Source: US Global Legal Monitor
This post is part of our Frequently Asked Legal Questions series.
This year marks the 110th anniversary of the adoption of six laws on children’s rights in Norway, which became known as the “Castbergian Child Acts” (Castbergske barnelovene) and regulate the relationship between parent and child, in particular strengthening children’s rights over their unwed fathers. The laws are part of UNESCO ‘s Memory of the World.
The laws are
Why are they called the Castbergian Child Laws?
The name of the child laws is derived from Johan Castberg, the President of the Odelsting (the lower chamber of the then two chambers of Norwegian Parliament) who presented the bill in the Norwegian Parliament, and who has been called the father of the Castbergian laws. He has himself called Katti Anker Møller the mother of the child’s act for her advocacy for women’s and children’s rights.
In addition to the Norwegian child laws, Johan Castberg also lent his name to Norway’s northernmost oil field in the Barents Sea.
What are the Castbergian Laws?
As mentioned above, the laws are six laws or amendments to laws that specify rights of the child, in particular in relation to its parents. The laws are described in one combined bill, the Odelstings Proposition Nr. 5 1914 (Ot. Prp. nr 5 (1914)). The bill starts with the following sentence:
“The hygienic, social, and financial circumstances under which a person is born and raised during their first years of life determine their later development. [These circumstances] to a great extent determine whether the child will become a vigorous individual and a useful member of society.” (Ot. Prp. 5, 1914 at 1, all translations by author.)
It later continues by explaining the failures of the current laws related to children and paternity at the time.
“In one area, the society has not, however, yet reached the recognition of the child’s natural rights over the parent. Namely, this applies to children born outside of marriage. Our legislation is still built on the provocative and unnatural fiction, that such a child only has a mother, legally it does not have a father. This applies even when there is no doubt who the father is. The law deprives also in this instance the child of [its natural] child’s right over the father.” (Ot. Prp. 5, 1914 at 2.)
The bill then goes on to describe the inconsistency of the law, which gives the child all its right over the mother, both in terms of a right to support, name, and inheritance from the mother’s relatives, but none over the father, noting that
“[r]esponsibility, duty, burden are placed on her – so much heavier because the father in accordance with the law is not carrying his share. This discrepancy between the man and the woman’s responsibility is so much more unjust because the woman is the suffering party and in general the weaker party. The birth of a child disrupts her organism, creates a complete upheaval in her social, physical and economic life, and lessens for a shorter or longer period of time, her ability to work and demands her energies to care for the child. The discrepancy between man’s and woman’s responsibilities is much more conspicuous as it is due to legislation in which women have had no part, a legislation only given by men. This is not only an injustice to the mother and the child, but a demoralizing system, because it releases the man from his natural responsibility and therefore tempts him to carelessness in a relationship that should be the most serious and responsible in a person’s life; that of bringing another human being into the world.” (Id. at 2.)
The law was thus not intended just to protect the child, but to also solve what Castberg saw as an inherent unfairness between the sexes. Women had gained the right to vote in 1913, through an amendment to the constitution, and the first woman to be elected to parliament was elected in 1921.
What was the reason for the change in law?
While the term “illegitimate” child was removed from the law that specified how children born outside of marriage were to be treated before 1915, there were still large differences associated with being born to married or unwed parents under Norwegian law in 1915, ranging from different name rights, to the right to inheritance, and the right to receive monetary support from the father.
The main reason Castberg invoked for changing the laws was a publication (Socialstatistik, V, Om Børn, fødte udenfor Ægteskab), from the Norwegian Statics Bureau (Statistics Norway) that showed that the rate of infanticide was between twice and three times as prevalent among children born to unwed parents as among children born to wed parents. This, argued Castberg, was because the mother and child born out of wedlock were still stigmatized and that unmarried mothers had less resources to tend to their child than wed mothers. (Ot. Prp. 5, 1914 at 2.)
How was paternity established?
These laws set up certain procedures for paternity determination that carry over into our day. The Castbergian laws required that the mother inform the treating midwife who the father was at minimum three months before the child was born. (6 § Lov om barn hvis forældre ikke harindgaat egteskap med hverandre.) Persons familiar with the possible paternity were required to testify and falsely accusing a man of being the father of one’s child was subject to imprisonment for up to two years. (Id.) Children were no longer admitted to the National Population Registry with the designation “father unknown.”
Norwegian mothers continue to be required to inform their midwives who the father is or may be, and the state has an obligation to find out in cases where the mother does not know or refuses to tell. (1 § Barnelova.)
What if the father denied paternity?
The Castbergian laws also removed a previous legal provision by which the father could solemnly swear that he was not the father and thereby release himself of paternity. Under the Castbergian laws, the courts were now free to determine who was more trustworthy, the mother or the contesting father. (10 § Lov om barn hvis forældre ikke harindgaat egteskap med hverandre.) Today, a DNA-test can resolve the issue. (4 § Barnelova.)
What were other notable changes?
The perhaps most notable changes at the time were that children born in and outside of wedlock were given the same rights pertaining to inheritance from the father and father’s family (3 § Arveloven; Ot. Prp. nr. 5, 1914 at 76-78) and the child also had a right to carry his or her father’s surname or his or her mother’s. ( 1§ Lov om barn hvis forældre ikke har indgaat egteskap med hverandre.) The father also had a duty to pay support to the child, and support to the mother for breastfeeding the child the first nine months (opamningsbidrag). (Id. 18 §.) If he was not able, the municipality would pay the mother. The state (through the local bidragsfogd) now also had a duty to collect the payment from the father, including by garnishing wages. (Id. 23-25 §§.)
Where can I find rules on paternity today?
Paternity and rules on co-mothers (the role of a same-sex partner to the birthing mother) are regulated in the Children’s Act. (3-4 §§ Lov om barn og foreldre (barnelova)(LOV 1981-04-8-7).) A person wishing to register paternity or co-motherhood can do so at the Norwegian Labour and Welfare Administration (NAV).
Additional Resources
The laws themselves are found in the Norwegian Gazette, Norsk Lovtidende, for the year 1915, which is part of the Law Library collection for Norway.
Library of Congress Collection Holdings authored by Johan Castberg
Additional Law Library of Congress Online resources on Norway
Additional Law Library of Congress Online resources on Child law
If you have a question regarding laws of Norway or on the topic of child law, you can also submit it using the Ask a Librarian form on our website.
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