Objectives
The aims of this paper are to describe and assess cross-national differences in the ways that parents’ views and wishes are heard in child protection court cases, and identify some of the challenges of international research on this topic. Courts and court-like bodies are an important element of formal child protection systems across Europe and the world, but also have vital roles to uphold parents’ rights and family autonomy. The European Convention on Human Rights includes the right to freedom from inhuman and degrading treatment (Article 3), but also the right to respect for private and family life (Article 8). Any interference in this by state agencies must be in accordance with the law, necessary and proportionate to the risks and harms involved. Courts therefore have to balance the rights of parents to express their views and to bring up their own children, with considerations of the children’s rights to be brought up safely, the children’s views, and the responsibilities of child welfare agencies. The dilemmas are common to all countries, but the legal and welfare systems and practices that have evolved to deal with them can differ greatly.
Method
This paper draws on findings from an ongoing study of social work and judicial decision-making in child protection cases (2012-16), comparing policy and practice in Norway, Finland, England and the USA (specifically, California). The study used online questionnaires for child protection workers and court decision-makers (judges and others, such as experts and lay members, according to the different systems). The questionnaires included (amongst other things) questions about parents’ participation, either in the pre-court social work processes, or in the child protection court hearings. This paper focuses on findings from the court decision-makers’ questionnaire, about the ways that parents’ views and wishes are heard in child protection courts, directly or indirectly.
Results
The court data comes from 54 respondents in England (35 professional judges and 19 magistrates, also called ‘lay judges’); 39 judges in California; 65 respondents in Finland (35 judges and 30 experts); and 1,636 respondents in Norway (41 judges, 247 experts and 1,348 lay members). There are differences of opinion between and within the four countries. But in all of them, the cases which get to court are the most serious and intractable, and parents’ involvement and representation is freighted with high expectations and multiple requirements. Children’s protection and best interests are to the fore, but so too are the rights and interests of their parents.
Conclusions
Welfare and legal systems come together in child protection court proceedings, and the issue of parents’ involvement brings out the overlaps and the tensions between them. Furthermore, differences between countries in the underlying philosophy of child welfare services, and in their court systems and approaches, mean that even where they share ostensibly similar values, there may be considerable differences in practice. This creates challenges but also stimulating potential for cross-national learning. Paradoxically, looking abroad can both question and reinforce preconceived ideas and routine ways of protecting children and serving families.
