Children

Have your children been placed in emergency care by child protection services?

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Pursuant to Section 4-2 of the Child Welfare Act, the child welfare service may make an emergency decision and place the children in an emergency placement outside the home. The condition is that there must be an acute risk that the children will suffer significant harm if the decision is not implemented immediately. The wording of the provision sets a high threshold, and emergency decisions can only be made in the most serious cases. For example, suspicion of violence against the children or substance-abusing parents may lead to emergency placement. We have also found that the CPS makes emergency placements if the parents have mental and/or physical health problems.

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Procedure and appeal against an emergency decision  

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After the CPS has issued an emergency decision, the decision must be approved by the Child Welfare and Health Board (formerly called the "County Board for Child Welfare and Social Affairs"). However, the CPS implements the emergency decision immediately and by force. Often, parents are not informed of the emergency decision until after the children have been placed in an emergency placement. The parents are therefore not given the opportunity to comment on the case until after the children have been moved.

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After the Child Protection and Health Board (the Board) has approved the emergency decision, the decision can be appealed to the Board. The Board will hold a small hearing administered by a chairperson of the Board. During the hearing, the parents and the CPS will have the opportunity to present their side of the case and to provide any necessary evidence. The Board must hear the appeal and make a decision within one week of the appeal being lodged.

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An emergency decision is valid only as long as the situation is acute. Furthermore, the CPS cannot maintain an emergency decision if less intrusive measures can alleviate the acute situation. For example, if the CPS has concerns about substance abuse, regular drug testing may remove or reduce the concern to an acceptable level. In this case, emergency placement will no longer be proportionate or necessary, and the emergency decision must then be revoked.

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If the Board finds in favor of the parents, the child welfare authorities must return the children immediately. If the parents are unsuccessful, the Board's decision can be appealed to the District Court.

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Legal assistance

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You are entitled to free legal aid without means testing when the child welfare authorities make emergency decisions and place your children in emergency care. All legal assistance is free of charge and it is therefore important to contact a lawyer immediately. The lawyer will be able to give advice, contact the CPS to establish a dialog, obtain the case documents, as well as appeal the emergency decision and assist the parents through the entire appeal process.

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In conclusion

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An emergency placement of children is very invasive, dramatic and traumatizing for both parents and children. It is therefore natural for strong emotions to be stirred up, but our recommendation is to try to remain calm as far as possible. Be very careful what you say to the CPS in this first period after an emergency placement, as the CPS will document everything you say and do. Often there are unfortunate misunderstandings that follow the further course of the case. Therefore, hire a lawyer as soon as possible and leave the communication to them.

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Our lawyers at Insa advokater have extensive experience in child protection cases and can assist you in your case. Get in touch with us here. 

Children have the right to express their views and participate in any matter concerning them. This right is a human right enshrined in section 104 of the Norwegian Constitution, Article 12 of the Convention on the Rights of the Child and section 1-4 of the Child Welfare Act. In child protection cases, children's views and opinions are an important basis for the decisions of the child welfare services, the Child Welfare and Health Board and the courts. Furthermore, this right ensures respect for the child's integrity and dignity.

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Section 1-4 of the Child Welfare Act states the following:

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A child who is capable of forming his or her own opinions has the right to participate in all matters concerning the child under this Act. Children have the right to express their views to the child welfare authorities without the consent of their parents and without informing the parents of the interview in advance. The child shall receive adequate and appropriate information and has the right to freely express his or her views. The child shall be listened to and the child's opinions shall be given due weight in accordance with the child's age and maturity.

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According to the preparatory works, the child has an independent and unconditional right, but not an obligation, to participate. The child should receive adequate and appropriate information and has the right to express his or her views freely.

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Furthermore, it follows from the preparatory works that it is up to the body that is to make the decision to ensure that the child has been informed of the right to be heard and that the child in question is actually given the opportunity to express his or her views. It is the same body that is responsible for assessing how such an interview should be conducted and organized. A spokesperson may be appointed, but the child may also speak before the tribunal, a judge or an expert who may be involved in the case.

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According to the law, the child's opinion should be given weight in accordance with the child's age and maturity.

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It is a procedural error if the child is not given the opportunity to be heard and this error can lead to a judicial decision being overturned.

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It follows from section 12-3 of the Child Welfare Act that if the child has reached the age of 15 and understands what the case concerns, he or she may act as a party to the case and thereby assert party rights. If the interests of the child so require, the Board may also grant a child under the age of 15 the right to be a party.

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In cases concerning children with behavioral problems or measures for children who may be victims of trafficking, the child should always be considered as a party.

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Am I entitled to free legal aid? 

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You are entitled to free legal aid if a tribunal or court is dealing with your child protection case.   

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CLAIMS FOR RETURN UNDER SECTION 5-7 OF THE CHILD WELFARE ACT

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Under Section 5-7 of the Child Welfare Act, parents who have been deprived of custody of their children have the possibility to request that the decision be revoked; in other words, to demand that they regain custody of their children.

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Under the law, the authorities are obliged to revoke a decision to take achildinto care as soon as it is "highly probable that the parents can provide the child with proper care". This obligation is in accordance with ECHR Art. 8(2) which requires that only necessary interventions can be legitimized.

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However, even if the probability requirement is met, the law states that return shall nevertheless not take place if the child "has become so attached to the people and environment where he or she is that relocation may lead to serious problems for the child if he or she is relocated". "Serious problems" means that the adaptation problems in the event of a return must be of a certain strength, and something beyond what would be normal in the event of a return.

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The question of return must be addressed to the parent or parents who have custody of the child in accordance with the rules of the Children Act, and the claim can be made if the case has not been dealt with in the last 12 months.

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In order to provide peace and stability for the child, the law contains an important limit on the right to request a review of the return issue more than once. If the Child Welfare and Health Board or the courts have decided that the child should not be returned because it could cause serious problems for the child to be returned, the issue cannot be re-examined by the Board or the courts unless there is a "significant change in the child's situation". A significant change could be, for example, that the foster home terminates its agreement.

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As usual, the child's opinion should be given weight in such cases, but in a return case the foster parents also have the right to be heard.

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Am I entitled to free legal aid? 

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You are entitled to free legal aid if the tribunal or court is hearing your case for reinstatement.  

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You can contact Insa lawyers if you have any questions, at no cost to you. 

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