Children’s participation in law, policy and practice
In Norway, the participation of children is firmly anchored in national law. In the US, which has not ratified the United Nations CRC, it mainly rests on state law and professional social work guidelines and practices within a child protection agency. Children in Norway have had strong formal rights as participants enshrined in law since the country signed the CRC in 1989. Norway turned the CRC into national law in 1991, explicitly using it as a platform to draft legislation about child welfare in Norway (Vis et al, 2012; Bårdsen, 2015; Berrick Duerr, Peckover, Pösö & Skivenes, 2015). The views of children aged seven and older must be considered in child protection in Norway (Vis et al, 2012; Berrick Duerr, Peckover, Pösö & Skivenes, 2015; Skivenes and Søvig, 2017). This is how the Child Protection Act 1992 (Lov om Barneverntjenster) formulates children’s participatory rights related to age in Section 6.3:
A child who has reached the age of 7, and a younger child who is capable of forming his or her own opinions, shall receive information and be given an opportunity to state his or her opinion before a decision is made in a case affecting him or her. Importance shall be attached to the opinion of the child in accordance with his or her age and maturity. A child may appear as a party in a case and exercise his or her rights as a party if he or she has reached the age of 15 and understands the subject-matter of the case. The county social welfare board [the body that makes care order decisions] may grant a child under the age of 15 rights as a party in special cases. In a case concerning measures for children with behavioural problems or measures for children who may be at risk of human trafficking, the child shall always be regarded as a party.
Children who are 15 or older become parties in a case and may be appointed a lawyer (Berrick Duerr, Dickens, Pösö & Skivenes, 2015; Berrick Duerr, Peckover, Pösö & Skivenes, 2015). Children 12 years and older must be heard in decisions about guardianship when a caregiver who is responsible for a child loses guardianship (Ministry of Children and Equality, 2016, p 23). Children younger than 15 years are invited to plan their care. The definition of children’s best interests in the Child Welfare Act 1992 (Section 4.1) was amended in 2013 to specifically include children’s participation in child protection with the help of an adult the child trusts:
When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child’s best interests. This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided.
The child shall be given the opportunity to participate and steps shall be taken to facilitate interviews with the child. Children who have been taken into care by the child welfare service may be given the opportunity to be accompanied by a person whom the child particularly trusts. The Ministry may make further regulations regarding participation and regarding the duties and function of persons of trust. (Ministry of Children, Equality and Social Inclusion, 2017, p 13)
Since 2003, when the Human Rights Act was passed, the CRC has had primacy over any other national legislation in Norway (Bårdsen, 2015). As part of the Constitutional reform process from 2013 to 2014, a new article, Article 104, was introduced. It enshrines children’s participatory rights in the Constitution (Bårdsen, 2015). The article reflects several policy principles found in Norwegian child protection legislation: a child’s participation (depending on age and maturity), a child’s best interests, protection and safety, material well-being, and family preservation.
Children in the US do not enjoy similarly strong formal rights to participation (Skivenes, 2015). This begins with the Constitution of the US, which does not mention children or families (Woodhouse, 1992). At the federal level, the 2006 amendment of the Social Security Act (Social Security Act, 2006) requires that children 16 years and older be consulted about their permanency or transition plans in court or administrative hearings, but practices vary by state (Social Security Act, 2006; Weisz et al, 2011; Barnes et al, 2012). The state of California, where the interviews for this study were conducted, has introduced its own legislation regarding children’s age and participation in court: if children ten years and older do not attend their court hearing in California, the judge will inquire whether the child had the chance to appear in court (Advokids, 2018). All children are assigned an attorney who represents them in court (Berrick Duerr et al, 2018). Children who attend hearings in juvenile court may work with a Court Appointed Special Advocate (CASA). A CASA is a trained lay person who volunteers to assist the child to get their wishes heard in court (Berrick Duerr, Dickens, Pösö & Skivenes, 2015).
The US has a decentralized child protection system. Each state interprets and implements federal child protection laws and regulations differently. Child protection is administered at the county level in California (Berrick Duerr, 2011; Child Welfare Information Gateway, 2018). In Norway, the municipalities are responsible for undertaking child protection work. They are tasked with providing services in the home when a child requires assistance and applying for out-of-home services when in-home services do not work or are inappropriate. The 12 county social welfare boards in Norway decide about involuntary child welfare services, such as mandatory daycare, supervised visits, and out-of-home care. They typically consist of a lawyer (who chairs), an expert member (a professional with expertise in child protection), and a layperson (Skivenes and Søvig, 2017). In Norway, child protection workers enjoy a great deal of discretion. For example, it is up to the case manager to decide whether to let children participate in planning meetings (Vis et al, 2011).
Child protection workers who investigate abuse and neglect in public child protection agencies in California are more constricted when investigating child maltreatment because they utilize standard assessment tools during an investigation. Many of the Californian child protection agencies, including the ones in this study, employed an actuarial tool called a Structured Decision-Making Scheme (SDM) for their risk assessments (Berrick Duerr, Peckover, Pösö & Skivenes, 2015; Berrick Duerr, 2018). Actuarial tools such as SDM provide factors predictive of maltreatment which workers score to provide an overall risk score (Ryan et al, 2005; D’Andrade et al, 2008; Berrick Duerr, Peckover, Pösö & Skivenes, 2015). The higher the point tally, the higher the risk in the case (California Department of Social Services, 2012). The Norwegian risk assessment approach, which differs from that employed in California, rests solely on professional discretion and knowledge: the norm in Norwegian child protection practice is to rely on individual workers’ professional assessment of the situation. However, there are indications of a turn towards more systematic guidelines in the Norwegian system, such as the so-called Kvello method (Kvello, 2010) that several municipalities are now using (Skivenes, 2011). Several Norwegian research participants in this study mentioned employing ‘The River of Life’ tool, which allowed them to gather information about children in a structured manner during a child protection investigation.
Californian child protection workers are expected to follow a practice model that includes expectations about how children should be treated in terms of participation (Berrick Duerr, Dickens, Pösö & Skivenes, 2015). Many counties in California, including the two counties in which my study participants worked, practised an approach to meetings called Team Decision-Making (TDM) meetings, also called family team meetings. These types of meetings provide children, family members and other parties who know the family with a structured opportunity to be heard in a child’s case (Berrick Duerr et al, 2015). Berrick Duerr (2018, p 222) describes TDMs like this:
A meeting that brings together a family and other interested parties such as friends, neighbors and community members, with staff from the child welfare agency and other helping agencies (e.g., mental health, schools, etc.). Working together, the members learn what that family hopes to accomplish, set realistic goals, identify the family’s strengths and needs, and make a plan for who will do what to keep the children safe.
According to Reed and Karpilow (2002):