Stronger due process protection for children and parents

‘More changes are currently taking place in the child welfare service than has been the case for a long time. At the same time, there are still challenges that remain to be addressed. There is too much variation in the quality of assessments and the grounds for the child welfare service's decisions. That gives rise to uncertainty about whether families and children receive the right help at the right time. This draft bill strengthens children’s rights, while also safeguarding the right to family life,’ says Minister of Children and Families Kjell Ingolf Ropstad (Christian Democratic Party).

The current Child Welfare Act is almost 30 years old, and the new Act aims to be more accessible and better adapted to today’s society. The child welfare service is primarily intended to serve as a support service, at the same time as the Child Welfare Act provides for highly invasive coercive measures. This places great demands on the child welfare service’s work and on safeguarding due process for children and parents.

The aim is to focus on children’s needs, increased prevention and early intervention. We will build on the resources already there for the child, and take steps to involve the child’s family and network. Child welfare measures should not be more invasive than necessary.

‘The best interests of the child are the child welfare service’s key consideration and this will be emphasised in a new overarching provision. We also propose that other principles and rights should be enshrined in the Act: The child’s right to care and protection, the right to family life, and that measures initiated by the child welfare service should not be more invasive than necessary,’ says Ropstad.

The Minister of Children and Families proposes introducing a duty to keep records and stricter requirements of the child welfare service’s grounds for administrative decisions. Consideration of the ties between children and parents is a key element in child welfare cases, and the draft bill proposes that the child welfare service’s decisions must describe how family ties are taken into consideration. This type of requirement can contribute to greater awareness of this consideration, and ensure a balanced assessment in cases where the child and parents have conflicting interests.

‘We propose clearer requirements of the documentation underlying the professional assessments that form the basis for the child welfare service’s decisions, and of the grounds substantiating that the measures initiated will meet the child’s and family’s needs. We also propose making requirements of the child welfare service’s plans for its investigations,’ says Ropstad.

Access and follow-up of children and parents after children are taken into care

Changes are proposed to the access rules that will, among other things, clarify the aim of reuniting parents and children after children are taken into care. The draft bill proposes enshrining the considerations to be emphasised when drawing up the access agreement. The main considerations are to safeguard the child’s right to protection and development, and the child’s and parents’ opportunity to maintain and strengthen the ties between them. The bill also proposes to make it a legal requirement that the county social welfare boards must stipulate the scope of access based on a concrete assessment.

‘An overall assessment must be made of whether the access arrangement is in the best interests of the child,’ says Ropstad.

Questions concerning access and follow-up of children and parents have been a key issue in a number of cases before the ECtHR and the Supreme Court. Care orders are generally intended to be temporary and the aim is ultimately to reunite children and parents. As a rule, children and parents are entitled to spend time with and contact each other after a child has been taken into care.

The fact that access arrangements form an important part of the duty to work towards reuniting children with their parents is therefore underlined in the proposition, and the new Act specifies that the child welfare service must systematically and regularly assess whether care orders can be reversed. The Act also specifies that the access agreement must be drawn up based on a concrete assessment in each individual case. The bill also proposes setting out the main considerations to be addressed when stipulating the scope of access. The main considerations are to safeguard the child’s right to protection and development and the child’s and parents’ opportunity to maintain and strengthen the ties between them.

‘We propose that the child welfare service be subject to a duty to prepare a plan for access and contact between children and parents. The access plan should also include siblings and other closely related parties who have an established family life and close personal ties with the child. The access arrangement must be in the best interests of the child,’ says the Minister of Children and Families.

Both the Supreme Court and the ECtHR have highlighted the authorities’ obligation to regularly assess the scope of access. The draft bill specifies that the child welfare service should regularly consider whether changes need to be made to access plans. It also proposes specifying that the child welfare service can grant more access than the county social welfare board has stipulated. The aim is to encourage a more flexible and dynamic access arrangement.

The child’s right to participation

The child should be allowed to make a statement to the child welfare service as freely as possible. It is therefore proposed to prevent parents from gaining access to documents. It is further proposed that children should be able to make a statement directly to the county social welfare board. Children under the age of 15 may, to a greater extent than previously, be granted rights as a party in cases concerning coercive measures brought before the county social welfare board.

‘We are taking numerous steps to strengthen children’s right to participation and enable them to make a statement to the child welfare service in a secure environment,’ says Ropstad.

This builds on the amendments implemented in 2018 when the Child Welfare Act became a rights-based act, where the child’s right to participation was made explicit and documentation requirements were enshrined relating to assessments of the child’s best interests and how the child’s opinion was given emphasis in decisions.

Enshrines competence requirements for child welfare service employees

Competence requirements are crucial to improving the quality of the child welfare service’s work. A requirement is proposed for child welfare service employees who perform key tasks to have a master’s degree in a child welfare subject or other relevant qualifications at an equivalent level. This requirement will also apply to managers and acting managers, in addition to private experts assisting the child welfare service and personnel investigating the care situation for children aged 0 to 6. Skilled personnel employed at child welfare institutions will be required to have a relevant bachelor’s degree. Heads of institutions are required to have relevant education at master’s degree level.

‘Competence-building is key to ensuring high-quality assessments and decisions based on due process. We have invested NOK 350 million in this over the last few years, and will continue to invest in and strengthen this area,’ says the Minister of Children and Families, and adds:

‘Competent experts with warm hearts and wise heads work in large and small child welfare service offices across Norway. Every day, they endeavour to ensure that every child and young person in Norway has a good, safe upbringing. There has been an almost 30% increase in the number of staff from 2013 to 2019.’

The Minister underlines the importance of valuing experience, and of ensuring that those who currently work in the child welfare service get to keep their jobs. The competence requirements will therefore not apply until 2031 onwards. A transitional scheme will apply up until 2031, whereby the competence requirements may be met by a combination of education and experience.

The bill proposes introducing requirements on providing guidance to child welfare service staff, and on municipalities being obliged to arrange for placements for students. This will help ensure that graduates are well prepared for the tasks that await them.

Prevention and early intervention – more local management and control

The draft new Child Welfare Act shall increase the focus on prevention and early intervention. The Act imposes a duty on municipalities to consider the services they provide to children and young people in context, and the municipal councils are required to adopt a plan for how the work is to be divided between the different municipal services and how they are to cooperate.

‘Good preventive work can help ensure that children and families who are struggling receive the support they need before their day-to-day challenges develop into serious problems. We propose that the responsibility for this preventive work is clearly placed with the municipal management, and the municipal councils will be required to adopt a plan for this work,’ says Ropstad.

Good child welfare is contingent on the municipalities taking responsibility for their child welfare services. The draft new Child Welfare Act builds on the amendment of 1 January this year, whereby municipal councils became subject to a duty to regularly assess whether the quality and staffing of their child welfare services are adequate. The bill now proposes clarifying the municipal management’s responsibility for the overall management of child welfare services.

‘This proposal is based on the growing recognition of the link between failures in the municipal child welfare service and shortcomings in the overarching management of child welfare services.

We need better overall municipal management of child welfare services and greater openness about these services’ work. This will ensure that child welfare services are managed in a manner more similar to other welfare areas,’ says the Minister of Children and Families.

Regulation of use of private providers

Private, both non-profit and commercial, providers make a positive contribution to the child welfare service. At the same time, it is important that the municipalities have sufficient management and control of the tasks.

The bill proposes regulating the child welfare service’s right to receive assistance from private service providers. It also proposes that the child welfare service should not be permitted to receive assistance from private service providers for certain tasks. These restrictions concern tasks that are particularly invasive and where exercising necessary management and control is difficult. The bill also proposes that the child welfare service should not be permitted to place children in ordinary foster homes run by private providers.

Better care of children whose parents do not live together

A number of proposals seek to enable both parents to be involved, although they do not live together. The child welfare service's investigation shall look at the child’s overall care situation and needs. This means that the child welfare service shall look at how the child is doing, both in the home they live in on a permanent basis and in the access home. The child welfare service shall always consider whether both parents are parties to the case, and parents with parental responsibility must as a rule be informed about administrative decisions that are made. The bill also proposes establishing legal authority to impose assistance measures in the access home.

Child welfare institutions

The proposition contains a chapter on institutional services, which discusses the work initiated to improve quality in this area. This includes areas such as competence, education, health and participation. The chapter also provides a description of the challenges associated with the further development of these services. There is a particular focus on the framework needed to be able to provide good services to children with complex challenges and the greatest follow-up needs.

‘Non-profit providers contribute to important diversity, and I wish to encourage continued growth in this area. I believe that the goal of increasing the proportion of non-profit child welfare institutions should be seen in connection with the expert recommendation to divide work between the public and private sectors. In the report, we discuss the possibility of extending state responsibility for services for children with particularly great follow-up needs,’ says Ropstad.

The Minister of Children and Families points out that such follow-up of the petition resolution to increase the share of services provided by non-profit providers to 40 per cent, at the same time as the public sector is tasked with providing services for children with the greatest needs, will require increased allocations in the ordinary budget processes.

A public committee has recently been appointed to look at, among other things, different sectors’ responsibility, regulations and services in cases where children have serious and complex needs at the point of intersection between the child welfare, health and criminal justice sectors. The committee will also look at how the child welfare service’s institutional services for these children should be organised. The committee’s recommendations will form an important basis for the future development of institutional child welfare.

The new Child Welfare Act also proposes certain amendments that will increase due process protection for children and improve the quality of child welfare institutions. The bill proposes moving key provisions on rights and the use of force at institutions from the Regulations to the Act. It clarifies key human rights requirements in relation to measures and the institutions’ duty to work on prevention. It also proposes that child welfare institutions should discuss the use of force with the child. By and large, no amendments are proposed on the right to use force or decisions encroaching on the child’s personal freedom at the institution.

The Minister of Children and Families nonetheless recognises the need to initiate a complete review of the regulations on the use of force at institutions.

The bill also proposes incorporating overarching quality requirements for institutions into the Act, which are currently set out in Regulations. It also proposes clarifying the child welfare service’s duty to follow up children in institutions. Moreover, the bill proposes incorporating competence requirements for employees at child welfare institutions. This includes a requirement for skilled personnel employed at child welfare institutions to have a relevant bachelor’s degree. The requirements are set to enter into force for new employees from 2022. The fact that the requirement only applies to new appointments means that current personnel can keep their jobs after the new requirements enter into force. Heads of institutions are required to have relevant education at master’s degree level. The requirements of heads of institutions will, in the same way as the competence requirements for child welfare service employees, apply from 2031, however, with the use of transitional schemes.

The process going forward

The new Child Welfare Act is envisaged to enter into force in 2023.

Some of the amendments proposed in this draft bill are amendments to the current Child Welfare Act that may enter into force in 2022. This applies to proposals clarifying the municipalities’ preventive responsibility and strengthening the municipalities’ management of child welfare services, competence requirements in the municipal child welfare service and the institutions, and regulation of the municipalities’ right to use private foster homes. The amendments will thus be coordinated with the child welfare reform that enters into force on 1 January 2022.

Prop. 133 L (2020–2021)

Speech by Minister of Children and Families,
Kjell Ingolf Ropstad