Submission from PASG Norway in Response to the Consultation Draft regarding New Child Law in Norway
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Submission in Response to the Consultation Draft of 18.06.24 regarding “New Child Law - Equal Parenting and Joint Custody for Children After Relationship Breakdown” with a deadline of 08.09.24.
About PASG Norway
This statement is submitted on behalf of PASG Norway, which stands for Parental Alienation Study Group. The main objective of the association is to spread awareness about what parental alienation entails, including how children are harmed by being negatively influenced to distance themselves from a parent without legitimate reason, particularly in connection with disputes between parents after divorce or separation. The legislation governing the relationship between children and parents after relationship breakdown is of prime importance to PASG Norway.
2. We Support the Proposed Amendments regarding Joint Custody
2.1 Introduction
PASG Norway is fundamentally positive towards what we consider the two central legislative proposals in the consultation document (joint custody as a new main rule and that the courts should have the discretion to make decisions regarding this in case of disputes). However, we do have critical remarks regarding the detailed formulation of these rules and whether the proposals go far enough to uphold the intentions they express.
2.2 Legal Equality as a New Main Rule After Relationship Breakdown
2.2.1
We believe it is a great step forward that the department supports formal legal equality between parents as a new main rule after relationship breakdown, as expressed in section 7-2, third paragraph, of the draft bill. We believe this legislative change will contribute to better relationships between parents after separation, allowing more children the opportunity to experience care from both of their parents and to develop bonds with their entire family from both sides throughout their upbringing, which is central to what PASG Norway advocates. It is undoubtedly a legislative change that aligns with the principle of gender equality, the general development of society and the sense of justice of most people. As the ministry indicates, there has been a significant increase in the number of parents opting for shared custody/residence following relationship breakdown, despite existing legislation not being wholly conducive to such a solution.
2.2.2
However, we believe it should be pointed out in connection with this reform that shared parental power of attorney/residence should not necessarily mean that the actual distribution of time with the child is 50/50. The concept allows for parents to agree on this matter in each individual case based on their assessment of what is best for the child and the "reconstructed family." Flexible cooperation may include an arrangement where one parent has a bigger part of the time with the child during one period, while the other parent has the bigger part during another period, depending on, for example, the parents' varying work situations. It is essential to state that such adjustments do not alter the equal legal relationship between the child and the parents. This is consistent with current law, something many are unaware of. A new legislative proposal should not contribute to the existing ambiguity but rather clarify. We therefore propose the following alternative formulation of section 7-1, second paragraph:
“The parents agree on how much time the child shall reside with or spend with each of them. This also applies where the parents have shared parental power of attorney/custody.”
2.3 The Proposal Regarding Courts being Granted Discretion to Rule for Shared Custody/Residence
2.3.1
We also support the proposal that the court, after an open assessment of what is in the child's best interest in the specific case, should be able to decide that the parents shall have shared permanent residence, as stated in section 7-2, sixth paragraph, of the draft bill. This is a logically necessary follow-up to the legislative change mentioned above, but it is a legislative change that can and should be carried out – as the ministry points out – even if the aforementioned legislative change is not adopted. The current rule in the Child Act § 36, second paragraph, whose requirement for “special reasons” effectively imposes a “ban” on awarding shared residence, has, based on experience, clearly detrimental effects. It prevents the court from making a decision that in the given case might be in the best interest of the child. It also reduces the chances of the parties agreeing to such a solution, including through settlement negotiations in court, even when the circumstances are otherwise favourable. We see the proposed change as an important contribution to reducing the level of conflict in these cases, thereby potentially leading to fewer cases before the courts. We do not believe this would trigger conflict, as is claimed by some and noted in the consultation document. Experiences from Sweden suggest the opposite.
2.3.2
The comment regarding the provision that the court in deciding on shared custody should also be able to determine at which address the child shall be registered in population register, we see as constructive since this is often a point of conflict today (consultation document pages 98-99).
2.3.3
However, we believe that a change should be made in the Population Registration Act so that a child can be registered at both parents' addresses when there is shared custody. This will, in practice, strengthen both the recognition and the legal protection of shared residence as a legally valid arrangement between the parties. It is a fact, based on our experience, that shared custody is undermined by one parent in some cases, and that this is easier than undermining an arrangement where one parent has custody alone. It is important to strengthen the legal protection of shared residence, whether it is agreed upon or decided by a court. To register the child´s address with both parents will contribute to this.
2.3.4
It would also strengthen legal protection if an amendment be made to the Penal Code § 261 so that it also applies to those who have shared custody and who refrain from providing care to the other parent. This is not currently the case under the present legal situation (unless it concerns abduction abroad, where the decisive factor is whether there is joint parental responsibility, not who has permanent residence/daily custody, cf. HR-2016-1168-U.)
2.4 We are Critical of the Proposal for New Terminology
The department proposes a new term to denote the dimension of the legal relationship between the child and the parents that is currently usually referred to as "daily care" or "permanent residence."
The proposal is to replace these expressions with the term "parental power of attorney," (“foreldrefullmakt”) to which comments are invited. The wording of the new main rule is thus that parents “have joint parental power of attorney for the child” (the text of the proposed law) or “joint parental power of attorney,” which is the expression used elsewhere in the presentation.
PASG Norway believes there is little value in the discussion that the department has initiated by introducing an entirely new term that does not carry any stronger immediate associations regarding what it refers to than the current expressions. Attempting to translate this into other languages, something that often has practical relevance, would be challenging and quickly lead to problems distinguishing it from the term “parental responsibility.” While it may be true that there is a lack of knowledge and uncertainty among the general public regarding the terms currently used, introducing a new term that no one has ever used will not remedy this issue. Every term has its limitations, and no single word can encompass the entire legal content of the concept.
We believe the terms "daily care," (“daglig omsorg”) and “shared daily care” (“delt daglig omsorg”) is what ultimately works best. The wording provides a good indication of the central content. This expression has the longest tradition, and we believe it is the term the general public is most familiar with. It corresponds well to many foreign terms, such as “custody” (English) and “vårdnad” (Swedish).
The term “permanent residence,” and “shared permanent residence,” was included in the Child Act in 1998, but despite having existed in legal terminology for quite some time, it has not been established in practice as an expression that people find natural to use. Nevertheless, we believe that “permanent residence”/“shared permanent residence” is better than “parental power of attorney,” as it is established among those who work professionally with these matters, and it is used in other relevant legislation.
3. The Proposal for Shared Custody (Parental power of attorney) as the Main Rule Must Be Strengthened by Rules Counteracting Parents Taking the Law in their Own Hands
In order for shared custody/parental authority to become a reality in practice, it must be counteracted that one parent, upon relationship breakdown, establishes a de facto sole custody situation and limits the other parent's contact with the child over time. This form of “self-justice” takes place quite often, in our experience. Such action can be tactically motivated, playing into the courts emphasis on who has the practical care for the child up until the ruling (the status quo-principle). The parent who has had little to no involvement with the child over time – regardless of this not at all being by their own choice – will consequently be at a disadvantage when a decision must be made. The possibility of requesting a provisional ruling is often not a sufficiently effective remedy, since the status quo principle is particularly weighty when it comes to temporary decisions. Even under a law stating that shared custody/parental power of attorney is the main rule, the parent acting in this way may prevail in a demand for sole custody, notwithstanding the argument that the actions upon which their favorable position is based clearly have not been in the child's interests.
By establishing shared custody as the main rule, it follows that the legal order must view sole custody established through unilaterally taking justice into one´s own hands, in connection with relationship breakdown, much more critically than is currently the case. The draft bill contains a proposal for several changes in access to request provisional ruling (proposal § 11-9), which we view positively, but we believe it is necessary for the second paragraph of the provision to be expanded so that it also encompasses such situations as we have described.
We propose the following wording of 11-9 (2):
“Upon request from one party, the court shall always make a provisional ruling, as far as possible within four weeks, when there is a risk that the child may be subjected to violence or any other situation that may cause physical or psychological harm. The same applies when there is a significant reduction in contact compared to what has been agreed upon, established, or practiced, or where one parent, in connection with relationship breakdown, without prior agreement or court ruling removes the child and prevents the child from maintaining good contact with the other parent.”
It should be clarified in the preparatory works that also a provisional ruling can result in shared custody/parental authority, as we are somewhat uncertain whether this is clearly stated in the text of § 11-9 and § 7-2.
We believe such a provision will not only lead to better decisions in individual cases, but also that it will have a significant preventive effect, resulting in fewer instances of unjustified taking “possession” of the child and obstructing its contact with the other parent.
In cases where there has been a clear infringement of the other parent's rights, thus forcing this parent to take legal action to maintain contact with the child, legal costs should regularly be imposed, in contrast to what is current practice. This too will serve a preventive measure, in addition to being the fair solution.
Another legislative signal that should be introduced, and which will will be crucial to realizing the intentions behind the reform, is to indicate that violating the presumption of shared custody/parental power of attorney is a factor the courts should consider in decisions under §7-2 or §11-9. Our point is that behaving in a manner that clearly disregards the other parent's position in the child’s life reflects a failure in parental competence that must be weighted more heavily than it is today. A clarification that such behavior will count against the parent taking liberties, will contribute to better cooperation between parents and more children having access to care from both parents after relationship breakdown.
We underline, regarding this point, that there are still far too many children with little or no contact with one of its parents after a breakdown of the relationship, and that no positive development has occurred in this area in recent years. As is stated in the consultation document point 2.3.1: “17 percent of parents who responded in SSB’s residence and visitation surveys both in 2012 and 2020 reported seeing their children less than once a month.” Behind these figures lie tragedies for both the children, parents, and the child’s wider family, which we believe the authorities – especially the Ministry, Bufdir and Bufetat – should take much more seriously. The same applies, by the way, to research institutions and the media. Among these cases, we find the serious instances of parental alienation.
We believe the Ministry should look to the agreement between the Danish government and the parties in the Folketing (as far as we can understand, this includes all parties) entered into on 30.11.23 regarding introducing reforms for an improved family law system.
The agreement states at the outset:
“The agreement shall...strengthen the child’s rights to both parents and emphasize the parents' responsibility to shield the child from their conflicts. It is the parents' duty to ensure that the child is not used as a weapon in their relationship. Therefore, parental alienation in parental responsibility cases must be curtailed more than today, and in the most pronounced cases, where this is in the child’s best interest, it must have consequences for the parent who, through persistent baseless harassment, prevents the child’s contact with the other parent.”
The complete text of the agreement is found here: https://www.sm.dk/Media/638369321309768802/Aftale%20om%20et%20forbedret%20familieretligt%20system_UA.pdf.
The issues raised in Denmark, which form the background for this agreement, are largely similar in Norway.
4. The Authority to Decide on Moving with the Child Should Be Part of Parental Responsibility
The consultation document proposes that “the competence to move” for domestic relocation with the child, as currently outlined in the Children Act § 37, should fall under the parental power of attorney, meaning that regarding this issue, no change in the legal situation is proposed. We disagree with this. We emphasize that this is a topic of considerable importance for PASG Norway, as moving far away with the child from the other parent can be part of a strategy aimed at alienating the child from this parent.
The question has been discussed several times in connection with proposed changes to the Children Act. We believe the alternative proposed by the majority of the Children Act Committee is the best, namely that this competence be placed under parental responsibility.
The current situation is that the great majority of parents have shared parental responsibility while it remains only a minority that has shared custody. Even with the Ministry´s proposed legislation for shared custody/parental power of attorney as the main rule, it will at any rate take considerable time before this becomes reality for most ex-couples. It appears that the Ministry is not aware of this.
The “free right to move” is a rule that has created and will continue to create enhanced difficulties for many parents struggling to follow up with their children after separation. It would be remarkable if a legislative proposal introducing shared custody as the main rule does not address a legal situation that in effect contributes significantly to undermining shared parenthood. The right to move freely within the country, as anchored in the Constitution § 106, does not, as we see it, include an unconditional right to take the child to a new residence when this is done against the wishes of the other parent and at the same time significantly reduces the possibility of maintaining contact between the child and this parent.
5. The Proposals Regarding Visitation Sabotage are Insufficient
We believe the section of the consultation document addressing visitation sabotage does not go far enough.
First, we note that the department consistently uses the term visitation hindrance. We believe the term visitation sabotage also has a place, as it designates a reality, namely that in some cases, the custodial parent deliberately and actively (even if often covertly) seeks to weaken and undermine the other parent’s contact with the child, including preventing visitation determined by the courts. This is a problem that the Parliament (Stortinget) on several occasions has called for intensified measures agains. We really expected the Ministry to follow this up by presenting the Parliament with proposals that could have real significance for counteracting this.
The proposal for § 11-9, second paragraph, regarding provisional rulings is positive in that visitation sabotage (without using the term) is highlighted as a condition that can justify a request for a provisional ruling, and that a deadline (though not absolute) of four weeks is set for the court's decision.
We think that someone subjected to severe visitation sabotage should have a strong basis for claiming sole custody/parental power of attorney as a provisional arrangement. This would be a change in current practice that must be expressed, either in the text of the law or in the preparatory works. It is by way such a change in the legal regime that the legislative proposal on this issue could have any real significance. If the parents whose rights were violated, were to only seek a ruling regarding visitation equivalent to what they already legally should have, it would make no sense to use resources on a lawsuit. A ruling with such content could equally be sabotaged just like the previous ruling.
We note that it falls within the provisions of the paragraph that even someone preventing visitation can file a lawsuit, and their interest would then be to get a ruling stating that visitation should be reduced. Such a claim may also be raised as a counterclaim where it is the parent supposed to have visitation that initiates the case.
Regarding coercive measures against visitation sabotage, the coercive fines under the current § 65, cf. the proposed Chapter 13, are the central instruments. Unfortunately, no significant changes are proposed in these rules.
It is our view that the rules regarding coercive measures do not function satisfactorily. Om a fundamental level, we believe it should be the task of the authorities to ensure compliance with judicial rulings/settlements regarding both residence and visitation. It is not obvious to us why we have a system where (administratively determined) child support is collected by a public authority without cost to the entitled, while decisions regarding residence and visitation can only be enforced by the aggrieved party at their own expense and risk. This, in practice, places a significant burden on the entitled, as such lawsuits can become costly, and because the rules are so discretionary that there is often legal uncertainty regarding whether one will succeed.
It is a grave oversight that this issue has not been in any way seriously illuminated through the Child Act Committee's investigation.
However, we believe there is sufficient knowledge to immediately assess the implementation of a number of changes.
We will mention the following:
There should be automatic enforcement for all written agreements regarding visitation. The arrangement that only agreements reached with the approval of the Directorate of Children, Youth and Family Affairs (“stamp of approval”) possess enforceability has in practice minimal significance. The requirement that both parents must request such a ruling leads, as the department is aware, to a vanishingly low number of such cases each year. It would limit visitation sabotage if all visitation agreements could fundamentally be enforced.
The level of coercive fines should be standardized and set to such a level that makes an impact. Standardization would provide increased predictability and ease the court's and the parties' handling of the case.
The extent of previous visitation loss (i.e., the history preceding the request for forced enforcement) should be a significant consideration in judging the risk of future sabotage. Today, it is too easy to claim – after the case has been initiated – that one will comply with the visitation rights in the future, after which the party seeking this loses the case and is sentenced to pay the other party´s costs.
In cases where illness is cited as a reason for more than three canceled visitation days consecutively or combined over a period of up to four weeks, medical documentation of the illness should be required. In any case, illness should not be considered as an automatic justification for canceling visitation.
In many cases, the “impossibility criterion” is the decisive argument for refusing to grant a request for enforcement. This practice provides those who engage in unfounded negative influence over the child with a significant legal tool, which it is exceedingly unfortunate that the legal system allows. When applying the impossibility criterion, it should therefore be provided judicial guidance allowing the court to take into account whether the claimed impossibility, based on the child expressing a wish not to see the other parent, in reality, stems from the child being negatively influenced (manipulated) by the custodial parent without a legitimate basis. In such cases, it is, in reality, not “impossible” for the custodial parent to ensure that visitation takes place. Here, the court considering a request for coercive measures should primarily focus on the information contained in the ruling that is to be enforced. Exceptionally, it may utilize specially appointed expert testimony.
The current interpretation of the contested child support regulations § 9, second paragraph, should be amended so that the visitation deduction corresponds to the legally or contractually established visitation unless it is the custodial party who themselves does not demonstrate a serious willingness to follow through with the visitation.
There should be a stricter practice regarding the imposition of costs on the party acting so that it is necessary for the other parent to seek coercive fines.
For PASG Norway, 26 August 2024
Eivind Meland (s) Øivind Østberg (s)
Chairman Deputy Chairman