Coercion (drang) in the Dutch youth care system: legal position in limbo between judicial systems
Last Tuesday the Dutch States General was informed about the effectiveness of the Youth Act. One of the important conclusions focuses on the use of coercion in the youth care system and the legal position of the clients and professionals involved.
Imagine you are a parent, looking for support in the upbringing of your child. After a while, you receive a letter with the following passage from your local municipality: “We are worried about your child’s development, therefore a contact person will be appointed. This contact person will help you to improve the situation in which your child is growing up. Because the problems are too severe, this assistance is not voluntary. We urgently advise you to cooperate.” (see Court of Rotterdam 24 November 2015, ECLI:NL:RBROT:2015:8533). How would you react to this letter? And how should this letter be understood from a legal point of view?
On 1 January 2015 the Dutch Youth Act came into force. Since then local municipalities are responsible for youth care. The ultimate goal of this Act is to strengthen a child’s own abilities and to stimulate the engagement and problem-solving abilities of the family and network of this child (see the Explanatory Memorandum to the Youth Act).
First evaluation of the Youth Act
The Youth Act has been evaluated by a large consortium of researchers from various organisations: the Netherlands Institute for Health Services Research, the Netherlands Institute for Social Research, the Netherlands Youth Institute, Stichting Alexander and the Law Faculty of Leiden University. The evaluation was commissioned by the Netherlands Organisation for Health Research and Development (ZonMw). Last Tuesday (30 January 2018) the report was presented to the Ministers of Health, Welfare and Sport and of Justice and Security and to the Association of Netherlands Municipalities.
The most import general conclusion of the evaluation is that more time is required to achieve the (transformation) goals of the Youth Act. One of the important conclusions of the legal chapter is that, inter alia, the legal protection of clients falls short. Especially where professionals use coercion, the legal position of clients needs improvement. Below I will discuss the use of coercion in the Dutch youth care system and the legal position of clients when coercion is being used.
The use of coercion
Within the Dutch youth care system a so-called ‘coercive framework’ is emerging in the grey area between the existing voluntary and compulsory framework. In the voluntary framework, families request or accept youth care; in the compulsory framework, families are forced to accept youth care on the basis of a child protection court order, and in the coercive framework families are coerced by professionals into ‘voluntarily’ accepting youth care (see the first paragraph of this blog for an example). It is even possible that coercion can lead to the out-of-home placement of a child.
There are signs that professionals consider coercion to be an important tool in forcing a breakthrough in families, and that coercion is used on a wide scale. Also, it is likely that the use of coercion can eventually contribute to accomplishing the ultimate aims of the Youth Act.
When subjected to coercion, families are more or less forced to cooperate under various conditions that interfere with their right to respect for private and family life (Article 8 ECHR). However, no legal protection exists.
The legal position of clients
The legal position of children and parents in the voluntary framework is regulated by the Youth Act and the General Administrative Law Act, while the legal position of clients in the compulsory framework is regulated by the Dutch Civil Code and the Code of Civil Procedure. Despite the fact that coercion exists in the grey area between the voluntary and compulsory framework, coercion is not regulated. As a consequence, a legal framework which clarifies the legal position of children and parents and the responsibilities of professionals, is missing. The assumption is that the current practice is therefore inconsistent with fundamental human rights laws, which require a legal base for interference with the right to respect for private and family life (Article 8 ECHR).
How should the legal position of children and parents, and the responsibilities of the professionals, be improved? Which legal system(s) should be applicable? The answer to these questions must be seen in light of the discussion on the interface between the voluntary and compulsory framework, and administrative and civil law in general. It is important that a comprehensive study of these issues is carried out, whereby all relevant perspectives on coercion and the needs and wishes of clients and professionals are taken into account. The research I am currently conducting, as well as the forthcoming report on the possibilities of the child to participate in the youth care system and research by the local Children’s ombudsperson of Rotterdam on coercion, will definitely all contribute to answering these questions.