Taking care of you – or yourself? The human right protections in demarcation between paternalism and autonomy in Norwegian child welfare institutions

Abstract

This article examines the complex interplay between autonomy and paternalism in the domain of child welfare, with a special focus on the application of international human rights frameworks. It underscores the dual protection afforded to children in residential care through the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR), highlighting the legal obligations of states to protect children from harm while navigating the challenging terrain of respecting their autonomy. This means that the authorities have a duty to provide children with developmental support and protection, even if the child does not wish to receive such assistance. However, the protection and care offered by the state cannot, in itself, justify various coercive interventions against the child. The central issue of this article is examined through the lens of the rules in the Norwegian Child Welfare Act, which, although limited, grants children in child welfare institutions the right to self-determination in personal matters. Key findings reveal that while the UNCRC explicitly mandates state protection against actions detrimental to children’s health or development, neither the UNCRC nor the ECHR mandates a right to self-determination for children despite recognising autonomy as a significant value. This opens the possibility for boundary setting within the framework of negative human rights protection, as there is a narrow scope for professional discretion outside of what is legally regulated. This scope for professional discretion can never be used to legitimize the use of physical power or violence against children, and never to legitimize the deprivation of liberty, detention or imprisonment of children.