Hill, M. (1996) Social policy: a Comparative Analysis, Prentice Hall. Harvester Wheatsheaf. Hofstede, G. (1997) Cultures and Organisations: Software of the Mind, McGraw Hill. Ingerslev, H. (1998) A comparison between elements in the decision making process concerning compulsory child protection measures in the Netherlands,
40 Denmark and Norway, MA dissertation, European Institute of Comparative Social Studies. Iversen, O. (1996) Fylkesnemdene - Økt Rettsikherhet, Norges Barnevern, No.3. Lindboe, K. (1994) Advokatens Rolle in Sandberg & Syse (eds.) Barnevernet og barnevernloven, Oslo: Ad Notram Gylendal. United Nations (1989) Convention on the Rights of Children