Human Rights and Child Protecion in Norway and Sweden An
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Joar Tranøy: Human rights and child protecion In Norway and Sweden An examination of reports by psychological experts Report The Nordic Committee for Cooperation on Criminology – University of Stockholm Translated by Erik Strand Part I Background Page 4-13 Introduction Fylkesnemnda (Norway) Child legislation in Sweden The role as a psychological expert Neutral and impartial experts? Part II Research question, theoretical perspective, method and sample Page 13-17 Research question and theoretical perspective Method: criticism and control of sources Sample of psychological expert reports from the period 2000-2004 (n=37) Critical informants Part III The use of methods in psychological expert examinations – an analysis Page 17-31 Introduction Inadequate documentation of care failure Pathologic description of parents Insufficient clarification of concepts Insufficient criticism of sources Decontextualizing Attribution errors Reproduction errors Tendentious reproductions and representations Summary Part IV Psychological experts, judicial security and human rights Page 31-50 Introduction The CPS’s examinations and the role of psychological experts The psychologist’s professional power Judicial security and human rights Psychological experts as a judicial guaranty Summary Part I Background Introduction This report is about psychological expert work in CPS cases in Norway and Sweden. Due to shortage of time and lack of access to cases from Sweden, the examination is restricted to scrutinizing psychological expert examinations in Norwegian CPS cases. Part I in the report offers a short description of current Child Protection Services legislation in Norway and Sweden and the role of psychological experts. Part II accounts for research question, theoretical perspective and method, where the research question focuses on methods applied in psychological expert examinations. The theories that I apply is Abbot’s theory of professions (1988) and Dawes’s science-methodical criticism of clinical psychology. Part III deals with an examination of a sample (n=37) of psychological expert examinations from the period 2000 – 2004, where I concentrate on scrutinizing the use of sources. In the last part (Part IV), I discuss the role of psychological experts in child protection cases, highlighting legal security and human rights. Fylkesnemnda (Norway) The law on Child Protection Services 1992 replaced the former law on Child Protection Services, a law that placed municipal committees in charge of CPS decisions. These committees had a summoned judge, who was in charge of deciding whether the conditions for deciding an involuntary measure were present. The municipal CPS committees were replaced by a county committee – The County Committee for Social Cases (Fylkesnemnda). Fylkesnemnda consisted of one jurist, two summoned psychological expert members and two lay members. The new CPS law was intended to render priority to the children’s interests, and maintain legal security (Falck and Havik 2000). Implementing the new CPS law form 1992 has caused CPS decisions to become a function of professional considerations, more than laymen’s consideration and political considerations. The main aim of the new law has been strengthening the judicial and professional foundation for the decisions. The new law has had the consequence that psychologists - who represent an important part of the professional knowledge – have been more involved in the process leading to a decision. Psychological expert conduct their own examinations based on their professional knowledge when they shall give their opinion on whether the CPS shall take over the care for the child. When the decisions are made, the expert’s considerations are given considerable weight. A survey of 50 cases of care takeover, where the CPS had presented a case for Fylkesnemnda in Sør-Trøndelag County, shows that 84,2 % of the cases were decided in accordance with the CPS’s proposal, a proposal that was identical with the result of the examination by the appointed psychological expert (Iversen, 1998:4). From a judicial security point of view, it is problematic that Fylkesnemnda and the court as the institution in charge of the decision, and the CPS as a party to the case, appoint a psychological expert. The CPS decides the mandate for the examination. An institutional practice like this raised doubt about the independence of psychological experts. Juridical experts describe the way Fylkesnemnda is organised and put together as a progress compared to the municipal CPS committee when it comes to judicial security: “When Fylkesnemnda was introduced as the institution in charge of deciding involuntary measures in CPS cases, the initiative functions were divided between two independent institutions (…) The purpose was to avoid that the same institution was in charge of making the final decision. The experiences with the municipal CPS committee showed that the decisions were often taken prior to the meeting where the formal decision was made. When Fylkesnemnda gets a case, no one of the members knows the case from their own involvement in the case, so that Fylkesnemnda bases its decision on the case documents and what is said in the negotiation meeting, just like in a case for the courts.” (Kjønstad, 2002:61). The function of psychological experts in Fylkesnemnda and the court has not been problematized. For example, there has been posed no questions about what kind of relations there are between the CPS and psychological experts. Both court, Fylkesnemnda and the CPS engage psychological experts from the same lists. The same psychological experts usually take assignments from both the CPS and the court. Contrary to the private party, the CPS is responsible for furthering the case for Fylkesnemnda, and therefore responsible for clarifying the case (CPS law § 7-3). In practice, Fylkesnemnda seldom appoints psychological experts (Havik, 2000:67), and The Children and Family Department has recommended that Fylkesnemnda appoints psychological experts only in exceptional cases, when “the chairperson finds the case inadequately examined regarding questions that demand special professional competence” (Circular January 5 th 1993 in NOU 1995:23:15). Hence, the CPS gains a different position than the private party to cases of care takeover. Considering the private party’s opportunity to engage a psychological expert, this opportunity is described by authorities and psychological experts as a subjective opportunity to strengthening one’s own case (Reigstad 1994, NOU 1995:23, Backe-Hansen 2003). A relevant question is whether the same thing could be said about the CPS’s use of psychological experts. CPS legislation in Sweden The CPS in Sweden is currently regulated by The Law of Social Services, SoL (1980:620, SoL), which regulate voluntary measures, and The Law on Certain Regulations of Care of Young Persons (LVU), (1990:52, LVU). The SoL is mainly a law providing material standards for the municipal social services. It contains few rules regarding how the social services should be designed, or more specifically about the CPS (Strömberg, 1999:127). The handling of involuntary measures is for the largest part regulated by specific procedural laws for the public services courts. Regulations of involuntary measures within the CPS were transferred to LVU in 1988. This entailed a clearer distinction between voluntary and involuntary measures. The reform was founded on a so-called holistic viewpoint. That entailed that the different municipal committees that had been handed the fields of each of the old laws, were fused to one committee, Socialnämnden, which now handled all kinds of cases. This was, however, changed with the new Municipal Law 1991 (kommunallagen, 1991:900), which introduced a larger degree of municipal autonomy. As long as the municipal responsibilities are carried out, the municipalities are free to organize the committees, as they want (Hammar, Norström and Thunved, 1998:9). Socialnämnden usually consists of 15-20 members. The municipal council decides the number of members. At least one-half of the members must be present in order to make a valid decision. Each member has one vote, and simple majority is sufficient to make a decision. The committee members may further cases on their own initiative and the committee gathers when the chairpersons finds it necessary or one third of the members demand so. During the meeting, the committee members go through the documents in the case. The private parties to the case, possibly assisted by lawyers, are entitled to be present before the committee makes a decision. It is not usual that children below 15 are present. If the private parties are present, they are asked if they have anything to add. If so, they can give an oral statement to the committee. The parties’ lawyers, or representatives – as the CPS usually is represented with one of its civil servants (Socialstyrelsen, 1995:30) – choose which parts of the case to highlight or mention during the meeting. According to a survey of cases form 1993 done by Socialstyrelsen, Socialtjänsten was represented by a jurist at one specific court level (Kammarrätten) in 31 out of 238 cases. There were large regional differences. In Stockholm, the public party had a lawyer in 69 § of the cases, while the numbers for Gothenburg was 12 % (Socialstyrelsen, 1995:68). The same survey from 1993 shows that in four County Courts that were examined, Socialtjänsten on average won the case in 80 % of the cases. There were large variations