Barnekonvensjonen i norsk rett, Ingun Fornes, Anna Nylund, Anneken K. Sperr (eds)

1. Introduction and overall critique

‘Barnekonvensjonen i norsk rett—Prinsipper og praksis’ is an anthology edited by Ingun Fornes, Anna Nylund and Anneken K. Sperr and was published in 2023. The anthology concerns questions on the impact of the Convention of the Rights of the Child (CRC) within different areas of Norwegian law. It is mainly relevant to readers in a Nordic context, as it is written in Norwegian. The anthology contributes to scholarship on the CRC and child law by providing valuable insights into the implementation of the CRC in different areas of national law, in the context of a dualist legal tradition.

In the introduction, Professor Anna Nylund and Assistant Professor Ingun Fornes outline the objectives of the anthology. The first objective is descriptive, ie to examine how the CRC has influenced the legal status of children in Norway. Additionally, the first objective includes the task of analysing the CRC's impact across various areas of Norwegian law. The second objective is analytical and normative. The anthology seeks to analyse which areas of law the CRC has made a significant impact on, and which areas of Norwegian law that were less affected. The authors of the different chapters have undertaken the task to describe and analyse which actors have used the CRC in their legal argumentations in the investigation of their respective fields of law. The actors of interest for the anthology are described as legislators, courts, legal scholars and other actors with interest in children’s rights. The third objective of the anthology is to contribute with new knowledge on the CRC and children’s rights in a national setting. It seeks to give the reader insights into the use of CRC in legal argumentation, as well as its limitations in this regard.

Overall, the anthology is a valuable contribution in child law and it meets its objectives. The main contribution of the book is the description and analysis of how children’s rights are regulated and applied in Norwegian law. However, some parts of the second and third objectives as outlined in the introduction of the anthology seem in part more far-reaching than the overall result of the book. Some of the individual chapters contain propositions as to how the CRC, or the fact that the CRC is incorporated as part of Norwegian law, could serve as an explanation of different changes in the development of children’s rights in Norway. The statements of impact in these chapters are mainly based on Norwegian legal sources, such as national preparatory works and case law. A very interesting observation which results from reading the chapters is that many of the legal changes ascribed to the incorporation of the CRC as part of Norwegian law have been followed by other Nordic countries—which at the time had not yet incorporated the CRC. Therefore, a follow-up question which arises for the reader is the following: are such changes due to the incorporation of the CRC, or could there be other explanations? The analyses on the correlation and effects of incorporation, and other forms of implementation of international law in a national setting, would most likely have benefited by also including studies with other scientific methods, complementing the doctrinal one, in this anthology. The question of what effect or impact the incorporation has had in the legislative process largely seems to be an empirical question, and therefore, well suited for empirical legal studies combined with a comparative approach. There is an ongoing and much needed discussion on what the most effective way to implement the CRC in national law is.¹

Overall, our impression is that the anthology provides valuable insights into many areas of Norwegian law and legal practices regarding children’s rights. It also serves as an excellent example of investigation on the implementation of international law in a dualist legal tradition, such as the Norwegian system.

2. The content of the anthology—six thematic parts

I. Part 1—introduction and constitutional law

The anthology is divided into six thematic parts and a total of 15 chapters written by different Norwegian scholars from several universities in Norway. Part I includes two chapters (chapters 1–2). The first chapter is an introduction to the anthology. It also presents central sources in children’s rights law, such as general comments from the UN Committee on the Rights of the Child.

Chapter 2, written by Professor Karl Harald Søvig and Research Assistant Susanne Lohne Iversen, contributes with a thorough description of the protection of central children’s rights principles in Norwegian constitutional law. The chapter takes as its starting point article 104 of the Norwegian constitution (Grunnloven), whose aim is to protect children’s right to participation, the principle of the best interest of the child and the child’s right to privacy and integrity. The chapter also deals with some theoretical issues concerning the general comments and other sources from the UN Committee on the Rights of the Child. Søvig and Lohne Iversen present case law from the Norwegian Supreme Court and argue for the relevance of General Comments by the UN Committee on the Rights of the Child for Norwegian law. The authors also present the constitutional rules within their historical context and in relation to developments in international law. Søvig and Lohne Iversen argue that the fact that children’s rights principles are protected in the Norwegian constitution seems to have little relevance in practice. According to the authors, other legal rules that are not part of the constitution have the same legal relevance as the constitutional provisions in the practical application of the law. They further urge for a shift in the judicial reasoning of the Norwegian Supreme Court and for the development of future case law with reference exclusively to article 104 of the Norwegian constitution.

II. Part 2—children and parents

The second thematic part of the anthology has three chapters (chapters 3, 4, and 5) and deals with the legal relationship between children and their parents. Chapter 3 is written by Associate Professor Karsten Brynildsrud and focuses on governmental care for young people. Brynildsrud is interested in the relationship between the Norwegian Children’s Protection Act (Barnevernsloven) and the CRC. He provides a thorough description of Norwegian law and analyses the importance of the European Court of Human Rights decision Strand Lobben and others v. Norway² for the Norwegian context. Brynildsrud argues that a revision of the Norwegian legislation on adoption could benefit children that fall within the scope of application of the Children’s Protection Act.

In chapter 4, Professors Camilla Brent and Anna Nylund examine the requirements of Article 12 of the CRC regarding children's participation in family law and child welfare cases. The main focus of this chapter is the mediation process. The authors discuss the current regulations and the development of general provisions for participation in these areas, as well as the influence of the CRC. The chapter also addresses how legal frameworks and practices facilitate children's involvement in court proceedings and child welfare discussions. It further highlights children's rights to participate in mediation and discussions. In this chapter, the extent to which existing regulations and conditions support children's rights under Article 12 of the CRC is evaluated, with the authors suggesting that children should be more involved in the process.

Chapter 5 is written by Associate Professor Malgorzata Cyndecka. In this chapter, the author discusses the phenomenon of ‘sharenting’³ along with the associated risks. She introduces Article 16 of the CRC, followed by an analysis of the Norwegian Personal Data Act of 2000, which aimed to protect the privacy of children exposed online by their parents. The chapter also provides an overview of provisions in the Norwegian Personal Data Act that specifically address children's privacy. In addition, it examines the limits of parental consent in the light of Supreme Court case HR-2019-2038-A, which assessed the importance of both children's and parents' consent in interpreting criminal law.⁴ In her conclusions, the author argues that Norwegian law does not protect children’s privacy in a sufficient way. There is a proposed change in Norwegian law, to enhance the parents’ responsibility to seek consent for publications. One political party has even suggested a ban against publications of children’s personal information for commercial purposes. The chapter is a thought-provoking text that elegantly gives the reader insights into the phenomenon of sharenting and its legal dimensions in Norwegian law.

III. Part 3—health law

The third thematic part includes four chapters (chapters 6, 7, 8, and 9) and is devoted to children’s rights in health law. In chapter 6, Professor Henriette Sinding Aasen examines the significance of the CRC and the UN Committee on the Rights of the Child for understanding children's needs and their ability to consent to medical interventions and treatments without parental involvement. Furthermore, the chapter addresses the development of the child’s right to consent to medical interventions and treatments. The chapter places a particular focus on children under the age of 16, as those over 16 generally have the right to self-determination under Norwegian health law. The author’s focus is mainly on situations where the child and its parents have conflicting interests and on the child’s right to autonomy within the Norwegian health care system. She argues that the child is vulnerable, and with reference to Nussbaum, she suggests that children should have enhanced autonomy when performing actions connected to ‘core capabilities’—such as life, health, and privacy. She also argues that the Norwegian Patient and User Rights Act would benefit from the addition of a legal provision referencing the principle of the best interest of the child.

Chapter 7 by Professor Randi Sigurdsen problematizes the rights of children with disabilities, particularly regarding article 23 of the CRC. In the chapter, Sigurdsen deals with the scope of the article by answering two questions: which children are protected by article 23; and what are the responsibilities of the member states? She also connects article 23 to article 2 on non-discrimination. Sigurdsen argues that the Norwegian state has not done enough to ensure that children with disabilities enjoy independence and freedom to participate in the Norwegian community. Her conclusion is that the incorporation of the CRC in Norwegian law has not led to sufficient protection of children’s rights in accordance with the standards of article 23 of the CRC.

In chapter 8, Associate Professor Marius Storvik discusses children's right to health in relation to coercive actions in Norwegian psychiatry. The chapter’s main focus is on decisions on forced hospitalization and forced feeding and their connection to articles 12, 24 and 37 of the CRC. Storvik contributes with an important analysis on the procedural implications on children who are deprived of their liberty and on the status of the Norwegian Commission for Psychological Health Protection (kontrollkommisjonen). He concludes that it is uncertain if the Norwegian Commission for Psychological Health Protection is a competent, independent, and impartial authority in accordance with article 37(d) of the CRC when dealing with children under the age of 16 who do not have the right of action in such matters. He argues that children over the age of 16 are granted the same rights as adults, which does not demonstrate that children have rights that adults do not, such as protection under Article 3.1 of the CRC and the principle of the best interests of the child.

Chapter 9 by Associate Professor Anniken Sørlie examines the evolution of rights for transgender children in Norwegian law. Norwegian law allows for children to correct their legal gender in official registers. Sørlie connects this topic to articles 2, 3, 8, 12, 16, and 24 of the CRC. The chapter contributes an in-depth analysis on the applicability of articles 2, 8, and 16 of the CRC as regards the right to correct legal gender. Sørlie argues that gender and identity are important aspects of the child’s right to private life and that the child has a right to participation in decisions concerning their legal gender. In connection to medical gender-affirming treatments, Sørlie argues that the child’s own wishes and views should be paramount when making decisions on gender-affirming treatments. She proposes that the child’s right to development and the right to the highest attainable standard of health give the child the right to make an informed choice on whether to go through with such treatments. Sørlie acknowledges that these treatments have severe consequences but argues that growing up without treatment may also carry severe consequences for the child.

IV. Part 4—criminal law

The fourth thematic part is focused on Criminal law, and it has three chapters (chapters 10, 11, and 12). In chapter 10, Professor Jørn Jacobsen provides an overview on how the CRC has impacted the Norwegian penal code of 2005. The chapter is mainly focused on violence and sexual offences. It provides a thorough description of instances when the Norwegian legislator has referenced the CRC and other conventions in preparatory works. In addition, the chapter gives an overview of the relationship between children’s rights and criminal law in Norway.

Chapter 11 by Professor Gert Johan Kjelby and Professor Ørnulf Øyen concerns criminal procedural law. The chapter addresses Norwegian regulation on situations where children are suspected of having committed crimes as well as when they are victims of crimes. A significant part of the presentation focuses on Norwegian regulations and their relationship to case law of the European Court of Human Rights. In a concluding section, Kjelby and Øyen argue that Norwegian legislation ought to be adapted to better ensure that children suspected of crimes have legal representation, as well as to establish new guidelines for child interrogations. The chapter is well-written and interesting; however, it does not address the CRC in any significant detail. Rather, in the conclusions, the authors briefly state that ‘it is not clear what the CRC requires’.

Chapter 12 by Assistant Professor Ingun Fornes and Professor Linda Gröning focuses on various forms of punishment for young offenders under Norwegian criminal law. The chapter explores the influence of the CRC on punishments for crimes committed by youth, while also addressing issues related to their criminal responsibility. Fornes and Gröning argue that Norwegian legislation has made significant progress since the incorporation of the CRC into national legislation. However, they identify two areas for potential improvement. First, they highlight some deficiencies in the treatment of youth over the age of 15 who can be held criminally liable. Second, they address the issue of children receiving custodial sentences (forvaringsstraff). The authors conclude that while there is no specific regulation in the CRC addressing these two areas, it is possible to argue that Norwegian law in this field should adhere to the general principle of the best interest of the child and the child's right to development. They advocate for child-specific remedies to better align Norwegian criminal law with children's rights than is currently the case.

V. Part 5—access to justice⁵

The fifth thematic part concerns the child’s right to access to justice and consists of two chapters (chapters 13 and 14). Chapter 13, by Professor Anna Nylund, discusses children’s access to justice in procedures under Norwegian governmental bodies and courts. The chapter takes articles 2, 4, and 12 of the CRC as a starting point. According to Nylund, children in Norway often lack access to legal aid, leaving them dependent on their parents to guard their procedural rights and initiate legal proceedings. Nylund deems this dependency particularly problematic for economically and socially vulnerable children, as well as in cases of conflicting interests between the child and its parents. To analyse children's access to justice within governmental bodies and courts, Nylund utilizes a model by O’Mahoney, although she does not introduce this model to the reader. She concludes that the Norwegian children's ombudsman provides insufficient access to justice and that the Committee on the Rights of the Child recommends enhancing the ombudsman's authority. Nylund also addresses access to justice in courts, noting that Norwegian law does not allow for declaratory judgments regarding infringements of a child's rights. However, a child involved in legal proceedings can claim that a judgment violates their human rights. She identifies procedural costs and conflicting parental interests as barriers to justice for children and urges lawmakers to strengthen children's rights and access to justice. Additionally, she criticizes Norway's decision not to sign the third Optional Protocol to the CRC, arguing that this places Norway behind Denmark, which has already ratified the protocol.

Chapter 14 by Professors Maria Astrup Hjort and Kirsten Sandberg concerns children’s procedural rights in relation to environmental issues and has its focus on climate change. The chapter gives a thorough presentation on the view of the Committee on the Rights of the Child and its General comment on children’s rights and the environment, with a special focus on climate change (General comment 26).⁶ The chapter has a global as well as a national perspective. When describing how climate change interferes with children’s rights, the main source of reference is General comment 26, which mentions lack of arable soil, clean water as well as the spread of deceases such as malaria, dengue fever, and cholera. The chapter gives a rich and detailed description of the global problems with climate change. Some of the issues seem somewhat unusual for a book focused on Norwegian law. However, the chapter gives a valuable introduction to international perspectives on children’s rights and climate change issues. Astrup Hjort and Sandberg argue that children have the right to access to justice in climate change issues. They further argue that Norway ought to ratify the third optional protocol to the CRC. The second part of the chapter deals with children’s access to justice in a Norwegian context and consists of a description of the possibilities for children to initiate a procedure or appeal a decision under national law. Sandberg and Astrup Hjort show that children are often left without their legal guardians to access justice in climate-related legal decisions. They highlight the Norwegian Parliamentary Ombud for Scrutiny of the Public Administration (Sivilombudet) as a positive example where children have a possibility to file complaints if they experience maltreatment by an official body. Sandberg and Astrup Hjort request new regulation to ensure that children get more enhanced procedural rights under Norwegian law in legal questions on climate change.

VI. Part 6—conclusions

Chapter 6 contains an analysis and summary of the anthology, attempting to connect the chapters into a cohesive whole. It provides a historical background and discusses the impact of the CRC on Norwegian law since its incorporation. The chapter also addresses some of the shortcomings in Norwegian law highlighted in the various chapters of the anthology. A recurring theme is that children often lack independence in legal matters where their interests conflict with those of their parents. This chapter presents an interesting portrayal of the strengths and challenges within children’s rights in Norwegian law.

It would have been useful and interesting if the chapter had included a thorough analysis of the differences between the CRC as part of national law and as an international treaty. While the chapter includes several assertions about when the incorporation has been significant, it primarily focuses on the CRC's importance for Norwegian law—rather than as Norwegian legislation. The chapter concludes that the incorporation of the CRC has played a significant role in strengthening children's rights in Norway. However, it does not explain why the incorporation, rather than the CRC as such, has influenced children's rights. Fornes and Nylund note that it can be difficult to assess whether the CRC has had an impact in a specific area of law. Specifically, in section 3.3 of chapter 15, the authors state that the absence of references to the CRC does not necessarily mean that it has not been significant. Similarly, they argue that a reference to the CRC does not necessarily imply that it has had an impact.

Chapter 15 is a very rewarding reading for understanding the current state of children’s rights and its challenges in Norwegian legislation today. It also contributes with an engaging analysis of the development of children’s rights in various legal areas of Norwegian law. Nevertheless, similar to some other chapters in the anthology, the reader would have benefited from a multifaceted analysis of the changes in child law and the extent to which they can be attributed to the incorporation of the CRC or the CRC as a binding international obligation.

Footnotes