Paper/Speech Details of Conference Program for the 27th NISPAcee Annual Conference Program Overview Panel: The Rule of Law & Public Administration Author(s) Amy McEwan-Strand University of Bergen Bergen Norway Skivenes Marit, Title The Principle of the Child’s Best Interest in Child Protection File Paper files are available only for conference participants, please login first. Presenter Amy McEwan-Strand Abstract The aim of this paper is to examine how governments in 40 high-income countries interpret the vague principle of the best interests of the child in legislation, and how this principle creates discretionary space for front-line staff and judiciary decision makers. Governments have a range of mechanisms and incentives to guide and limit professionals’ use of discretion. Legislation is an important mechanism by which governments state their goals and ambitions, and instruct professionals on how to implement these goals in the various institutions of a welfare state. The empirical focus of this paper is the state’s responsibility for children at risk of harm and intrusive measures such as removing children into state care. Child protection is a surprisingly understudied area of the welfare state, considering the power vested in decision-makers in a difficult and sensitive area of state intervention in the private sphere (Burns et al., 2017). A key standard in this area is the UN Convention on the Rights of the Child (CRC) of 1989. The CRC is almost universally ratified (all states in the world apart from the USA have ratified the CRC as of 2015) and several states have made it national law. The CRC gives children strong rights, with the principle of the child´s best interests as one of its pillars: ‘In all actions concerning children, whether undertaken by public or private, social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (CRC, article 3(1), Cf. the recommendation by the CRC committee on the interpretation of the material content of the best interest principle (General comment No. 14, 2013)). The CRC obligates countries to give the best interest principle primary consideration in decisions concerning individual children; a clear shift away from the traditional relationship between the family and the state (Gilbert et al., 2011; Skivenes, 2002). However, the principle as outlined in article 3(1) of the CRC is ambiguous, and its use as a guideline for decision-making is not straightforward, allowing a variety of interpretations. Thus, an interesting and important question is how governments apply this principle in legislation. Do they fill the principle with material content or procedural directions? There are numerous dimensions of a child’s best interests that a decision-maker can (and must) consider, and there is not one ‘best interest value’ that would apply to all children (Skivenes & Sørsdal 2018). We will examine the instructions made by legislators and formulations of the best interests of the child in child protection legislation in 40 high-income countries (high income countries being defined as OECD and/or EU member states, apart from the US which has not ratified the CRC). The reason for examining these 40 high-income countries is both practical and principled. We can expect high income countries to be relatively similar in their ratification level of the CRC, forming a good basis for comparison. Further, these 40 states are regularly reported on by the Unicef Research Office (See https://www.unicef-irc.org); providing a range of valuable data. By doing this, we seek to examine how states provide meaning to the best interests principle in their child protection legislation, and how the discretion of decision makers – front line staff as well as the judiciary – is regulated.
