RESTORATIVE CHILD PROTECTION
TALI GAL
This paper positions common practices of child welfare systems within a
liberal approach, and presents an alternative, restorative approach applicable
to children in need of protection. Restorative child protection moves parents
and children from being passive recipients of services or, at best, occasional
guests in decision making processes, to active partners in them. It utilizes their
relationships with their supportive communities while identifying their broad
interests, and allows “irrational” voices such as those of young children to be
included. Three theoretical frameworks are presented as contributing to a
restorative child protection model, namely, a relational approach to children's
rights, restorative justice, and new governance. Family Group Conferencing is
discussed as an example of a restorative child protection practice. In
distinguishing between liberal and restorative systems the paper proposes a
theoretical basis for restorative child protection and extends the restorative
agenda to public administration and public policy issues beyond child welfare.
INTRODUCTION
Child welfare systems across the globe are state bureaucracies authorized to
investigate allegations of child maltreatment (such as physical and sexual
abuse, neglect and exposure to drugs and violence), and, when needed, to
remove children from their homes and find them alternative permanent
placements. Particularly in English speaking countries such as the US,
Canada, Australia and the UK, where a "child protection orientation" is
dominant, interventions focus on risk assessments, investigations and out-ofhome placements in acute situations. This is in contrast with the "family

Lady Davis Post-Doctoral Fellow, the Institute of Criminology and the Federmann School
of Public Policy & Government, The Hebrew University. I am indebted to David Levi-Faur
for many helpful discussions on earlier versions of this paper and for coining the term
"restorative bureaucracy". I also thank John Braithwaite, Orly Lobel, Clare Huntington, Mimi
Ajzenstadt, Leslie Sebba, Tamar Morag and David Anoch for reading earlier drafts and
providing helpful comments.
1
support orientation" prevailing in European countries such as Belgium,
Sweden, France and Germany, in which universal or targeted assistance to
families and children is provided, typically, without the threat of legal
intervention (Connolly 2006, 11; Hetherington 2006, 47). This paper discusses
child-protection oriented systems.
Child protection workers make detrimental decisions regularly. On the
one hand, they are the State's actors responsible to identify and "rescue"
children from dangerous homes in which either neglect or abuse might
severely jeopardize their wellbeing. On the other, child protection workers
intervene in the privacy of the family and make decisions that change the lives
of children and their parents irrevocably. Indeed, beyond the death penalty,
there is no other state decision that is as detrimental as termination of parental
rights (Reich 2005, 250). The potential intrusion in the family privacy and,
conversely, the risk of failing to identify acute threat lead to highly
adversarial, legalistic and alienating systems (Ainsworth and Hansen 2006;
Brown 2006; Douglas and Walsh 2009). With growing numbers of reports
filed to child protection systems and referred to investigation, child protection
has been described as a "wicked problem" with no one simple solution
(Bessell and Gal 2009).
Starting from the second half of the 20th century there have been
continuous waves of public rage against Child Protection Services (CPS) for
either leaving children in dangerous homes or removing them from loving
families to linger in foster care. Attempts to address these criticisms resulted
in public policy shifts described as a pendulum movement between family
preservation (investing time and resources in keeping children in their
biological homes) and child protection (securing children's safety at all costs,
including termination of parental rights) (Reich 2005, 54-47).
Whether tilting toward the "family preservation" or the "child
protection" directions of the pendulum, this paper suggests that most Western
child welfare systems are based on notions of liberalism. Their liberal
2
underpinnings result in six major characteristics which appear, in varying
levels, in all of them. These liberal-orientation characteristics are detailed in
the first section.
As an alternative, this paper considers a conceptual framework for
restorative child protection, which draws its principles from restorative justice,
new governance, and a broad approach to children's rights, manifested in the
UN Convention on the Rights of the Child (CRC). Restorative justice seeks to
repair the harm caused by crime in ways that meet the wishes and needs of the
stakeholders through a shared and equal decision making process. New
governance theory provides a regulatory framework combined of selfregulation, soft laws and private-public collaboration. The CRC regards
children as fully-fledged members of society and links children's rights with
their psychological needs and their relationships with their families and
communities of support. Adopting concepts from these three theoretical
frameworks, this paper suggests that a restorative child protection system
transforms children from being occasional guests in decision making
processes to active partners in the crafting of their realities, thus leading to
tailor-made treatment plans that address the specific needs and distinct
resources of each child and close environment. Restorative child protection
acknowledges children's relationships with their surrounding communities of
support, identifies the broader interests of children and their families, and
accepts what standard liberal practices consider "irrational" statements –
statements that involve emotional, wishful or associative thinking rather than
statements based on purely realistic, logical thought. Perhaps most
importantly, a restorative child protection system moves the state-parent-child
relationship away from the adversarial family court environment to a familycentered, informal and collaborative engagement which fosters mutual trust.
The first part of this paper examines common practices and underlying
principles of child protection systems in Anglophonic countries, particularly
the United States and England, and positions them within a liberal theoretical
3
framework. The second part discusses the Convention on the Rights of the
Child which constructs children's rights holistically and compatibly with a
restorative child protection agenda. The third part discusses the restorative
justice approach, and links it with new governance theory, using family group
conferencing as an example of a restorative justice child protection practice.
The fourth part of this paper synthesizes the three theoretical frameworks and
proposes a theoretical and practical outline of restorative child protection. The
final part concludes with some qualifications and suggestions for further
development of theory and policy in child protection as well as in the broader
restorative bureaucracy direction.
I.
LIBERAL
CHILD
PROTECTION
SYSTEMS:
A
CRITICAL ANALYSIS
This section provides a critical examination of Western child welfare
bureaucracies, positioning them within a liberal ideology. It discusses the
characteristics of two major child welfare systems: the American and the
British, but relates to other Western legal systems where similar problems
prevail such as Canada (Cameron and Freymond 2007; Brown 2006), Israel
(Gal 2009) and Australia (O'Donnell, Scott, and Stanley 2008; Ainsworth and
Hansen 2006; Douglas and Walsh 2009). Despite the differences between the
various legal systems, they are all large, complex bureaucracies which have
been developed and operate within a liberal ideological framework. The
positioning of child welfare systems within the context of liberalism on the
one hand and bureaucracy on the other helps explain the main characteristics
of these systems.
Weberian Bureaucracy is founded on mechanistic rationality and
formal efficiency (Weber 1927), while human rights require the integration
into the bureaucratic process of moral, emotional and social arguments
4
consisting of individuals' choices.5 Therefore, the introduction of human rights
presents a challenge to public administration (Nelson Espeland 2000). To
solve this inherent contradiction and maintain their efficiency, public
institutions integrating rights in their practices create a "liberal strainer" of
human rights: they allow in procedural rules such as the right to due process,
transparency, representation and appeal - rights promoting classical liberalism
such as freedom from arbitrary interference. Emotional, needs-based, and
relationships-based claims are typically filtered-out in such liberal reforms.
The State and its officials allow some input from individuals to pass through
the liberal strainer, but they maintain control over the process and the decision.
As the following section elaborates, liberal child welfare systems
suffer, in varying degrees, from the following six shortcomings resulting from
the need to balance between a liberal rights approach and bureaucratic
efficiency:
(1) Parents and state representatives engage within an adversarial
environment, constructing their relationship as adversarial and hostile.
(2) Procedural rules grant parents (and sometimes children)
opportunities to state their opinions and receive information, but maintain the
full decision making power in the hands of state authorities.
(3) State-initiated treatment plans in varying stages of the process
produce referrals to "generic" available services.
(4) An emphasis on the individual, negative rights of the stakeholders
(in particular parents – mostly mothers—and sometimes the child).
(5) A presumption of rationality as a threshold for participation in
decision making processes.
(6) Extensive use of "top-down" regulation, with procedural rules
guiding every stage of the process.
5
See Habermas' (1987) discussion of the conflict between the "lifeworld" and bureaucratic
systems.
5
First, however, the following paragraphs outline the legal framework
in the United States and England. Rather than a complete summary of the
statutes in each state within the US and England, they provide a general
overview of the regulatory regimes of these two child welfare bureaucracies.
The Legal Framework
In 1980, the Adoption Assistance and Child Welfare Act (AACW)
emphasized the importance of the natural family and created mechanisms to
encourage states to provide "reunification services" (services designed to help
families whose child has been temporarily removed to be reunited),
manifesting a "family preservation" approach. Later, however, the 1997
Adoption and Safe Families Act (ASFA)(Adoption and Safe Families Act
1997) was developed out of concern for children lingering in foster families
for lengthy periods, and shifted American child welfare policy from "family
preservation" toward a more "child protection" orientation.6 ASFA restricted
the time limits within which, if reunification services have failed, parents'
parental rights must be terminated and the child be adopted or placed in
another permanent arrangement. Importantly, ASFA introduced the concept
"concurrent planning" as a central instrument: states are expected to provide
reunification services for families with whom it is hoped children can be
reunited, and at the same time search for appropriate adoptive families in case
reunification efforts fail. While concurrent planning is aimed at reducing the
time children are held in temporary placements, there are concerns regarding
the difficulties it creates for both child protection services (suffering from
chronic lack of resources and strict timeframes) and parents (expected to trust
and cooperate with the same case workers who are promoting an alternative
plan to terminate their parental rights) (Wulczyn 2004; D'Andrade and Berrick
2006).
6
A similar shift occurred in Canada (Child Welfare League of Canada 2007, 3).
6
Although CPS workers play a pivotal role in typical child protection
processes in the US, the court has the ultimate decisive authority. Once a
report about alleged child abuse or neglect reaches the CPS, a worker
(following initial assessment) begins an investigation; if the worker believes
that the child is at an immediate risk, CPS can temporarily remove the child to
a safe placement, which the court needs to approve within a few days. The
CPS worker may alternatively evaluate that there is no immediate danger, but
that there is a need for further investigation and perhaps intervention. Later on,
should CPS workers decide that the child is unsafe at home they may apply for
his or her temporary placement, a decision that is made by the court. A third
alternative is when the report is assessed to be unsubstantiated, and the case is
closed.
Once a child has been removed, either as an emergency measure or
following a court decision of temporary placement, the family enters a phase
in which "reunification efforts" take place. According to ASFA, and
depending on the child's age, reunification efforts may last between six to
twelve months, and if failed, parents' parental rights will be terminated to free
their child to adoption or other permanent placement. Although parents do not
take part in planning and designing their reunification services (which is
typically ordered by the court based on the social worker's recommendations),
they are expected to accept the plan and comply in order to be reunited with
their children (Reich 2005, 116-118). Reunification efforts typically include
services such as family therapy, parent education, substance abuse treatment,
home visitations, financial or housing assistance.
British child welfare system is somewhat different from the American
because it explicitly integrates a children's-rights and child-centered
terminology into its legislation. It also strives to enhance collaborative
decision making and minimize coercive state interventions. Still, however,
many of the predicaments characterizing the American child welfare system
exist in the British as well. The Children Act 1989 is the law regulating all
7
matters concerning child protection and placement in England and Wales, and
is considered highly child-centered (Hetherington and Nurse 2006). In
addition to the Children Act, the work of social services within local
authorities is heavily regulated through publications of the Deportment of
Health (DoH) and the Department for Education and Skills (DfES). The most
recent piece of regulation in this area is the national scheme Every Child
Matters: A Change for Children Programme (DfES 2003), and its
complementing 2004 amendment to the Children Act. This reform radically
aims to shift the emphasis of British child welfare system from intervention
and investigation to prevention and support (Williams 2004). The reform
further aims to increase children's and parents' participation in decision
making processes and promote collaboration between different agencies and
professionals working with children and families. The reform established
Local Safeguarding Children Boards (LSCBs), to ensure the co-operation of
public, private and voluntary organizations in promoting children's wellbeing
and protecting them from harm (Walters 2008).
The various stages of the process from the initial report to a final
decision resemble the stages of typical child protection processes in America
(Walters 2008): Following a report regarding a child at risk, the local authority
makes an initial assessment, and might apply for a court order of an
emergency placement of a child. Alternatively, the initial assessment might
identify the child as a child in need, in which case the local authority becomes
responsible for providing support services for the child and family. A third
alternative is when the initial assessment identifies a risk of harm. In such
cases core assessment is made, and should a child be identified as being in
continuous and significant harm, a child protection conference is held. The
goals of the conference are deciding whether there is a need to put the child's
name in the Child Protection Register, and designing a child protection plan
(Hetherington and Nurse 2006, 62). Review conferences are held for all
children appearing on the Child Protection Register, first after three months
8
and every six months thereafter. To ensure the safety of a child whose
situation is being assessed, the court is authorized to issue interim care orders
based on the local authority's case plan. A full care order is issued once the
local authority has completed the core assessment and designed a care plan,
and the child becomes "looked after" by the state. The care order might
include out-of-home placement or require that the child remains at home, with
the local authority's supervision and support. In the meantime, similar to the
American "concurrent planning" policy, British local authorities are engaged
in "twin track planning". If reunification efforts fail, an adoption court order is
issued and the full responsibility on the child is transferred to the adoptive
parents (Walters 2008).
Focusing largely on these two jurisdictions, the following paragraphs
describe some shared predicaments of Western child protection systems,
resulting from their liberal orientation.
1. Parents-State as Adversaries
Liberal legal systems developed child protection mechanisms to ensure
that children at risk would be rescued from their abusive (or neglectful)
homes. To balance the "child protection" ethos with parents' deeply-rooted
liberal rights to raise their children and maintain the family's privacy, child
welfare systems created due process protections for parents, similar (although
weaker) to the protections granted to criminal defendants (Melonakis 2006).
The result is an adversarial relationship that reaches its peak in the courtroom.
In contrast with the criminal justice system and the police role within it,
however, child welfare services are also those in charge of providing support
and assistance for families struggling with multiple problems. The
combination of investigative/policing and service-provision roles creates an
insolvable tension because parents who wish to be helped in raising their
children know that by accepting the state's support they relinquish their
privacy and risk state's coercive intervention (D'Cruz and Stagnitti 2008). The
9
threat of criminal and protective interventions (such as termination of parental
rights through the dependency court and arrest and prosecution via the
criminal process) affect the child-family-welfare system dynamics from the
first interaction, extending their adversarial nature (Sedlak et al. 2006).
Consequently, CPS workers are perceived by parents not as a rescue, but as a
threat (Reich 2005; Douglas and Walsh 2009). Some parents view their case
worker as "an adversary in an elaborate chess game" (Reich 2005, 152). The
alienation and distrust parents feel toward CPS workers affect their ability to
benefit from services throughout the time span of their relationship with CPS
(Wulczyn 2004).
The distrust and alienation between parents and CPS workers affects
the children as well, because CPS decisions are perceived as punishment,
either against the children themselves or against their parents. When children
are confronted by CPS workers during the investigative phase, many do not
cooperate because of fear of being placed in custody or being punished by
their parents (Reich 2005, 79). Children's silence denies relevant information
from case workers regarding the child's safety and wellbeing. Perhaps more
detrimental is the effect the adversary process has on the relationships between
each of the stakeholders. In the court room, the formality of the process and its
extreme outcomes contribute to the already existing tensions between parents
and their children. Particularly with regard to children in their early or late
teens, the fact that the child, the mother and potentially the father are each
represented by a different legal professional amplifies exiting conflicts and
hinders the possibility for direct and constructive solution seeking (Huntington
2006).
Similar to the American system, British child protection system is
challenged by the unresolved tension between the protection of children and
respect for parents' rights, and between its investigative and supportive roles
(Featherstone 2006). Suffering from similar symptoms, Britain has been trying
to reduce the coerciveness of the child protection system, encourage
10
collaboration and increase the assistance provided to families. According to
the reformed 2004 Children Act, the local authorities have the power to make
the actual decisions on specific case plans. Court involvement is required only
when the parents do not cooperate or when there is a need for emergency
interference, adoption placement or no contact order with the parents.
Nevertheless, the number of court care orders has been growing steadily,
resulting in criticism that these efforts have largely failed (McKeigue and
Beckett 2004). Despite the 2004 reform, British CPS relationship with families
is described as adversarial, formalistic and evidence based (Hetherington and
Nurse 2006, 59), and is often based on mutual distrust (Williams 2004).
2. Limited Participation
Parents-CPS relationship is inherently unequal, since the latter have the
authority to remove children from their homes, terminate parental rights and
intervene in other coercive ways in the family privacy (Turnell 2004).
Nevertheless, the extreme power imbalance that characterizes many familyCPS relationships results from common practices that are not inherently
necessary. Despite the insertion of participation rhetoric, the British reform
has not changed the distribution of power between public institutions and
private actors. Professionals remain the decision makers and those in full
control over the process, rather than the individuals whose issue is at stake.
This is all the more true in the US: Typically, professionals unilaterally decide
on the "problems" and the "plan". Parents must show complete submission to
the plan, with no room for negotiating, questioning or collaborative thinking
(Reich 2005, 236). Non-complying parents – for instance parents who do not
fully attend services or those who object workers' judgments of their parental
behavior – can lose custody over their children and eventually their parental
11
rights even when they are believed to be capable parents (Reich 2005, 227;
(Davies and Krane 2006).7
The extreme power imbalance and unilateral praxis of decision making
are particularly salient in the court room. Professionals talk about parents'
abusive, risky or irresponsible behavior, sometimes inaccurately, in their
presence; any attempt by parents to present their own perspective is accepted
as problematic. Lacking a constitutional right to legal representation, parents
are often either poorly represented or not represented at all (Melonakis 2006).
As a result, parents often feel misinterpreted, alienated and patronized through
the tone and content of the proceedings and for having only one option if they
want to regain custody over their children: to accept responsibility and be
silent (Reich 2005, 123-124).
In England, even the child protection conferences created through the
Children Act as the key decision making organ for children at risk are
experienced by families as intimidating and the system as a whole as
formalistic and alienating (Hetherington and Nurse 2006, 73). Court hearings,
while regarded less adversarial and more inquisitorial compared to the
American proceedings, are nonetheless still dominated by professionals.
Beyond the obvious desire to maintain efficiency and uniformity, child
protection systems' centralized approach can be explained by fear of making
"indefensible" decisions and consequently being exposed to public criticism
(Littlechild 2008). Nevertheless professionals' complete control over child
protection decisions is problematic not only because the State continues to
“steal” citizens’ power to reach decisions regarding their own matters (Christie
1977). The failure of the liberal reform to radically change the distribution of
power between public and private actors is problematic also because a
diminished role in the decision means a diminished sense of responsibility to
7
See Ainsworth and Hansen (2006) describing a similar situation in Australia, and Brown
(2006) in Canada.
12
fulfill it (Tyler and Blader 2003; Dzur and Olson 2004). This is especially true
when clients’ arguments and suggestions are denied.
3. Generic Services
Because liberal child welfare systems are structured as centralized
bureaucracies providing services to disempowered clients, CPS offer families
assistance out of prescribed lists of available programs in their area. Instead of
tailor-made assistance plans designed specifically according to the needs of
the specific child and caretakers, plans typically include referrals to generic
services that might or might not fit those needs. In addition to their substantial
questionable ability to address each family's unique needs and interests,
services are also technically inflexible. Programs often clash with parents'
other scheduled obligations, including their job responsibility and other
services. This affects mainly poor families because they have to rely on public
transportation, unstable positions in their jobs, and publicly funded services
offering inflexible schedules (Reich 2005, 256). At the same time parents
whose children are removed find themselves in an increased financial risk
because as uncustodial parents they become ineligible for public assistance
such as housing, financial support (TANF) and child care (Reich 2005, 130133).
Fathers are particularly disadvantaged by the inflexibility of services,
first because their status as caretakers is a priori weak, and second because
they are expected to be the main breadwinners. Services often clash with their
job obligations, making it almost impossible to follow the case plan without
losing their jobs and their much-needed income (Reich 2005, 203, 208). Like
mothers, fathers too have no opportunities to collaboratively think about the
desired case plan and how to make it more doable (Reich 2005, 217).
Nevertheless fathers who want to be involved in their children's lives have to
perform deference and fully comply with the reunification services assigned to
13
them, notwithstanding their difficulties; otherwise, they are cut off from the
child protection system which is limited in resources anyway.
Children too are disadvantaged by the inflexibility of services types
and timing, because for them too it is impossible to design a tailor-made plan
according to their specific needs, wishes and interests. Instead, children
(similar to their parents) are assigned to the generic services available in their
region whether or not they meet their needs and other scheduled obligations.
4. Emphasis on Negative Rights of Immediate Stakeholders
Influenced by international developments as well as national and local
popular calls, modern American child welfare policies, similar to other
Western systems, adopted to a large extent a language of rights (Healy 1998).
England has also moved toward a rights-based instead of the previous welfarebased approach (Hetherington and Nurse 2006). Social justice concerns,
however, were not the dominant motivations for these reforms, but rather the
liberal, individualistic spirit which became widespread in the second half of
the 20th century (Healy 1998). The liberal rights discourse has distinct
characteristics such as individualism, privacy and rivalry of interests.
Accordingly, most dominant within child welfare discourse are negative
rights, such as parents' right against the state's interference in their family life
(Huntington 2006). One consequent of the right against interference is a
perception of autonomy which excludes relatives and other potential sources
of support from the decision making process.
Even the "social" right to wellbeing, which is dominant in child
protection discourse, has not been implemented in its broad and proactive
meaning of promoting the universal wellbeing of all children. Although
England has attempted to do so in its 2004 reform it is yet to be considered
whether this has been successful. Politically, the protection of children seems
to result not from a genuine regard of children as individuals holding
substantive rights, but rather from their construction as an investment for the
14
future (Featherstone 2006), or as potential social problem needing to be
addressed to prevent future crime, delinquency and unemployment (Reich
2005, 30).
Children's rights terminology has also penetrated into the child
protection system. Although the CRC has not been ratified by the US (all other
192 UN members, except of Somalia, have, however, ratified the Convention
soon after its publication in 1989), children's rights have been affecting
American child welfare policy to some degree. Particularly, and again in
accordance with the liberal tradition, children's rights have been translated into
negative, or otherwise procedural, rights. For example, the interpretation of
children's right to protection as a negative right means that children cannot
expect the state to actively take measures to promote their wellbeing while at
home (Reich 2005, 50; Noonan, Sabel, and Simon 2009).
The focus of the liberal rights terminology on the individual rights of
parents and children has contributed to the adversarial nature of child welfare
systems. The right of the custodian parent (typically the mother) to privacy
competes, according to liberal child protection discourse, with the right of the
child to be protected against abuse and neglect, and therefore with the state's
obligation to prevent the child from being at risk (McCroskey and Meezan
1998, 55). In other words, the triangle relationship of child-parents-state is
defined in terms of conflicting rights, rather than common interests. The basic
interest shared by all parts of the triad for safe, healthy and cared-for children
remains in the background. Indeed, the conception of families' right to privacy
or autonomy is understood as freedom from interference, even when
interference means assistance (Huntington 2007).
Furthermore, because of their emphasis on minimal interference,
liberal child welfare systems focus on the direct caretaker of the child at-risk,
typically the mother. Even in cases of physical or sexual abuse committed by
men, mothers are considered those who failed to protect the child.
15
Accordingly, mothers are the primary objects of reform, intervention and
judgment in such cases (Brown 2006; Daniel and Taylor 2006).
Since mothers are regarded those holding the main responsibility for
the child, fathers who are not married to the biological mother need to prove
their paternity to be entitled (and subject) to reunification services (Reich
2005, 192). Once they have passed the paternity obstacle, the main expectation
of them is to be the breadwinners; their informal and inconsistent involvement
in their children's lives is underreported and is not considered by child
protection workers when designing the case plan. Fathers are only seldom
considered potential custodians of their children should they be reunified
(Reich 2005, 207).
Partners of biological parents involved in child protection – typically
male partners of mothers – are largely not included in case plans for the family
preservation or reunification, and do not have a standing in the process. This
exclusion occurs despite their potential influence on the child's life, and the
impact a removal decision would have on them. Instead of ignoring them
altogether, however, the system often regards them as a risk, and expects
mothers to leave them for the best interests of the child (Reich 2005, 177).
Finally, the minimal interference principle means that in providing
services to clients, public officials would not invite the individual's community
of support, such as extended family members, neighbors and friends, to help
find an optimal solution: this would infringe their own freedoms and privacy,
as well as the family's. Grandparents, extended family members and other
potential caregivers are therefore only peripheral in the discussion and are not
eligible for any services even when they could potentially care for the child.
The exclusion of extended family members from the decision making process
is particularly questionable in light of the growing placement of children in
kinship care (Davidson 1999). If relatives become caretakers of at-risk
children, then their exclusion from the design of the specific terms of the
treatment plan might jeopardize its success.
16
In England, too, the contribution of children's broader support
networks such as neighbors, friends and extended family is not acknowledged
in the 2004 reform (Williams 2004, 420). As a result, extended family
members are only rarely involved, often based on concerns about the nuclear
family's privacy (Bell 1999, 444). The exclusion of support people means that
important sources of strength and assistance in the child's life are ignored and
opportunities to use less intervening options are missed in the construction of
the child's safety plan.
A Narrow View
The focus on individuals' negative rights also means that CPS workers
address only the family concerns that seem directly relevant to the child's
safety. Mothers' personal views, wishes and needs, for example, are ignored
because only their ability to care for their children is regarded relevant to the
process (Brown 2006). Their own needs within their life realities, including
domestic violence, isolation and poverty are not addressed beyond those
aspects that are deemed necessary for the safety of their children (Davies and
Krane 2006).
Similarly, children are considered in many jurisdictions only with
regards to the concerns directly related to their safety and basic needs. CPS
workers often do not address other issues affecting children's lives such as
being bullied at school or having learning difficulties, thus failing to more
broadly improve children's wellbeing (and indirectly enhance the prospects of
the family reunification). Children themselves, not their virtual images and
assumptions about their wellbeing, are rarely at the center of the process when
CPS workers make decisions regarding the appropriate services or when they
construct their understandings of the family's strengths and weaknesses.
British child protection strives to be more "child centered": A statutory
guide stating the principles for safeguarding and promoting the welfare of
children placed "child centrality" as the first principle and included an
17
additional principle of "involving children and parents" (HM Government
2006, 99-100).8 It is unclear, however, whether in practice CPS workers
construct their relationships with families around the concrete needs, wishes
and interests of the child or, as in the US, work mainly with those whom they
see as their central object for reform – typically mothers.
5. Rationality as a Condition to Participate
The traditional liberal theory of rights assumes independent, rational
individuals who are capable of making choices and expect freedoms from
governmental interference. Children do not fit into this theoretical framework
(Minow 1995, 1579). As a result, children have been largely denied the
freedoms that are part of liberal society.9 Martha Minow uses children's rights
as an illustration of her `dilemma of difference' (Minow 1990, 288): Children
are either granted rights as equal to adults, or protections which deprive them
of their autonomy and rely on their incompetence and dependence upon adults.
The (liberal) rights approach, Minow argues, while aiming to challenge the
exclusion of discriminated populations, still enables a different treatment for
those whose difference is regarded as justified or relevant, such as children
(Minow 1986; 1990, 146).
Children at risk of abuse or neglect are, perhaps more than all other
children, subject to this protection—rights dichotomy. The US, a sole nonmember of the CRC, treats children in its CPS Federal legislation as objects of
protection, not independent subjects with valid views, perspectives and
feelings that may differ from those of their caretakers (D'Cruz and Stagnitti
2008). Accordingly, federal legislation addresses children's "best interests"
rather than their wishes and standpoints. The 1974 Child Abuse and Neglect
8
Note, however, that in the principle "Involving children and families" the emphasis is on
"listening" to children as opposed to "co-operating" with parents.
9
As John Stuart Mill (1859, 22-23) stated: "It is, perhaps, hardly necessary to say that this
doctrine is meant to apply only to human beings in the maturity of their faculty. We are
not speaking of children, or of young persons below the age which the law may fix as that
of manhood or womanhood. Those who are still in a state to require being taken care of
by others, must be protected against their own actions as well as against external injury".
18
Prevention and Treatment Act (CAPTA) required states applying for federal
funds to appoint a Guardian Ad Litem (or GAL - a guardian "for the suit") for
every child in dependency hearing. In 1996, the role of GALs was defined as
identifying, first hand, the best interests and needs of the child (Outley 2004).
There is no equivalent federal requirement providing CPS children the right to
an attorney, representing their wishes (Outley 2004; Melonakis 2006).
The British child protection system differs from the American in its
legislative attempts to involve children in decision making processes. As a
ratifying member of the CRC, England has been explicitly promoting child
participation initiatives across all of its governmental activities (Spicer and
Evans 2006), including in the child welfare system. Efforts have been made to
structurally integrate child participation and children's best interests.
Children's right to participate at various stages of the child protection process
was legislated in the Children Act as well as opportunities to file complaints.
Accordingly, if and when a case is referred to court, children are appointed
both a Guardian ad litem (who is a social worker) and a solicitor. The solicitor
acts as the child's lawyer; the GAL represents the child's best interests and
supports the child throughout the process (Masson 2000). This dual model of
representation is probably more comprehensive in providing both an objective
view of the child's best interests and a separate legal representation of the
child's rights and wishes. Nevertheless, and despite the legislative reform
children's participation is still restricted, often can be described as consultation
and only very seldom involves opportunities to meaningfully influence care
plans (Sinclair 2006).
The regulation of children's participation in liberal children's rightsbased systems such as the British presents a challenge to decision makers
because of the "dilemma of difference": how can decisions be made based on
the views of participants whose decision-making capacity is limited? This
tension results in capability, maturity or best interests tests for the inclusion of
children in discussions. Often, a minimal age is created as a threshold for
19
participation.10 Those not meeting the threshold either have to submit their
views indirectly or are excluded from the process altogether. The exclusion of
young and vulnerable children is made to protect not only children, but the
process, or the “system” as well, and could arguably be seen as a defensive
organizational strategy against possible accusations (Gal 2006, 162). While a
careful "best interests" test might be a legitimate way of preventing further
harm from a child resulting from her or his participation in a tense process,
any maturity, capacity or rationality test is potentially an instrument for
maintaining the efficiency, formality and swiftness of the process.
Even when allowed in the process, any statement made by a child not
fitting the formal, legalized jargon of the process is treated with suspicion.
Only succinct and “relevant” information may get through the liberal strainer.
Emotional, personal, or “disorganized” claims are left out of the process –
disempowering those who do not meet the rationality requirement (Nelson
Espeland 2000). For children, this means that only if a participating child is
evaluated as mature enough to form a reasonable view (and could that be
contradicting the professionals’ view?) can his or her opinion be considered
seriously.
There is no wonder, then, that in British child protection conferences,
although children are invited to provide their input, their participation is
limited, especially in young ages. In 2005, for instance, only 22% of children
aged 4-9 attended their care reviews and participated in them directly; 60% of
children aged 10-15 and 70% of those aged 16 and over physically attended
and participated directly (DfES 2006, 52-53). More concerning is the actual
meaning of their participation:
In practice the term participation is often used simply to mean being
'listened to' or 'consulted'. In this sense the term takes on a very passive
connotation. This is in contrast to active participation, which could be
taken to imply some presumption of empowerment of those involved –
10
See, for example, the case of Israel (Gal 2009).
20
that children believe, and have reason to believe, that their involvement
will make a difference. Here participation is undertaken with a very
specific purpose of enabling children to influence decision-making and
bring about change… And of course children's participation has to be
by their choice, based on informed consent and respecting their right
not to participate (Sinclair 2004, 110-111).
6. Ultra-Formalism and Hyper-Regulation
Finally, liberal child welafre systems act in an ultra-formalized
manner, with detailed procedural requirements at every step of the process
(Pennell 2004). They do so because they need to protect themselves against
claims of due process rights violations both from citizens and political leaders
(McCubbins, Noll, and Weingast 1987). By fulfilling detailed procedures and
checklists professionals also protect themselves against public outcry
following instances of child death, as has been the case in numerous public
inquiries in England (Littlechild 2008). This formality skews the (typically
limited) resources of administrations toward paperwork and lengthy
procedural matters instead of direct and open communication with the
stakeholders (Reich 2005, 122).11
Considering these characteristics of the child-parent-CPS workers
relationship, there is no wonder why although family preservation or
reunification is still considered as the central mission of child welfare in
America, only about a half of the children involved in the CPS system are
reunified with their families, and of them almost a third reenter the system
within ten years of their reunification (Wulczyn 2004; Reich 2005).
II A RELATIONAL HUMAN RIGHTS APPROACH: THE
UN CONVENTION ON THE RIGHTS OF THE CHILD
11
Similar problems exist in Canada: see Cameron and Freymond (2006) and Swift and
Callahan (2006).
21
The liberal approach has important virtues. The central advantage is
the addition of rules limiting the power of bureaucrats and balancing it against
basic rights of citizens (Olsen 2006, 9). Individuals approaching public
institutions may expect, among other things, to be heard, receive information
about the process and their rights in it, and be informed of the decision and its
logic. For children, the introduction of a rights-based discourse has had an
even more remarkable impact, making them, for the first time, visible
stakeholders in decision making processes. But as the previous section
demonstrates, the liberal implementation of human rights has numerous
weaknesses.
The shortcomings of the liberal implementation of rights, however, do
not negate a human rights approach to families and children altogether. A
more holistic understanding of rights can lead to substantially different
practices involving children, parents and their extended families. Rights may
be seen as arising from and defining relationships between people, rather than
increasing conflict (Minow 1990).
With regard to children, the most disenfranchised party in the child
protection process, a human rights discourse is important not only because it
reflects respect for them as human beings, as equal members of society. Rights
can also be a vehicle to structurally empower children (Federle 1995).
Within the human rights epistemology, the CRC offers such a
relationship-based, empowering Bill of Rights for children. The CRC is by far
the most comprehensive international binding document with regard to
children's rights. The Convention, for the first time, acknowledged children as
individuals fully entitled to human rights, without neglecting their special
needs for protection (Detrick, Doek, and Cantwell 1992, 27). It enjoys worldwide consensus as it has been ratified by almost all countries in the world,
with only Somalia and the United States as exceptions (Small and Limber
2002 , 61-63). At the same time, the Convention is flexible and sensitive to
22
cultural differences more than any other human rights instrument (Alston
1994). The unprecedented popularity of the Convention combined with its
flexibility made it a powerful political instrument that has affected national
legal and constitutional debates as well as professional education within
nations (Van Bueren 1999b).
The CRC includes the widest variety of rights for children – social,
legal, cultural, civil and human rights – and therefore represents a new,
broader approach to children's rights. Children are no more regarded as merely
objects of protection (although the right to be protected is a central principle in
it); they are human beings, part of the world's community, and thus deserve to
be treated with respect for their human rights and freedoms. Most importantly,
the CRC provides a broad framework of citizenship for children through the
introduction of the participation principle for the first time (Roche 1999). The
Convention is also unique in its coherent nature and indivisible Articles, with
children's dignity as its central theme that should be read into each one of its
articles (Melton 1991; Van Bueren 1999a). Indeed, the CRC reflects a holistic
approach toward children's rights as it does not follow the strict separation
between negative and positive rights or between autonomy and protective
needs. The Convention's four guiding principles of equality, best interests,
participation, and the right to life, survival and development are indivisible
and should be read into each one of the Convention's other provisions
(Hodgkin and Newell 2002, 42). The integrated use of the four guiding
principles provides a tool for resolving internal dilemmas and ostensibly
conflicting priorities in the application of children's rights (Gal 2006, 47).
According to the Convention children hold a complex mix of welfare,
human, liberal, and protection rights. The family is presented as the most
important unit for children while at the same time children's rights within their
families are acknowledged. Children's special vulnerabilities are considered
and addressed as well as their cultural, religious and economic rights. The
Convention's emphasis on the importance of the family, community and
23
national identity accommodates Minow's social-relations approach of rights,
thus accepting children's interconnectedness with others (Brooks and Ronen
2006).
An additional advantage of the Convention is that it proposes a
relatively pragmatic agenda of children's rights. The Convention does not
include any provision that aims at treating children as adults, nor does it state
that even `mature minors' should be entitled to complete autonomy and
freedom in decision-making. The Convention focuses, in this area, on the right
of children to participate in the decision-making processes that precede any
decision affecting their lives – not the right of children to make their own
decisions. By doing so the CRC follows empirical findings regarding the
importance of participation and a sense of control as a developmental need and
a coping mechanism for children (Bessell and Gal 2009).12
The participation right, articulated in Article 12 of the CRC, contains
two aspects: first, it provides children who are capable of doing so with the
right to express their opinions freely in all matters affecting them. Secondly,
Article 12 states that children's opinions should be considered and given due
weight according to their age and maturity (Hodgkin and Newell 2002, 145).
Article 12(2) specifies the application of the participation principle with
respect to judicial and administrative proceedings such as child protection
processes, where the child's views should particularly be heard either
personally or by a representative.
Considering the practical meaning of the participation right, can
children of all ages be regarded competent participants? Anne Smith (2002,
82-85) points out that even very young children are capable of understanding
their experiences and expressing themselves. Her review of empirical research
suggests that babies, infants and preschoolers are active participants in their
12
See, for example, Parton’s (2006) review of studies conducted about children and young
people involved in child protection mechanisms in Britain; Ochaita & Espinosa (2001,
313-315) on the universal needs of children in general; and Bell (2002) on the importance
of having a respecting, listening social worker for at-risk children.
24
immediate environments. Thus, even very young children can participate in
significant ways (albeit non-verbal or disorganized) in decision-making. She
further argues that adults should be sensitive to the child's current level of
understanding and allow gradual growth in the responsibilities and weight
given to the child and the child's views. Moreover, parents and professionals
should understand that children need to have the opportunities to express their
views, initiate actions and make decisions, in order to mature into decisionmaking, involved citizens (Smith 2002, 82-85).
The participation right is often understood as creating a procedural
obligation to invite children to state their opinion and provide them with legal
representation. This is the typical practice of the participation right in Britain
and in other jurisdictions committed to the CRC, and it is, indeed, a substantial
step forward toward the inclusion of children in decision making processes. A
deeper understanding of the participation right, however, calls for the
involvement of children not as adversaries to the process, outsiders who are
invited in to provide their input and then wait for professionals to make
decisions regarding their own lives. Rather, the participation right as crafted in
the CRC can mean regarding children as partners in decision making
processes, having a voice throughout the deliberative process and designing a
decision based on mutual dialogue between the child, the family and the
involved professionals (Bessell and Gal 2009). This deeper understanding of
the participation right allows professionals to more seriously understand the
child's views and feelings and for the child to more meaningfully understand
the process and its consequences and think together of possible solutions.
Moreover, partnership with children communicates respect toward them and
an acknowledgment of their membership in society as autonomic (yet
dependent and vulnerable) individuals.
The participation right is perhaps the most notable among the CRC's
provisions. But similarly important is the right of children to have their best
interests given primacy in every decision regarding their lives, stated in Article
25
3. In addition, specific rights provided in the CRC are directly related to
children involved in CPS: the right to protection against abuse, neglect and
violence, whether inflicted by family or others who care for the child (Article
19); the right of the child not to be unjustly separated from his or her family
(Article 9); special protection for out-of-home children (Article 20); specific
protections against abuse related to narcotic drugs (Article 33), sexual abuse
(34), trafficking (35), and other sorts of exploitation (36); and the right to
recovery and reintegration (Article 39).
Finally, Article 5 which applies to all other articles in the Convention
demonstrates the broad approach to human rights and especially the
construction of children as autonomic individuals within relational contexts
(Brooks and Ronen 2006):
States Parties shall respect the responsibilities, rights and duties of
parents or, where applicable, the members of the extended family or
community as provided for by local custom, legal guardians or other
persons legally responsible for the child, to provide, in a manner
consistent with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of the rights
recognized in the present Convention.
This Article introduces three key concepts of the Convention, namely,
(1) the centrality of the family (including the extended family, where this is
part of the child's culture); (2) the conception of the child as a subject of rights
on his or her own, rather than a mere recipient of protection; and finally, (3)
the duty of the family and the general society to help the child exercise his or
her rights in a gradual manner, according to the child's evolving capacities
(Hodgkin and Newell 2002). These three concepts are interrelated. The family
is the central societal group which carries not only rights, but duties and
responsibilities toward the child. Family responsibilities are aimed at helping
the child exercise his or her rights according to the child's evolving capacities,
26
and state authorities are obliged to respect these responsibilities so that
children continue to practice their rights within their natural environments.
It is clear, then, that the CRC provides a holistic umbrella of rights for
children starting from the most basic protections against abuse and continuing
to the treatment of children as partners in decision making processes. It does
so while acknowledging children's vulnerabilities and dependence upon their
families, especially their parents, and requires state parties to consider, at all
times, children's specific interests and views to ensure that their wellbeing is
protected and promoted.
III RESTORATIVE JUSTICE AND NEW GOVERNANCE
The CRC suggests that a liberal understanding of rights is not the only
way to implement children's and parents' rights. There could be another
direction that shifts the focus of administrative reform from procedure to
substance and from formal and negative rights to wellbeing and
empowerment. One that is less adversarial and more focused on the shared
interests and strengths of children, families and their communities.
Such a shift is inspired by the restorative justice movement. Born out
of disappointment with both the retributive and rehabilitative justice
paradigms addressing crime (Strang 2002, 43), restorative justice has emerged
as a `third lens' (Zehr 1990), according to which “crime is a violation of
people and relationships. It creates obligations to make things right. Justice
involves the victim, the offender, and the community in a search for solutions
which promote repair, reconciliation, and reassurance” (Zehr 1990, 181).
When practiced within the criminal justice context, restorative justice
puts the stakeholders – the victim, the offender and the relevant community –
at the center of the decision-making process, thereby empowering them to take
an active role in repairing the harm that resulted from the crime. The recurring
notions of empowerment, active participation and non-domination apply to all
27
participants, including vulnerable ones (Gal 2006, 10). A restorative justice
process is defines as: “. . . a process whereby parties with a stake in a specific
offence collectively resolve how to deal with the aftermath of the offence and
its implications for the future” (Marshall 1999, 5).
Restorative justice is most commonly used as a diversion from the
criminal justice process or as an addition to it (Roche 2006 ). Restorative
justice theory, however, is applicable in almost every aspect of our daily lives,
and is practiced in various arenas such as in school bullying (Morrison 2002 ),
white collar crime (Braithwaite 2005a), families (Pennell and Burford 2000),
as well as in international disputes and terrorism (Braithwaite 2005b). The
shared values in all these policies are emphasis on informal and inclusive
deliberation, a search for minimizing the harm and preventing future repeats of
harm.
A restorative reform is also theoretically linked to a broader shift in
governance approaches, from the centralized, formal, top-down state
regulation regime characteristic to the majority of modern states in most of the
20th Century, to a more pluralistic, informal, participatory, bottom-up,
decentralized new governance regime emerging in local, national and
international jurisdictions (Lobel 2004). The new governance regime focuses
on processes, innovation, integration of public, private and non-profit
organizations and openness to new ideas. The outcome is enhanced
participation of private actors in public life – the formation of partnerships
between public and private actors (Lobel 2004, 374). Other characteristics are
voluntarism, promotion of diversity, information-sharing, revisability and ongoing learning and review (de Búrka and Scott 2006), experimentation,
consensus searching, flexible norms and standards, and the use of benchmarks,
peer review and indicators as accountability measures (Trubek and Trubek
2007, 541). The governance model recognizes the interdependencies between
the various actors, requiring them to work together in the search of mutual
goals and ways to promote them together. Unlike the adversarial nature of
28
rights leading to win-lose situations, the collaborative nature of the
governance model leads to win-win situations (Lobel 2004, 379).13
The partnership concept featuring in the new governance approach is
gaining popularity in theory and in practice. Public administration around the
globe is being transformed with a significant trend of participation and public
deliberation. Examples of “collaborative governance” (Callahan 2007, 162)
are school councils and neighborhood watch organizations (Bishop and Davis
2002), “citizen’s juries” (Leighninger 2006, 16), workplace groups, local
communities, social groups, deliberative opinion polls (Zittel 2007, 11-16),
and, in the macro level, the Open Method of Communication (OMC) applied
at the EU (Harvey 2006, 206). In the child protection arena, where
disempowered families and typically marginalized children are the main
actors, new governance framework may offer particular advantages because of
its emphasis on informality, flexibility, inclusiveness and re-distribution of
power. Indeed, if restorative justice is "the most important manifestation of the
new regulatory state in criminal justice" (Braithwaite 2000), then it is easy to
envision how restorative child protection is comfortably situated within new
governance theory.
In the US, openness for collaborative reform in child welfare already
exists, as the numbers of reported allegations of child abuse and neglect
increase and the ability of child protection services to respond effectively to all
reports diminishes (Schene 2006, 90). Efforts to reduce the adversarial nature
of the process and enhance the cooperation between families and service
providers appear in many states. "Differentiated Response" is one example,
where low-risk reports are diverted to a more voluntary process in which
families are encouraged to receive support services without being threatened
13
Compare with Strang (2002, ch. 7), demonstrating that restorative justice leads to win-win
outcomes, in contrast with criminal justice. See also Huntington (2006, 664), comparing
between the win-lose situations that the rights model create and the win-win
consequences of her suggested problem solving model.
29
with removal (Pennell 2004; Schene 2006, 101).14 Another example is the
creation of "partnerships" between CPS, community activists, schools,
churches and neighborhood associations, where collateral efforts are made to
reduce the risks of child maltreatment and enhance trust and cooperation
between families and CPS workers. There is also growing use of mediation
and family group conferencing, by now evidence-based practices that were
found effective in promoting child safety and strengthening families (Crush
2005; Morris 2007; Giovannucci and Largent 2009). A closely related attempt
is the development of strength-based practices that promote problem-solving
together with family members (Turnell 2004). The use of these models,
however, is not done systemically in the state and national level, and the
number of families involved in partnership-based practices to resolve child
protection challenges is marginal (Merkel-Holguin, Nixon, and Burford 2003).
Legal basis for restorative/new governance reforms also exists, with
Federal funding secured to public-private partnerships in child welfare through
the 1993 Family Preservation and Support Initiative (and the amended 1997
version) (Schene 2006, 89). On the State level, many States have created
statutory changes allowing "differentiated response" discussed earlier (Schene
2006, 101). These statutory changes can provide the legal framework for
restorative child protection processes, at least in the less acute cases, as a first
step.
Even without making a complete makeover of the child protection
system, it is possible to enhance collaboration, trust and respect between CPS
workers and clients, once workers are sensitized to the need to work with
families. Andrew Turnell's (2004) case study about a North-African mother
and her two children from Olmsted County in Minnesota demonstrates how a
CPS worker developed a meaningful relationship with the family. Despite the
serious allegations against the mother and initial assessment that the children
14
All Australian states except Queensland now have a differentiated response policy (Child
protection Australia 2007–08 2009). See, for example, Parton and Mathews (2001)
describing the reform in Western Australia, adding a "Child Concern" category.
30
would need to be permanently removed from their home, the assigned case
worker invited the mother and each of the children to design the format of
their relationships, and followed their requests. In this way the mother and the
two children had some control over the process which was accordingly shaped
with sensitivity to their tradition and community ties. The worker kept them
fully informed about her own assessments and concerns, thus expressing her
respect and trust. Consequently the worker, mother and the children managed
to collaboratively design safety plans, and the children were eventually
reunited with their mother (Turnell 2004).
Conceptually, it is possible to identify mutual interests and shared
goals among families and CPS, which can be the basis for collaboration.
Families need the State's assistance to ensure the welfare of their children; the
state needs its children to be healthy, productive and functioning, and depends
on parents to look after them (Huntington 2007). A broad rights-based
approach toward children, such as that of the CRC, adds children as the third
party to the equation. In other words, a restorative-rights based approach
regards children as partners in a mutual-interest trio, rather than passive
objects of protection outside of the state-parent dialogue. Children need their
parents and the State to provide them with opportunities to thrive; parents and
the State need children to fulfill their potential through adaptive behavior and
cooperation. Once the shared interests and interdependency of these three
parties are identified, it is possible to perceive the relationship as mutual
engagement, rather than one-sided "assistance" (Huntington 2007).
Family Group Conferencing: Restorative Child Protection in Action
Family Group Conferencing (FGC) is a restorative practice that can
become a cornerstone in a comprehensive restorative child protection system.
Deliberative, empowering democracy lies at the heart of FGC, in which
decision making power is shared between children, parents, family members
and professionals (Merkel-Holguin 2004). Originally initiated in New Zealand
31
where the government sought to address the over-representation of Maori
children and youth in both child protection and youth justice systems, FGC
has been adopted in many parts of the world and today is widely recognized,
with hundreds of programs running in communities across the globe (MerkelHolguin 2004, 58; Pennell 2004; Huntington 2006, 680). Children having
equivalent or greater level of risk compared with those receiving traditional
CPS treatment participate in FGCs, including sexually abused children and
those experiencing domestic violence (Merkel-Holguin, Nixon, and Burford
2003). FGC is practiced also as a juvenile justice mechanism for young
offenders. Allison Morris captures the differences and similarities between the
ways FGCs are practiced in these two different contexts:
Care and protection and youth justice family group conferences do
have very different objectives: youth justice family group conferences
are concerned primarily with holding offenders accountable and
making amends to victims; and care and protection family group
conferences are concerned primarily with the victims' safety. Critical
for both, however, is giving victims a voice and meeting victims'
needs. Both also focus on taking steps to prevent the recurrence of the
offending or victimization. Thus they share a common restorative core
(Morris 2002, 91).
Other restorative features of child protection FGCs are involving the
stakeholders in determining the appropriate response to the act; reaching a
consensual plan; informality and flexibility in the process; and the use of a
facilitator (Morris 2002, 91).
The fundamental assumption in the practice of child protection FGCs
is that the family, in its broad definition as to include relatives and close
supporters, is the most suitable forum to make decisions regarding a child in
need of protection and to monitor the implementation of those decisions.
Therefore, FGCs (or FGDMs, Family Group Decision Making processes, as
they are called in many American jurisdictions) involve the active
32
participation of the child, nuclear and extended family and other close friends
and concerned adults. Social workers and other professionals provide
information about available services and resources, but are generally expected
to refrain from dominating the discussion and suggesting solutions. The
family, therefore, is empowered to find its own strengths to secure the
wellbeing and safety of the child.
Although FGCs differ across programs and jurisdictions, the following
description roughly fits a typical FGC process (Pennell and Burford 2000,
140-141). A first and crucial stage after the initial referral is the preparation.
FGC coordinators typically meet with the key stakeholders to provide clear
information about the process and their roles as decision makers in it,
identifying (together with the nuclear family) the appropriate invitees, taking
the required steps to protect family members during the conference, and taking
care of practical matters such as transportation. Studies support the claim that
a thorough preparation phase (typically amounting to 20-35 hours) is crucial
for the success of FGC (Merkel-Holguin 2004; Merkel-Holguin, Nixon, and
Burford 2003).
Once the preparation phase is completed, a conference is gathered at an
agreed-upon location and timing. Conferences typically include five steps:
1. Opening (sometimes with a culturally-appropriate ceremony), setting the
ground rules and giving information about the situation and existing services;
2. Family private time, where family members design their own plan using
both public services and their own resources;
3. The facilitator and other professionals are invited in and review the plan
reached by the family;
4. Approving the plan. Plans can include public services such as counseling,
addiction treatment, in-home support, child care, transportation, and
recreation; relatives may volunteer further assistance such as child care,
material assistance, regular visits and serving as fallbacks in emergencies;
5. The implementation of the plan.
33
Despite some challenges and operational difficulties, findings of most
studies on FGCs are overwhelmingly positive (Merkel-Holguin, Nixon, and
Burford 2003). Families are highly satisfied with most aspects of FGC, and
their positive ratings are high and similar across varying localities and cultures
(Merkel-Holguin, Nixon, and Burford 2003). Families reach safety plans that
meet children's needs and are welcomed by CPS workers, but at the same time
are more responsive and tailor-made to families' specific needs (MerkelHolguin, Nixon, and Burford 2003). Despite inconsistency across programs in
the level of involvement of children (Merkel-Holguin, Nixon, and Burford
2003), children participating in FGCs value being consulted, listened to, and
having the opportunity to discuss issues without the intervention of social
services (Bell and Wilson 2006). With adequate preparation, children are able
to understand the information given to them about the issues that affect them
(Bell and Wilson 2006). In contrast with traditional child protection models,
FGCs increase the involvement of fathers and paternal relatives in the design
and implementation of safety plans (Merkel-Holguin, Nixon, and Burford
2003). Similarly in contrast with liberal child protection models FGCs provide
a comprehensive response to the full range of families' difficulties, potentially
addressing both child abuse and domestic violence through the utilization of
family-based and public resources (Merkel-Holguin, Nixon, and Burford
2003, 11). Social workers too express satisfaction with FGCs, and report
reduced conflict with families and increased collaboration with them
following the FGC (Merkel-Holguin, Nixon, and Burford 2003). Outcomes
indicators are more difficult to measure, considering the difficulty in finding
matching comparison groups and the need for lengthy periods of time before
long-term outcomes may be measured (Crampton 2007). There are, however,
already studies indicating the success of FGC in reducing the re-abuse of
children, both objectively and in comparison with traditional child protection
services (Shore et al. 2002; Merkel-Holguin, Nixon, and Burford 2003).
34
With the growth of the data available on FGCs, there are today some
general reviews aggregating existing findings. The conclusions of most
reviews of existing studies are positive regarding the operation of FGCs
(Lupton and Nixon 1999, 100; Pennell 2004). Huntington (2006, 680-685), for
example, presents five parameters in which FGCs are found successful: lower
levels of subsequent abuse and neglect, success in devising plans, satisfaction
by stakeholders, strengthened support networks, and potential for more
effective use of Federal resources.
As appealing as the FGC model might look, it is important to consider
the challenges it creates. One concern is the domination of facilitators in the
discussion, especially through the use of lengthy information sharing phase
(Merkel-Holguin 2000) and the use of overly prescriptive protocol – a
situation which might defeat the purposes of the FGC and reduce its
democratic nature (Lupton and Nixon 1999, 163). A related risk is that of
child protection officials using FGC to "bring" families to comply with
predetermined treatment plans. Without professionals' genuine willingness to
be affected by families' knowledge, experience and viewpoints, and without
true shift of power to the direct stakeholders, FGC cannot be a truly
deliberative process, and will instead remain a token to democratic values. The
risk in such unauthentic processes is not only less-than-optimal outcomes, but
also greater tension between professionals and stakeholders (King and Stivers
1998, 60).
A further challenge in FGC (as in any deliberative forum) is engaging
disempowered individuals or groups in deliberations (Sturm 2006). Lack of
trust, resources, skills and technical knowledge, as well as time constraints and
negative past experiences might deter private actors from participating at all
(Sturm 2006, 331). In the child protection context, children in particular can
be regarded as a disempowered group. Children are often not used to being
listened to and taken seriously, and to help them make a meaningful
contribution it is necessary first to enhance their understanding of the process,
35
their trust in the other participants, and their belief that their views really
matter.15 Thorough preparations can include rapport building, assessing the
child's best interests and wishes, constructing the invitees list and the
gathering plan with the child, deciding on the child's form of participation and
making the necessary steps to promote it. These steps set the stage for
partnership-based decision-making. For example, in the child protection
FGDM experimental program in the Canadian Province Newfoundland and
Labrador, the most effective methods for ensuring the meaningful
participation of children were assigning them support persons, providing clear,
detailed information about the process, and preparing written statements to
help children articulate their views at the conference (Pennell and Burford
1995, 108-109).
Moreover, trying to fit FGC into existing procedures and rules
governing child protection administration might also defeat its purposes. There
is evidence that the use of FGC as augmenting rather than replacing
professional decision making has not made a real difference (Merkel-Holguin
2004; Nixon et al. 2005, 27). For example, time limitations or the system's
unwillingness to fully share information with family members might make the
preparation phase tokenistic. Without fully understanding the process and the
various possible outcomes, the roles of the other participants, the
professionals' concerns and so on, family members might arrive at the
discussion without truly having the power to influence the decision making
process (Merkel-Holguin 2004).
Furthermore, FGC should not be used to reduce the state’s
responsibility in providing welfare services to families. Instead, professionals'
role in FGC is to inform family members about existing services and perhaps
help them find those which best meet their specific needs, in addition to the
families' own resources (Merkel-Holguin, Nixon, and Burford 2003).
Therefore, a systemic use of FGC requires more, rather than less, funding for
15
See Gal (2006, ch. 5), discussing these concerns.
36
training, supporting the coordinators’ work (considering in particular
relatively long preparation phases), in addition to existing support programs
for children and families (Lupton and Nixon 1999, 26).16
Considering these challenges it seems that FGC works better when it is
a part of a broader restorative child protection system. When FGC is practiced
systemically and embedded in national or state legislation as a baseline
decision making mechanism for at-risk children, then the training, resource
allocation and work orientation of CPS workers all contribute to practices that
can overcome the aforementioned concerns.
IV LIBERAL AND RESTORATIVE CHILD PROTECTION
SYSTEMS: A THEORETICAL TYPOLOGY
Based on restorative justice values (and FGC as a practical example), new
governance regulatory model, and the CRC as a normative framework for
treating children as partners, it is possible to envisage a comprehensive
restorative child protection system. As a first stage, this paper proposes an
initial outline for such a system, through its comparison with the
characteristics of liberal child protection systems. Accordingly, Table 1 and
the text below succinctly conceptualize the differences between restorative
and liberal child protection systems.
16
But See Huntington (2006, 684-685), suggesting that FGC has the potential of reduced
costs.
37
Table 1: Liberal and Restorative Child Protection Models
Liberal Child Protection
1. Stakeholder- Adversarial,
based
on Collaborative, in search of
mutual distrust
professional
Restorative Child Protection
ways to reach mutual goals
relationship
2.Stakeholders
Private
actors
decision making “informed
actors
are
equal
guests”, partners in decision making
professionals
power
are Private
maintain process
control
3.
Outcomes Produces
characteristics
generic Produces tailor-made solutions
solutions
based
on combined
available public resources
4.
Units
attention
of
resources
of Emphasizes the (negative) Emphasizes
rights
of
public/private
broad interests
immediate and strengths of family system
stakeholders
5. Treatment of Only "rational players" Children and other "irrational
"the other"
can participate
players"
are
included
in
process.
6.
Regulatory Top-down
regime
regulation A hybrid system of hard law
shape every stage of the (basic human rights) and soft
process
law (self regulation)
1. The Difference in Stakeholders-Professionals Relationship
In liberal child protection systems the same state agencies offering
support and guidance are those authorized to unilaterally remove children
from their homes and recommend the court to terminate parental rights. The
threat of a court decision of temporary removal or, worse, termination of
parental rights based on the case worker's recommendations creates mutual
distrust and emphasizes conflicts between family members and workers. The
mutual distrust means that parents and children are unable to openly discuss
38
the difficulties they are struggling with and accordingly are not receiving the
assistance that optimally meets their needs. Workers' fears of being physically
attacked or publicly criticized means that they too are preoccupied with
protecting themselves using detailed procedures and assessment tools instead
of engaging in mutual, informal search of ways to assist their clients.
A restorative child protection, in contrast, fosters trust and mutual
engagement in search of solutions. The shared interests of parents, children
and workers to keep children safe and maintain the child-parents relationship,
and the acknowledgment that each side of the child—family—worker
threesome is a contributing agent toward these goals are at the basis of this
mutual engagement. From first interaction, family members are fully informed
of the concerns as well as of the existing resources. Away from the
courthouse, family members, together with their supporters and relevant
professionals collaboratively construct safety plans and create monitoring
mechanisms. Although the threat of termination of parental rights still exists,
the state undertakes coercive interventions only in the most extreme situations
when all collaborative attempts to find solutions have failed. When workers
treat family members as partners and openly share information with them, they
are able to gain the trust of parents and children, and consequently can better
help them.
2. The Difference in Stakeholders' Decision Making Power:
A central progress liberal reforms such as the British have made in
public institutions is the introduction of stakeholders’ right to directly
participate in decision making processes. In the US too parents and children
are typically represented in court so that at least indirectly their views are
considered. The liberal approach, however, did not transform the distribution
of power between public and private actors: private stakeholders can suggest,
argue, be informed, even initiate discussions – but the underlying assumption
is that professionals are the decision makers, and the stakeholders are not. For
39
young children in particular, more often than not the liberal implementation of
the participation right means that adults receive their input in an indirect way
through a guardian ad litem or a solicitor, without any opportunity to discuss it
together and negotiate freely.
A restorative system, in contrast, promotes partnership between
stakeholders and professionals, and in doing so it radically shifts the locus of
control
and
redistributes
power
between
professionals
and
private
stakeholders. Starting from the early preparation stage children, parents and
professionals engage in a partnership, a mutual dialogue, in which each
partner contributes according to his (or her) own perspective, experience and
capacity, until the outcome plan is deliberated, and then implemented. To use
public administration terminology, instead of "government for the people"
restorative child protection is “government with the people” (Timney 1998).
3. The Difference in Outcomes Characteristics:
A liberal child protection process is structured around existing
public services and solutions within the system. Therefore, treatment
plans include services and solutions from a restricted list of whatever
is available in the particular time and place. These services do not
necessarily meet the distinctive needs of the child or parent. For
example a drug-using mother might be referred to a residential
rehabilitation program, but if she takes care of her own elderly/sick
mother with no one else to replace her, then she might be unable to
comply with her treatment plan.
A restorative child protection process, in contrast, produces
tailor-made solutions designed together with the family members and
its extended support system, and therefore may combine public
services with family resources. The drug-addicted mother can attend a
residential rehabilitation program if her sister (perhaps residing in
another county) volunteers to take their mother to her own home
40
(assisted by other relatives who agree to replace her on assigned days).
The recruitment of the broader family system to the decision making
process and the family-run search for solutions generate treatment
plans that are creative and flexible in their design. Such plans can
include measures for supporting the caretaker (taking the children to
the park on assigned days), providing supervision (being present
during visitations) and monitoring mechanisms (unannounced visits
and "back up" plans in cases of failure to follow the original plan).
4. The Difference in Units of Attention:
A liberal child protection system addresses individual, typically
negative, rights. It sanctifies the freedoms and privacy of individuals, and
therefore the status of each individual must be secured and defended in cases
of conflict between the parties. The result is a highly adversarial process with
potentially a legal representative for every participant (Huntington 2006, 664).
In addition, supporters and indirect stakeholders are excluded from the
process, to maintain the privacy of the direct stakeholders and to avoid
unnecessary intrusion in those supporters’ lives. Accordingly the process
focuses only on the immediate needs of the child and the failures of the
caretaker, typically the mother, in addressing the child's needs. Other elements
of the child's and family's life are left out of the discussion, because a more
holistic assessment would infringe the family privacy and overstep the
professional's formal mandate.
A restorative child protection model, in contrast, focuses on the full
range of needs, interests and strengths that emerge from individuals within
their homes, extended family and communities of support. While
acknowledging the special interests the direct stakeholders have in the process
and its outcomes, a restorative approach emphasizes the familial, cultural and
communal contexts from which each participant arrives (Pennell 2004).
Within the family, the relational perspective regards the empowerment of one
41
family member as positively, rather than negatively, influencing the
empowerment of another, even when they have ostensibly conflicting
viewpoints (Lupton and Nixon 1999, 20-21).17 Outside the family, a
restorative approach acknowledges the interrelationships between the family
and the community in which they live, and encourages the participation of
supporters in the discussion. In cases of children in need of protection,
extending the dialogue beyond the nuclear family is often difficult for both the
family itself and the professionals, because it makes the process more
complex, longer and more expensive. Above all, extending the dialogue
beyond the nuclear family breaks up the secrecy the family has worked so
hard to maintain. Yet the involvement of relatives and other supporters not
only leads to creative, holistic and practical plans; supporters are also better
than state agencies in monitoring the implementation of the treatment plan
after the meeting (Braithwaite 1999, 67; 2001, 123).18 Moreover, the inclusion
of extended family members leads to more children being cared for by their
relatives (Lupton and Nixon 1999, 182), greater stability in placements
(Merkel-Holguin, Nixon, and Burford 2003, 10), and in general, strengthens
family ties (Burford and Pennell 1998, 1).
5. The Difference in the Treatment of "The Other":
Liberal child protection requires rational arguments and coherent
communication methods. There is no room for unsuppressed emotions or
disorganized presentations. It therefore involves a capacity test for "suspected
groups" for irrationality and incoherency such as children, people with
17
See also Huntington (2006, 694), discussing the ability of a problem solving model to
identify the shared interests of parents, children and the State, in contrast with the
adversarial nature of a rights-based model.
18
"…the Uncle Harrys of this world come up with ideas more attuned to the reality of the
offender's circumstances than a judge, and are better monitors of their implementation
than police officers because one Uncle Harry might have more contacts with the offender
in a month than all the police in the city during a year. Intimates, in short, can incapacitate
more intensively, more creatively, more sensitively, more consensually, and in a more
dynamically responsive way than the criminal justice system."
42
disabilities and mental illnesses, used as a threshold for their ability to have an
impact on the outcome.
A restorative child protection system, in contrast, allows any form of
communication and welcomes "irrational" and emotional arguments
communicated by private stakeholders (Sherman 2003). It values the
importance of different narratives and different styles of communication,
because even when these narratives do not eventually dictate the decision, they
can contribute to its design and sensitize participants to the feelings and
wishes of the "other" (Minow 1990, 375-377). Moreover, it makes space for
respectful listening which in itself is a powerful antidote for disempowerment
(Pranis 2002). The only limitation is against any form of intimidating or
abusive behavior against any of the participants – the principle of nondomination (Braithwaite 2002). As to various "best interests" tests as a basis
for the exclusion of vulnerable participants, the very inclusiveness of the
forum and the principle of non-domination reduce concerns regarding revictimization of children. If, however, there are still concerns regarding the
wellbeing of the child during the process, a search for alternative ways of
participation is justified.
6. The Difference in the Regulatory Regime:
Liberal child protection gives law a dominant role in shaping every
stage of the process (Cameron and Freymond 2006, 23). The terminology
used in a liberal reform is taken from the legal world and establishes detailed
procedural rights or “top-down legalism” (Braithwaite 2004, 207). State
representatives follow rules regarding the kinds of decisions they are
authorized to make, and the procedures to reach such decisions. When there is
disagreement, higher-ranked state representatives follow different sets of rules
regulating their decision making processes, and so on. This hierarchical
structure of formal rules enacted by the state authorities is based on the “rule
of law” principle – that behaviors and decisions generated by both
43
government and private actors need to adhere to clear, consistent, public,
predictable rules (McDonald 2004). Accordingly, in a liberal child protection
system decision making processes are uniform and lead to a predetermined set
of options. Timelines are strict and so is the obligation to make reunification
efforts and the exceptions to it.
In a restorative model, in comparison, human rights are used as
baseline rules (de Búrka and Scott 2006, 7) - protectors against abuse of
power and domination by either professionals or other participants.19 Within
these broad limitations, different processes can be developed according to the
specific legal, social and cultural conditions of the specific locality. In the
micro level, all participants in the decision making process are free to find
their own creative solutions, within the established baseline rules – what new
governance theorists call “soft law” (Lobel 2004, 310), or “self governance”
(Braithwaite 2004). Such an approach implicitly accepts particularized
solutions that ostensibly do not adhere to the rule of law principle. In the
macro level, restorative systems combine tailor-made, subjective selfregulation with “hard laws” as fallbacks. The default “soft law” process, then,
is backed-up by an escalating set of self regulated as well as top-down rules as
reactions to non-compliance. Braithwaite's responsive regulation theory
(Braithwaite 1999, 63; 2001) offers an appropriate framework where only
after restorative measures have been exhausted, a more intrusive measure is
appropriate. Accordingly, if repeated attempts to reach a safety plan for a
child through deliberative processes fail or if the plan is not followed,
professionals still have the power to gradually use more coercive methods,
moving back to a standardized set of rules.20 Braithwaite's empirical findings
reveal that in most cases the mere threat of the use of coercive measures is
19
See, for instance, Nadera Shalhoub-Kevorkian's (2000) proposal for using family and
community resources to treat Palestinian female victims of abuse while prohibiting the
use of any abusive measures (such as marriage with the rapist, family-honor killing and
incarceration of the victim).
20
See Crampton (2004), Neff (2004), and Merkel-Holguin (2004) for discussions on the
implementation of Braithwaite's responsive regulation model in child protection systems.
44
sufficient to achieve and enforce self regulation of behavior (Braithwaite
2001, 109-116).
V CONCLUSIONS
The integration of rules regarding children's and parents' rights in child
protection processes can be considered a positive development in child
protection administration. It can potentially strengthen the status of children
and parents while protecting children's wellbeing. Indeed the inclusion of a
legal representative for children in the court hearing in the US can move
children from being passive clients receiving services from all-mighty experts,
to becoming active customers expressing their views (at least indirectly) to the
professionals who facilitate the process. Likewise, the construction of child
protection conferences into the legal process in England is an important move
toward more collaborative decision making in which many children and
parents are being heard before a decision is made.
Nonetheless, the positioning of such reforms within a liberal
framework uncovers their inability to move the status of children from being,
at best, invited guests, to partners in creating treatment plans. Another
limitation concerns the exclusion of those having meaningful relationships
with the family, and, more broadly, failure to address issues beyond the
immediate needs of the child and the weaknesses of the caretaker, typically the
mother. An additional disadvantage is the formalized, adversarial nature of the
process so incongruous to family matters.
In contrast, a restorative child protection system draws its basic values
from restorative justice and new governance approaches – both frameworks
where informality, voluntarism, and an emphasis on common goals allow
individual stakeholders, supporting community members and professionals to
engage in a mutual dialogue in seeking solutions and regulating behavior.
Restorative child protection is also based on a holistic, relationships-based
45
view of children's rights, similar to the approach the CRC takes, in contrast
with the individualistic, adversarial way that liberalism frames them.
In restorative child protection children, their parents and professionals
engage in partnerships in which, together, they design the process, deliberate,
reach a tailor-made treatment plan and monitor its implementation. A
restorative approach recognizes that despite their age, children possess unique
perspectives important in making the process meet their needs and rights.
Therefore, even unorganized, associative, long-winded communications of
young children are perceived by restorative child protection as legitimate,
relevant input because they represent the authentic feelings and views of
central partners in the decision making process and those affected by it the
most. While the views and feelings of at-risk children are relevant, however,
they do not necessarily dictate the solution; rather, they are viewed as an
important part in the decision making puzzle. At the same time, merely giving
children opportunities to talk can easily lead to their voices being lost in the
general discussion, or worth, create further frustration and stress. Therefore,
restorative child protection practices expect professionals, as well as other
participating adults, to make active efforts in seeking children's views,
listening to them, understanding their messages and translating them into
action (Gal 2006, 177).
The liberal and restorative models, however, are not necessarily
mutually exclusive. A child protection system may combine liberal and
restorative elements in it, using varying levels of each. Indeed many of the
child protection rules and guidelines in Western Europe and America adhere
to restorative values, such as the British plight for partnership with and
empowerment of children and families. At the same time, restorative practices
might involve detailed and formal rules and other "liberal" elements, and their
conduct does not always meet the standards described here. Family Group
Conferences, for instance, are not always as egalitarian and inclusive as
46
intended, and the levels of children's involvement and participation vary
considerably (Merkel-Holguin, Nixon, and Burford 2003).
The suggested typology, therefore, represents the "pure" characteristics
of each child protection model, aiming to contribute to the critical
understanding of current institutions and to the formation of new ones. It can
help revealing the limitations, or risks, intrinsic to some rights-based reforms,
and provide new ways of thinking about how to promote human dignity,
equality and wellness. Clearly, institutions are not either restorative or liberal;
the "restorativeness" of a bureaucracy can be placed on a scale. The more
restorative characteristics such as those sketched in Table 1 appear in its
practices, the more restorative is that institution considered. It is possible, for
example, to place the American model practiced in most states close to the
liberal end of the scale, while the British model tilts more toward the
restorative end.
Nor should the restorative alternative be understood as aiming to
abolish state bureaucracy altogether and replace it with networked governance
(Olsen 2006). Public administration based on professional expertise is needed
and is irreplaceable because especially in regards to children minimal
requirements of safety and wellbeing need to be set by the state for those cases
in which no one from the child's surrounding community voluntarily adheres
to them. Rather, the argument is that child protection systems, and public
institutions in general, can better serve citizens and be more sensitive to
disempowered
populations
when
implementing
their
human
rights
restoratively and making decisions collaboratively.
What does restorative child protection mean, then, in practice? It
means that the default option for making treatment plans and other related
decisions should be restorative. Starting from the initial assessment and
throughout the different stages of the process, professionals in a restorative
system relinquish their monopoly on decision making power and share it with
their clients. FGC can be used as the baseline practice, and so can other
47
evidence-based restorative models as may develop in time. Only in the rare
cases when the restorative options have been exhausted, or when they are
impractical, a more coercive mechanism can be used, moving up on the
enforcement pyramid (Braithwaite 2001). Even then, restorative measures
should be preferred and used as much as possible. More broadly, a restorative
child protection system entails a shift in the organizational culture toward the
treatment of parents, children and their surrounding supporters as partners in
identifying the problems and the strengths of the family and creating safety
plans leading to permanent solutions for the child. Such a cultural shift
requires policy makers, CPS workers and family members themselves to trust
parents, children and their supporters as capable of finding ways to secure the
shared interest of children's safety and wellbeing. In other words, social
workers operating in a restorative system need to trust parents that they, too,
want their children to be safe, and that in the vast majority of cases are able to
reach this goal, as long as they receive the assistance that addresses their own
and their children's distinct wishes, interests and vulnerabilities.
The argument for a restorative implementation of human rights in
public systems, however, can go beyond child protection. New Zealand
became the first national restorative jurisdiction in its reactions to crime and
children at-risk in its Children, Young Persons and their Families Act (1989).
With this nation-wide legislation, its broad use of FGC in child protection is
unprecedented in the English-speaking world and has made New Zealand a
world leader in the field (Maxwell and Morris 1993, 1).21 Such a national
scheme can be similarly initiated in other fields and in other countries,
opening the door for routine use of restorative practices across areas and
cultures.
Public administrations such as mental health, housing, education and
traffic can become restorative if they systemically use new-governance or
21
Over 50,000 child protection GFCs have been undertaken in New Zealand in 2006
(Connolly 2006).
48
restorative mechanisms in their daily interactions with citizens, and move up
to more formalistic arrangements only when the restorative alternatives have
failed. A restorative education system means that the government expects all
schools to address rule violations restoratively and provides the training,
resources and basic ground rules to support a national restorative reform.
Traffic authorities can similarly become restorative if they treat traffic
offenders restoratively as a default option. Persistent public health and social
problems such as homelessness and unemployment can potentially be
addressed restoratively,
if those struggling with
homelessness and
unemployment are invited to collaboratively identify solutions that draw from
their own cultural and familial resources. Many of these ideas are practiced
today locally, but the argument made here is that there is a theoretical basis
(naturally pending detailed examination in each field) for a restorative
systemic reform applicable in other fields beyond child protection. The current
political environment also suggests that a systemic restorative approach is
possible. If Iran is being invited to negotiate its nuclear weapon development
policies, then surely there is room to confront many other threats
collaboratively.
49
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