Audun Løvlie (2023)
BLOG: Children and parents subjected to state interventions experience significant disruption in their lives. They may face many challenges, such as barriers to participation and a lack of comprehension of the reasons for the intervention. The written decisions of judges may serve participation by facilitating comprehension, and thus acceptance, of the reasons for such life-transforming decisions, something they do not do today.
Blog post by Audun Løvlie, researcher at Centre for Research on Discretion and Paternalism, University of Bergen
In liberal democracies legitimacy rests on the citizens’ trust in state actions. This requires accountability, the access and opportunity to evaluate the state’s reasons for action. Importantly, family intervention decisions must be understandable for those they arguably affect the most: the children.
To evaluate the performance of states’ coercive family interventions, it is a crucial element for accountability that the state’s decisions are available. However, availability alone is insufficient. For an accountable practice that enables children (and parents) to participate in and evaluate decisions about their lives, the content and reasoning of the decisions must be transparent and comprehensible. This may involve a shift in current practices. If the aim is not only formally legitimate and accountable practices, but practices that promotes and incentivises acceptance and participation by affected children and parents, such a shift is desirable.
“If the aim is not only formally legitimate and accountable practices, but practices that promotes and incentivises acceptance and participation by affected children and parents, such a shift is desirable.”
How accountable is decision-making?
In Norway, the Child Welfare Tribunal decides in cases of coercive family interventions, and regularly submits deidentified decisions for online publication. The number of decisions published varies, from 15% of cases in 2017 to 23% in 2022. Compared to other European countries, like Ireland or Germany, this accessibility is extraordinary, even if there are limitations to accessing tribunal decisions. Thus, the access part of accountability appears to be fulfilled. However, the comprehensibility of the tribunal’s decisions may be comparable to judgements from the courts, entrenched in legal presentation and rigour.
Children reading and understanding the reasons behind their changed care situation are arguably better prepared to take active part in their own lives. It increases their ability to participate in the subsequent stages of their lives, for instance their own care, education, and their future. This helps to protect and fulfil children’s rights and empowers them to participate better and with more information on the issues and decisions that affect them. Similarly, parents that understand the reasons behind the changes in their family situation and the state intervention in their lives, are better equipped to participate in the decisions that infringe on their rights to privacy and family life. It may also increase the likelihood of accepting coercive interventions.
Decisions should clearly communicate reasoning, arguments, and conclusions, in a manner that is comprehensible outside the confines of the professional disciplines of decision-makers. For instance, in England, there are examples of judges writing care order decisions to children.This may facilitate children to understand the actions by the state and their own past when they get older and teach them about their status as legal subjects. For parents, this may facilitate improved participation as legal subjects and increased understanding of the nature of their rights and obligations as parents. This would demand an adjustment to current practices and aim to go beyond current formal requirements to include a focus on the children’s and parents’ acceptance and participation.
“This may facilitate children to understand the actions by the state and their own past when they get older and teach them about their status as legal subjects.”
How to make practice accountable?
One approach to realising such a shift is to reduce the use of professional shorthand (legal or otherwise) and implied discussion in the written decisions. Even if the decisions are based on a supposed unanimous consensus, the decisions are also a documentation of a deliberative process. They would therefore benefit from clarity about which evidence and considerations are weighted and why, more accessible language, and more openness about disagreements among the decision-makers during the deliberations. This transparency would arguably clarify and strengthen the value of dissenting decisions, but also of consensus decisions, because it can reveal how a consensus may be reached through discussion and weighting of disagreeing views among the decision-makers.It is also a way to respectfully appeal to the affected children and parents’ understanding and perspectives, by showing the care and rigorousness with which the decision is hopefully made. Following this transparency and appeal to understanding, comes a potential increased likelihood of acceptance of the state’s interventions derived from understanding the reasoning, even if the outcome is disagreeable. If nothing else, accessibly written decisions that are transparent about the decision-making process can provide children and parents with participation-enabling knowledge. Also, it can be considered to ensure the fundamental liberal democratic principles of equality before the law, the neutrality of the state, and the importance of an informed and participating citizenry.
“It is also a way to respectfully appeal to the affected children and parents’ understanding and perspectives, by showing the care and rigorousness with which the decision is hopefully made.”
To empower children to become active rights-holding citizens, using child-friendly language can be understood as a democratising device. It can teach children how to enforce their own rights, and become assertive and autonomous citizens in democratic societies, and may also be beneficial for parents and the population as a whole.
As it stands, current decision-writing practices appear to pass over this opportunity of increased participation and cooperation by neglecting to ensure that decisions and judgements are comprehensible for children and parents alike.
 Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’, European Law Journal13, no. 4 (July 2007): 447–68, https://doi.org/10.1111/j.1468-0386.2007.00378.x.
 Fylkesnemndene, ‘Årsrapport 2017’ (Fylkesnemndene for barnevern og sosiale saker, 1 March 2018), https://www.bvhn.no/getfile.php/4976991.2970.wmqiquwwlszbkw/arsrapport-2017-fylkesnemndene.pdf; Fylkesnemndene, ‘Årsrapport 2022’ (Fylkesnemndene for barnevern og sosiale saker, 15 March 2023), https://www.bvhn.no/getfile.php/5180398.2970.bwbwzamtit7uba/%C3%85rsrapport+FBS+2022+-+2.+justering+etter+innspill+fra+Riksrevisjonen.pdf.
 Kenneth Burns et al., ‘The Hidden Proceedings – An Analysis of Accountability of Child Protection Adoption Proceedings in Eight European Jurisdictions’, European Journal of Comparative Law and Governance 6, no. 4 (2019): 339–71, https://doi.org/10.1163/22134514-00604002.
 Helen Stalford and Kathryn Hollingsworth, ‘“This Case Is about You and Your Future”: Towards Judgments for Children’, The Modern Law Review 83, no. 5 (2020): 1030–58, https://doi.org/10.1111/1468-2230.12536.
 Audun Gabriel Løvlie, ‘The Fellowship of Acceptable State Interventions: Knowledge, Norms, and Justifications in Norwegian Child Protection Care Order Cases’ (Doctoral thesis, The University of Bergen, 2023), https://bora.uib.no/bora-xmlui/handle/11250/3059049.
 Alfred Moore, Critical Elitism: Deliberation, Democracy, and the Problem of Expertise (Cambridge: Cambridge University Press, 2017), https://doi.org/10.1017/9781108159906.
 Moore, Critical Elitism.
 L. Jonathan Cohen, ‘Belief and Acceptance’, Mind 98, no. 391 (1989): 367–89; Moore, Critical Elitism.
 John Dewey, The Public and Its Problems – An Essay in Political Inquiry (1927; repr., Chicago: Gateway Books, 1946); Jeffrey Friedman, Power without Knowledge: A Critique of Technocracy (New York: Oxford University Press, 2020).