Care order templates as institutional scripts in child protection : A cross-system analysis

1 Care order templates as institutional scripts in child protection: a cross-system analysis Authors: Jill Berrick, Jonathan Dickens, Tarja Pösö, & Marit Skivenes Journal: Children and youth service review Abstract This article compares blank care order application templates used in four countries (California/USA, England, Finland and Norway), treating them as a vital part of ‘institutional scripts’. The templates are used when child protection agencies apply to court for a care order, usually to remove a child from the family home, to inform the court about the circumstances of the case, the preparatory processes and the assessment of the agency. An institutional script demonstrates and translates into routines and practice, fundamental system principles. In this case, the requirements of the courts to justify an extreme level of state intervention in family life. Blank templates as mundane data cast light on issues which might otherwise remain unseen and unnoticed in crosscountry comparisons.The analysis focuses on the language and form of the four blank templates, inter-textuality, and the readers and authors. All the templates are meant to help workers present the required information, but the analysis shows how this differs between the countries. The templates are manifestations of the principles of each child protection system and the discretionary authority given to social workers. Key words: child welfare, care order preparations, institutional scripts, discretion, cross-country comparisons Highlights: Templates used in child welfare practice are manifestations of the principles of each child welfare system. Templates, intentionally or unintentionally, recode and redefine the lived experiences of children and families, and the interactions between the family and the state. The analysis cast light on issues which might otherwise remain unseen and unnoticed in cross-country comparisons. This is the accepted manuscript of the article, which has been published in Children and Youth Services Review. 2018, 84, 40-47. http://doi.org/10.1016/j.childyouth.2017.11.017 2 1. Introduction In most western industrialized countries, courts make decisions about involuntary child removal into state care based upon recommendations from social workers serving as agents of the state (Berrick et al., 2015a; Burns et al., 2017). Care order preparations – the activities, evidence, and documentation required to send an application to court -- vary between child protection systems along several dimensions, some of which (e.g., thresholds for intervention, time available for preparation, guidelines, expertise and institutional support) have been captured in previous research (Berrick et al., 2016). While the court may conduct a hearing, call witnesses and hear the private and public parties’ oral arguments, the written care order application – sometimes referred to as a social worker’s “court report” -- provides the preliminary presentation of the case and in some instances is the only material used in decision making. The written application also serves as the state’s appeal to the authority of the juridical court. Care order applications document the reasons for state intervention, as viewed by a state representative (Dingwall et al., 2014). In practice, the application will be affirmed or rejected by the court, and may set the terms for the state’s involvement with the family with or without the family members’ consent. As important as the care order application is to the child and family portrayed therein, these documents appear infrequently as a subject of study. In fact, the general research status on the institutional settings of public welfare remains understudied (Hupe & Buffat 2014). In research, the content of the care order application may serve as the source of data to inform about the characteristics of families in question (see for example D’Andrade, 2009; de Godzinsky 2015; Hiitola 2015), however the blank template itself – the document that guides agency staff in completing the application, presenting the facts of the case, and recording and exchanging information between the agency and judicial systems, is not regularly featured as a source of study. The template, nevertheless, is instructive as it serves an institutional purpose reflected in its overall scheme, required detail, vocabulary, headings, structure and subjects to address (e.g. Cicourel 1968; Prior 2003). It serves as a guide to social workers to develop a narrative that meets the court’s expectations (cf. Prince 1996; Healy & Mulholland 2010) and as such may be regarded as an essensial part of an institution that manifests the philosophical underpinnings of the system in which the template is embedded. 3 In this article, we examine blank care order application templates from four child welfare systems (England, Finland, Norway, and the USA (specifically, California)). The aim is to analyse key features of the templates in the four states, and in doing so, assess the wider frames in which their child welfare systems operate. The article is organized in seven parts. In the next section we present the theoretical framework that guides our analysis, followed by an overview of the care order proceedings in the four systems. Thereafter the method section presents our data and analytical approach, followed by findings. The article ends with a discussion of the findings. 2. The institution of care order application templates In the classic work of March and Olsen (2006) an institution is defined as: “…a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences and expectations of individuals and changing external circumstances.” (March & Olsen 1989; 2006, 3). Organizational charts, procedures manuals, and other instruments of institutional form and function serve instrumental and cultural purposes, becoming imbued with meaning and values. A care order application templates would in this perspective streamline, organise, include and exclude information by instructing staff in the child protection agencies to attend to certain themes and categories of information that should be presented to the court. The concept of ‘scripts’ may be useful to clarify the mechanism by which institutional rules are enacted in organizations and in their interactions with other systems or organizations. Scripts are observable, recurrent activities and patterns of interactions characteristic of a particular setting (Hasenfeld 2010, 99). According to Hasenfeld (2010), scripts highlight how organisations select and establish the rules that guide their work and how these rules become enacted in (mundane) organisational practices. Organizational templates may differ in regard to the discretion the social worker is supposed to exercise to formulate categories of information. Some templates are highly restrictive (the social worker responds to pre-set questions by ticking a box), whereas others may offer significant latitude with allowances for a free text presentation of the case. There is clear evidence that agency discretion varies considerably in child protection systems under different welfare contexts. In a study of 4 four child protection systems, researchers found that the U.S. and England have set much stricter boundaries (or ‘standards’ in Dworkin’s words (1972)) on the use of discretion among social workers considering care order preparations in comparison to Norway and Finland (Berrick et al., 2015a). Dworkin distinguishes between weak (little) discretion and strong (much) discretion. An important aspect of the concept of weak discretion is that it is related to fact-oriented situations in which clear “game” rules and instructions exist. This could, for example, be evident in a social security service that allows economic support to any parent raising a child. In contrast, strong discretion is relevant to those decisions that are not closely guided by clear standards or instructions (Dworkin 1972, 33 cf. Schneider 1992). Social workers who are tasked with assessing the best interests of the child, with little agency guidance would typically be enacting strong discretion. Hence, discretion relates to how decision makers are instructed by relevant authorities. The templates for care orders may thus be regarded as setting standards for the amount of authority social workers have in providing information and presenting the care order case. As such, examining care order templates within the famework of institutional scripts provides not only an understanding of social workers behaviour, but also an understanding of how templates, intentionally or unintentionally, recode and redefine the lived experiences of children and families, and thereby the interactions between the family and the state. 2.1 Care order proceedings in four systems Judicial decisions regarding care orders are extremely consequential (Berrick et al., 2015a; Burns et al., 2017). Care orders restrict parental rights to a child’s care and custody in order to protect a child’s right to safety or well-being. Care orders typically result in separating children from parental care and ordering children’s placement in foster care or another form of substitute care. These determinations are, of course, guided by policy and the cultural and national context in which policies are embedded. The Norwegian and Finnish child welfare systems bear certain similarities and have been described as family-service oriented in the context of promoting children’s rights (Gilbert et al., 2011; Berrick et al., 2015a). The United States has been variously described as having 50 state systems, but all are shaped by an overarching framework of child protection in a legal rights-based frame (Gilbert et al., 2011). England is positioned between these two approaches with an aspiration for a family-service approach but operating within a legalistic, protection-based frame (Gilbert et al., 2011; 5 Berrick et al., 2015a). From the available data it appears that Norway and Finland have a low threshold for eligibility into child welfare services, including care orders, whereas the threshold is higher in England and even more so in California (Berrick et al., 2017b). Procedural differences are considerable and care order preparations are more prescriptive in England and California with the court leading the proceedings through two or three decision making steps, whereas in Finland and Norway there is one decision making point. The space for discretion among front-line practitioners is wider in Norway and Finland than in California and England (Berrick et al., 2015a). The legal criteria for care orders in the four countries are quite different. In California, care order proceedings are guided by law, detailed in the California Welfare and Institutions Code 300 (W&I Code 300). The conditions for intervention are described briefly, but a more thorough review can be found elsewhere (Official Legislative California Information). These conditions may result in the court taking jurisdiction of the child, though less intrusive interventions are required if it is expected that they can offer sufficient protection. They include (1) risk or substantial risk of serious physical harm inflicted non-accidentally; (2) serious physical harm or illness (or risk thereof) as a result of the failure or inability of a caregiver to adequately supervise or protect the child; (3) a child sexually trafficked and whose caregiver failed or was unable to protect the child; (4) the child is suffering or at risk of suffering serious emotional damage as a result of the conduct of the caregiver; (5) the child is, or there is substantial risk of being sexually abused; (6) the child’s parent caused the death of another child due to abuse or neglect; (7) the child was subjected to, or the parent failed to protect the child from an act of cruelty; (8) the child’s sibling is abused or neglected. In England, the ‘threshold criteria’ for a care order are set out in section 31 of the Children Act 1989. They are that the child is suffering, or is likely to suffer, significant harm, and that this is attributable (a) to the care given, or likely to be given, to the child not being what it would be reasonable to expect a parent to give him/her; or (b) to the child’s being beyond parental control. Even if those criteria are met, it is not inevitable that the court will make a care order. It then has to consider other criteria, notably the child’s welfare, which is the court’s ‘paramount concern’ (s. 1(1)), the care plan for the child (s. 31A), the proposed arrangements for contact (if any) between the child and his/her parents (s. 34), and various other matters set out in s. 1(3) of the Children Act, known as ‘the welfare checklist’. This includes the child’s wishes and feelings, his/her physical, emotional and educational needs, and the capabilities of 6 his/her parents and other relevant persons. It also has to consider whether making an order is better for the child than not doing so (s. 1(5)), and whether the proposed intervention in private and family life is proportionate (European Convention on Human Rights, article 8). In Finland and Norway, the main removal criteria are three-fold (Finnish Child Welfare Act 417/2007, section 40; Norwegian Child Welfare Act of 1992, article 4-12). The care order may be introduced if the child’s health or development is at risk of being seriously endangered. The endangerment can be due to lack of care or other circumstances in which the child is being brought up; or due to the child seriously endangering his/her health or development by the abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour. The second condition is that a care order decision should only be considered if the in-home services are not relevant or appropriate, and the third condition being a care order and related substitute care should serve the child’s best interest. In both countries, implementation of the second condition usually results in long periods of in-home services prior to a care order application. And the breadth of the third criteria leaves a wide space for professional discretion, and more so in Norway than in Finland as Finnish legislation gives some instruction on the interpretation of the principle. In both Norway and Finland the UN Convention on the Rights of the Child (1989) is incorporated into national legislation of child protection. Regardless of the differences in the criteria and the preparatory processes, social workers in all studied countries have to summarise their knowledge of the case and the work they have undertaken with the family in a written form that we refer to here as a care order application. The task of the care order application is to demonstrate why a particular child and his/her situation meet the legal criteria for a care order as seen from the point of view of front-line social work practice. Consequently, the application interconnects the legislation, professional assessment and the child in question. The care application is addressed to the county boards (Norway), family courts (England), administrative courts (Finland) or the Juvenile Dependency Courts (California). The courts function in the form of one legally qualified, professional judge as in California and (for most cases) England; or as a panel of judge, expert member and a lay person in Norway and a panel of two judges and one expert member in Finland (Berrick et al., 2017c; Burns et al, 2017). England also has a ‘panel’ system, two or three lay judges 7 (not professional lawyers) and cases which are, on the face of it, more straightforward are likely to be allocated to this lower tier of the family court. 3. Data and method The data material for this study are four care order application templates. The California template, the “Jurisdiction/Disposition Report” was designed in the late 1990s when the state was developing a computer system for managing all child welfare information. All of the court report templates were developed by a committee of child welfare and judicial professionals, most of whom worked as administrators in child welfare at the state and county levels. Although it was hoped that all 58 California counties would use the same template, variations on the original template were created in several counties. The templates are adjusted regularly in response to legislative changes when social workers are prompted to ascertain new information and to forward this to the judge. In most California counties, social workers are required to use the Structured Decision Making (SDM) tool to inform their safety and risk assessments. The SDM is an internal document not shared with the courts and as such, the court report is organized, in part, to reflect the safety and risk assessment determined by the SDM (personal communication, Sylvia Deporto). The English form discussed in this paper is known as the “Local authority social work evidence template” (ADCS and Cafcass, 2016). It is not obligatory, but is used widely by local authorities. The form is recommended by the principal legal, social work and governmental agencies (listed on the form), and is designed to comply with the court guidelines for care proceedings, the Public Law Outline 2014. The first version was introduced in summer 2014, and a revised version in summer 2016, which is the version we are analysing here. This template is only one part of the care application. There will also be an application form which gives a summary of the case and details of the parties, the current assessment of the child and family, and the care plan. The Finnish template, “Hakemus hallinto-oikeudelle lapsen huostaanottoa (LsL 43§ 2 mom.) koskevassa asiassa” is available in the web-based Handbook of Child Welfare, hosted by the National Institute for Health and Welfare (Lastensuojelun käsikirja 2017) and commonly used in child welfare. The template is dated 2010 which 8 means that it was prepared after the major changes in child welfare legislation of 2007. The template has not been changed since that time. In Norway, national guidelines have not been developed for structuring the “petition of action.” However, there are various care order application templates in place as several of the twelve regional county boards have collaborated with municipality lawyers to establish common guidelines. It is unknown how many different guidelines are employed across the country or how local authorities may be applying them. For this paper we use the guideline made in collaboration between the County Board of Hordaland and Sogn & Fjordane and the child welfare agencies in Bergen Municipality (undated guideline). The template is titled ‘Begjaering om tiltak til fylkesnemnda for barnevern og sosiale saker Hordaland/Sogn og Fjordane’. We have reason to believe guidelines used elsewhere in the country are modelled similarly.1 The templates are available at http://www.uib.no/admorg/85747/survey-material. (A blinded copy of website is attached for reviewers). The analysis focuses on the written text in the blank care order templates. We approach the templates by analysing three aspects of the templates, as suggested by Atkinson and Coffey (1997) in their methodological approach to the analysis of documentary sources as textual materials: language and form, inter-textuality and authorship and readership of the documents. The analysis of these elements, found in any documents, provide insight into the institutional scripts embedded in the blank templates. First, when examining the language and form, we look at the headings as well as the structure of the blank templates. The headings and form of the template ask, invite and allow the author to record selected information, and instruct the author to exclude other information. In practice, they materialise social workers’ area of discretion. Structured headings and narrow space in the template restrict and standardise social workers’ information whereas general headings and free text space give more room for social workers to present the topic from their point of view. Second, inter-textuality (how the template interacts with other texts) is studied by collecting information about the other texts the templates refer to in headings or instructions. Documents do not exist in isolation; rather they exist in a continuum of several institutional documents (Atkinson & Coffey 1997). The preparations for care orders do not exist in isolation either, and the linkages between the care order proposal 1 The guideline for Hordaland is quite similar to the guidelines for Oslo County Board (the largest board in Norway). 9 and other documents are – or may be – demonstrated by the templates. A strong emphasis on inter-textuality may be seen as a sign of streamlining the social workers’ report. The direct references to other texts are listed and placed into thematic groups in our analysis. The analysis of indirect (implicit) references requires cultural knowledge of the country in question in order to recognise that the wording used in the heading might refer to legislation, for example, although legislation may not be mentioned explicitly. Third, authorship and readership (who is textually presented as the author of the document and who is the reader), are examined by looking at the required signatures and other indications as to the author, as well as the anticipated reader as presented in the template. Social workers typically write the care order application forms but they are not necessarily the persons signing the application. In our analysis, we examine whether the form is signed by the author (the social worker) or another individual. If another individual is implicated, this may be an indication that the social workers’ view and information about the case (discretion) requires authorisation by others. We collected all the textual phrases, often very short and mundane (such as ‘the child’s first name’) under the aspects mentioned above, and sought thematic underpinnings in each topic. The research group members analysed the template from their own country; in addition, the templates were cross-read jointly by the research group. The presentation is first shown country by country, after which we review those findings in terms of the overall institutional theory and set the findings in the contexts of child welfare in each country. Our interpretation of the findings uses other empirical work we have conducted regarding child protection in these four countries (e.g. Berrick et al., 2015a and b, 2016 and 2017a and b). For the purpose of simplicity we use the short term “template” for “the blank care order application template”, and furthermore we use the term country, although California is not a country, and we also use the country term to distinguish between the four systems and templates even though the templates are not used throughout the country/state. 3.1 Limitations This analysis gives us information about the requirements that are set for a care order application, but it does not provide information about how the courts make their decisions, what types of information courts may privilege, or what kinds of information 16 The reader of the Finnish application is the regional administrative court. The application template is signed by the social worker ‘in charge of the child’s case.’ In addition, the local authority is regarded as ‘a body which has made the application’ and its name and address should be written in the template. The readers of the Norwegian application are the County Board, the lawyer for the private parties (parents and child), and the lawyer for the municipality (i.e. the child welfare agency´s lawyer). The author of the application is the child welfare agency. The manager and the caseworker sign the application. 5. Discussion The examination of care order application templates from four child welfare systems in England, Finland, Norway, and California (USA), show similarities and differences that reflect the institutional frames in which they are embedded. Overall, the intertextuality is similar across the four countries; each country’s template closely follows the legal frame authorizing state intervention. The author-readership of the applications are similar, except for two noteworthy differences: First, the English template explicitly considers parents as readers of the care order application. As such, rather than relegating parents to a third-party status in the proceedings, they are portrayed as central actors and consumers. Second, the California template can be differentiated from the others with its specific attention towards Native American/ Alaskan Natives as potential parties to the case. The Indian Child Welfare Act is a separate, parallel federal law with unique legal requirements for these populations. Where we see more pronounced differences across countries is in the language and forms of the templates. All require similar, basic pieces of information that set the scene for decision-making. Important parties in the case are identified, and all templates require a summary of the case, the reason for the petition, and a recommendation for court action. The templates are, however, textually different across the studied countries although they all serve the same purpose, i.e. to provide sufficient information so that a decision about a possible care order can be made. The Norwegian template is a simple outline of the expected interaction between the County Board and the child protection agency. Its primary focus is to facilitate the hearing and the decision making that is going to take place in the County Board. The template sorts out whom should be included in the proceedings according to legal 17 regulations and directives (e.g., is a spokesperson for the child required; is an interpreter needed; is the case unusually complex requiring additional decision makers). The materal requrements from the template is the narrative about the content of the care order case within the context of the law. It is an encouragement to social worker to be factbased and systematic in their descriptions, making sure it is a clear distinction between facts and assessments. The rules the template sets out for the interaction between the organizationas and its staff are relative simple and with few details about what is necessary to include, leaving it to the professionls and other organizational structures to influence the script of the care order institution. The Finnish template focuses on the agency efforts that have preceded the court application. In other words, procedural issues are in the foreground as the agency must demonstrate that in-home services have been exhausted and that the care order is a service of last resort. Even the view of the child is approached as a procedural matter: the template headings invite the social worker to describe how the child’s view has been consulted. These features of the institutional script appropriately reflect the characteristics of the Finnish child welfare system where the importance of in-home services dominates. Others have argued that the vocabulary of services defines the core approach to child welfare in Finland more than the vocabulary of social problems such as abuse and neglect (Pösö 2011). As such, the template guides agency professionals to focus on service receipt more than considerations of risk or harm. Compared with the English and California templates, the characteristics of the child and family history are given very little attention. The Finnish template also features the voice of parents and children differently from what is evident in the other templates. Finnish law specifies that parents (custodians) and children over age 12 must be consulted in order to learn about their consent to the care order proposal and that the court makes decisions only on those care orders which lack the consent of those parties. The institutional norms embodied in the blank template features consent and objection as part of client voice as it is essential for the court proceedings to start. In England, child welfare agencies are expected to have offered services to help the family keep the child, before bringing the case to court (exceptionally this would not be required, in situations of grave risk or where services have previously been offered, unsuccessfully, to support other children remaining in the family). The template reflects the crucial role of the court, not just to reach a judgment about what 18 has happened in the past, but to scrutinise the local authority’s plans for the child’s future. This may be seen as a particular outcome of long-standing misgivings in the courts about the capacity and determination of local authorities to implement the courtordered care plan – even though child welfare research shows the doubts to be exaggerated (Family Justice Review, 2011). In particular, following the Re B-S case, there is a much more explicit focus on trying to find suitable placements with members of the extended family (typically grandparents, aunts and uncles) and other ‘connected persons’. When comparing the English template with the other templates in our study, the institutional norm of the template appears very much a psychosocial presentation of the child including an analysis of the child’s well-being and risks, the impact of any harm suffered, the likely impact of any changes, and an assessment of the child’s wishes and feelings, items specified in the welfare checklist (see above). In California, the court report is clearly a legal document based in the language of rights and legal transgressions. The justification for the claim is embedded in lengthy and detailed descriptions of the social and intra-personal conditions of the family both past and present. Compared to the other country templates, the California form asks for detailed information about the caregivers’ risks (e.g., domestic violence, mental health, substance use, etc.) in line with information the social worker will have collected during the assessment phase with the aid of the Structured Decision-Making tool, an evidence-based risk assessment platform for identifying risk and harm to a child. Social workers are required to provide detailed information about the harm that has befallen the child, and the anticipated danger absent state intervention, further making the claim for warranted action. In contrast to the other countries, the California form also emphasizes the safety context and threats to the child and the safety goals for the family. The notion of “safety” (in contrast to the well-being or wishes and feelings of the child) suggests a more narrow interpretation of potential judicial involvement. The overall aim of the template is to give a presentation of former and present social problems of children and parents to build a case based on evidence of harm and an evidence-based assessment of the risk of future harm. Similar to the English template in the requirement to identify the family’s informal social support network as a potential service ally, the California template includes an additional request for information about the parent’s and the child’s cultural identity and how this might serve as an added strength that might otherwise be overlooked. Inclusion of information about cultural identity might serve an additional benefit in alerting all of the parties about the need for 19 their own cultural sensitivity as readers of the presented material. Given the significant over-representation of children of color in California’s child welfare system, attention to the unique cultural context of the child and family may be warranted. What is the discretionary leeway that these four care order templates, considered in isolation, provide to child welfare agencies and social workers? The templates differ in the number of instructions they provide. As a gross measure, the Norwegian template includes only eight heading categories, Finland 10, England, 13, and California (USA) has 23. The mere number of instructions indicates that the template with the fewest instructions, the Norwegian template, provides the greatest discretionary space whereas the template with more instructions (Californian) suggests less discretion in the kinds of information that can be presented to courts for decision making. Applying the weak and strong discretionary dichotomy, the Norwegian template provides staff with strong discretion as it gives very few instructions on the material content of the information that should be included within each instructional heading. The three other templates provide staff with weak discretion. Both the English and the California template are particularly detailed in their instructions about the relevant and necessary information to include within each instructional heading. 6. Conclusions The templates represents a part of the institutional script that structure the nature and types of information that the courts are given to hear, and they structure the kind of information that social workers have been trained to look for. They define the essential details of those families’ and children’s circumstances on which an ultimate state intervention is considered. The blank templates are not random; rather, they are a mechanism and a manifestations of the principles and the legislation of each child welfare system. The institutional scripts of care orders demonstrate how the system principles are translated into themes that reflect the courts’ requirements to justify state intervention. In California, the templates focus on family problems that are linked to the evidence-base associated with risk – all in the context of a safety threshold for children. In England, the templates orient the reader to the child’s well-being and the plan for his/her future. The Finnish templates orient the reader to the service context provided to the family and its sufficiency as a hedge against further state action. And in Norway, the template is used as a tool to ensure proper procedural safeguards are 20 enacted. These scripts crystallise differences across and between national contexts and as such serve to confirm the country characteristics described by Gilbert et al. (2011). In the case of England, however, a review of the template in the context of other institutional scripts helps to clarify that country’s place in a cross-country context. Other authors have previously referred to the English system as being a hybrid between the family service and child protection orientations (Gilbert et al., 2011; Berrick et al., 2015a). The blank care order application template demonstrates how the English child welfare system is currently trying to balance these two approaches, at the point when a case has entered care proceedings. There is a focus on the child’s well-being now and in the future, with a requirement for detailed information about the harms, risks and proposals in several psychosocial dimensions (the welfare checklist). There is a strong emphasis on the child’s experiences, wishes and feelings, but also on looking for placements within the extended family. The blank template thus reveals how the notion of children’s ‘welfare’ is currently constructed in England under the umbrella of promoting children’s well-being while securing their protection. A child welfare worker’s task is, fundamentally, to act within the principles and legal boundaries of their child welfare system. When responding to the care order application form, these principles and legal boundaries are made manifest, and the expectations and leeway for discretion given to child welfare workers becomes visible. 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