(This article was published in the annual report for the Parliamentary Ombudsman as National Preventive Mechanism 2018. The NPM´s 2018 annual report is available here )
In certain cases, children and young people can be placed in an institution involuntarily. The Child Welfare Act Section 4-24 provides for placing children and young people between the ages of 12 and 18 with ‘serious behaviour problems’ in a treatment or training institution without their consent for up to twelve months. Section 4-25 second paragraph provides for issuing an interim order for placement without the child’s consent on the same grounds.1 Furthermore, a child who has reached the age of 15 who gives their consent can be placed in an institution on the same grounds pursuant to Section 4-26. If the child has not reached the age of 15, the consent of those who have parental responsibility for the child is required.2
In autumn 2016, the Parliamentary Ombudsman’s National Preventive Mechanism (NPM) began visiting child welfare institutions, and, at the end of 2018, we had visited nine institutions where children and young people can be placed without their consent.3 We have visited state-owned and private emergency institutions and long-term institutions. Routine coercion is when force is used as an integrated part of the institution’s practice, without being specifically assessed for the individual resident in the specific situation. The NPM has highlighted findings of routine coercion after several visits.
Institutions cannot make house rules, procedures etc. that restrict the residents’ rights as such restrictions requires a decision based on individual assessment of the legal criteria for such restrictions in each case and specific situation.4 This means that coercive measures and restrictions that are regulated by the Rights Regulations cannot form part of an institution’s general rules or procedures.
The NPM has nevertheless, on several visits, found that coercion is laid out as part of the rules or procedures. The findings concern personal searches and baggage searches, restrictions on the use of mobile phones, and on freedom of movement; in the form of being constantly followed closely by an adult (“shadowing”) or being separated from the rest of the youth group.
Much of the routine coercion we have found was implemented as part of the admission process, but we have also seen examples of routine use of coercion during the stays. Examples include using “motivational trips” – carried out as a coercive measure – as an automatic consequence for breaking a rule, routine searches after visits home, and a general prohibition on the use of mobile phones at the institution.
In some cases, an administrative decision was made although no individual assessment had been carried out, claiming the restriction should be implemented because it was part of the institution’s procedures. Other institutions did not register the restrictions as administrative decisions, but the restrictions were described in procedures or indirectly in other types of documentation. Both practices violate the requirements for the use of coercion in child welfare institutions.
The use of force at institutions is strictly regulated
The right to freedom and self-determination is protected by human rights and can only be restricted if the intervention is necessary, proportionate, and regulated by an act or regulation. Children and young people who are placed in an institution without their consent have already had their freedom of movement and self-determination restricted. Being placed in an institution against one’s will constitutes deprivation of liberty according to the International Covenant on Civil and Political Rights.5
The basic principle for all child welfare institutions is that the use of coercion is not permitted. However, the Act and Regulations allow use of force in special situations.6
The Rights Regulations stipulate the types of force that may be permissible, but they shall also ensure that the integrity and rights of children and young people are safeguarded when they are staying at an institution. The Regulations stipulate special rules for children and young people placed in an institution based on Child Welfare Act Section 4-24 and Section 4-26.7 These rules concern:
› Restriction on the right to move freely about within and outside the institution (Section 22)
› Visits to the institutions (Section 23)
› Electronic means of communication (Section 24)
› Testing for drugs/alcohol (Section 25)
The provisions of the Rights Regulations set the framework for the use of force and make it clear that such force can only be used when necessary and proportionate in a specific situation.8
The use of force entails a risk of degrading and inhuman treatment. Coercive measures cannot be used to a greater extent than necessary, and other means must be tried first. An assessment of whether to use force must take account of all fundamental legal principles. The intervention must be warranted by law and the best interests of the child, and the child’s right to be heard must always be safeguarded as part of the assessment.
Legal requirements for interventions in children and youth rights:
- The intervention must be warranted by law (the principle of legal authority
- It must pursue a legitimate purpose
- It must be necessary and proportionate to achieve the purpose
Documentation
The requirements for documentation of use of coercion in child welfare institution are strict. All decisions on the use of force or restrictions that are considered individual decisions must comply with the Public Administration Act 9. An administrative decision must state the grounds for the decision and be in writing. The Supreme Court´s practice is that the requirements for grounds are more stringent when the measure is invasive. The Right Regulations state that all decisions shall be recorded in protocols. 10 The institutions must substantiate that the conditions in the provision in question have been met and describe why it was necessary to use force and what was done to avoid using force. 11 The duty to state grounds is intended to ensure thoroughness and precision on the part of the decision-makers and is an important guarantee of legal protections for individuals. It must be possible for the person subjected to force to understand why legal conditions are considered to be met.
This means that coercive measures shall be a last resort, and concrete, situational, and individual grounds must be proven.
The risk of routine use of coercion
Being constantly followed closely by an adult (“shadowed”), being excluded from the rest of the group, or refused contact with friends and family are in themselves serious interventions in the personal integrity of children and young people. When such coercive measures become routine, the adolescents are also deprived of the due process guarantees. Such guarantees are ensured through the requirement that individual decisions shall be made in writing, and that the adolescent shall be informed about the right to appeal, and given the opportunity to appeal.
Children and young people’s right to participation is also violated when force becomes routine. One of the conditions for participation is that individual assessments are based on the person concerned being heard and having had an actual opportunity to participate.
Furthermore, routine coercion is a violation of the institutions’ obligation to work systematically to prevent the use of coercive measures. This duty concerns all types of coercion and is not limited to force used in situations of acute danger.12 Many institutions have limited awareness of their responsibility to prevent use of coercion, such as restricting freedom of movement or restricting access to electronic means of communication.
The institutions are obliged to have the staff and work methods necessary to enable them to deal with the target group for which they are approved within the applicable regulatory framework.13 During our visits, we have found institutions, with the same target groups as those who use routine coercion, which have met the obligation to prevent the use coercive measures and to only use coercion when absolutely necessary.
Nevertheless, we experience that use of coercion is often based on a perception that rules and routines involving force, are necessary.
Findings from our visits and child welfare research confirm that institutions often perceive restrictions and treatment measures with strong elements of coercion as necessary, both to the treatment of the individual youth and to the overall operation of the institution. Examples of this include the use of so-called motivational trips when rules are broken or as a form of social control, routine confiscation of mobile phones, and youth being routinely restricted to a separate part of the institution upon arrival, often for several days. In her doctoral thesis on the use of coercion in child welfare institutions, Alvestad Reime writes that staff say that they are often creative about finding leeway when they think that the Rights Regulations prevent them from doing a good job. Among other things, they describe how they take the adolescents on compulsory mountain hikes upon admission, which they themselves acknowledge can be perceived as “brutal, dramatic and problematic in relation to force”.14
Overall, our findings show that many children and young people placed in institutions are subjected to unnecessary and unjustified interventions in their p ersonal integrity and that their due process protection is seriously violated. This entails a risk of degrading and inhuman treatment. The a uthorities are obliged to ensure that such practices are discontinued. It is also important that the supervisory bodies monitor the actual practices at the institutions they supervise.
1. The Act requires that the child has shown serious behavioural problems ‘in the form of serious or repeated criminality, in the form of persistent abuse of intoxicants or drugs or in other ways.
2 .Even if the child is staying in the institution voluntarily, they may be retained there for up to three weeks after their consent has been expressly withdrawn.
3. Cf. the Child Welfare Act Section 4-24 and 4-25 second paragraph, but also Section 4-26 concerning retention in an institution based on consent.
4. The Rights Regulations Section 3.
5. The UN Human Rights Committee, General Comment No 35, paragraph 62.
6. Cf. the Child Welfare Act Section 5-9 and the Rights Regulations Section 13.
7. The provisions in Chapter 1, 2, 3 and 5 of the Regulations apply correspondingly to residents who are placed pursuant to Section 4-24 and Section 4-26, with the special rules that follow from this chapter. This also applies to residents placed on the basis of an interim order pursuant to the Child Welfare Act Section 4-25 second paragraph second sentence.
8. The County Governor of Aust-Agder and Vest-Agder illustrates this in the report: Historien om Stina. Fylkesmannens rapport etter tilsyn med Kristiansand kommune, Sørlandet sykehus HF, Bufetat Region Sør, Næromsorg Sør og Aleris Ungplan og BOI 27.7.2017 – 7.2.2018. (‘The story of Stina. The County Governor’s report following inspections of Kristiansand municipality, Sørlandet Hospital health trust, Office for Children, Youth and Family Affairs (Bufetat) – Region South, Næromsorg Sør and Aleris Ungplan & BOI 27 July 2017 – 7 February 2018’ – in Norwegian only).
9. The Rights Regulations Section 26: All decisions pursuant to Sections 14,15,16,17,18,22,23 and 24 are deemed to be individual decisions pursuant to the Public Administration Act. These decisions shall be entered in the records and presented to the supervisory authorities.
10. The Rights Regulations Section 26.
11. Cf. the Public Administration Act Sections 24 and 25.
12. The Rights Regulations Section 12.
13. Cf. The Rights Regulations Section 24 and Circular Q-19/2012 Guidelines to the Regulations of 15 November 2011 relating to rights and the use of force in child welfare institutions (the Rights Regulations), p.24.
14. Monika Alvestad Reime: Children and Coercion. Recent Trends in Governing and Divergent Discourses in Residential Child Care. University of Bergen 2018, p. 113. https://bora.uib.no/bitstream/handle/1956/18156/Monika%20Alvestad%20Reime_Elektronisk.pdf