Centre for Research on Discretion and Paternalism Bergen

Discretion and the Child’s Best Interests in Child Protection

The DISCRETION-project conducts the most comprehensive cross-country comparison of child protection systems to date, funded by the European Research Council.

The research project “Discretion and the child’s best interests in child protection” aims to unlock the black box of discretionary decision-making in child protection cases by doing a comparative empirical study of how discretionary decisions are made and justified in the best interests of the child.

There are huge research gaps in this important area of the welfare state, with a great deal of uncertainty concerning how, when and why discretionary decisions about the child’s best interests differ between decision- makers, both within and between different child protection systems.

The main objectives for this project are to reveal the mechanisms for exercising discretion, and to improve the understanding of the principle of the child’s best interests. These objectives will be reached by systematically examining the role of institutional, organizational and individual factors, including regulations of best interests principles; professions involved; types of court; types of child protection system; demographic factors and individual values; and the populations’ view on children and paternalism.

DISCRETION employs an innovative methodological approach, with multilevel and cross-country studies. By conducting randomized survey experiments with both decision-makers in the system and the general population, it will generate unique data on the possible causal mechanisms explaining differences in discretionary decisions.

The outcomes of DISCRETION are important because societies are at a crossroad when it comes to how children are treated and how their rights are respected, creating tensions in the traditional relationship between the family and the state. DISCRETION will move beyond the field of child protection and provide important insight into the exercise of discretion in all areas where public interest as well as national interest must be interpreted.

Principal investigator is professor Marit Skivenes. Skivenes was awarded the ERC Consolidator Grant for the DISCRETION project. The ERC Consolidator Grant is designed to support excellent Principal Investigators (PIs) in consolidating their independent research team and program.

The ERC’s frontier research grants operate on a ‘bottom-up’ basis without predetermined priorities. In particular, they encourage proposals of an interdisciplinary nature, crossing boundaries between different fields of research, pioneering proposals addressing new and emerging fields of research, or proposals introducing unconventional, innovative approaches and scientific inventions.

Facts

Project period

  • July 2017 – May 2022

Funding

  • ERC Consolidator Grant

Countries

  • Norway
  • Estonia
  • Ireland
  • Spain
  • Austria

Research team

  • Marit Skivenes (PI)
  • Sagrario Segado Sanchez-Cabezudo
  • Katrin Križ
  • Katre Luhamaa
  • Kenneth Burns
  • Amy McEwan-Strand
  • Barbara Ruiken

In conjunction with the Discretion-project, we have gathered information on:

  1. Legal frame for care order processes of newborn babies in eight European countries
  2. Legal frame for adoption from care proceedings in eight European countries

Click on the link above to go to the overview.

Newborn judgements

To study the thresholds for intervention, the rationale and justification for a decision about removal of a newborn baby, we have collected all the first instance court judgements from eight countries for one year, and sometimes several years. Below a brief overview of the data material collection from each country is presented.

Austria

Newborn removals (Vienna)

In Austria, the empirical data used in the analysis consist of all (n=24) newborn removal cases decided in 2016 and 2017 in the district courts in a big City in Austria. The Child Protective Services of the City searched their case files, which contains the file numbers of the judgments, and provided us with a list of 51 judgment numbers for the City in total for their cases related to child removals of newborns for 2016 and 2017. Among these, we have identified 24 cases that meet our selection criteria.

 
Estonia
Newborn removals

In Estonia, the empirical data used in the analysis consists of all (n=17) newborn removal cases decided in 2015, 2016 and 2017 by the district courts. The Ministry of Justice in Estonia compiled a list of relevant cases for newborn removal based on the 1) reference to section 135 of the Family Law Act of 2009 (removal provision); 2) the DOB of the child being a of one calendar year before the date of the decision. The number of care order cases from all district courts for one year is low: 24 cases decided in 2015, 18 in 2016 and 9 in 2017. Based on this list, access to the decisions was requested from the four district courts. We received 51 judgments, which we manually reviewed, and 17 newborn removal cases fitted our inclusion criteria.

Ireland
Newborn removals

For Ireland, the empirical data used in the project consist of all judgments (n=17) concerning removals of newborns published in the public Irish Courts Service database from 2012-2018. Our search has included all care proceedings under the Child Care Act 1991 published in the database, which includes cases from 2008-2018 (as of September 2018). A total of 146 judgments decided by the District Court have been published on the Courts.ie website (as per 20.09.2018). Out of these, 139 judgments are child care proceedings (though not all cases concern care orders) and 7 cases are Public Prosecutions that concern a minor. Out of these 139 judgments, 21 cases concern newborn removals. None of these were decided before 2012.

Norway
Newborn removals

For Norway, we have access to all judgements (n=76) decided by the County Social Welfare Boards concerning removals of newborns in 2016, i.e based on the child welfare act § 4-9, (1), cf. § 4-8 (2) (temporary) followed by § 4-8 (2), cf. § 4-12 (care order) in 2016. To make sure we have the full sample, it was also a manual review of all cases filed under § 4-8 and § 4-12 where the child is 1 years or younger. We have ordered them chronologically after decision date, and selected every second judgements, and the randomized sample consist of 38 judgements.

Spain (pending)
Newborn removals 

For Spain, we have access to all judgements in one of the autonomous regions. In this region, we have been granted access to all case files relating to care order removals of newborns. Decisions are made by the Child Custody Commission and the decisions are of a different format than in other countries included in the project. Rather than a full length written decision, the Commission ratifies or refuses to ratify the case made before it by social workers. We have, therefore, requested access to two documents from the Commission’s file: the Technical Report including the Technical Proposal (Informe Tecnicó, Propuesta Técnica, Document 6 of the file) and the Commission Agreement (Acuerdo, Document 7 of the file).

Adoption judgements

To be published.

Surveys

To be published.

Interview guides

To be published.

Related appendices will be published at this page.

Coming soon

This project has received funding from the European Research Council  (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement no. 724460)