Exploring Boundaries of Legitimate State Intervention : Adoption as a Child Protection Measure in Norway and the United States

Abstract

This thesis asks how states form and justify policy as guardian of children’s right to protection from harm balanced against the rights and responsibilities of parents. To answer this, I have examined how Norway and the United States – two countries with very different welfare regimes and child welfare orientations – have formed and justified their policy on public responsibility for children in long-term care. By comparing how child protection policy is formed in the two countries we get a clearer image of how different ideas influence and shape the role of the state as a guardian for children and how this affects the boundaries between public and family responsibility in child protection. The thesis examines child protection policy as a result of both political processes in national legislatures, and as processes at the street-level where child protection workers form de facto policy when they make decisions based on discretionary reasoning. The empirical focus is on policy for children who cannot be reunified with their families of origin, and who will either grow up in foster care or exit through adoption. Adoption is controversial child protection measure in many countries, because it severs legal ties between birth parents and child. However, from the child’s perspective it may offer closer integration with his or her de facto family, and research shows that children adopted from care have better transitions to adult life compared to those that grow up in foster care. Article I (Tefre 2015) examines how the U.S. Congress came to consider adoption the placement of choice when children cannot be reunified with their birth parents. It examines the legislative process that resulted in the “Adoption and Safe Families Act of 1997” (ASFA). By analysing congressional hearings, the article provides new insights to understand how adoption is justified in the United States. The article uses a discourse theoretical framework that distinguishes pragmatic, ethical–political, moral, and legal arguments. It argues that U.S. federal adoption policy is based on three pillars. Pragmatic risk-oriented thinking forms the central knowledge base to inform policy. Parent responsibility ethics stresses individual responsibility for rehabilitation. Child refamilialization ethics emphasizes decisive and authoritative action to protect the child's needs for safety and permanence. Article II (Tefre 2020) examines how Norway turned to a more active policy on adoption from care. It examines public records from four occasions when the government and Storting (The Norwegian parliament) debated adoption from care, over the period 2002-2013. The analysis is built on the same discourse theoretical framework as Article I to enable comparison. The findings show that a more active adoption policy is justified by strengthening of child-cantered perspectives. First, research and expert discourse gained influence in the framing of adoption policy over time. Second, the ethical response to this knowledge base has been to shift attention from shared family needs to the child’s individual and developmental needs. There signs that legislators view adoption in relation to children as independent legal subjects with rights. Article III (Skivenes and Tefre 2012), examines how a sample of 299 child protection workers from Norway, England and California (U.S.) consider the question of adoption in relation to a vignette about a three-year-old boy. Findings show that a majority of the respondents suggest adoption. However, while the English and Californians were close to uniform in their recommendation for adoption, Norwegians were split between 60% favouring adoption and 40% recommending continued foster care. This split among Norwegian child protection workers reflected different normative considerations about parental consent, as well as differences in how national policy on adoption should be understood. Article IV (Tefre 2017) examines how child protection workers in Norway, England and California (U.S.) assess risk based on a vignette that combines parent intellectual disability and infant neglect. Findings show that workers across all countries agree that this is a high-risk case. However, reasons behind the assessments vary across countries. Californians display a greater range and more uniform reasoning compared to the English and Norwegians. English and Norwegians are generally more similar, but differ on attention to social and environmental factors and attention to the mother’s cognitive functioning. I discuss these findings in relation to research on parental intellectual disability, child welfare orientation and familiarity with assessment tools. I argue that both child welfare orientation and assessment tools are important to understand these differences in reasoning. In the discussion I chose to emphasize two especially interesting findings. First, Norwegian child protection workers have much stronger discretion compared to their Californian colleagues, which results in more policy formation happening from the bottom-up. While this may be intended to give practitioners greater freedom to tailor services to individual needs, the thesis finds that it challenges central principles of justice because identical cases are treated differently. Second, there reason for differences in official adoption policy between Norway and the United States stems mainly from different normative conceptions about the role of the state in long-term care. The U.S. Congress took a clear stance to limit public responsibility for raising children in foster care, favouring swift public action to refamilialize children with families in the private sphere. This government policy is reflected in the decisions by street-level practitioners, both in terms of their decisions and in their justifications. By contrast, in Norway the political signals from the government on when adoption from care is an appropriate solution to long-term care are mixed and unclear. Political signals to promote more adoptions have not been followed by clear suggestion about when adoption should be regarded in the child’s best interests. Norwegian legislators are telling street-level practitioners to forward more cases to adoption, but are unwilling to provide guidance on how to weigh central principles. The lack of clarity about when adoption is to be preferred over foster care is apparent in the findings that Norwegian child protection workers are spilt, and the resulting de facto policy from the ground is inconsistent. This is a serious challenge to the legitimacy of Norwegian child protection, as it challenges central principles in the rule of law – legal certainty and equality before the law. It places a heavy burden of legitimizing individual decisions on street-level practitioners, while the political actors are freed from responsibility.