BLOG: Protecting the Child – How are Children’s Rights Legitimized?
Blogpost by LawTransform Affiliate Asgeir Falch-Eriksen, Associate Professor II at the Centre for Research on Discretion and Paternalism and Senior Researcher at NOVA, OsloMet.
The public discourse pertaining to child protection has settled in on an international level across Europe. The discourse is channelled through traditional and new media, in regular politics and within the strong publics in parliaments, through scholarly discourses, in the courts and as a regular part of foreign relations.
To illustrate, “Barnevernet”, which is the Norwegian short title for Child Protection Services (CPS), has become a global denomination of an overly intrusive nation-state; the Norwegian CPS is set on trial at the European Court of Human Rights (ECHR) with an unprecedented amount of cases on the dockets, and there are numerous NGOs and other organizations that have become vitalized in the CPS policy area in recent years.
“Barnevernet”, which is the Norwegian short title for Child Protection Services (CPS), has become a global denomination of an overly intrusive nation-state
Participants in discourse are everything from single individuals, judges and lawyers in landmark cases (especially the ECHR), through NGOs, and through officials and politicians on both the EU- and state level. The public discourse is often characterized by some level of polarization, where participants carry strong opinions on what is legitimate state action.
However, all the polarization aside, each country in Europe is firmly and formally dedicated to respect and enforce the same international human rights, and especially the child´s right to protection figuring as Art. 19 in the UN Convention on the Rights of the Child (CRC).
A duty to intervene
As nation-states in Europe must abide by and enforce human rights, we also know that whenever the care a child receives is detrimental, every nation-state in Europe has a de facto and de jure duty to intervene to enforce the child´s fundamental right to a freedom from violence.
Through protective interventions, CPS becomes a proxy for the child´s parents and must approximate what is in the child´s best interests in all of its decision-making (Cf. CRC Art. 3.1). Currently, how this duty is being legitimized from one country to the next, vary, although the rights are the same.
Due to the need to coercively intervene, protecting children is a duty belonging to the nation-state. Therefore, only the nation-state can develop CPS-designs and practices that can make a claim upon being legitimate with respect to the rights of the child.
By extending the argument, only the nation-state can carry out a duty to guarantee rights-based protection of children and enforce interventions that potentially remove fundamental liberties of parents through coercion. The public discourse on CPS thereby becomes insolubly linked to the CPS-design and practices and whatever its claim upon legitimacy is constituted by.
A particular concept of legitimacy
However, human rights are a particular brand of rights – it speaks to a particular catalogue of rights of the child, within the CRC, and that carries a corresponding normative imprint of a cosmopolitan citizenship of the child. Hence, human rights allude to a particular concept of legitimacy, one that is interconnected to the cosmopolitan ethos of international human rights. The CRC, and the human rights standard is set to defend any individual´s dignity, irrespective of nation-state belonging.
Due to the need to coercively intervene, protecting children is a duty belonging to the nation-state
It is implied that certain concepts of legitimacy that disregard the constitutional character of the CRC and rather emphasize civic republicanism or communitarianism, can be in conflict with a human rights standard. If, then, CPS-designs and practices follow concepts of legitimacy not aligned with a human rights standard, CPS will be in conflict with the nation-state obligations to abide by international human rights.
Two legal claims
When CPS coercively intervenes claiming that practices are deduced from human rights, we can argue that especially two legal claims must be upheld.
The first is that design of CPS services and practices must pass the test of being aligned with the normative justification of a human rights standard. What is implied is that services need to be designed to uphold and enforce a human rights standard in all intricacies of practice and that the design-principle remain the same standard of legitimacy from one country to the next. If justifications of rights-based approaches vary too much, practices would perhaps be rights-based but not according to the cosmopolitan ethos underpinning a human rights standard.
Second, every decision affecting a child must abide by a principle of the child´s best interests that can be justified on the merits of a human rights standard. For the CPS to uphold such a claim, decisions must approximate and justify each child´s rational self-interest during decision-making and provide protection of the individual dignity of the child according to what that person would want. Parental care had violated the child´s fundamental negative right to freedom from violence, and a best-interests decision is about restoring liberty of the child through repairing the detriment caused to the dignity of the particular child. If these claims are not met through the CPS, the designs and practices have a hard time living up to the human rights standard.
Although every European nation-state formally bestow human rights on each child, and thereby formally commit to protect their individual dignity equally, evidence suggests that there is a significant variation in how CPS is designed to enforce rights.
The variation reveals especially two things. First, what concepts of legitimacy are resorted to when justifying CPS-practices vary. Second, how the concepts are polarizing the international public discourse, albeit to a different extent.
Lacking a pan-European consensus on what is meant by the human rights standard is not at all strange as any type of rights-based practice must develop from within nation-bound contexts and through self-government. Different ideologies has lend itself to justify CPS-designs and rights-enforcement, as, e.g. neoliberal instrumentalism seeking most efficient practices, and for developing profitable citizens; or communitarianism seeking to secure the common good by each individual staying true to a collective identity.
As disagreements are unresolved regarding what constitute rights-based practices, practices, and services become skewed from its inception, and they will serve different agents´ normative or political biases.
Having formalized that every CPS across Europe is to enforce human rights according to the same international rights is in contrast to the high polarization across Europe. A consequence is that the pan-European solidarity towards human rights for children not only becomes threatened, but perhaps have no legs to stand on. Although we can´t argue definitively that certain nation-state´s CPS-designs and practices aligns with a human rights standard, we can claim that many do not. As long as it is plausible that certain CPS-designs and practices are far from being in line with a human rights-standard, so is also the promise to enforce rights for children.
The challenge is alarming, and is not directly aimed at CPS-designs and practices, but to the lack of a common set of rational principles to interpret how human rights are set to work through CPS-designs and rights-based practice, and that in can guide decisions on street-level coherently according to a principle norm of the child´s best interests. The variation itself creates a fundamental challenge towards public trust and the legitimacy of the public institutions.