Barnets rett til opplæring og til vern mot marginalisering i skolen
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The Child’s Right to Education and to Protection against Marginalization in Public School. The legal regulations of the Child’s rights and the obligations depending on parents, school and the Childs Welfare Service in Norway are analyzed in this dissertation. For children growing up in Norway home and school are main socialization arenas. Attending school is a main daily life activity during childhood as well as a preparation for an independent life. Success in school often leads to success in life, while social misery often correlates with poor education. To prevent children form being marginalized in school is a major cause. The child’s substantial rights to education and to care are safeguarded as human rights in The Convention on the Rights of the Child, which was in 2003 incorporated into Norwegian legislation. According to its Article 4, the state shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the Convention. To fulfil the child’s right to education and to protect it from being marginalized is a responsibility for three social institutions; the home, the school and for some children also the Child Welfare Service. Each of them is regulated by its own act, The April 8. 1981 Children Act, the July 17. 1992 Child Welfare Act, and the July 17. 1998 Education Act. The roles of the grown-ups representing the three institutions are different. Parents have an utmost personal relation to their specific child, teachers and child welfare workers as professionals employed in civil service. Together the three institutions constitute a three- party system with the mandate to bring the nation’s children from childhood until young citizens. The main question in the dissertation is: Has the system of the three institutions, each of them and together, the ability to safeguard the child’s right to education and to protect it from being marginalized in school. The concept of marginalisation is defined to four situations, which often occur together. The child is marginalized: 1 When it does not attend school, for whatever reason, e.g. parents hold the child at home or the child does not want to go because of academic or social failure, or is for other reasons truant 2 When the child is academically marginalized, e.g. because a need of special education, which is not recognized or properly met 3 When it is socially marginalized, exposed to mobbing, out freezing or not included in the learning community in school 4 When it because of home conditions is not able to profit from education according to its gifts and abilities A systems theoretic perspective is used in the dissertation to view each of the three social institutions, home, school and Child Welfare Service as a part of a totality. The legal system is analyzed from the child’s perspective and from an institutional perspective. These two perspectives are combined in the analysis by first analyzing the child’s rights in relation to each of the social institutions and then to the system as a whole. Due to the regulations, the system has a capacity to grant the child a «double grown-up attention». In principle, it enables one party to compensate for weaknesses with one of the others. This is how it seems to function for the majority of Norwegian children. However, some children «slip»; some drop out of school and some do not develop their capacity. In case law allegations for compensation for lost or lacking education, as a pattern, are seldom successful, though exceptions may occur. Empirical studies indicate that it may be due to more general characteristics which reveal that school functions best for middle class children with well-educated parents. I have examined the conditions for each of the three social institutions to take their share of a common responsibility for the child which is marginalized, or is at risk to be marginalized in school; presuming that their ability may depend on its ordinary ways of function. A historic review of the three institutions shows that since the predecessor of the Child Welfare Service was enforced 1900; each of the parties has developed independent of the others and in different rhythms. A stabile structure has however been a premise of task sharing between them, which has been unspoken except when changes have been considered. When act reforms have been prepared, the core area of the institutions has been in focus. Many questions of marginalized children in school seem to have fallen between the systems, either being expected to follow the main rules, or being more suitable for regulation elsewhere. The year 2003 seems to be a turning point. The Convention on the Rights of the Child was incorporated in the May 21. 1999 Human Rights Act and major reforms were made in all the three laws, thereby strengthening the child’s rights. According to the school reform and the child welfare reform as well, the social institutions are expected to support and increase the parents’ competence to raise the child and their parental authority for the child. It seems to be an awareness of weaknesses in the system as well as an intention to improve it. The analysis of the parts of the system and the system as a whole indicates that the weak parts in the structure are the meeting points between the institutions; between home and school, between home and Child Welfare Service and between Child Welfare Service and school. The present regulation on one hand opens up for flexible solutions. On the other hand the child may slip in case of doubt or conflict about the responsibilities for each of the parties. According to the rulings of the courts this practice mainly has been in accordance with the law. The Convention on the Rights of the Child imposes upon the state an obligation to clarify the responsibilities for each of the parties, and to take necessary measures. Choosing incorporation to implement the Convention on the Rights of the Child into the national legislation, Parliament has a commitment to give the child’s’ rights the best protection possible. This raises complicated questions; however, which the legislator has pushed before itself. To tighten the gap at the meeting points, it will be necessary to strengthen the three institutions’ common responsibility to prevent that the child is marginalized in school. The school and child welfare reforms may be interpreted as small steps towards regulating the child’s rights towards the system as a whole instead of on a one-to-one basis. This way of promoting the best interests of the child would, however, challenge the institutional autonomy as well as the institutional rationality on which the development of each of these institutions has been based. It also challenges the adult rationality, according to which the child’s rights are regulated. An adult is expected self to decide whether or not to make use of welfare state rights, and to implement these goods and services into their daily life. Being unable to maintain its rights on its own, the child is dependent on others when the parents fail. Giving the three social institutions a common responsibility to fulfil the child’s rights, might be a way to compensate for the child’s lack of formal ability to maintain its rights on its own. That would also challenge the legal structure. I 1992 a committee proposed to combine in one common act all regulations regarding child care. This idea might be worth reconsidering. Including the school as well, would clarify its role as a main structure in legal regulations for preparation of young persons to live an individual life in society.
PublisherThe University of Bergen
- Faculty of Law 576