Taking Care of You – or Yourself?

1. Introduction

Children living in residential care facilities have their daily lives controlled by public caregivers. Tension arises when staff in these institutions impose restrictions that conflict with the children’s own wishes. This tension – between children’s free will and the paternalistic role of public care – forms the crux of our enquiry, as suggested by the article’s guiding question: ʻTaking care of you – or yourself’?

The article aims to address the balancing act between two distinct forms of human rights protection that afford children residing in institutions a twofold safeguard. Firstly, children are entitled to have staff establish limits for them under the positive obligations protected by the UN Convention on the Rights of the Child (UNCRC).¹ Secondly, children are guaranteed the right to expect state authorities to exercise restraint in imposing such boundaries, ensuring adherence to the principles of negative human rights protection set forth in, among others, the European Convention for Protection of Human Rights and Fundamental Freedoms (ECHR).² Both conventions are binding in Norwegian law and supersede domestic laws, where necessary.³

The American philosopher Gerald Dworkin defines paternalism as follows: ʻPaternalism is the interference of a state or an individual with another person, against their will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm’.⁴ The ethical question of balancing individual free will and state interventions hinges on determining which interventions can be justified in the pursuit of assisting others, particularly when it is believed that individuals are not making adequate choices for themselves.

The legal question in distinguishing between autonomy and paternalism pertains to whether all actions contrary to individuals’ free will should be afforded legal protection. The answer to this question will determine whether some actions against children’s free will may be carried out as part of professional discretion outside the legal sphere. This implies that while autonomy is a protected value, it may not necessarily be safeguarded as a protected human right. Therefore, the question touches on the lower limit of negative human rights protection.

While it is evident that individuals, including children, are protected from interference through a set of binding negative human rights, it is a more delicate question to determine whether self-determination is guaranteed as a positive human right. To the contrary, there is no questioning as to whether the concept of care in the UNCRC forms a robust legal basis for the government’s positive human rights responsibilities towards children in public care and for the duty of staff in institutions to protect the children and provide them with adequate care while the children are under the care of the public (paternalistic act).

The purpose of this article is to elucidate the content of positive human rights protection, with a particular focus on the oversight of children by child welfare services during adolescence – a period marked by significant development and vulnerability – and thereby discuss the question of whether self-determination is a protected right in the human rights framework. Initially, we examine the regulation of children’s rights and the limitations that can be imposed on these rights under the Norwegian Child Welfare Act (CWA).⁵ Towards the end of the article, we examine the balance between positive and negative human rights obligations.

2. The Line Between Autonomy and Paternalism in the Norwegian CWA

The mother of a substance-abusing girl highlights the issue that children can decide for themselves in the Norwegian childcare system. In an op-ed, she wrote:

But the child wants nothing else but to indulge in substance abuse […] Children with substance dependency are offered activities, like bowling and movies, by the emergency institution – if the child is willing. They can confiscate the child’s mobile phone and perform body searches, and they can try to keep the child from leaving, but in practice, the child can repeatedly escape and indulge in substance abuse without any consequences, as the threshold for using force is extremely high. While the child establishes an ever-growing network of substance abuse and experiments with increasingly potent substances […]. They also do not have locked doors to offer […]. Instead, we let the child engage in life-threatening substance abuse – if that’s what the child desires [our italicisation and translation].⁶

Staff in childcare facilities also report that the children’s right to make decisions for themselves often takes precedence over the duty of the staff to protect the children and provide them with adequate care, as stipulated in Section 10-1 CWA.⁷ Norwegian child welfare institutions are not closed but open facilities. Therefore, it is possible for children to continue harmful behaviours outside the care facilities, even when they are placed in institutions as a behavioural measure due to grave risks to their health and security.

Section 10-2 (2) CWA grants children the right to (1) make decisions regarding personal matters, (2) move freely within and outside the institution’s premises, (3) communicate freely with others, including using electronic communication devices, and (4) receive visitors. However, several provisions in the CWA are designed to ensure that children are protected against actions that may be harmful to them.⁸

In acute emergency situations, there is an allowance in Section 10-7 CWA to use physical power to restrict children from harming themselves and others. Outside acute emergency situations, there is an allowance to use mild forms of physical power when it is deemed necessary to provide the children with proper care, as indicated in Section 10-3.

Outside emergency situations, Section 10-9 CWA permits restrictions on the rights to free movement, visitation and communication. Under this provision, it is permissible to prohibit children from leaving the institution, confiscate their phone and internet access and restrict visits for periods of up to 14 days at a time. In extraordinary cases, locking the doors of the institution is also allowed.

This provision does not apply to children living in institutions as a care measure.⁹ For children in institutions as a care measure, staff are only permitted to restrict the children’s freedom according to the CWA Section 10-2, third paragraph, which states that the institutional staff may restrict children’s rights under the second paragraph ʻwhen necessary to provide the child with proper care appropriate to the child’s age and maturity’. This results in a regulatory framework that provides broader authority for interventions in the rights of children residing in institutions as a behavioural measure compared to those living in institutions as a care measure, despite reports indicating that children living in institutions as care measures may also face significant and complex issues, endangering their health and development through behaviours such as suicide attempts, harmful sexual conduct and substance abuse.¹⁰

However, under CWA Section 10-2, third paragraph, certain restrictions on children’s rights to free movement, visitation and communication can also be imposed on children living in institutions as a care measure. The preparatory works of this provision clarify that children’s freedoms may be restricted within the scope of ordinary parental care and provide examples in which staff can set boundaries on children’s curfews.¹¹ In specific instances, staff can prohibit children from being in specific places that may be hazardous to them for a longer period.¹² The preparatory work also makes allowances for the restriction of free movement with greater intensity in cases in which children are in extra need of protection, providing an example that children can be restricted from leaving the premises for a short time or that staff may decide that adults should accompany the children outside the institution.¹³ The staff may also limit the children’s use of communication devices when necessary, such as when the children need to get adequate sleep or complete their homework.¹⁴ If children use the phone in a way that exposes them to harm, staff can decide that they should hand in the phone for a short period of time.¹⁵ The preparatory works indicate that within the framework of ordinary parental care, it can also be decided that children should not receive visits if the persons visiting are intoxicated or if there is a suspicion of sexual abuse.¹⁶

As shown in previous examples, both groups can be restricted in their rights to free movement, visitation and communication but with varying lengths and intensities. Nonetheless, the provision for extended intervention under Section 10-9 of the CWA only establishes specific authorities that can restrict children’s freedom of movement, communication and visitation. It does not provide specific authorities to limit children’s right to ʻdecide on personal matters’, which is an independently protected right under Section 10-2, second paragraph of the CWA. In this aspect of rights protection to decide on personal matters, restrictions for both groups must refer to the discretionary provision in Section 10-2, third paragraph of the CWA.

The scope of the right to ʻdecide on personal matters’ is somewhat unclear. The provision itself does not specify its content; it only indicates that, in the context of Section 10-2 of the CWA, it is an independent right extending beyond the right to participate. The right to participate is established as an independent right under Section 10-2, first paragraph of the CWA. The preparatory works describe this right as a right to self-determination but emphasise that it is subject to limitations, as specified in the third paragraph of the provision.¹⁷

Therefore, institutional staff must balance children’s right to self-determination with the need to provide proper care for children in accordance with this provision. Empirical studies have shown that staff struggle to draw this boundary in challenging everyday situations within institutions.¹⁸ The balancing act raises questions about whether various consequential pedagogic measures can be justified under this provision.¹⁹ In addition, there are concerns about imposing other consequences for breaking rules under this provision, such as deductions in weekly allowances, reward systems or the loss of accumulated privileges.²⁰ Questions also arise regarding the legitimacy of measures, such as taking intoxicated children to separate cabins.²¹ The more serious implications of the rule interpretations are highlighted in Save the Children’s 2020 report, which describes instances in which staff adhere to rules to the extent that they cannot restrict internet and mobile access, even when these devices are used for child prostitution.²² Even more severe issues concern whether staff can physically remove children with drug problems from an adult man’s house under this provision. Tragically, in a specific case, two 16-year-old girls died of an overdose inside the house of an adult they visited.²³ A recent report from the Norwegian Board of Health Supervision revealed that eight adolescents have died from an overdose in the past few years while under public care.²⁴

Staff have also reported that the various oversight bodies responsible for ensuring the children’s rights are safeguarded interpret the provision differently.²⁵ In particular, the practice of the Ombudsman (The Parliamentary Ombud for Scrutiny of the Public Administration), according to staff, has led to a reluctance among staff to set boundaries for the children, as they previously did under this provision.²⁶ According to a report from Save the Children:

We find that the challenges and trade-offs the staff must address result in significant variation in risk management. Some staff members exercise control and use coercion, while others confiscate and regulate. Some limit access at times, for instance, during the night. Many engage in conversations, listen, and establish house rules together with the adolescents, while some find the challenges so unmanageable that they adopt a more passive approach. In summary, we observe that the majority fall somewhere between restriction and freedom, managing risk with mild regulation when there is a clear danger, but not otherwise.²⁷

Although there may possibly be grounds for restricting children’s rights under Section 10-2, third paragraph in many of the examples listed here, it is, as pointed out by Havre, not surprising that staff struggle with this delineation between the children’s right to decide on personal matters and the care responsibilities.²⁸

Firstly, as the nature of the measures that can be implemented is not specified in CWA Section 10-2, third paragraph, the preparatory works provide limited guidance in this matter.²⁹ All examples of limitations in the preparatory works are related to the measures to be taken in the rights of free movement, communication and visit, but there are no examples of the measures for restricting the right to decide on personal matters in itself.³⁰

Secondly, there are few other guidelines in the preparatory works that provide direction on drawing this boundary in the complex everyday situations that staff in institutions often face.³¹ The preparatory works only suggest that staff may impose limitations that parents may otherwise impose according to the provisions of the Children Act. The Children Act regulates the relationship between parents and children and does not address the public law relationship that arises when staff in institutions exercise care responsibilities.³² The reference to the Children Act also offers limited guidance. The Children Act clearly prohibits the use of violence, including for disciplinary purposes (cf Section 30, third paragraph). Other than this the Act contains no other rules on limitations that parents may impose against their children’s will.³³ In addition, the general rule under the Children Act, Section 33, is the opposite of that established in the CWA, in which children are not granted such a right as the main rule but should be granted increasing autonomy with age until they are 18.

Thirdly, the reference to children’s ʻage and maturity’ in Section 10-2 also provides limited guidance, as children living in institutions are often at an age in which they would normally be old enough to make fairly sound decisions for themselves. However, research has shown that children in institutions, even with care measures, may not manage this and expose themselves to risks that can harm their health and development, such as self-harm, substance abuse, prostitution, lack of school participation and/or other day services and health care.³⁴ Moreover, there is a general provision in the regulations to Chapter 10 of the CWA that prohibits staff from restricting children’s rights through house rules.³⁵

Finally, a rule with a clear principle of self-determination, along with exceptions based on discretionary criteria, may lead to unnecessary ambiguity in interpretation in practice in which autonomy takes precedence over the duty of care. The provision also sends a signal to the children that potentially creates daily conflicts over boundary setting.

Overall, staff in institutions describe a daily life in which they find it difficult to require children to participate in school/day care, leisure activities and health care and, worse, they cannot protect the children from self-harm, substance abuse, prostitution or – the worst case scenario – death. These issues can be legally resolved in two ways. One approach, as outlined by the Ministry, is to investigate the human rights space to equip institutions with stronger and stricter coercive measures for children in institutions as both behavioural measures and care measures.³⁶ Ultimately, Norwegian childcare facilities should be closed institutions.³⁷ The other approach, as recommended by Havre in her report ʻHuman Rights Scope – When Children Require More’, involves closely examining the relationship between children’s rights outlined in the CWA Section 10-2, second paragraph, in light of the lower limit of negative human rights protection, and the obligations arising from the care responsibilities of the staff under the CWA Section 10-1, in light of the positive human rights concept of care.³⁸

With this background, we now examine human rights obligations at the intersection of autonomy and paternalism.

3. The Protection of a Sustainable Life Cycle in the UNCRC

4. Human Rights Limitations for Interventions

5. Conclusion: A Balanced Approach Between Negative and Positive Human Rights Leaves Professional Discretion to Provide Children With Proper Care

This article dissects the delicate balance between autonomy and paternalism within the sphere of child welfare through the lens of human rights frameworks. It concludes that the UNCRC mandates the protection of children from actions that may harm their health or development as a legal obligation. Neither the UNCRC nor the ECHR obligates states to grant children the right to self-determination, even though autonomy is a protected value under the conventions. When neither the UNCRC nor the ECHR has a general right to self-determination for children, professionals will have a narrow discretionary scope to protect children and provide them with adequate care outside negative human rights protection. As children are granted not only negative human rights but also positive human rights to protection (dual human rights protection), paternalistic actions to protect and care for children are legally binding. The state will be obligated to balance this dual human rights protection of the child and will not have the same freedom to choose autonomy over paternalism as in the care of adults. This leads to the question of whether the right to decide on personal matters, even when it is not unlimited, as in the Norwegian CWA, can be upheld if this right results in children not receiving proper care, as some empirical studies have suggested (Chapter 2).

The convention should, by any means, take precedence over the provision in the CWA in accordance with Norwegian Human Rights Act Section 2 and 3.¹⁰¹ In our opinion, the professional discretion space in the lower limit in negative human rights should be used to ensure that children receive the protection they need before considering whether stricter interventions in children’s rights are necessary to ensure proper care for the children in accordance with positive human rights protection.

While it is vital to uphold the ethical values of human dignity, freedom and autonomy within child welfare institutions, it is equally important to ensure that these principles do not jeopardise the care provided to children or hinder the realisation of their fundamental human right to development, as stipulated in the Convention on the Rights of the Child (Chapter 3). Even without a provision that states a right to decide on personal matters, children are granted rights protected by negative human rights (Chapter 4.1). Therefore, the professional discretion that may be granted is not a wide discretionary space. However, individuals under public care are vulnerable to abuse, and this discretionary space for professionals should not, as Havre previously pointed out, be granted without any form of guidelines.¹⁰² Following an analysis of the Norwegian Supreme Court’s judgment of another area of welfare institution law, Havre derived three legal criteria for this discretionary space:¹⁰³ 1) the action must be purely paternalistic, 2) the nature and degree of boundary setting must allow this, and 3) the action must fall within professional ethical discretion. In this way, children are ensured to be legally protected against abuse of power in balance with the human rights concept of care under the UNCRC.

Acknowledgments

Thank you to our anonymous peers and the editorial board for their valuable input.