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Juridification and Standardisation: Two Legal Dimensions Influencing Contemporary Child Protection

Juridification and Standardisation: Two Legal Dimensions Influencing Contemporary Child Protection Abstract The aim of this article is to analyse juridification and standardisation as two legal dimensions influencing contemporary child-protection work, and to discuss its implications for practice. We provide a framework for how the concepts of juridification and standardisation might be understood and analytically differentiated, drawing on theoretical discussions within both socio-legal and social work literature. We illustrate the framework by analysing empirical examples that relate to ideas of children’s rights, standardised assessment frameworks and to an integrated model for multi-professional collaboration in cases of child abuse. The empirical examples depart from a Nordic context, but can be seen as examples of travelling ideas found in other countries as well. The understanding of legal phenomena today is broad, often referring to law itself (hard law) as well as to other forms of regulations (soft law), with the common focus on formal procedures and predictability as a means to provide security. However, in this article, we argue that it is necessary to analytically differentiate between the two legal dimensions, to be able to study and discuss how they relate to each other, co-exist and interact. Finally, implications for child-protection practice are discussed in light of the provided framework. Child protection, children’s rights, juridification, professional practice, social work and law, standardisation Introduction There is an ongoing scientific discussion on the changing nature of social work practice. For example, the increased use of standardised procedures has been discussed from an organisational and professional perspective, often focusing on professional discretion (e.g. Evans, 2013; Evetts, 2010; Ellis, 2011). The new informational knowledge base (Martinell Barfoed and Jacobsson, 2012; Parton, 2006) and the changing interaction between social worker and client have also been debated (Lauri, 2016; Martinell Barfoed, 2014). The influence of market-oriented ideas (marketisation) and evidence-based practice as a principle for social work are two regulatory forces that have been connected to this development in Sweden (Bergmark and Lundström, 2011; Hartman, 2011). Strong regulatory forces have thus developed that provide new ideas about how to achieve social and legal security in social work that somewhat differ from the traditional ‘hard law’ approach of governing bureaucracies. At the same time, the nation state is increasingly affected by international laws and regulations, as a result of international associations (as the EU and the UN) and transnational movements. If we turn to child protection as a field of social work practice, this is a professional field that has experienced an increased use of guidelines and standardised assessment models in the last decade. At the same time, the UN Convention on the Rights of the Child (CRC) has put a focus on the need to strengthen children’s legal rights. The regulatory landscape of contemporary global or transnational society is being debated among socio-legal oriented scholars, giving rise to the question of how to gain a more fundament understanding of law and legal phenomena. The growing literature on transnational law acknowledges the expansion of law and rule making beyond the boundaries of nation states, and identifies the increasing power of transnational processes and regulators, and the increase in different forms of regulations (Cotterrell, 2009; Shaffer, 2013; Zumbansen, 2010). Transnational regulation to a large extent builds upon standards, norms and guidelines (‘soft law’), often developed in close connection with the diffusion of popular management and organisational ideas (Djelic and Sahlin-Andersson, 2006; Johansson, 2016). Similarly, scholars within social policy and social work have identified the presence of ‘welfare pluralism’ (Powell, 2007) where the state is increasingly complemented by private, voluntary and informal sectors and actors as social policy and service providers. Since law has mainly been viewed and studied from a traditional state-centred perspective, there is a need for a more complex understanding in line with these developments (Cotterrell, 2009). The understanding of legal phenomena today is thus broad, often referring to law itself as well as softer forms of regulation. In this article, we argue that it is beneficial to analytically differentiate between different legal dimensions, to be able to study and discuss how they relate to each other, co-exist and interact. The aim of this article is to analyse and discuss juridification and standardisation as two legal dimensions influencing contemporary child protection. We provide a framework for how the concepts of juridification and standardisation can be understood as two different legal dimensions, which are sometimes intertwined and interact, drawing on theoretical discussions within both social work and socio-legal disciplines. We then illustrate the framework by discussing empirical examples of contemporary child protection from a Swedish and Nordic context. The examples constitute legal proposals concerning children’s rights, the use of a standardised assessment framework and the introduction of a model for multi-professional collaboration in cases concerning child abuse (the Barnahus model). Finally, we discuss the phenomenon of juridification and standardisation within child protection, and some implications for practice. Even if we depart from Swedish and Nordic contexts, the discussed examples and methods might be seen as ‘travelling ideas’ (Czarniawska and Sevón, 1996) and broader international trends within the field of child protection. The assessment framework used in Sweden (BBIC) is based on an English model (ICS), and the Barnahus model has been promoted and introduced in several other European countries besides the Nordic, and originally departs from the US Children’s Advocacy Centers. In England, for example, the Barnahus model has recently been promoted by the Children’s Commissioner and suggested to be piloted (Children’s Commissioner, 2016). Theoretical framework In this article, we use juridification and standardisation as theoretical concepts for separating and understanding different legal phenomena within child protection. However, juridification has been used to describe a wide range of legal phenomena, sometimes close to softer standardised regulations. This means that defining juridification and standardisation, and how we use and differentiate between these legal dimensions in this article, needs some discussion. Juridification as a regulative process According to Habermas (1987), juridification can be seen as a historical process, a colonisation of the lifeworld, starting with the development of the bourgeois state and the rise of a modern formal system of civil law (Habermas, 1987, p. 356). The legal system developed and contributed to formulating a democratisation of the constitutionalised power of the state, where the social state could use law as a control system for distributing economic resources and power (Habermas, 1987; see also Teubner, 1987, pp. 11–13). This historical development of juridification cannot, according to Teubner (1987, pp. 11–13), be hindered or reversed, since it is part of a development into a modern society. He discusses how juridification has also been described as a ‘flood of norms’, and as a depolitisation of social areas (pp. 6–19). Teubner (1987, pp. 19–41) claims that juridification needs to be understood as a complex relationship between three self-regulating social systems: politics, law and the area of social life—systems that are often inadequately coupled. The ‘regulatory trilemma’ means that influence across or between these systems depends on whether they correspond to how the systems tend to regulate and understand themselves (Teubner, 1987, p. 21). From this perspective, law does not necessarily change practice, since law battles with, and is interpreted within, political and social structures. According to Teubner, laws and rules, however, do result in an instrumental orientation (Teubner, 1987, p. 16). From this perspective, juridification can both be regarded as an explosion of legal rules and also result in the development of administrative softer rules as a way to incorporate or facilitate legal rules in practice. The importance of soft regulations has thereafter continued to increase, due to new complex legal structures that include the blurring of boundaries and creation of rules within as well as beyond nation states, such as through policies, standards and guidelines (Cotterrell, 2009; Djelic and Sahlin-Andersson, 2006; Shaffer, 2013; Zumbansen, 2010). This development of a softer ‘rule explosion’ could be interpreted as increased juridification, but also as the opposite—as decreased legal power of the state and traditional national hard law. Juridification and the law Later definitions of juridification seem to be more closely linked and restricted to hard law. For example, Brännström (2009) divides juridification into three main components: increased legal regulation of areas that were not previously regulated by law, increased power for courts to decide in areas regarding social life, and a changing discourse meaning that significant importance is given to the legal discourse as a means for solving problems. Blichner and Molander (2008) regard juridification as a process connected to five different dimensions: the constitution of laws, the extension and differentiation of law, increased legal conflict solving, increased legal power and increased legal framing in how we refer to and think about ourselves and others. In several studies, juridification has come to describe an adjustment to discourses of hard law, the legal system and its professionals, rather than legal aspects or regulations in general (Bakketeig, 2017; Johansson, 2011; Ponnert, 2007). Later on, we use and define juridification as a concept for describing a development where the constitution of (hard) laws increases within a field (child protection), and where the field is (also or simultaneously) increasingly discussed and guided by a legal discourse, meaning an increased legal framing in how social problems and solutions are discussed that relates to hard law. We use this quite narrow definition of juridification to analytically separate it from the phenomenon of standardisation, but also to stress that juridification is a phenomenon that does not necessarily change practice per se, or does not necessarily result in increased legal power in practice (in terms of hard law). Rather, juridification and standardisation can be regarded as two parallel processes that might strengthen or weaken each other. Standardisation We use standardisation to describe a development of increased formalisation of social work practice—when prescribed guidelines, routine practices or manuals for assessments and treatment become increasingly dominant for guiding working practice. Other concepts such as (technical) instrumentalism (Broadhurst et al., 2010) and technicality (Jamous and Peloille, 1970; Robinson, 2003) have been used to describe similar tendencies. A standard has been defined as ‘a rule for common and voluntary use, decided by one or several people or organisations’ (Brunsson et al., 2012, p. 616). In addition, standards are formal, since they are written and explicit; they also have a connection to the norms guiding a specific practice (Brunsson and Jacobsson, 1998, 2000). Brunsson et al. (2012) claim that standardisation and organisation are related in three different ways: standards are produced by organisations, standards also influence the structure and practice in organisations and, thirdly, standardisation can be seen as a way to organise modern society. In this article, it is primarily the second and third perspectives of standardisation we focus on. Since it is voluntary for organisations to follow specific standards (even if the normative and political incentives might be strong), there are no legal sanctions connected to not following standards (Brunsson et al., 2012). This also makes standardisation different from hard law, where sanctions often follow if the legal rules are not followed. In this aspect, standardised rules are not connected to accountability, since professionals cannot rely on, or only refer to, standardised procedures as accounts for decisions in practice. The opposite is true for hard law, since organisations and formal decisions made by professionals need to correspond with (and refer to) the legal framework (hard law) in order to be accountable and legitimate. Analytical framework for separating standardisation and juridification Juridification and standardisation both provide administrative or formal solutions to how practice or work shall be improved by following some specific rules or procedures (legal or simply administrative). In doing so, juridification and standardisation are strengthened by a similar institutional idea that, if the formal aspects of justice or administrative correctness are clarified and strengthened, this will result in improved social justice and legal security for individuals in practice. This idea can accordingly be understood as a focus on providing legal security and predictability, by law or by other standardised procedures. Both legal dimensions (juridification and standardisation) depart from a pre-categorised or ‘generalised’ client, where assessments or decisions are based upon what individuals in general need and not on a flexible approach to the client’s problems or rights. Predictability is an ideal closely connected to the legal system through formal laws. The transparency and predefined working process provided by standards seem to correspond to a similar ideal, as something that will reduce the unpredictability that has been associated with professional knowledge and discretion. However, juridification and standardisation, according to our understanding, originate from different organisational fields and ideals, and accordingly differ in form and how they manifest themselves (see Table 1). Table 1 Legal dimensions Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Table 1 Legal dimensions Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Juridification can in simplified terms be understood in relation to the legal system, often portrayed as a traditional institution resistant to change. This does not mean that rapid legal changes or processes cannot ever occur, but simply that law itself is often restricted by more formal and ‘slow’ procedures. Standardisation might, however, be understood in relation to human service organisations as ‘open’ systems (Hasenfeld, 2010), constantly striving for survival and thus responding to the same ideas and trends, often resulting in isomorphism (DiMaggio and Powell, 1983). In such organisations, changes can occur rapidly when organisations imitate one another and when popular ideas of how to ‘do work’ travel between organisations (Czarniawska and Sevón, 1996). Standardisation is also associated with other contemporary movements such as evidence-based practice (EBP) and new public management (NPM), whereas juridification relies on hard law as a regulating force. While the official aim of standardisation is connected to ideas related to transparency, and how to measure and evaluate the quality and effects of organisational practice, the official aim of juridification is to secure human rights, justice and legal security by legal norms. Even though the above conceptual distinction as well as different theoretical approaches are useful for analytical purposes, juridification and standardisation constitute legal dimensions and processes that in practice relate to each other, and might influence each other in different ways, depending on contextual circumstances. Furthermore, they could often be hard to differentiate from each other, as well as from the popular institutional ideas they build on. Therefore, we will first illustrate the framework by discussing two empirical examples that can be interpreted as juridification and standardisation, respectively, and then discuss an example that shows how juridification and standardisation might co-exist in practice. Juridification and standardisation in child protection Legal initiatives and the focus on children’s rights as juridification Freeman (2012) claims that the children’s rights movement has shifted from a child-saving perspective (child protection) in the nineteenth century to a focus on protecting the integrity and autonomy of children (protecting children’s rights). The rights-based focus on children as competent subjects is also dominant in contemporary childhood studies (Freeman, 2012). The CRC can be interpreted as an international expression of juridification in the area of child protection across countries, putting a focus on legal initiatives to improve the welfare and protection of children. Sweden ratified the CRC in 1990 and has since amended several laws in accordance with the convention. Since 2009, the government of Sweden has also initiated several major commissions with the purpose of looking into the legal regulations concerning child-protection social work practice (SOU 2009:68; SOU 2015:71; SOU 2016:19). The need for securing the child’s position as a ‘holder of rights’ in law and practice has been increasingly emphasised in legal commissions (SOU 2015:71, p. 177). The Swedish government now declares an ambition to turn the CRC into a national law. In a legal proposal, this is presented as a reform that will increase the well-being of vulnerable children in Sweden, and it is also described as a way to promote gender equality and integration in society (SOU 2016:19, pp. 470–3). Despite the fact that studies have shown several limitations in how Swedish authorities currently interpret the general principles of the CRC, the proposal signifies a strong belief in law making as a solution to problems in practice. However, Sweden has already adapted the national legislation in accordance with the CRC, and is by the ratification bound to follow the convention. As an international convention, the CRC also offers a broad perspective and a minimum level regarding children’s rights in order to be possible to adapt in different national contexts, and some authorities who have considered the legal proposal are critical, including the Council on Legislation in Sweden. One critical view that has been debated is that the CRC as a Swedish law would result in increased power for courts to interpret what is in the best interests of children when there are different national legal concerns, which clearly can be understood as a juridification effect. It is not possible to predict what effect the CRC as a national law might have for Swedish child-protection practice. What is interesting is the increased focus on children as ‘holders of rights’, which is presented as something positive that will improve vulnerable children’s situations in practice. However, a risk of focusing on children’s agency is that aspects of children’s vulnerability might be less acknowledged (Bluebond-Langner and Korbin, 2007; Tisdall and Punch, 2012). Legal rights are also interpreted by professionals and, in reality, child protection is embedded in a complex legal context that also involves working with parents, as strong holders of rights. In Sweden, for example, it is mandatory for social services to start an assessment whenever a child is suspected of having been exposed to or witnessed violence, according to a legal canon from 2014. However, studies have shown that children are not fully protected in these situations, due to a contact presumption in policy and practice emphasising children’s right to contact with parents (Bruno, 2015). The ambiguity in the perspective of children as victims and competent subjects may also undermine policy intentions to protect children (Eriksson, 2011). In addition, assessments of children who are exposed to violence do not always result in support interventions (SOU 2016:19). The legal context in Sweden might partly explain this, since it emphasises voluntary support interventions (Leviner, 2014; SOU 2016:19). Social workers are dependent on the custodians’/parents’ consent to provide support for the child, in all cases where compulsory care of the child outside home is not relevant or possible. Assessment frameworks as standardisation In contrast to the growing belief in a rights-based approach and ‘hard law’ illustrated above, standardisation within the child-protection field can be exemplified by the use of assessment frameworks. The Integrated Children’s System (ICS) is an assessment framework for sorting and documenting information about children in the care system in England. It was formed at a time when child-protection work was being questioned, due to findings in research, investigations and inquiries into children who had been killed, and was launched as a system that would improve the quality of child protection and reduce professional errors (White et al., 2010). A similar assessment framework, called BBIC (Children’s needs in focus), inspired by and developed from the ICS, was launched in Sweden in 2006. Within three years, BBIC had been implemented in 260 of 290 Swedish municipalities (National Board of Health and Welfare, 2015a, pp. 115–16) and it has since rapidly become the dominant way to assess children in Sweden. BBIC is recommended by the National Board of Health and Welfare—a state authority that is also responsible for providing training and licenses within the framework. Accordingly, even if it is still voluntary for municipalities to use BBIC in Sweden, almost all municipalities use this assessment framework today. BBIC is based on nine basic principles, which depart from ideas about children’s rights, an ecological and holistic perspective and the need for co-operation, and the need to relate and evaluate work in accordance with existing knowledge (National Board of Health and Welfare, 2015a, p. 12). The assessment framework is illustrated by a triangle and twelve categories related to the child’s needs in relation to the three sides of the triangle: the child’s development, parents’ capacities, and family and environment. The initiative for producing BBIC has primarily been political, with the National Board of Health and Welfare as a strong force. The initiative and goal of BBIC have primarily been to produce a system designed to produce a national and coherent system to get a uniform system that can also be used to collect and evaluate information in a systematic way (National Board of Health and Welfare, 2015a, p. 8). Aspects of hard law are hardly mentioned in the guidebook for BBIC, and nor are the specific legal aspects regulating compulsory care. BBIC is thus primarily a system and tool for gathering and sorting information that needs to be combined and carried out in accordance with the legal rules and procedures that govern the investigative child-protection work, and can be seen as an illustrative example of standardisation. The ICS and BBIC are examples of how standardised working procedures might turn into major artefacts that spread, influence and change practice in a crucial way, and that have relatively little to do with the formal legal framework for protecting children. Standards might accordingly work ‘beside law’, and sometimes even go beyond law, in their ambitions. For example, according to the Social Services Act in Sweden, a written ‘care plan’ is only necessary when a child is placed outside the home (in foster-care or institutional care) (11:3 Social Services Act). However, in BBIC, there are tools for documenting and following up all kinds of interventions, and a written plan describing the assignment and the intervention is also suggested when day-time support interventions are given to children and their families (National Board of Health and Welfare, 2015b), which might be interpreted as an increased administrative and regulatory demand on professionals. Barnahus as juridification and standardisation The concept ‘of Barnahus’ translates into Children’s House in English and derives from Iceland, being the first Nordic country to adopt the model in 1998. The Icelandic Barnahus, in turn, took the US Children’s Advocacy Centers (CACs) as its inspiration. The Nordic Barnahus model constitutes a multi-professional model for assessing cases of suspected child abuse in a supportive and child-friendly facility, most often involving collaboration between child-protection services, health care services and law enforcement, thus institutionally balancing ‘welfare’ and ‘justice’ (Johansson et al., 2017). Barnahus can be seen as a manifestation of a development in child-protection work towards more integrated measures, while at the same time Barnahus is often referred to as an example of child-friendly justice. The diffusion process has been extensive and, in 2016, all Nordic countries and autonomous regions had implemented the model in some form or another. However, the implementation process has varied quite significantly between the Nordic countries, as has the balance between justice and welfare (Johansson et al., 2017). The establishment and implementation of the Barnahus model have resulted in as well as from different legal dimensions, and could subsequently be understood in terms of both juridification and standardisation. In some Nordic countries, more traditional nation-state-centred reforms and hard laws have driven the implementation process of the Barnahus model. In Denmark, for example, the implementation of Barnahus followed a major law reform that was brought into force in October 2013, called ‘the Abuse Package’ (‘Overgrebspakken’ in Danish). As part of this reform, a specific law authorising Barnahus and defining the tasks and duties of Barnahus was passed (Order on Children Houses, No. 1153 of 01/10/2013) as well as several changes within the social welfare legislation (Consolidation Act on Social Services, No. 1284), resulting in the simultaneous start of five Barnahus and three satellites serving the whole country and made mandatory for all Danish local child welfare services to use in child abuse cases involving police and/or health care. In addition to the legal provisions (hard law), the National Board of Social Services also issued common professional quality standards for the Danish Barnahus model, thus representing softer forms of regulation (National Board of Social Services, 2015). In Denmark, the model was thus clearly connected to a process of juridification within the field of child protection that, in turn, resulted in Barnahus as a standardised form of ‘doing work with abused children’. In several other Nordic countries, however, the Barnahus model was initiated without any specific Barnahus law or regulation tied to its implementation. In Sweden, the Barnahus model was initiated as a pilot project at six locations by the Ministry of Justice in 2005, without issuing any specific or new legal reform (Ministry of Justice, 2005). By the time of its establishment in 2007, there was similarly no specific Barnahus regulation in Norway, but, in 2015, the Criminal Procedure Act was amended and new (mandatory) regulations of facilitated interviews came into force (FOR-2015–09–24–1098). Since the implementation of the pilot in Sweden, around thirty Barnahus have started at different locations around the country and as a result of various initiatives (e.g. local politicians, agencies or the non-governmental organisation (NGO) Save the Children Sweden). Nevertheless, Barnahus is still not regulated by any specific hard law or made legally mandatory, and subsequently around 160 out of 290 Swedish municipalities were connected to a Barnahus in 2013 (Save the Children Sweden, 2013). However, several soft regulations have been created in parallel with the diffusion and implementation of the Barnahus model in Sweden. Standards have been issued by the Swedish National Police Agency and also Save the Children Sweden, which, in addition, has created a quality-assurance manual for Swedish Barnahus in co-operation with Linköping University (National Police Agency, 2009; Save the Children Sweden, 2009, 2013). Moreover, the Barnahus model is supported by policies and guidelines at international and European levels, emphasising multidisciplinary collaboration in child-friendly facilities (e.g. the Council of Europe’s guidelines on child-friendly justice). In Sweden, Barnahus can thus be understood as mainly connected to standardisation, being regulated by guidelines rather than any Barnahus-specific hard law. Still, the very idea of Barnahus builds on collaboration between professionals from the legal ‘justice’ arena and the ‘welfare’ arena, and Barnahus is inevitably an example of how law might be intertwined with standardised practice. Analysis of the collaborative work between the professionals from the justice and welfare arenas has also identified processes of juridification on an operational level, meaning a dominance for the discourses used by the professionals belonging to the justice arena, affecting both how problems are defined and how work practice is organised, not least in a Swedish context (Bakketeig, 2017; Johansson, 2017). The Barnahus model can furthermore be interpreted as an expression of juridification in terms of the strong focus on strengthening children as rights-holders and their access to justice (cf. Friðriksdóttir and Haugen, 2017; Kaldal et al., 2017). To sum up, Barnahus might be seen as an example of how juridification and standardisation might co-exist within a collaborative model and how different legal dimensions might strengthen or weaken one another differently over time and across contexts. In some countries, hard laws have been the starting point for the implementation process, followed by supplementary soft regulations (Denmark), while, in others, the implementation has started without either hard or soft laws tied to the enforcement, yet have later been followed by either soft regulations (Sweden) or hard laws (Norway). Transnational influences have been an important driver for the diffusion of the Barnahus model, and countries implementing the Barnahus model have, for example, investigated neighbouring countries’ implementation processes when deciding on modes of regulation for their own, which is part of the explanation for why the Nordic countries have regulated the Barnahus model in significantly different ways and how different legal dimensions have also varied over time. Similarly, Djelic and Sahlin-Andersson (2006) address the complex interrelationship between different legal dimensions (here discussed in terms of juridification and standardisation) constantly developing and expanding in response and reaction to each other (Djelic and Sahlin-Andersson, 2006). In our understanding, this illustrates how juridification and standardisation are interconnected in complex (often transnational) legal processes. Concluding discussion Given the provided examples, it is obvious that aspects of juridification and standardisation can be regarded as different legal dimensions affecting the field of child protection, but also that these dimensions are intertwined and can occur and affect a professional field simultaneously. What then are the implications for practice? According to Teubner (1987), law is interpreted within political and social structures, and its actual impact on practice varies. However, research indicates that the standardised assessment instrument ICS in England has had a huge and negative impact on professional practice (White et al., 2009, 2010), neglecting the relational aspect of social work (Broadhurst et al., 2010). From these findings and discussions, it thus seems as though standardisation might sometimes influence and change professional practice in a more crucial way than hard law. The standardised assessment must still be conducted in accordance with existing legal demands regulating assessments of children, but the language in both the ICS and BBIC is based on predefined categories of needs (needs-based argumentation) whereas the CRC is based on a rights perspective. Since it is the assessment framework that governs what kind of information to collect, and how this information is to be arranged and presented in written assessments, the framework also influences how the stories and problems of families and children are constructed, how solutions are presented and how professionals approach the task of child protection. Even if an ambition has been to reduce uncertainty in child protection and to better provide safety for children, several studies suggest that assessments according to ICS are problematic, since they provide a fragmented picture, where different and separate needs are presented without clarifying the chronological order of different events, which makes the actual problem and situation of the child hard to understand (Ince and Griffiths, 2011; Shaw et al., 2009a, 2009b; White et al., 2009). Similar criticism, as well as the heavy and sometimes unnecessary administrative burden for professionals which was also discussed by social workers in relation to ICS, has been discussed regarding BBIC in Sweden (Svendsen, 2016). Standardised procedures and guidelines might also correspond badly with the legal framework regulating compulsory care in Sweden, since the value of working in partnership with parents is emphasised in BBIC and the legal system in general (Ponnert, 2017). Producing all assessments in a similar manner might not benefit all children in need of protection. As in many countries, compulsory care of children is decided by a court in Sweden. However, we do not know how BBIC, being based on describing pre-categorised ‘needs’, fits into the court system, where the decision focuses on hard law and legal evidence (Ponnert, 2017). A paradox is that, at the same time, on a policy level, the child-protection discourse currently tends to focus increasingly on how to secure children’s legal rights. The practice is thus influenced by a discourse focusing on describing children’s needs and securing their formal rights, but seems less occupied with discussing the complexity regarding how to secure the actual welfare and protection of children. In this article, we have discussed juridification and standardisation as two legal dimensions, with a shared focus on providing legal certainty and predictability (by law or administrative correctness). However, legal dimensions always risk being used mainly as a way to ‘gloss up practice in theory’, as an account for good or improved practice, even if this might not be the case in reality. Legal and social security of children in reality thus require more than formal laws or transparent procedures. One problem with predictability and transparency as ideals in social work, which comes with standardisation as well as juridification, is that these ideals do not correspond with the basic idea of welfare, that people are different and accordingly have different needs. As a result, there is also a need to discuss what professionalism in social work should really be about. Some researchers (see e.g. Evetts, 2010) have claimed that the professional landscape is changing towards professionals relying more on organisational norms and values which results in a deprofessionalisation of practice, since professional expertise is not seen as equally important. The increased standardisation might be understood from this perspective, but there are also researchers who claim that professionals still have scope for discretion (Evans, 2013; Evans and Harris, 2004; Høybye-Mortensen, 2015; Ponnert and Svensson, 2016; Robinson, 2003). The increased talk about legal reforms and law has not been equally criticised by researchers or social workers, and a justice-based discourse and an understanding of clients and children as ‘holders of rights’ do not seem to be regarded as a threat to social work professionalism. However, an increased rights discourse might result in a changing professional language for social workers, where traditional social work concepts and values are increasingly replaced with concepts from the legal field or ‘hard’ law. Even if this can be understood in relation to international and transnational regulations such as the CRC, the changing discourse involves a risk of blurring professional boundaries that might (as standardisation) result in deprofessionalisation for social workers. Since social workers are not lawyers, a practice built increasingly upon legal language and concepts as a result of juridification, social workers will inevitably have less knowledge than legal scholars within this discourse. From this perspective, a major challenge for professionals in contemporary child-protection practice is to be able to navigate between different legal dimensions, juridification (hard law/legal discourse) and standardisation (soft law/organisational norms), without losing their professional characteristics and accountability. In this article, we have discussed legal dimensions influencing contemporary child protection. However, standardisation and the use of assessment frameworks as well as the human rights approach, providing a more rights-based argumentation in social work, can be found in other fields as well, providing similar tendencies and challenges for professional social work practice to those that we have discussed in this article. In light of the analytical framework presented in this article, there is accordingly a potential for further research regarding how juridification and standardisation affect social work practice in different fields and contexts. Acknowledgements We would like to express our gratitude to Kerstin Svensson for constructive comments on an early draft of the article. We would also like to thank the participants at a conference held by the research network INTRAlaw at Aarhus University in Denmark in 2016 for helpful feed-back on a presentation drafting some early ideas discussed in this article. References Bakketeig E. 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( 2010 ) ‘When policy o’erleaps itself: The “tragic tale” of the Integrated Children’s System’, Critical Social Policy , 30 ( 3 ), pp. 405 – 29 . Google Scholar Crossref Search ADS Zumbansen P. ( 2010 ) ‘Transnational legal pluralism’, Transnational Legal Theory , 1 ( 2 ), pp. 141 – 89 . Google Scholar Crossref Search ADS © The Author(s) 2018. Published by Oxford University Press on behalf of The British Association of Social Workers. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The British Journal of Social Work Oxford University Press

Juridification and Standardisation: Two Legal Dimensions Influencing Contemporary Child Protection

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Oxford University Press
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© The Author(s) 2018. Published by Oxford University Press on behalf of The British Association of Social Workers. All rights reserved.
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0045-3102
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Abstract

Abstract The aim of this article is to analyse juridification and standardisation as two legal dimensions influencing contemporary child-protection work, and to discuss its implications for practice. We provide a framework for how the concepts of juridification and standardisation might be understood and analytically differentiated, drawing on theoretical discussions within both socio-legal and social work literature. We illustrate the framework by analysing empirical examples that relate to ideas of children’s rights, standardised assessment frameworks and to an integrated model for multi-professional collaboration in cases of child abuse. The empirical examples depart from a Nordic context, but can be seen as examples of travelling ideas found in other countries as well. The understanding of legal phenomena today is broad, often referring to law itself (hard law) as well as to other forms of regulations (soft law), with the common focus on formal procedures and predictability as a means to provide security. However, in this article, we argue that it is necessary to analytically differentiate between the two legal dimensions, to be able to study and discuss how they relate to each other, co-exist and interact. Finally, implications for child-protection practice are discussed in light of the provided framework. Child protection, children’s rights, juridification, professional practice, social work and law, standardisation Introduction There is an ongoing scientific discussion on the changing nature of social work practice. For example, the increased use of standardised procedures has been discussed from an organisational and professional perspective, often focusing on professional discretion (e.g. Evans, 2013; Evetts, 2010; Ellis, 2011). The new informational knowledge base (Martinell Barfoed and Jacobsson, 2012; Parton, 2006) and the changing interaction between social worker and client have also been debated (Lauri, 2016; Martinell Barfoed, 2014). The influence of market-oriented ideas (marketisation) and evidence-based practice as a principle for social work are two regulatory forces that have been connected to this development in Sweden (Bergmark and Lundström, 2011; Hartman, 2011). Strong regulatory forces have thus developed that provide new ideas about how to achieve social and legal security in social work that somewhat differ from the traditional ‘hard law’ approach of governing bureaucracies. At the same time, the nation state is increasingly affected by international laws and regulations, as a result of international associations (as the EU and the UN) and transnational movements. If we turn to child protection as a field of social work practice, this is a professional field that has experienced an increased use of guidelines and standardised assessment models in the last decade. At the same time, the UN Convention on the Rights of the Child (CRC) has put a focus on the need to strengthen children’s legal rights. The regulatory landscape of contemporary global or transnational society is being debated among socio-legal oriented scholars, giving rise to the question of how to gain a more fundament understanding of law and legal phenomena. The growing literature on transnational law acknowledges the expansion of law and rule making beyond the boundaries of nation states, and identifies the increasing power of transnational processes and regulators, and the increase in different forms of regulations (Cotterrell, 2009; Shaffer, 2013; Zumbansen, 2010). Transnational regulation to a large extent builds upon standards, norms and guidelines (‘soft law’), often developed in close connection with the diffusion of popular management and organisational ideas (Djelic and Sahlin-Andersson, 2006; Johansson, 2016). Similarly, scholars within social policy and social work have identified the presence of ‘welfare pluralism’ (Powell, 2007) where the state is increasingly complemented by private, voluntary and informal sectors and actors as social policy and service providers. Since law has mainly been viewed and studied from a traditional state-centred perspective, there is a need for a more complex understanding in line with these developments (Cotterrell, 2009). The understanding of legal phenomena today is thus broad, often referring to law itself as well as softer forms of regulation. In this article, we argue that it is beneficial to analytically differentiate between different legal dimensions, to be able to study and discuss how they relate to each other, co-exist and interact. The aim of this article is to analyse and discuss juridification and standardisation as two legal dimensions influencing contemporary child protection. We provide a framework for how the concepts of juridification and standardisation can be understood as two different legal dimensions, which are sometimes intertwined and interact, drawing on theoretical discussions within both social work and socio-legal disciplines. We then illustrate the framework by discussing empirical examples of contemporary child protection from a Swedish and Nordic context. The examples constitute legal proposals concerning children’s rights, the use of a standardised assessment framework and the introduction of a model for multi-professional collaboration in cases concerning child abuse (the Barnahus model). Finally, we discuss the phenomenon of juridification and standardisation within child protection, and some implications for practice. Even if we depart from Swedish and Nordic contexts, the discussed examples and methods might be seen as ‘travelling ideas’ (Czarniawska and Sevón, 1996) and broader international trends within the field of child protection. The assessment framework used in Sweden (BBIC) is based on an English model (ICS), and the Barnahus model has been promoted and introduced in several other European countries besides the Nordic, and originally departs from the US Children’s Advocacy Centers. In England, for example, the Barnahus model has recently been promoted by the Children’s Commissioner and suggested to be piloted (Children’s Commissioner, 2016). Theoretical framework In this article, we use juridification and standardisation as theoretical concepts for separating and understanding different legal phenomena within child protection. However, juridification has been used to describe a wide range of legal phenomena, sometimes close to softer standardised regulations. This means that defining juridification and standardisation, and how we use and differentiate between these legal dimensions in this article, needs some discussion. Juridification as a regulative process According to Habermas (1987), juridification can be seen as a historical process, a colonisation of the lifeworld, starting with the development of the bourgeois state and the rise of a modern formal system of civil law (Habermas, 1987, p. 356). The legal system developed and contributed to formulating a democratisation of the constitutionalised power of the state, where the social state could use law as a control system for distributing economic resources and power (Habermas, 1987; see also Teubner, 1987, pp. 11–13). This historical development of juridification cannot, according to Teubner (1987, pp. 11–13), be hindered or reversed, since it is part of a development into a modern society. He discusses how juridification has also been described as a ‘flood of norms’, and as a depolitisation of social areas (pp. 6–19). Teubner (1987, pp. 19–41) claims that juridification needs to be understood as a complex relationship between three self-regulating social systems: politics, law and the area of social life—systems that are often inadequately coupled. The ‘regulatory trilemma’ means that influence across or between these systems depends on whether they correspond to how the systems tend to regulate and understand themselves (Teubner, 1987, p. 21). From this perspective, law does not necessarily change practice, since law battles with, and is interpreted within, political and social structures. According to Teubner, laws and rules, however, do result in an instrumental orientation (Teubner, 1987, p. 16). From this perspective, juridification can both be regarded as an explosion of legal rules and also result in the development of administrative softer rules as a way to incorporate or facilitate legal rules in practice. The importance of soft regulations has thereafter continued to increase, due to new complex legal structures that include the blurring of boundaries and creation of rules within as well as beyond nation states, such as through policies, standards and guidelines (Cotterrell, 2009; Djelic and Sahlin-Andersson, 2006; Shaffer, 2013; Zumbansen, 2010). This development of a softer ‘rule explosion’ could be interpreted as increased juridification, but also as the opposite—as decreased legal power of the state and traditional national hard law. Juridification and the law Later definitions of juridification seem to be more closely linked and restricted to hard law. For example, Brännström (2009) divides juridification into three main components: increased legal regulation of areas that were not previously regulated by law, increased power for courts to decide in areas regarding social life, and a changing discourse meaning that significant importance is given to the legal discourse as a means for solving problems. Blichner and Molander (2008) regard juridification as a process connected to five different dimensions: the constitution of laws, the extension and differentiation of law, increased legal conflict solving, increased legal power and increased legal framing in how we refer to and think about ourselves and others. In several studies, juridification has come to describe an adjustment to discourses of hard law, the legal system and its professionals, rather than legal aspects or regulations in general (Bakketeig, 2017; Johansson, 2011; Ponnert, 2007). Later on, we use and define juridification as a concept for describing a development where the constitution of (hard) laws increases within a field (child protection), and where the field is (also or simultaneously) increasingly discussed and guided by a legal discourse, meaning an increased legal framing in how social problems and solutions are discussed that relates to hard law. We use this quite narrow definition of juridification to analytically separate it from the phenomenon of standardisation, but also to stress that juridification is a phenomenon that does not necessarily change practice per se, or does not necessarily result in increased legal power in practice (in terms of hard law). Rather, juridification and standardisation can be regarded as two parallel processes that might strengthen or weaken each other. Standardisation We use standardisation to describe a development of increased formalisation of social work practice—when prescribed guidelines, routine practices or manuals for assessments and treatment become increasingly dominant for guiding working practice. Other concepts such as (technical) instrumentalism (Broadhurst et al., 2010) and technicality (Jamous and Peloille, 1970; Robinson, 2003) have been used to describe similar tendencies. A standard has been defined as ‘a rule for common and voluntary use, decided by one or several people or organisations’ (Brunsson et al., 2012, p. 616). In addition, standards are formal, since they are written and explicit; they also have a connection to the norms guiding a specific practice (Brunsson and Jacobsson, 1998, 2000). Brunsson et al. (2012) claim that standardisation and organisation are related in three different ways: standards are produced by organisations, standards also influence the structure and practice in organisations and, thirdly, standardisation can be seen as a way to organise modern society. In this article, it is primarily the second and third perspectives of standardisation we focus on. Since it is voluntary for organisations to follow specific standards (even if the normative and political incentives might be strong), there are no legal sanctions connected to not following standards (Brunsson et al., 2012). This also makes standardisation different from hard law, where sanctions often follow if the legal rules are not followed. In this aspect, standardised rules are not connected to accountability, since professionals cannot rely on, or only refer to, standardised procedures as accounts for decisions in practice. The opposite is true for hard law, since organisations and formal decisions made by professionals need to correspond with (and refer to) the legal framework (hard law) in order to be accountable and legitimate. Analytical framework for separating standardisation and juridification Juridification and standardisation both provide administrative or formal solutions to how practice or work shall be improved by following some specific rules or procedures (legal or simply administrative). In doing so, juridification and standardisation are strengthened by a similar institutional idea that, if the formal aspects of justice or administrative correctness are clarified and strengthened, this will result in improved social justice and legal security for individuals in practice. This idea can accordingly be understood as a focus on providing legal security and predictability, by law or by other standardised procedures. Both legal dimensions (juridification and standardisation) depart from a pre-categorised or ‘generalised’ client, where assessments or decisions are based upon what individuals in general need and not on a flexible approach to the client’s problems or rights. Predictability is an ideal closely connected to the legal system through formal laws. The transparency and predefined working process provided by standards seem to correspond to a similar ideal, as something that will reduce the unpredictability that has been associated with professional knowledge and discretion. However, juridification and standardisation, according to our understanding, originate from different organisational fields and ideals, and accordingly differ in form and how they manifest themselves (see Table 1). Table 1 Legal dimensions Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Table 1 Legal dimensions Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Juridification Standardisation Origin Departs from one professional field (law) Departs from a bureaucratic ideal that exists in several professional fields Legalistic form Juridicism (focus on law) Instrumentalism (focus on standardised working procedures) Contemporary manifestation Increased legal regulation in a certain area + Discursive institutional faith in legal regulations and legal norms as a means to improve practice Increased control and governance (NPM) + Discursive institutional faith in sciences and standardised working procedures as a means to improve practice (EBP) Official aim Secure human rights and legal security Increase the transparency and quality of organisational practice Juridification can in simplified terms be understood in relation to the legal system, often portrayed as a traditional institution resistant to change. This does not mean that rapid legal changes or processes cannot ever occur, but simply that law itself is often restricted by more formal and ‘slow’ procedures. Standardisation might, however, be understood in relation to human service organisations as ‘open’ systems (Hasenfeld, 2010), constantly striving for survival and thus responding to the same ideas and trends, often resulting in isomorphism (DiMaggio and Powell, 1983). In such organisations, changes can occur rapidly when organisations imitate one another and when popular ideas of how to ‘do work’ travel between organisations (Czarniawska and Sevón, 1996). Standardisation is also associated with other contemporary movements such as evidence-based practice (EBP) and new public management (NPM), whereas juridification relies on hard law as a regulating force. While the official aim of standardisation is connected to ideas related to transparency, and how to measure and evaluate the quality and effects of organisational practice, the official aim of juridification is to secure human rights, justice and legal security by legal norms. Even though the above conceptual distinction as well as different theoretical approaches are useful for analytical purposes, juridification and standardisation constitute legal dimensions and processes that in practice relate to each other, and might influence each other in different ways, depending on contextual circumstances. Furthermore, they could often be hard to differentiate from each other, as well as from the popular institutional ideas they build on. Therefore, we will first illustrate the framework by discussing two empirical examples that can be interpreted as juridification and standardisation, respectively, and then discuss an example that shows how juridification and standardisation might co-exist in practice. Juridification and standardisation in child protection Legal initiatives and the focus on children’s rights as juridification Freeman (2012) claims that the children’s rights movement has shifted from a child-saving perspective (child protection) in the nineteenth century to a focus on protecting the integrity and autonomy of children (protecting children’s rights). The rights-based focus on children as competent subjects is also dominant in contemporary childhood studies (Freeman, 2012). The CRC can be interpreted as an international expression of juridification in the area of child protection across countries, putting a focus on legal initiatives to improve the welfare and protection of children. Sweden ratified the CRC in 1990 and has since amended several laws in accordance with the convention. Since 2009, the government of Sweden has also initiated several major commissions with the purpose of looking into the legal regulations concerning child-protection social work practice (SOU 2009:68; SOU 2015:71; SOU 2016:19). The need for securing the child’s position as a ‘holder of rights’ in law and practice has been increasingly emphasised in legal commissions (SOU 2015:71, p. 177). The Swedish government now declares an ambition to turn the CRC into a national law. In a legal proposal, this is presented as a reform that will increase the well-being of vulnerable children in Sweden, and it is also described as a way to promote gender equality and integration in society (SOU 2016:19, pp. 470–3). Despite the fact that studies have shown several limitations in how Swedish authorities currently interpret the general principles of the CRC, the proposal signifies a strong belief in law making as a solution to problems in practice. However, Sweden has already adapted the national legislation in accordance with the CRC, and is by the ratification bound to follow the convention. As an international convention, the CRC also offers a broad perspective and a minimum level regarding children’s rights in order to be possible to adapt in different national contexts, and some authorities who have considered the legal proposal are critical, including the Council on Legislation in Sweden. One critical view that has been debated is that the CRC as a Swedish law would result in increased power for courts to interpret what is in the best interests of children when there are different national legal concerns, which clearly can be understood as a juridification effect. It is not possible to predict what effect the CRC as a national law might have for Swedish child-protection practice. What is interesting is the increased focus on children as ‘holders of rights’, which is presented as something positive that will improve vulnerable children’s situations in practice. However, a risk of focusing on children’s agency is that aspects of children’s vulnerability might be less acknowledged (Bluebond-Langner and Korbin, 2007; Tisdall and Punch, 2012). Legal rights are also interpreted by professionals and, in reality, child protection is embedded in a complex legal context that also involves working with parents, as strong holders of rights. In Sweden, for example, it is mandatory for social services to start an assessment whenever a child is suspected of having been exposed to or witnessed violence, according to a legal canon from 2014. However, studies have shown that children are not fully protected in these situations, due to a contact presumption in policy and practice emphasising children’s right to contact with parents (Bruno, 2015). The ambiguity in the perspective of children as victims and competent subjects may also undermine policy intentions to protect children (Eriksson, 2011). In addition, assessments of children who are exposed to violence do not always result in support interventions (SOU 2016:19). The legal context in Sweden might partly explain this, since it emphasises voluntary support interventions (Leviner, 2014; SOU 2016:19). Social workers are dependent on the custodians’/parents’ consent to provide support for the child, in all cases where compulsory care of the child outside home is not relevant or possible. Assessment frameworks as standardisation In contrast to the growing belief in a rights-based approach and ‘hard law’ illustrated above, standardisation within the child-protection field can be exemplified by the use of assessment frameworks. The Integrated Children’s System (ICS) is an assessment framework for sorting and documenting information about children in the care system in England. It was formed at a time when child-protection work was being questioned, due to findings in research, investigations and inquiries into children who had been killed, and was launched as a system that would improve the quality of child protection and reduce professional errors (White et al., 2010). A similar assessment framework, called BBIC (Children’s needs in focus), inspired by and developed from the ICS, was launched in Sweden in 2006. Within three years, BBIC had been implemented in 260 of 290 Swedish municipalities (National Board of Health and Welfare, 2015a, pp. 115–16) and it has since rapidly become the dominant way to assess children in Sweden. BBIC is recommended by the National Board of Health and Welfare—a state authority that is also responsible for providing training and licenses within the framework. Accordingly, even if it is still voluntary for municipalities to use BBIC in Sweden, almost all municipalities use this assessment framework today. BBIC is based on nine basic principles, which depart from ideas about children’s rights, an ecological and holistic perspective and the need for co-operation, and the need to relate and evaluate work in accordance with existing knowledge (National Board of Health and Welfare, 2015a, p. 12). The assessment framework is illustrated by a triangle and twelve categories related to the child’s needs in relation to the three sides of the triangle: the child’s development, parents’ capacities, and family and environment. The initiative for producing BBIC has primarily been political, with the National Board of Health and Welfare as a strong force. The initiative and goal of BBIC have primarily been to produce a system designed to produce a national and coherent system to get a uniform system that can also be used to collect and evaluate information in a systematic way (National Board of Health and Welfare, 2015a, p. 8). Aspects of hard law are hardly mentioned in the guidebook for BBIC, and nor are the specific legal aspects regulating compulsory care. BBIC is thus primarily a system and tool for gathering and sorting information that needs to be combined and carried out in accordance with the legal rules and procedures that govern the investigative child-protection work, and can be seen as an illustrative example of standardisation. The ICS and BBIC are examples of how standardised working procedures might turn into major artefacts that spread, influence and change practice in a crucial way, and that have relatively little to do with the formal legal framework for protecting children. Standards might accordingly work ‘beside law’, and sometimes even go beyond law, in their ambitions. For example, according to the Social Services Act in Sweden, a written ‘care plan’ is only necessary when a child is placed outside the home (in foster-care or institutional care) (11:3 Social Services Act). However, in BBIC, there are tools for documenting and following up all kinds of interventions, and a written plan describing the assignment and the intervention is also suggested when day-time support interventions are given to children and their families (National Board of Health and Welfare, 2015b), which might be interpreted as an increased administrative and regulatory demand on professionals. Barnahus as juridification and standardisation The concept ‘of Barnahus’ translates into Children’s House in English and derives from Iceland, being the first Nordic country to adopt the model in 1998. The Icelandic Barnahus, in turn, took the US Children’s Advocacy Centers (CACs) as its inspiration. The Nordic Barnahus model constitutes a multi-professional model for assessing cases of suspected child abuse in a supportive and child-friendly facility, most often involving collaboration between child-protection services, health care services and law enforcement, thus institutionally balancing ‘welfare’ and ‘justice’ (Johansson et al., 2017). Barnahus can be seen as a manifestation of a development in child-protection work towards more integrated measures, while at the same time Barnahus is often referred to as an example of child-friendly justice. The diffusion process has been extensive and, in 2016, all Nordic countries and autonomous regions had implemented the model in some form or another. However, the implementation process has varied quite significantly between the Nordic countries, as has the balance between justice and welfare (Johansson et al., 2017). The establishment and implementation of the Barnahus model have resulted in as well as from different legal dimensions, and could subsequently be understood in terms of both juridification and standardisation. In some Nordic countries, more traditional nation-state-centred reforms and hard laws have driven the implementation process of the Barnahus model. In Denmark, for example, the implementation of Barnahus followed a major law reform that was brought into force in October 2013, called ‘the Abuse Package’ (‘Overgrebspakken’ in Danish). As part of this reform, a specific law authorising Barnahus and defining the tasks and duties of Barnahus was passed (Order on Children Houses, No. 1153 of 01/10/2013) as well as several changes within the social welfare legislation (Consolidation Act on Social Services, No. 1284), resulting in the simultaneous start of five Barnahus and three satellites serving the whole country and made mandatory for all Danish local child welfare services to use in child abuse cases involving police and/or health care. In addition to the legal provisions (hard law), the National Board of Social Services also issued common professional quality standards for the Danish Barnahus model, thus representing softer forms of regulation (National Board of Social Services, 2015). In Denmark, the model was thus clearly connected to a process of juridification within the field of child protection that, in turn, resulted in Barnahus as a standardised form of ‘doing work with abused children’. In several other Nordic countries, however, the Barnahus model was initiated without any specific Barnahus law or regulation tied to its implementation. In Sweden, the Barnahus model was initiated as a pilot project at six locations by the Ministry of Justice in 2005, without issuing any specific or new legal reform (Ministry of Justice, 2005). By the time of its establishment in 2007, there was similarly no specific Barnahus regulation in Norway, but, in 2015, the Criminal Procedure Act was amended and new (mandatory) regulations of facilitated interviews came into force (FOR-2015–09–24–1098). Since the implementation of the pilot in Sweden, around thirty Barnahus have started at different locations around the country and as a result of various initiatives (e.g. local politicians, agencies or the non-governmental organisation (NGO) Save the Children Sweden). Nevertheless, Barnahus is still not regulated by any specific hard law or made legally mandatory, and subsequently around 160 out of 290 Swedish municipalities were connected to a Barnahus in 2013 (Save the Children Sweden, 2013). However, several soft regulations have been created in parallel with the diffusion and implementation of the Barnahus model in Sweden. Standards have been issued by the Swedish National Police Agency and also Save the Children Sweden, which, in addition, has created a quality-assurance manual for Swedish Barnahus in co-operation with Linköping University (National Police Agency, 2009; Save the Children Sweden, 2009, 2013). Moreover, the Barnahus model is supported by policies and guidelines at international and European levels, emphasising multidisciplinary collaboration in child-friendly facilities (e.g. the Council of Europe’s guidelines on child-friendly justice). In Sweden, Barnahus can thus be understood as mainly connected to standardisation, being regulated by guidelines rather than any Barnahus-specific hard law. Still, the very idea of Barnahus builds on collaboration between professionals from the legal ‘justice’ arena and the ‘welfare’ arena, and Barnahus is inevitably an example of how law might be intertwined with standardised practice. Analysis of the collaborative work between the professionals from the justice and welfare arenas has also identified processes of juridification on an operational level, meaning a dominance for the discourses used by the professionals belonging to the justice arena, affecting both how problems are defined and how work practice is organised, not least in a Swedish context (Bakketeig, 2017; Johansson, 2017). The Barnahus model can furthermore be interpreted as an expression of juridification in terms of the strong focus on strengthening children as rights-holders and their access to justice (cf. Friðriksdóttir and Haugen, 2017; Kaldal et al., 2017). To sum up, Barnahus might be seen as an example of how juridification and standardisation might co-exist within a collaborative model and how different legal dimensions might strengthen or weaken one another differently over time and across contexts. In some countries, hard laws have been the starting point for the implementation process, followed by supplementary soft regulations (Denmark), while, in others, the implementation has started without either hard or soft laws tied to the enforcement, yet have later been followed by either soft regulations (Sweden) or hard laws (Norway). Transnational influences have been an important driver for the diffusion of the Barnahus model, and countries implementing the Barnahus model have, for example, investigated neighbouring countries’ implementation processes when deciding on modes of regulation for their own, which is part of the explanation for why the Nordic countries have regulated the Barnahus model in significantly different ways and how different legal dimensions have also varied over time. Similarly, Djelic and Sahlin-Andersson (2006) address the complex interrelationship between different legal dimensions (here discussed in terms of juridification and standardisation) constantly developing and expanding in response and reaction to each other (Djelic and Sahlin-Andersson, 2006). In our understanding, this illustrates how juridification and standardisation are interconnected in complex (often transnational) legal processes. Concluding discussion Given the provided examples, it is obvious that aspects of juridification and standardisation can be regarded as different legal dimensions affecting the field of child protection, but also that these dimensions are intertwined and can occur and affect a professional field simultaneously. What then are the implications for practice? According to Teubner (1987), law is interpreted within political and social structures, and its actual impact on practice varies. However, research indicates that the standardised assessment instrument ICS in England has had a huge and negative impact on professional practice (White et al., 2009, 2010), neglecting the relational aspect of social work (Broadhurst et al., 2010). From these findings and discussions, it thus seems as though standardisation might sometimes influence and change professional practice in a more crucial way than hard law. The standardised assessment must still be conducted in accordance with existing legal demands regulating assessments of children, but the language in both the ICS and BBIC is based on predefined categories of needs (needs-based argumentation) whereas the CRC is based on a rights perspective. Since it is the assessment framework that governs what kind of information to collect, and how this information is to be arranged and presented in written assessments, the framework also influences how the stories and problems of families and children are constructed, how solutions are presented and how professionals approach the task of child protection. Even if an ambition has been to reduce uncertainty in child protection and to better provide safety for children, several studies suggest that assessments according to ICS are problematic, since they provide a fragmented picture, where different and separate needs are presented without clarifying the chronological order of different events, which makes the actual problem and situation of the child hard to understand (Ince and Griffiths, 2011; Shaw et al., 2009a, 2009b; White et al., 2009). Similar criticism, as well as the heavy and sometimes unnecessary administrative burden for professionals which was also discussed by social workers in relation to ICS, has been discussed regarding BBIC in Sweden (Svendsen, 2016). Standardised procedures and guidelines might also correspond badly with the legal framework regulating compulsory care in Sweden, since the value of working in partnership with parents is emphasised in BBIC and the legal system in general (Ponnert, 2017). Producing all assessments in a similar manner might not benefit all children in need of protection. As in many countries, compulsory care of children is decided by a court in Sweden. However, we do not know how BBIC, being based on describing pre-categorised ‘needs’, fits into the court system, where the decision focuses on hard law and legal evidence (Ponnert, 2017). A paradox is that, at the same time, on a policy level, the child-protection discourse currently tends to focus increasingly on how to secure children’s legal rights. The practice is thus influenced by a discourse focusing on describing children’s needs and securing their formal rights, but seems less occupied with discussing the complexity regarding how to secure the actual welfare and protection of children. In this article, we have discussed juridification and standardisation as two legal dimensions, with a shared focus on providing legal certainty and predictability (by law or administrative correctness). However, legal dimensions always risk being used mainly as a way to ‘gloss up practice in theory’, as an account for good or improved practice, even if this might not be the case in reality. Legal and social security of children in reality thus require more than formal laws or transparent procedures. One problem with predictability and transparency as ideals in social work, which comes with standardisation as well as juridification, is that these ideals do not correspond with the basic idea of welfare, that people are different and accordingly have different needs. As a result, there is also a need to discuss what professionalism in social work should really be about. Some researchers (see e.g. Evetts, 2010) have claimed that the professional landscape is changing towards professionals relying more on organisational norms and values which results in a deprofessionalisation of practice, since professional expertise is not seen as equally important. The increased standardisation might be understood from this perspective, but there are also researchers who claim that professionals still have scope for discretion (Evans, 2013; Evans and Harris, 2004; Høybye-Mortensen, 2015; Ponnert and Svensson, 2016; Robinson, 2003). The increased talk about legal reforms and law has not been equally criticised by researchers or social workers, and a justice-based discourse and an understanding of clients and children as ‘holders of rights’ do not seem to be regarded as a threat to social work professionalism. However, an increased rights discourse might result in a changing professional language for social workers, where traditional social work concepts and values are increasingly replaced with concepts from the legal field or ‘hard’ law. Even if this can be understood in relation to international and transnational regulations such as the CRC, the changing discourse involves a risk of blurring professional boundaries that might (as standardisation) result in deprofessionalisation for social workers. Since social workers are not lawyers, a practice built increasingly upon legal language and concepts as a result of juridification, social workers will inevitably have less knowledge than legal scholars within this discourse. From this perspective, a major challenge for professionals in contemporary child-protection practice is to be able to navigate between different legal dimensions, juridification (hard law/legal discourse) and standardisation (soft law/organisational norms), without losing their professional characteristics and accountability. In this article, we have discussed legal dimensions influencing contemporary child protection. However, standardisation and the use of assessment frameworks as well as the human rights approach, providing a more rights-based argumentation in social work, can be found in other fields as well, providing similar tendencies and challenges for professional social work practice to those that we have discussed in this article. In light of the analytical framework presented in this article, there is accordingly a potential for further research regarding how juridification and standardisation affect social work practice in different fields and contexts. Acknowledgements We would like to express our gratitude to Kerstin Svensson for constructive comments on an early draft of the article. We would also like to thank the participants at a conference held by the research network INTRAlaw at Aarhus University in Denmark in 2016 for helpful feed-back on a presentation drafting some early ideas discussed in this article. References Bakketeig E. 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Journal

The British Journal of Social Work – Oxford University Press

Published: Oct 1, 2018

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