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2 May 2019
Strict conditions for sending notices of concern to the CPS Barnevernet
By Bente Ohnstad,
senior lecturer in jurisprudence at
Inland Norway University of Applied Sciences
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The Norwegian original of this article was published as "Strenge vilkår for å melde til barnevernet" in the newspaper GD on 3 November 2017, and on MHS's home page on 22 March 2019.
The English translation is published here with the author's kind consent.
Translation: Marianne Haslev Skånland
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We frequently read and hear about notices of concern being sent to the child protection unit Barnevernet by schools and the health services. On October 26, 2017, Aftenposten brought the story of schools sending "worry-notices" to Barnevernet when parents complain about the teaching given to children with ADHD.
Such "notices of concern" are sent without the parents being included in the processes and without their having expressed a wish for assistance from Barnevernet. From experience we know this to take place in the health services also. Apparently, a misunderstanding has spread that when professional personnel is worried about a child, then Barnevernet can be contacted without regard to the rules for voluntary participation, obligation of confidentiality, and consent.
It is excellent that professional employees in the school and health service are concerned about children growing up and developing. They should be concerned. And there may often be cause for concern and reason to contact Barnevernet and other assistance establishments when a child seems to have difficulties or shows signs of maladjustment. But those who send a notice do not always remember – or know – that a "worry" is not enough to push aside every rule about cooperation and dialogue with parents. Only in especially serious situations can personnel sende notice to Barnevernet without complying with the rules concerning voluntariness, involvement and consent from the parents. And the parents can say no thank you to offers of help if they think they have no need of it. All help is based on voluntariness and the right to participate in the decision process.
The obligation of confidentiality which applies to all public service is there to protect individuals from unnecessary dissemination of personal information. Every person has a right to a protected sphere around his private life and protection of his personal integrity. The obligation of confidentiality is a means of providing such protection. Breaches of the obligation of confidentiality are violations of the security under the law which parents (and children) are entitled to. Employees in the school and health services have a personal responsibility to obey the obligation of confidentiality. The employer, on his side, is duty-bound to see to it that the obligation of confidentiality is made known to the employees.
In special, exceptional cases, the obligation of confidentiality can be set aside. This is covered by the laws regulating, respectively, education (§15-3) and health personnel (§33). The rules state an obligation to report to Barnevernet regarding abuse, serious care failure or if a child has shown "long-term, serious behavioural problems" (cf (1)).
"Serious care failure" can be cases in which the parents do not provide for the child's basic needs, or where there is a serious lack in the parents' ability to give care.
This means, in other words, that there are strict conditions that have to be followed for reporting to Barnevernet without this happening in cooperation with the parents (and/or the child). If employees in the school or health services think a family needs help, e.g. from Barnevernet, they first of all must consult the family to hear whether they want such help. Only in cases covered in the laws for education §15-3 and for health personnel §33 can personnel give information without being prevented by the obligation of confidentiality.
It is not certain knowledge which is required – that is for others to investigate. Still, one is required to document objective facts which give cause for suspicion. A notice of concern is not to be sent based on assumptions or a general worry, but based on concrete suspicion. And the suspicion must be one of serious care failure, sexual abuse or child abuse.
A third criterion is that the child has shown long-term, serious behavioural problems (cf (1) below). The expression "long-term serious behavioural problems" refers to children who for example evade contact with adults, make contact with unfortunate milieus, play truant from school because of drug or alcohol abuse, or are engaged in serious crime. The findings are to be documented.
The child protection unit Barnevernet, on its side, has a duty of investigating a case when they receive a notice. This applies even if the notice has been given on a mistaken basis. Barnevernet is first and foremost to give help and support. All help is based on parents wanting help. They have a right to be heard, receive necessary information, and give their consent both to the notice and to measures taken. If this assistance is not enough, or if the parents' problems are too great, there may be a question of putting measures into action without the parents' consent. But if so, the conditions of the law for intervention without the parents' consent must be complied with.
"A notice of concern" is not a magic formula suspending every rule supposed to protect against unnecessary dissemination of personal information. Nor does it eliminate other procedural rules regarding information, involvement and consent. School employees as well as health personnel are obliged to cooperate with parents if they are worried about a child. The conditions for setting aside the obligation of confidentiality must be complied with if one is to bypass the parents.
Obviously, knowledge is needed both in the school services, the health services and municipal administration regarding when a notice of concern is to be sent and, if so, how this is to be done. And certainly regarding when a concern notice is not to be sent. If matters are serious, it is wrong not to send a concern notice. But it is also wrong to send in a notice when there is no reason to do so, and set aside every principle of involvement, participation in the decision process, information, obligation of confidentiality and consent. It breaks with the confidence which the personnel have the duty to take care of and creates a bad climate for cooperation. It is a threat against the parents' right to security under the law if professional personnel send notices of concern without a basis of objective findings indicating that Barnevernet should be brought into the case without the parents being involved beforehand.
(1)
Since this article first was published in Norwegian, the law has on this point been changed to "serious behavioural problems".
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Cf also
Johannes Idsø:
Low threshold for intervention from the CPS Barnevernet?
MHS's home page, 2 May 2019
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