Barnets rett til medbestemmelse ved omsorgsovertakelse : rettighetens betydning i et komplekst landskap av rettslige normer

Sammanfattning: This legal study concerns the child’s right and possibility to participate when a care order is being considered in Norway. The child’s right to participation can be explained as the influence children can or should have on their own lives, even if children do not have full autonomy or self- determination. The right has been decisive for a change in view of children as a legal entity and an active subject of rights. In Norwegian legislation, the right to participation has been clarified and strengthened since the Convention on the Rights of the Child was incorporated into Norwegian law in 2003, and it has been given a prominent place in children’s own rights provision in Section 104 of the Constitution. Nevertheless, there have been repeated criticisms that this right is not adequately practiced. In this study, it is argued that it is not sufficient merely to strengthen and clarify the child’s right to participation without that right at the same time implying a renewed understanding of the child’s other rights and the conditions for a care order. In an assessment of taking a child into care, the right to participation must be safeguarded throughout all stages of the assessment for those children to be guaranteed a real opportunity for involvement. It is argued that the child’s perspective must be included in the assessment of whether there is a serious failure of care, whether remedial measures can help the situation, and what is in the child’s best interests. The conditions and assessment methodology for decisions on care orders should also promote to a greater extent a balance of the child’s various rights. It is argued that this is necessary to safeguard the child’s independent legal interests in these cases, which also include the parents’ right to family life.