The European Court of Human Rights and the Discretion of Street-Level Bureaucrats

The European Court of Human Rights (ECtHR) has become an increasingly relevant source of legal doctrine for European democracies. As the European Convention of Human Rights (ECHR) interpreter, the Court is an authority when it comes to monitoring and correcting states’ protection and enforcement of citizens' human rights (Fenton-Glynn, 2021; Janis et al., 2008). Still, very little attention is given to the domestic impact of international court rulings on public administration or bureaucracies. Even less so on the influence of judicial instructions and policies on local street-level bureaucracies and bureaucratic discretion (Treib, 2014; cf. Greer & Iniesta, 2014; Martinsen et al., 2019; Szot, 2016; Mascia, 2020). This study seeks to unpack the black box of international jurisprudence’s influence on street-level bureaucracies. Specifically, it investigates whether judgments from the ECtHR have affected the discretionary space of street-level bureaucrats in local child protection agencies in Norway, and if so, how and why. The impetus to focus on Norwegian child protection stems from the scrutiny the ECtHR has put this institution under throughout the last ten years. Between 2015 and 2023, the Court communicated 52 complaints of human rights violations in cases concerning child protection to the Norwegian government. Among these, Norway is found to have violated the ECHR’s Article 8 on the right to private and family life in an astonishing 23 cases. In the wake of the judgments, the Norwegian government initiated legislative and administrative measures. At the same time, the Supreme Court issued several judgments to elaborate on the legal principles issued by the ECtHR and adapt them to a Norwegian judicial context. However, we know less about the judgments' implications on the implementing population – the street-level bureaucrats. There is reason to assume that the judgments have directly and indirectly influenced street-level bureaucrats' decision-making practices and room for action. A recent study shows that local managers experienced the landslide of judgments against Norway as an exogenous shock to the internal system and that new locally led changes emerged as a result (Helland, in preparation). There is a need to know more about the street-level impact of the court rulings and their consequences for service delivery. Through a survey of 148 social workers in child protection agencies in Norway, the study utilises a bottom-up approach and is theoretically informed by the literature on juridification (Leijon & Moberg, 2024; Blichner & Molander, 2008), bureaucratic discretion and street-level implementation theory (Lipsky, 1980; Winter & Nielsen, 2008). The findings indicate that the judgments have had a major impact on the discretionary practices of street-level bureaucrats. Near all report that the judgments have influenced their assessments, and a majority say that their discretionary space has been affected by the judgments in subject areas where the Court issued judgments. Some express concern that the legal demands infringe on their ability to protect children’s rights. The study discusses the findings and their implications in relation to children’s rights and the rule of law and makes recommendations for practice.