Care Takeover – Conditions, Implementation, and Rights under the Child Welfare Act. Please note that this blog post introduces Norwegian law.

The transfer of care is one of the most intrusive measures of the child welfare system and represents a balance between the child's right to care and the inviolability of family bonds. Like both the Convention on the Rights of the Child and the European Convention on Human Rights (ECHR), the Child Welfare Act is based on the premise that it is generally best for children to grow up with their parents. At the same time, children have a fundamental right to care, and the transfer of care may be necessary to uphold this right.

What is the transfer of care?

A transfer of care involves transferring much of the parents' responsibility to the child welfare services, and the child is physically moved to another location. This represents an interference with the child's right under the Convention on the Rights of the Child not to be separated from their parents, and an interference with the right both the child and parents have to respect for their family life under the Constitution and ECHR.

Conditions for the transfer of care

The conditions for the transfer of care are strict. First, the transfer must be necessary, and it must not be possible to create satisfactory conditions for the child through less intrusive measures. Additionally, the situation must fall under one or more of the seven cases described in section 5-1 of the Child Welfare Act:

1. Neglect (§ 5-1 letter a)

This applies to cases where there are "serious deficiencies in the care the child receives, including personal contact and security, taking into account the child's needs according to their age and development." It is specified in the legislative history that "the situation must be relatively clearly unacceptable" and that "any deviation from what can be considered normal standards or situations" will not constitute a serious deficiency.

2. Inadequate treatment or education (§ 5-1 letter b)

This applies to situations where parents do not ensure that a child who is "ill, has a disability, or is in need of special assistance" receives the "special needs for treatment and education" the child requires.

3. Abuse or assault (§ 5-1 letter c)

This includes cases where children are abused or subjected to other severe assaults in the home. This includes both physical and psychological abuse and assault.

4. Risk of future harm (§ 5-1 letter d)

This option concerns cases where it is more likely than not that "the child's health or development could be seriously harmed because the parents will be unable to take sufficient responsibility for the child." Here, the burden of proof is heightened to more likely than not.

5-7. Children living outside the home (§ 5-1 letters e, f, and g)

These options apply to various cases where children are already living outside the home, either by emergency placement of a newborn, by voluntary placement, or where children have been living outside the home for so long that relocating could cause serious problems.

Implementation and choice of placement

When a care order is made, it must be implemented "as soon as possible." The decision lapses if it is not implemented within six weeks. In choosing a placement, emphasis should be placed on, among other things, the child's opinion, identity, need for care in a stable environment, and the child's ethnic, religious, cultural, and linguistic background. If the child is to live in foster care, the child welfare services must consider whether someone in the child's family or close network can be chosen.

Division of responsibility after the transfer of care

After a transfer of care, the responsibility of care goes to the child welfare services, which have a duty to provide the child with appropriate care. The parents retain parental responsibility, but with significant limitations. They lose the right to make everyday decisions, but retain decision-making power in major decisions such as the choice of school type, name changes, consent to adoption, and membership changes in religious and philosophical communities.

In practice, much of the daily care will be exercised by foster parents or the institution where the child lives. The child welfare services are obliged to follow up on both the children placed in care and their parents and must systematically and regularly assess whether the measure should be changed, or if the transfer of care can be revoked.

Revocation of a care order

A transfer of care is initially temporary, and the goal is reunification with the family. The basic condition for revoking a care order is that the parents can provide appropriate care. The burden of proof is that it must be "more likely than not" that the parents can provide appropriate care.

Even if the parents can provide appropriate care, the decision should still not be revoked if the child has become so attached to people and the environment where they are that relocation could cause serious problems. The Supreme Court has interpreted this condition to mean that there must be a "real risk of significant long-term negative impacts."

For the sake of creating peace and stability for the child, the parties cannot demand that a case for the revocation of a transfer of care be heard by the committee "within the first twelve months" after the committee or courts have issued a final or legally binding decision in the case.

The European Court of Human Rights (ECHR) has in several cases against Norway emphasized that reunification is the goal, and that the authorities have a positive duty to facilitate reunification to occur. The ECHR considers that a transfer of care should normally be seen as a temporary measure to be revoked as soon as circumstances allow.

The Supreme Court has in several decisions adjusted Norwegian practice in line with the ECHR's guidelines, particularly related to the duty to work for the reunification of children and parents.

Conclusion

The transfer of care represents a serious intrusion into the central rights of children and parents. At the same time, it may be entirely necessary and justified to safeguard the child's right to care and protection. The Child Welfare Act balances these considerations with strict conditions for the transfer of care, clear rules for the division of responsibility, and provisions to ensure that the measure only lasts as long as necessary.