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Discretion and the child´s best interests in child protection

Periodic Reporting for period 3 - DISCRETION (Discretion and the child´s best interests in child protection)

Reporting period: 2020-06-01 to 2021-11-30

One of the most invasive and consequential decisions a state can make is to terminate or severely curtail the rights and responsibilities of parents. Through the child protection system, the state can assume parental responsibility or terminate all parental rights when parents are unable or unwilling to perform their parental obligations.

To secure children´s best interests, the state might place children in foster homes or residential units, or let another family adopt the child. These interventions represent an immensely strong state power. Child protection decisions simultaneously challenge individual freedoms and the privacy and autonomy of family life. Such decisions must therefore be of high quality and withstand public scrutiny.

However, child protection decisions are in most cases highly discretionary decisions in which professionals are given the authority to make judgement or choices about what is in the best interests of the child and how these interests should be weighed against parents’ interests and/or against the child´s opinion. The discretionary nature of these decisions is often seen when the legitimacy of interventions, or lack of interventions, by front-line staff or the court is harshly criticized in the media.

Research shows considerable difference in the likelihood of interventions or measures between decision-makers within the same child protection system as well as between systems. However, we do not know if the differences we observe are due to similar cases being treated differently or if the cases are different.

The DISCRETION-project aims to fill the research gaps in this important area of the welfare. The ambition is 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.

The DISCRETION-project will bring important insights about the exercise of discretion in the welfare state and provide new knowledge about the relationship between the family and the state.
The Discretion-project has collected a wide range of data material for a cross-country comparison of five countries: Austria, Estonia, Ireland, Norway and Spain. The data material includes:
- Information about key-variables of the different child protection systems, including information about organization model, model of child protection system, legislation and regulations concerning child protection interventions, etc.
- A complete sample of first instance court judgements from each country or a region, concerning adoptions from care for one year or for several years.
- A large sample of first instance court judgements from each countrys or a region concerning care order removals of newborn babies for one year or for several years.
- Collection of all judgments from the European Court of Human Rights where the facts of the case relate to adoption from care or where the facts of the case show that the child removed from a family was a new-born
- Survey data (incl. randomized survey vignette experiment) from a representative sample of the population in five countries with information about their views on children and their best interest and threshold for interventions.

The data material has been analyzed in order to map and explain the differences in discretionary decisions in child protection, to understand how the child’s best interest principle is interpreted and how best interest decisions are justified.

Findings has been presented at international conferences, and has resulted in several articles accepted for publication in peer-reviewed journals or in edited books. Researchers from the project has also communicated insights from the project in the mass media and at popular science events. In addition, knowledge resulting from the projects has been continuously communicated through the project’s website, twitter account and newsletter.
The project has already progressed beyond the state of the art through the analysis of the unique data collected (combining data from different systems and levels, collected by various methods). This allows for innovating cross-country and multilevel comparisons of standards for decision-making, criteria for intervention thresholds, requirements to the child protection proceedings, and rationale and justification for discretionary child-protection decisions.

In the continuation of the project, the analysis will continue in order to reveal new insights into the mechanism for exercising discretion and understanding of the principle of the child’s best interests. New data will be collected that will enable the systematic examining of the role of individual, organizational and institutional factors in how discretionary decisions are made and justified in the best interests of the child. This includes vignette survey data from a representative sample of the population in 60 countries, and vignette survey data from decision-makers in 20 countries.

Findings from the project will continue to be presented at international conferences throughout the project period, and we expect to publish at least 10 articles in high-impact peer-reviewed journals before the end of the project. In addition, an International Handbook of Child Protection Systems covering 50 countries around the globe that is co-edited by PI Skivenes, will be published by Oxford University Press in 2020 and including findings from the project. The combined dissemination towards the scholarly community will move the research front in the field of child protection and discretionary decision-making forward, and open up new platforms for research.
Centre for Research on Discretion and Paternalism