General description on research questions

School personnel have limited legal knowledge (Decker et al 2017, Mirabile 2013, Schimmel and Militello 2007, Findlay 2007, Barneombudet 2018) and no, or little, knowledge of legal method – which is a theory of sources of law (Boe 2012). Lack of legal knowledge may complicate implementation of the education act. We wanted more knowledge about what kind of legal-pedagogical dilemmas school personnel experience in their daily school life. By way of a legal – pedagogical dilemma, we refer to a problem involving both a legal and a pedagogical approach.

In Norway, the Education Act was passed in 1998. Norway has, as every other country with the exceptional of USA, ratified the Convention on the Rights of the Child (UNCRC). In addition, Norway has incorporated the Convention on the Rights of the Child as a formal state act in the Human Rights Act which was passed in 1999, and it takes precedence over other Norwegian acts. In other words, with application of the Education Act, Children’s rights according to the Convention on the Rights of the Child must be a part of the final decision. For the individual pupil, the principle of the “child´s best interest” is of central importance as a primary consideration in all actions concerning children, especially as a specific right.

Article 3 (1) of the UNCRC demands that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” We did not explicitly ask the informants to identify the principle if the best interest of the child in their dilemma, their task was simply to describe a legal- pedagogical dilemma. Nevertheless, according to the source of law situation, the informants should be familiar with the principle and be able to identify it whenever it is relevant. 

Research questions

Is the principle of the Childs best interest identified by school personnel, and how should the principle be interpreted according to law?

We have split the research question and the analyse in two main questions:

1. Identification of the child’s best interest

Is the principle of the best interest of the child identified in legal-pedagogical dilemmas described by school personnel?

We want to explore to what extent teachers and school leaders identify the principle when relevant, both directly and indirectly describing an experienced pedagogical- legal dilemma.

  2.      Implementation of the child’s best interest 

How should teachers and headmasters do a child’s best interest consideration according to law?  

Objectives 

1.      To scrutinize whether school personnel recognize the child’s best interest in their description of a legal – pedagogical dilemmas.

2.      To describe a child’s best interest consideration according to the court of appeal and the Ombudsman application of law. 

Theoretical framework

We have used human rights theory to examine the legal content of the child’s best interest, e.g literature about human rights and General comments by the committee of the rights of the child (No. 14 (2013): The right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)), previous research (Tie 2014, Findlay 2007, Mirabile 2013, Prunty 2011, Sckimmel and Militello 2007, Walsh 2001), and national reports (Barneombudet 2018).

Method We chose a qualitative approach in order to obtain knowledge about school law topics among school personnel. We have combined both letter method and legal method (Boe 2012, Sjøbakken 2017). This is an untraditional approach, which promote the perspective of sociology of law. School personnel in secondary school who participated in two continuing education courses, one in Educational Law and Labour Law and one in Educational Law in a pedagogical perspective, where asked to describe a legal-pedagogical dilemma in a written form. All participants provided their consent to participate in the study. Data was collected in autumn 2017. Before commencing the study, we received approval from the Norwegian Centre for Research Data to utilise the material in our research. Methodological, the letter method is described as a cross between interview and survey. The letter method assumes an ability to write down an experience. The informant’s education, age and work experience support the letter method as functional. To scrutinize how the principle of the child’s best interest is applied in the legal system in Norway, we used two search queries in Lovdata: “the Convention on the Rights of the Child + art 3” and “School”. The search query “school” involves all schools in Norway. We search all court decisions (district court, court of appeal and supreme court) and statements from the Ombudsman. The search results in two decisions from the court of appeal and six decisions from the Ombudsman from 2010 until 2018. The Ombudsman “investigates complaints from citizens who believe they have suffered an injustice or an error on the part of the public administration” (https://www.sivilombudsmannen.no/en/).

Expected outcomes Based om previous research about lack of legal literacy among teachers, it is expected that most of our informants do not identify and hereby describe the principle of the child’s best interest directly or indirectly. The increased focus on the principle of the child’s best interest by the Ombudsman is expected to have influence when a decision in the future is decided by the supreme court or lower courts (court of appeal and district court). In addition, it is expected that how the court system and Ombudsman do a child’s best interest consideration will affect decisions made by the County governor. When the county governors apply the principle in accordance with the Ombudsman’s and court systems precedence, it is also expected that school personnel by time will change their practice in favour of the principle, both confronted with a legal-pedagogical dilemma, and in every other question concerning children.

References Boe, E. (2012). Grunnleggende juridisk metode: en introduksjon til rett og rettstenkning. Oslo: Universitetsforlaget. Decker, J., Ober, P. D. and Schimmel, D. M. (2017). The Attitudinal and Behavioral Impact School Law Courses. Journal of Research on Leadership Education (p. 1-26). SAGE. Findlay, N. M. (2007). Administrators’ knowledge of education law. Education Law Journal, 17. Mirabile, C. (2013). A comparison of legal literacy among teacher subgroups. Doctor of Philosophy dissertation submitted at Virginia Commonwealth University. Prunty, A. (2011). Implementation of children’s rights: what is in ‘the best interests of the child’ in relation to the Individual Education Plan (IEP) process for pupils with autistic spectrun disorders (ASD) Schimmel, D. & Militello, M. (2007). Legal Literacy for Teachers: A Neglected Responsibility; In Harvard Educational Review, Fall 2007; 77, 3 Health Research Premium Collection Sjøbakken, O. J. (2017) Brevmetoden i et metodologisk perspektiv. I M. Løtveit (Red.), Tidssignaler: Lærerutdanningsfag i utvikling: Utdanning av lærere på Hamar - 150 år (s. 375-387). Vallset: Oplandske Bokforlag. Tie F. H. (2014). A Study on the Legal Literacy of Urban Public-School Administrators, Education and Urban Society 46 (2). Walsh, M. (2001). School leaders tested on legal knowledge. Education Week, 21. Reports: Barneombudet (2018): God hjelp til rett tid? Gjennomgang av fylkesmennenes behandling av saker i den nye håndhevingsordningen om elevenes skolemiljø, http://barneombudet.no/wp-content/uploads/2018/06/God-hjelp-til-rett-tid.pdf Homepage: Sivilombudsmannen: https://www.sivilombudsmannen.no/en/. Laws: The Education Act of 17th of July 1998. No 61. The Human Rights Act of the 21st of May 1999, No. 30. Conventions: UN Convention on the Rights of the Child, of November 20th, 1989.