Reasoning between rules and discretion: A comparative study of the normative platform for best interest decision-making on adoption in England and Norway

Abstract

This article examines discretionary reasoning in child’s best interest (CBI) assessments in two jurisdictions, England and Norway, in decision concerning adoption from care. The two countries’ systems differ in child protection orientations and levels of discretionary autonomy but share the legal and moral yardstick of the CBI. Judgments from the Family Court in England (n = 29) and the County Social Welfare Board in Norway (n = 29) are analysed through a qualitative content analysis, following the logics of practical reasoning. The analysis provided a rich and detailed testimony of how the CBI decisions were justified and reveal that a similar normative platform was guiding decisions across the countries. There were, however, differences within and between the countries in terms of application and justifications of norms, some of which are likely to be connected to different interpretations of the CBI and others to systemic constructions and discretionary structures. Moreover, having more legislative guidance may have contributed to more explicit and deliberative reasoning in England although it does not appear to ensure consistent or predictable reasoning as inconsistencies and variation were found in both contexts. However, while Norwegian judges’ deliberation was found to be less ‘balanced’, justifications were applied in a similar manner across judgements. Although this contributes to consistency and predictability, the use of non-democratically constituted ‘rules’ in decision-making poses a challenge for legitimate decision-making.