Discretion and the Demand for Reasons : Justifications for the Child’s Best Interests in Decisions on Adoption from Care in England and Norway

Abstract

This thesis asks how decision-makers with extensive discretionary authority justify strong state interventions on behalf of children in the child protection system. The empirical case under study is adoption from care without parental consent, and the thesis is examining how legal and professional child protection decision-makers in Norway and England exercise discretion and justify a decision regarding adoption by applying the ‘child’s best interest’ standard. The overreaching research question of the thesis is: How do legal and professional decision-makers justify the child’s best interest in decisions on adoption from care? With a perspective on legitimacy as procedural and related to the output of government actions, the thesis applies a theoretical framework based on theories of political and democratic legitimacy, deliberative theory, and discretion. The analytical framework is built on the premise of a ‘demand for reasons’: that providing reasons and justifying one’s discretionary actions are conditions for legitimate decision-making. The analyses are qualitatively oriented, and the research question is sought answered by studying written legal decisions and judgments, and survey data from a vignette study.

The thesis consists of four articles. Articles I, II and III focus on the Norwegian context, while Article IV compares the Norwegian context with the English. Decision-making is studied at three levels: in the municipal child protection agencies, in the legal first instance the County Social Welfare Board (the Board), and in the Norwegian Supreme Court, the apex of the judicial system. Additionally, judgments from the Board are compared with judgements from the English Family Court.

Article I focuses on the discretionary reasoning of child protection workers and legal decision-makers in the Board. By presenting decision-makers with a constructed case scenario (a vignette), this article seeks to discern how decision-makers justify their decision on adoption and to locate the pivotal dimensions in their best interest assessment. The results show that although variance in reasoning is located within and between decision-maker groups, the similarities are prevailing. The factors with power to transform a decision are focused on the parents’ commitment and capacity to change as well as the relationship the child has or could have with his parents, suggesting that the child-centered law in Norway is a step ahead of practice. The uniformity in attitudes contributes to some predictability, but it entails the risk that ideology is a force that governs discretion, and the legitimacy of the reasoning can be questioned.

Article II investigates how decision-makers in a legal setting – the Board – understand and make use of the social science concept ‘attachment’. By analysing all adoption decisions made by the Board in 2016, decision-makers’ use of attachment to inform their decisions is mapped. We find that attachment has a prominent position in decisions on adoption. There is variation in the conceptualization of the concept, and that it is understood both as a ‘non-psychological’ and ‘psychological’ concept. Attachment is often applied in a binary manner, where the Board assesses attachment as being either present or absent in parent-child relations. When essential concepts are interpreted and applied differently, the legitimacy of both the responsible institutions and the decisions themselves are challenged.

Article III analyses the Norwegian Supreme Court’s best interest argumentation in judgments on adoption. The aim is to assess the legitimacy of the decisions from a deliberative perspective of decision-making and to map and critically analyse the Court’s justifications. The findings show that the decisions are reasoned in a similar manner, and that conclusions are guided by norms of biology, vulnerability, and stability for the child. However, discretion is applied differently across decisions, and the reasoning and balancing of individual arguments vary. The critical evaluation displays weaknesses in all judgments: one important blind spot is the failure to include the child’s views in the decision-making process. The development over time in terms of delivering rational, well-reasoned and thorough judgments is nonetheless positive.

Article IV examines best interest reasoning of legal decision-makers in the Family Court in England and in the Board in Norway. By studying court decisions, the purpose is to enhance our knowledge on discretionary reasoning and of the normative basis for the best interest principle in child protection decision-making. The analysis shows that a similar normative platform is guiding decisions across jurisdictions. However, there are inconsistencies and variation found both within and between countries in the application and justification of norms. The findings indicate that having more legislative guidance may contribute to more explicit and deliberative reasoning in England, although it does not appear to ensure consistent or predictable reasoning. Moreover, Norwegian judges’ deliberation is found to be less balanced, but justifications are nevertheless applied similarly across judgements. This contributes to consistency and predictability, but the use of non-democratically constituted ‘rules’ in the decision-making process poses a challenge for legitimate decision-making.

Overall, the discussion concentrates around four main findings. First, the findings indicate informal patterns of behaviour and rule-making practices by decision-makers. Second, the articles have shown variance and inconsistencies in best interest justifications. These two findings point to exercises of discretion that may challenge the legitimacy of decision-making. Third, best interest considerations identified in the four articles are synthesised and mapped and show that best interest reasoning is mainly child-centred, but also vested in the dilemma of liberalism where respect for parental liberty and family autonomy clash with demands to protect the needs and welfare of children. There are also certain trends and caveats identified in decision-makers’ substantiation of the child’s best interest, related to understandings of the child’s identity, sibling relationships and how a child’s ‘vulnerability’ is used in argumentation. The findings furthermore indicate that ‘exceptional reasons’ for adoption are found when a child is in a placement that he or she experiences as ‘home’ and when he or she is safely attached to his or her foster parents, in combination with birth parents that are deemed unable to change, commit or represent something positive for the child (through contact). And fourth, the findings show that children’s views are often left out of the decision-making process, and most often without any justifications provided that allows us to understand why they are not included. I discuss these shortcomings in relation to the ‘child-centered’ child protection orientation in Norway. Policy implications of the findings are discussed, and five main areas for further research are suggested.