Centre for Research on Discretion and Paternalism Bergen

Requirements for judgments in care order decisions in 8 countries

The overview is organized in two parts. First part is a brief overview of the content of a written judgment in eight countries under study: Austria, England, Estonia, Finland, Germany, Ireland, Norway, and Spain. The second part is an overview of levels of legal requirements for the countries in this study. The brief is based on desk research conducted in August 2019, with the input and feedbackfrom country experts. The research is based on the legislation in force as of September 2019 (where possible, reference is made to the translations of legislation), as well as existing literature

The purpose of this brief is to establish what information we can expect to be present in written judgements about a care order in Austria, England, Estonia, Finland, Germany, Ireland, Norway, and Spain. We examine the formal requirements for a written judgement and especially wish to identify the requirements for justifying a decision. For instance, the main goal of the justification (reasoning, grounding) of judicial decisions may be to show how the decision was reached, to demonstrate the conformity of decisions with applicable legal norms, to show their compliance with the values underlying that legal system (see e.g. Aarnio 1983; Spaak 2003; Anderson 2013; Bernal 2013). Six out of the eight countries have obligatory written judgments in care order cases and require that these judgments are justified. The exceptions are England and Ireland. The level of detail required in the justification differs between the countries: some impose only a general obligation, while others specify which elements the courts have to consider and include in the justification of the judgment. The current analysis looks only at written legal requirements and thus disregards legal theory or conventions that might also guide how judgements are justified in practice. We address this in another brief.

Table 1 contains a summary of the formal requirements of written judgements by country. Each of the headings represents an element of justification required by the laws of one or more countries. We have organised them in the order courts typically analyse the cases –starting from the facts and ending with the assessment of the former elements. Justifying a care order requires first and foremost an obligationto give reasons (or grounds) of a decision. Some countries require that these reasons show, which were the decisive facts and evidence of the case, court’s statements relating to the different claims of the parties, listing central applicable legal provisions applicable to the facts, and the assessment of the above elements by the court. We have marked whether it is a formal, legal requirement, that the following elements should be included in the court’s justification:

  1. Obligatory reasoning – obligation to provide reasons for the decision.
  2. Facts and evidence – an obligation to show, which were the relevant facts and evidence for the decision;
  3. Requests of the parties – assessment of the central claims of the parties relevant for the dispute;
  4. Legal grounds – legal norms which guided the decision; assessment;
  5. Assessment of the facts in the light of legal norms. The ranking is based on simple reasoning that the more elements of justification are obligatory, the more comprehensive we can expect the reasoning and the information in the judgment to be.

Table 1: Elements of justification as required by the national legislation. Country ranking.

Country Obligatory reasoning Facts & evidence Requests of the parties Legal grounds Assessment Rank
Norway Yes Yes Yes Yes Yes 1
Austria Yes Yes Yes Yes 2
Spain Yes Yes Yes Yes 2
Finland Yes Yes Yes 4
Germany Yes Yes Yes 4
Estonia Yes Yes Yes 4
England 7
Ireland 7

Two out of the eight countries (England and Ireland) represent common law systems, where the legal tradition has great importance, four countries represent Continental-European legal systems with centrally codified legislation, and two of the countries represent Nordic legal systems. We have identified three levels of legal requirements relevant for the current study: 1) procedural legislation governing family law cases, 2) care order-specific formal requirements, and 3) practice guidelines and legal conventions that are not formally binding. The summary presented in Table 1 shows the key formal requirements as present in the legislation or written traditionof each country. It includes the following characteristics:

 

  • the type of decision-making body (court or other bodies);
  • whether the care order decision has to be in a written form;
  • whether the law or practice guidelines specify a format for such judgments;
  • whether such a decision has to include information on the previous procedures;
  • whether the decision has to indicate central claims of the parties;
  • whether the decision has to provide relevant facts and evidence;
  • whether the court has to provide reasons for the decision;
  • whether the court can refer to the documents without describing the exact content of them;
  • whether some of the decision-makers may write a dissenting opinion to the judgment;
  • whether there is a separate care order that the court adopts.

Sources

Aarnio, A. (1983). Argumentation theory and beyond: Some remarks on the rationality of legal justification. Rechtstheorie, 14(4): 385-400.

Anderson, B. (2013). Weighing and Balancing in the Light of Deliberation and Expression. In C. Dahlman and E. Feteris (Eds.) Legal Argumentation Theory: Cross-Disciplinary Perspectives (pp. 113–23). Dordrecht, NL: Springer Netherlands.

Bernal, C. (2013). Legal Argumentation and the Normativity of Legal Norms. In C. Dahlman & E. Feteris (Eds.), Legal Argumentation Theory: Cross-Disciplinary Perspectives (pp. 103–112). Dordrecht, NL: Springer Netherlands.

Burns, K., Pösö, T. & Skivenes, M. (Eds.) (2017) Child Welfare Removals by the State. A Cross-Country Analysis of Decision-Making Systems. Oxford University Press.

Spaak, T. (2003). Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification. Ratio Juris 16(4): 469–85.