Latin American Social Work in the Justice System (Springer Series in International Social Work) 3031282205, 9783031282201

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Springer Series in International Social Work

Claudia Reyes-Quilodrán Rajendra Baikady  Editors

Latin American Social Work in the Justice System

Springer Series in International Social Work Series Editors Rajendra Baikady, Department of Social Work Central University of Kerala Kasargod, Kerala, India S. M. Sajid, Department of Social Work Jamia Millia Islamia New Delhi, India Jaroslaw Przeperski, Centre for Family Research Nicolaus Copernicus University Torun, Poland Jianguo Gao, Department of Social Work Shandong University Jinan, China

Springer Series in International Social Work is a series of full-length monographs and contributed volumes that presents a global portrait of social work education within and across different economic, cultural and political contexts. Volumes published in this Series mainly probe different aspects of social work education such as curriculum, pedagogy, practice and research in both local and global contexts. Further, contributions that deal with development and delivery of social work education and its connection with different service users, such as minority groups, vulnerable groups and social exclusion, also are included to explore the position and development of social work education and practice in different countries across the globe. The objectives of the Series include, among others, to: (1) present a true portrait of international social work scholarship and its challenges in different cultural contexts; (2) invigorate the challenges involved in training future social workers for practice in diverse contexts and social realities; (3) demonstrate a clear significance and contribution to advancing knowledge in the areas of: indigenization of knowledge, practice methods and interventions; post-colonial social work; social work ethics and values; determining the scope of social work in different sociopolitical-­ economic and cultural contexts; (4) present specific models, both conceptual and practical, related to multi-cultural, cross-national and international social work education; and (5) examine emerging perspectives on: leadership in social work; media, technology and teaching; and social work in the era of social media. Springer Series in International Social Work covers a range of contributions and perspectives from cross-national and comparative social work education, practice and research of interest to a global audience. Both solicited and unsolicited manuscripts are considered for publication in this Series.

Claudia Reyes-Quilodrán  •  Rajendra Baikady Editors

Latin American Social Work in the Justice System

Editors Claudia Reyes-Quilodrán School of Social Work Pontificia Universidad Católica de Chile Santiago, Chile

Rajendra Baikady Department of Social Work Central University of Kerala Kerala, India

ISSN 2731-0701     ISSN 2731-071X (electronic) Springer Series in International Social Work ISBN 978-3-031-28220-1    ISBN 978-3-031-28221-8 (eBook) https://doi.org/10.1007/978-3-031-28221-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgment

This book was made possible only because of the generosity of our colleagues who wanted to share their experiences and specialized knowledge with you, and together, we crossed the language barrier.

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Contents

Part I Introduction  1 Latin  American Social Work Practice in the Justice System ��������������    3 Claudia Reyes-Quilodrán and Rajendra Baikady Part II Forensic and Sociolegal Social Work in Latin America  2 Family  Courts in Chile and the Evolution of Sociolegal Social Work������������������������������������������������������������������������   19 Sara Salum and Elena Salum  3 The  Role of Work Product Review and Consultancy in Forensic Social Work��������������������������������������������������������������������������   37 Larry Emil Alicea-Rodríguez  4 Forensic  Social Work: The Construction of Possible Ways of Conducting a Criminal Intervention ��������������������������������������   57 María de las Mercedes Utrera and Mariel Lucia Azcacibar  5 Sociolegal  Social Work in the Field of Criminal Defense ��������������������   69 Felipe Norambuena-Conejeros and Milton Contreras-Sáez Part III Forensic and Sociolegal Social Work with Family and Community  6 Family  and Community Life: Contributions of Social Work to the Debate in Family Courts��������������������������������������������������������������   91 Maria Luiza Campos da Silva-Valente and Thais Tononi-Batista  7 Support  to Victims in High-Conflict Scenarios: An Approach from Sociolegal, Pedagogical, and Care Perspectives��������������������������  105 Alba Lucía Cruz-Castillo, Angela Cristina Pinto-Quijano, and Alejandra Calderón Martínez

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Contents

Part IV Forensic and Sociolegal Social Work with Youth and Women  8 The  Assessment of Child and Adolescent Sexual Abuse Allegations from a Social Work Perspective������������������������������������������  121 Freeda Jusino-Sierra and Iván De-Jesús-Rosa  9 Decision-Making  Related to Termination of Parental Rights: A Case Study of Child Protection in Chile��������������������������������������������  145 Catherine LaBrenz and Miguel Arévalo-Contreras 10 Fundamentals  and Professional Practices in Uruguay’s Juvenile Justice System����������������������������������������������������  161 Sandra Leopold Costábile 11 Differences  and Similarities in Juvenile Criminal Law: A Comparison Between Chile and Mexico��������������������������������������������  177 Daniela Calderón and Maida Muñoz-Chiguay 12 Social  Vulnerability and Some Considerations Regarding Crime Committed by Minors in Costa Rica������������������������������������������  193 Thelmo Flores-León 13 Experiences  of Women with Disabilities in the Mexican Criminal Justice System: A Gender-Based Analysis����������������������������  207 Berenice Pérez-Ramírez Index������������������������������������������������������������������������������������������������������������������  219

About the Editors

Editors Claudia Reyes-Quilodrán, social worker, MA, PhD, is an associate professor in the Social Work School at Pontificia Universidad Católica de Chile. She received her PhD from Washington State University in 2009. Her areas of specialization include political psychology, criminal justice, and Latin American studies. Her most-recent research projects have focused on juvenile delinquency and gender; prison violence; professional judgment in the intervention with vulnerable families; engagement in the social work interventions; and comparatives studies in juvenile restorative justice. She has significant experience in working with victims affected by severe human rights violations during the Chilean military regimen, and she has worked in the National Child Social Service and the state agencies to prevent crime and violence in Chile. She has developed her career in the sociolegal field. Rajendra  Baikady, PhD, is an assistant professor at the Department of Social Work, Central University of Kerala (CUK), India, and a senior research associate at the Department of Social Work and Community Development, University of Johannesburg, South Africa. Prior to joining CUK, he was a special postdoctoral fellow and an assistant lecturer at the Department of Social Work, University of Johannesburg, South Africa (2020-2022). He completed his first postdoctoral fellowship at the Hebrew University of Jerusalem, Israel (2019–2020), and was awarded the Golda Meir fellowship by Lady Davis Trust at Hebrew University of Jerusalem. He was also a recipient of the Taiwan government’s Short-Term Research Award (2018) for academic research at National Chengchi University, Taiwan, and the Confucius Institute Understanding China fellowship by the government of China (2018–2019) for academic research at Shandong University, China. Dr. Baikady is the founding editor-in-chief of Discover Global Society, an international journal (Springer).

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Contributors

Larry  Emil  Alicea-Rodríguez  has a PhD, an MSW, and a BA in social work from the University of Puerto Rico. In addition, he has a Juris Doctor from the Interamerican University of Puerto Rico School of Law. Since 1999, he has been practicing forensics in the areas of forensic evaluations of allegations of child sexual abuse and as an expert reviewer in custody cases. He is an assistant professor of the master’s degree in forensic social work at Ana G.  Méndez University in Gurabo Campus and a director of the Support Program for Victims of Sexual Abuse and Their Families at Albizu University. He has been a professor at the University of Puerto Rico and at the Interamerican University. He has chapters in edited books and professional journals. Miguel Arévalo-Contreras  is a doctoral student in social sciences and policy at Universidad Iberoamericana, Ciudad de Mexico. He is the recipient of the Becario Conacyt Mexico. Miguel completed his master of social work with families at the Pontificia Universidad Católica de Chile. His professional experience has been in the contexts of juvenile justice and educational administration. His research focuses on homosexuality, family relationships, and school interventions. Miguel is currently completing his doctoral dissertation on systems theory applied to empirical social research. Mariel  Lucia  Azcacibar  has a master’s degree in social sciences from the National University of La Plata (UNLP) and a licentiate in social work from the National University of Lomas de Zamora. Lic. Azcacibar serves as a technical advisor of the General Directorate of Expert Advisors of the Supreme Court of Justice of the Province of Buenos Aires. She is a professor of the master’s degree in mental health, currently applied to forensic sciences at the School of Medical Sciences of the UNLP and, until 2014, the Specialization in Criminal Law at the School of Legal and Social Sciences of the UNLP. Formerly, Lic. Azcacibar was a permanent lecturer at the Judicial School of the Council of the Judiciary of the Province of Buenos Aires (2021-2022); a lecturer in charge of seminars for graduates at the School of Social Work of the UNLP (2012–2013 and 2021); an organizer and a xi

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lecturer of the course The Professional Intervention of Social Work in an Expert Role (2016–2017), Institute of Judicial Studies and General Directorate of Expert Advisors of the Supreme Court of Justice of the Province of Buenos Aires; and an organizer and a lecturer of the training course on forensic social work, organized by the General Directorate of Expert Advice and the Institute of Judicial Studies of the Supreme Court of Justice of the Province of Buenos Aires (2022). Her areas of research and expertise include conditions of the social vulnerability of persons deprived of their liberty, individuals with mental disorders, and social work. Lic. Azcacibar is a coauthor of “What do social workers do in justice?” (2014) and “Living conditions in prisons. The contribution of social expertise” (2010), Exchanges Magazine (ISSN 1666-5457), of the Law and Social Sciences College of the UNLP, and “The Risk Assessment Program and the Court of Penal Execution in the Province of Buenos Aires” (2004), International Journal of Offender Therapy and Comparative Criminology. Daniela  Calderón,  a social worker at the Pontificia Universidad Católica de Chile, currently works as the person in charge of supporting studies at the Paternitas Foundation. Previously, she worked as a special assisted liberty delegate (PLE) parole official at Corporación Promesi, where she carried out comprehensive work with young people who were serving sentences in the parole program. She has a diploma in violence, delinquency, and juvenile desistance: Analysis of Cases and Practices Based on the Desistance Approach, Faculty of Law, Alberto Hurtado University (UAH). In addition, she has taken courses related to the subjects of drug abuse, motivational interviewing, and approaching suicidal behavior in adolescents. Her practice was carried out at the Women’s Penitentiary Center, where women serve sentences in Santiago de Chile, and at the Legal Clinic of the Pontifical Catholic University of Chile. During her undergraduate training process, she worked as an assistant in the Adolescents in Conflict with the Law course. She has been a research assistant at the School of Social Work, where she has assisted in research related to the infraction of law by adults and adolescents. Alejandra  Calderón-Martínez  is a professional in social work from La Salle University and a specialist in social management from Minuto de Dios University in Bogotá, Colombia. She has been an active member of the seedbed research PAZS.O.S. of La Salle University since 2018. She has carried out research on issues of armed conflict, social care, peacebuilding with a gender perspective, collective memories, leadership, and social innovation. She has experience in formulating, managing, and systematizing projects related to psychosocial support for armed conflict victims and strengthening grassroots foundations led by social and community leaders. Maria Luiza Campos da Silva-Valente  holds master’s and doctorate degrees in social work from the Pontifical Catholic University of Rio de Janeiro (PUC/RIO), where she was a long-time associate professor in the Department of Social Work. Ms. Valente is currently a registered judicial expert with the Court of Justice of the

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state of Rio de Janeiro, where she had worked until 2013. Her research topics, all related to social work and the sociolegal system, cover the following areas: listening to children in the justice system, social study and social expertise, the judicialization of social relations, transformation in the contemporary family, domestic violence and parental alienation, gender, and care. She has published articles in legal and in social work journals on topics related to her area of expertise. Milton Contreras-Sáez  is a social worker at Universidad de Concepción, Chile, with a master’s degree in family studies and development from the Universidad de la Frontera, Chile. He has a doctorate in human sciences from the Universidad de Talca, Chile. He has experience in professional practice in the protection of children and adolescents, and he is a social expert on criminal and family matters. He has academic experience as an undergraduate, postgraduate, and medical specialist at the Universidad Autónoma de Chile, Universidad Viña del Mar, Universidad de Concepción and Pontificia Universidad Católica de Chile. His research has focused on social expertise, violence between children and parents, and the Adolescent Life Project. He is currently a faculty member at the School of Social Work at the Universidad Católica del Maule, Chile. Alba Lucía Cruz-Castillo  is a member of the Faculty of Humanities and Social Studies as an associate research professor of social work at La Salle University, Colombia. She has a PhD in education and society, La Salle University, Bogotá; a PhD in social anthropology, University of Barcelona; and a master’s degree in family and development studies. She is a specialist in social policy and an associate researcher at Colciencias, Colombia. Her expertise lies in accompanying victims in the contexts of social and political conflict and post-conflict reparation and memory processes. She is the creator of the Territorial Living Maps Methodology (MVT) for territory analysis from the socio-spatial perspectives of the human and social sciences. Iván  De-Jesús-Rosa, PhD, MSW is an assistant professor in the Department of Social Work at Ana G.  Méndez University, Carolina Campus. He has a PhD in social work with a specialty in social policy and a master’s degree in social work with a specialty in community. In addition, he holds professional certifications in the area of forensic social work, evaluation and intervention in sexual abuse, and the evaluation of custody and relocation. He has specialized training in the field of parental coordination. He is certified as a dispute mediator by the Supreme Court of Puerto Rico. Currently, is the editor-in-chief of the journal Voces desde el Trabajo Social. Thelmo Flores-León  has a degree in social work and a bachelor’s degree in psychology and criminology. He has more than 23 years of experience as a judicial expert in social work and several years as an expert witness in domestic violence and juvenile criminal justice. He currently works as a professional in the Department of Social Work and Psychology under the Judiciary of Costa Rica and has been cosupervisor of social work students.

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Freeda Jusino-Sierra, EdD, MSW is a social worker with expertise in the forensic psychosocial evaluation of sexual abuse allegations. She has a master’s degree in social work with a specialization in family with children and adolescents, and she has a doctorate in education with a specialty in leadership in educational organizations. She works as a supervisor, forensic evaluator, and forensic interviewer at Casa Albizu (formerly Support Program for Victims of Sexual Abuse and Their Families) at Albizu University. She is an assistant professor in the master’s program in social work at the University of Puerto Rico. Catherine  LaBrenz, PhD is an assistant professor at the University of Texas at Arlington School of Social Work. Her research focuses on family engagement and intervention to reduce child maltreatment. Prior to academia, she was a social work practitioner with families involved in child protective services. Dr. LaBrenz’s experiences assessing and intervening in cases of severe child maltreatment inform her research. Her recent research projects include family-centered intervention research to support families’ post-reunification and an exploratory study to assess service needs among adoptive families whose children present severe emotional disturbance. Sandra Leopold Costábile  has a PhD in social sciences with specialization in social work (University of the Republic); has a master of social work (Federal University of Rio de Janeiro and University of the Republic); is a specialist in social policies (School of Social Sciences, University of the Republic); is a social worker (University of the Republic), is a full-time professor and researcher at the Department of Social Work, School of Social Sciences, University of the Republic; is a cocoordinator of the diploma in juvenile criminality (School of Social Sciences, University of the Republic); and is a co-coordinator of the R&D Research Group’s study program on the sociolegal control of childhood and adolescence in Uruguay. She studies adolescent offending. She is part of the sectorial commission for Scientific Research of the University of the Republic and is a member of the Academic Committee of the master’s program in children’s rights and public policy, University of the Republic. She is an active researcher (Level I) of the National System of Researchers of the National Agency for Research and Innovation in childhood, adolescence, and family issues and was a social worker at the National Institute of Children and Adolescents of Uruguay during the period 1990–2011. Maida Muñoz-Chiguay  is a social worker at the Pontificia Universidad Católica de Chile, and she has a diploma in violence, delinquency, and juvenile desistance: analysis of cases and practices based on the desistance approach, Faculty of Law, Alberto Hurtado University (UAH). During her undergraduate training, she worked as a teaching assistant at the Faculty of Education, regarding the subject of disadvantaged social contexts, as well as at the School of Social Work, in the field of social work and human rights. In addition, she has been a research assistant for the Childhood Observatory and for the School of Social Work at the Pontifical Catholic University of Chile. She has collaborated on issues related to research on prison

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contexts with adult offenders and juvenile offenders and on professional engagement between caseworkers and young offenders who served a sentence. Currently, she is working as a caseworker or “parole official” in the Special Parole Program (Programa Libertad Asistida Especial) of the Corporation Option, in which she has developed comprehensive intervention work with juvenile offenders, who serve a sanction in the parole program. Felipe  Norambuena-Conejeros  is a social worker who graduated from the Universidad de Concepción, Chile. He is involved in criminal justice and prison labor–related subjects in his country of origin. He has specialized studies: a master’s degree in politics and government from Universidad de Concepción, Chile. He also possesses a master’s degree in penitentiary law from Univesitat de Barcelona, Spain, complemented with postgraduate studies in human rights, access to justice, mediation and family intervention, community psychiatry, and university teaching, among others. He has more than eight years of professional practice in areas such as juvenile justice, drug treatment, social reintegration, and the prison system and has more than six years of experience as an academic in undergraduate, postgraduate, and medical specialties at Universidad Católica de la Santísima Concepción, Universidad Santo Tomás and Pontificia Universidad Católica de Chile. Berenice Pérez-Ramírez  has been a full-time professor-researcher at the National School of Social Work since 2014. She teaches at the specialization and master’s level in social work. She is currently a coordinator of the Center for Research and Studies in Disability and Health. Her main lines of work include the following: gender studies, disability, and confinement spaces. She belongs to research networks such as the Working Group on Critical Studies in Disability (CLACSO), the National Academy of Social Work Research and the group of Experiences and Corporalities in Spaces of Confinement. Her latest research has focused on the implementation of intervention strategies in prisons in Mexico City. She has the distinction of belonging to the National System of Researchers (SNI). Angela  Cristina  Pinto-Quijano  is an assistant professor at the Faculty of Economics, Business, and Sustainable Development at La Salle University, Colombia. She holds an undergraduate diploma in political science from the National University of Colombia and a master of arts in international studies from Université de Montréal. Before joining La Salle, she worked with interdisciplinary groups in the field of development and gender equality in Canada. She is a member of the Interdisciplinary Group of Research in Politics and International Relations of La Salle University and a leader of the seedbed research on political and social studies of Latin America. Her academic and research interests include political and social studies of Latin America. Sara Salum  is a social worker from the University of Valparaíso, is a criminologist from the Pontificia Universidad Católica de Chile, has a master’s in social work from Göteborg University, and has a doctorate in American studies from the

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University of Santiago of Chile. She is a full professor and researcher at the Faculty of Social Sciences of the University of Valparaíso. She is a member of the Inequalities and Public Policies Observatory and a codirector of the UNESCO Chair for Children, Youth, Education and Society. Elena  Salum  is a social worker from the Pontificia Universidad Católica de Valparaíso-­Chile, has master in management and public policies from the University of Chile, and has a doctorate in American studies from the University of Santiago of Chile. She was an advisor to the Ministry of the Interior of the government of Chile in matters of public security and management. She is a full professor, researcher, and coordinator of the Observatory of Inequalities and Public Policies of the School of Social Work of the Faculty of Social Sciences of the University of Valparaíso. Thais Tononi-Batista  holds a master’s degree in social policy from the Federal University of Espírito Santo (UFES). She is a specialist in public policy management involving gender and race at UFES and has been a social worker with the Court of Justice of the state of Espírito Santo since 2012 in the family court division and in the division of domestic violence against women, children, and youth. Ms. Batista has published articles in legal journals and in journals of social work on topics related to her professional experience. María de las Mercedes Utrera  has a licentiate in social work from the National University of La Plata (UNLP). María is the head of Ordinary Practical Works with the semi-exclusive dedication of the chair of social work III at the UNLP. She is an invited professor of the specialization in family law of the Law and Social Sciences College of the UNLP and a teacher and referent of students of the bachelor’s degree in social work at the Social Work College of the UNLP within the framework of the professional training practices of social work IV students. Formerly, María was a category V research professor (2014); member of the research team of the projects “Social policies, social work and constitution of families as political subjects” (2015–2018, UNLP) and “Production of knowledge in professional training practices: from the ways of teaching/learning to the multiplicity of knowledge in dispute” (2018–2020, UNLP); teacher in charge of the seminar “The professional practice of social work and the construction of social reports,” Social Work College at the UNLP (2012, 2013, 2013, 2018, and 2021); and teacher, organizer, and lecturer of the course “The professional intervention of social work in an expert role” (2016–2017), Institute of Judicial Studies and General Directorate of Expert Advisors of the Supreme Court of Justice of the Province of Buenos Aires. María is a coauthor of “What do social workers do in the justice system?” (2014), Exchanges Magazine (ISSN 1666-5457), of the Law and Social Sciences College of the UNLP.  She is an expert social assistant of the Supreme Court of Justice of the Province of Buenos Aires and has authored articles on the subject.

Part I

Introduction

Chapter 1

Latin American Social Work Practice in the Justice System Claudia Reyes-Quilodrán and Rajendra Baikady

Social workers have always worked directly with the criminal courts and civil courts within justice systems. However, Latin American practitioners’ work has not been well known at the global and local levels. Historically, social work has provided direct care to child victims of abuse and sexual abuse who have been served by juvenile courts or family courts. The role of social workers is to give specialized attention to the victims and their families while reporting to the court on improvements in the cases at stake. Indeed, social workers are the ones who, on many occasions, suggest to the judge which is the best sentence to safeguard and protect children’s and adolescents’ rights. In the juvenile criminal justice system, social workers are usually probation officers or carceral professionals who design specialized intervention plans for juvenile offenders and report to the criminal court on the progress of or setbacks to these young persons. Meanwhile, in the adult criminal justice system, social workers offer expert opinions to the court and work directly with criminal offenders and their families. The constant interaction between practitioners and the judicial system has caused social workers to become experts at dialoguing with people in other disciplines, such as those in law and psychology. This knowledge has been crucial for social workers to identify and share with other professionals to develop specialized programs at the undergraduate and graduate educational levels. In this sense, whether C. Reyes-Quilodrán (*) Pontificia Universidad Católica de Chile, Santiago, Chile e-mail: [email protected] R. Baikady Department of Social Work, Central University of Kerala, Kerala, India Department of Social Work & Community Development, University of Johannesburg, Johannesburg, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_1

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C. Reyes-Quilodrán and R. Baikady

positive or negative, social workers’ experiences with the justice system allow them to improve their practice. Models that intervene with juvenile offenders have usually been implemented on the basis of the experiences of the Anglo-Saxon world because scholars there have extensively published and conducted research, which is not the case for scholars in Latin American countries. Hence, it has become crucial to identify local experiences and the great dilemmas that the profession faces in the subject area. Furthermore, a definition of forensic or sociolegal social work is discussed, as well as how this concept has been developed in Latin American and Caribbean countries. The role of social workers in the civil and criminal justice system is described and shows the breadth and complexity that this role entails when translated into professional work. The experiences of practitioners from eight countries allow us to examine the challenges facing forensic social work and learn from professional practice. Contributions by social work scholars from Latin America make this book the first to go beyond Western-centric appraisals as it presents a truly Latin American portrait. Indeed, only contributions dealing with dynamics in Latin American countries were solicited. During the twentieth century, Latin American and Caribbean countries were characterized by the transition from agricultural to industrial economies. This phenomenon had the same effects there as in most other countries around the word, entailing issues such as the displacement of the peasantry toward cities and the formation of a poverty conglomerate. These improvised settlements became permanent and lacked basic services, such as access to clean drinking water, sewerage, electricity, schools, housing, and health services (Chilito et  al., 2011). These conditions accentuated social differences, excluding a sizable segment of the population from the economic system and citizen participation; these features have remained influential to this day, though less intensely in some countries (Cepal, 2020; PNUD, 2021). As a result, state intervention in social matters was needed, and social workers became imperatively needed. This need led to the professionalization of social work in Latin America and the Caribbean countries, and the field was formalized as a profession in undergraduate schools in 1925. The first school of social work was created in Santiago of Chile. That school was also the first such school in Latin America. Schools of social work were opened in universities to offer a career with scientific bases and to encourage the teaching of methods and techniques for social intervention (Muñoz Arce, 2015). Later, the Puerto Rico Social Work Regulation Project became law in 1934. Moreover, the first schools of social work were founded in Mexico in 1933, in Brazil in 1936, in Argentina in 1940, in Costa Rica in 1942, in Ecuador in 1945, in Uruguay in 1966 (Mellizo Rojas, 2019), and in Colombia in 1937 (Chilito et al., 2011). Surely, Latin America and the Caribbean countries are tremendously diverse. Despite this diversity and the specific complexities of each country, the influence of colonialism in these countries has left deep roots in the system of state administration, particularly in the civil and criminal justice system. The Spanish legacy influenced the implementation of a legal system based on a code law. The implication of a legal system based on a code law is that the laws have been written and that the justice administration responds to what each law or written rule stipulates. Indeed, code law regulates the code of procedures (Código de Procedimientos or Código General del Proceso, in Spanish). Such a system defines what is understood as

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conduct that is outside the law, ways for conflicts between parties to be resolved, and clear guidelines for citizens on what behavior is expected by society. Likewise, the judges who administer the law must adjust their sentences to what the written law stipulates. Therefore, jurisprudence is a rather limited alternative in such a justice system. In actuality, code law is implemented in most Latin American and Caribbean countries; a few exceptions are Belize, where common law has been used, and Cuba, where communist law has been used. This context is important to highlight because it provides a legal framework for the performance of social work. In particular, foreign and colonist influences determined the early development of institutions in each of these countries (Cabrera Cirilo, 2013). Code law indicates how the legal system must broadly function, but the administration of justice takes different forms in different countries. That is, each state decides what type of judicial structure best answers local needs. However, once a decision has been made about the judicial body, that decision must be stipulated in the form of a written law. Hence, justice is administered differently across Latin American and Caribbean countries. In some countries, family courts cover matters such as child protection, juvenile offenses, and family issues, such as divorce, custody, adoption, alimony, and visitation (e.g., in Peru, Argentina, and Mexico in the same federated states1). Meanwhile, in other countries, other instances address child protection issues and juvenile offenses; these countries may have institutions such as child and adolescent courts or minors’ courts (e.g., Bolivia, Brazil, El Ecuador, Honduras, Paraguay, Puerto Rico and Salvador, and the Dominican Republic2). Other countries, such as Colombia (Law N° 1,098, 2006), Costa Rica (Law N°  Law N° 27,337 (2000). Código de los Niños y Adolescentes. Perú. Retrieved from: 24 May 2022. https://lpderecho.pe/codigo-ninos-adolescentes-ley-27337-actualizado/#:~:text=El%20 ni%C3%B1o%20y%20el%20adolescente%20tienen%20derecho%20a%20que%20se,a%20 trato%20cruel%20o%20degradante Código de Procedimientos Familiares del Estado de Chihuahua (2014).Publicado en el Periódico Oficial del Estado de México No. 59 del 23 de julio de 2014. Retrieved from: 24 May 2022. https://www.congresochihuahua2.gob.mx/biblioteca/codigos/archivosCodigos/63.pdf Law 1,009 (1992). Código de procedimiento del Tribunal de Familia. 6 de Agosto de 1992. Boletín Oficial Argentina, 1 de Septiembre de 1992. Retrieved from: 18 October 2022. http://www. saij.gob.ar/LPP0001009 2  Law N°548 (2014). Código del niño, niña y adolescente. Bolivia. Retrieved from: 18 October 2022. https://www.comunicacion.gob.bo/sites/default/files/dale_vida_a_tus_derechos/archivos/ LEY%20548%20ACTUALIZACION%202018%20WEB.pdf Law N° 8,069 (1990). Estatuto de da criança e do adolescente 1990. Brasil. Retrieved from: 18 October 2022. https://www.gov.br/mdh/pt-br/centrais-de-conteudo/crianca-e-adolescente/estatuto-da-­ crianca-­e-do-adolescente-versao-2019.pdf Law N° 100. (2003). Código de la niñez y adolescencia. Ecuador. Registro Oficial 737 de 03-ene.-2003 https://www.igualdad.gob.ec/wp-content/uploads/downloads/2017/11/codigo_ninezyadolescencia.pdf Decree N° 73-96 (1996). Código de la niñez y la adolescencia. Honduras. Retrieved from: 18 October 2022. https://www.oas.org/dil/esp/Codigo_Ninez_Adolescencia_Honduras.pdf 1

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7576, 1996), and Uruguay (Law N° 17,823, 2004) leave it to juvenile courts to manage juvenile offenders, and Chile has a specialized room for juvenile offenders in criminal courts otherwise intended for adults (Law N° 20,084, 2005). However, these countries also have family courts to adjudicate family issues and questions of child protection according to the language of the Convention on the Rights of the Child (1989) (CRC), which protects children and adolescents whose rights have been violated, for example through child abuse, sexual abuse, neglect, abandon, lack of access to health or education, or any other forms of infringement. In other countries, some misdemeanors may be tried in different courts, such as peace courts in Guatemala (Decree N° 2, 1989) and Honduras (Decree N° 76, 1996), municipal courts in Panama (Código Judicial de la República de Panamá, 1987), or local courts in Nicaragua (Normas Jurídicas de Nicaragua, 1929). Despite these differences, all Latin American and Caribbean countries have criminal courts for adult offenders; depending on the sanctions they receive, these offenders may serve sentences in prisons or through a noncustodial system, such as probation.

1.1 Social Work in Civil and Criminal Matters The diversity of judicial scenarios has directly impacted the role of social workers. In civil matters such as family issues and child or adolescent protection, social workers must support families’ needs, depending on the nature of the case: domestic violence, abuse toward older people or children, sexual abuse, child or adolescent neglect, or divorce-based conflicts over legal custody, alimony, etc. Thus, social workers not only play a role inside the civil courts but also work with child social

Law N° 569 (2022). Ley Del Régimen de Protección Integral de la Niña, Niño y Adolescente. Panamá. Retrieved from: 18 October 2022. https://www.asamblea.gob.pa/APPS/SEG_LEGIS/ PDF_SEG/PDF_SEG_2020/PDF_SEG_2021/2021_P_569.pdf Law N° 1,680 (2001). Código de la niñez y la adolescencia. Paraguay. Retrieved from: 18 October 2022. https://www.bacn.gov.py/leyes-paraguayas/5261/ley-n-1680-codigo-de-la-ninez-y-la-­ adolescencia#:~:text=El%20ni%C3%B1o%20y%20el%20adolescente%20tienen%20 derecho%20a%20estar%20protegidos,su%20desarrollo%20arm%C3%B3nico%20e%20integral Law N° 88 (1986). Ley de Menores de Puerto Rico. de 9 de Julio de 1986. Retrieved from: 24 May 2022. https://bvirtualogp.pr.gov/ogp/Bvirtual/leyesreferencia/PDF/ Justicia/88-1986/88-1986.pdf https://www.igualdad.gob.ec/wp-content/uploads/downloads/2017/11/codigo_ninezyadolescencia.pdf Decree N° 677 (1994). Código de familia. El Salvador. Retrieved from: 18 October 2022. https://www.oas.org/dil/esp/codigo_de_familia_el_salvador.pdf Law N° 136 (2003). Código para el sistema de protección de los derechos fundamentales de niños, niñas y adolescentes. República Dominicana. https://www.oas.org/dil/esp/LEY%20 136-­03%20-%20Codigo%20para%20el%20Sistema%20de%20Protecci%C3%B3n%20y%20 los%20Derechos%20Fundamentales%20de%20Ni%C3%B1os%20Ni%C3%B1as%20y%20 Adolescentes%20Republica%20Dominicana.pdf

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services and programs that work directly with children, adolescents, and families after the judges have ordered a protection measure. Moreover, in some countries, such as Chile, family courts handle matters of domestic violence only when the violence is mild and sporadic; if that is not the case, the criminal court handles these matters (Law N° 20,066, 2005). Thus, social workers are also involved in criminal matters during trials or while offenders serve their sentences. Moreover, practitioners work directly with victims of domestic violence or sexual abuse. In Latin America and the Caribbean countries, the criminal system seeks to rehabilitate juvenile offenders and reinsert them into society. Thus, social workers play an important role during juvenile court or criminal court trials as they offer a specialized space for juvenile offenders. Social workers are also important in probation programs, community services, and prisons where young offenders have been incarcerated. Social workers also directly intervene when adults commit crimes. This panoramic vision of the role of social workers shows how diverse their practice is, depending on whether they intervene in civil or criminal judicial matters and on the specific moment of intervention. Moreover, we refer to forensic social work and sociolegal social work.

1.2 Forensic Social Work or Sociolegal Social Work The National Organization of Forensic Social Work (1997) in the United States has clearly defined forensic social work as “the application of social work to questions and issues relating to law and legal systems. … A broader definition includes social work practice which in any way is related to legal issues and litigation, both criminal and civil. Child custody issues, involving separation, divorce, neglect, termination of parental rights, the implications of child and spouse abuse, juvenile and adult justice services, corrections, and mandated treatment all fall under this definition.” According to the same organization, “forensic social work is based on specialized knowledge drawn from established principles and their application, familiarity with the law, painstaking evaluation, and objective criteria associated with treatment outcomes.” In Latin America, forensic social work and sociolegal social work (trabajo social socojurídico in Spanish) are used interchangeably (Ponce de León, 2014; Salum-Alvarado & Salum-Alvarado, 2018). Accordingly, the work of practitioners has been closely related to the justice system and judicial structure, which certainly have influenced the tasks of social workers. Indeed, the areas of expertise in social work practice are manifold, addressing issues as diverse as mental health, special education, and adoption, among many others. The factors that determine social workers’ competency to serve as specialists in these areas hinge primarily on training and experience as legal experts (Rosas, 2012). Furthermore, in Chapter 3, Alicea-Rodríguez proffers a complete definition of social work forensic practice, and he goes even further by examining the role of consulting and work product review when the evaluation is carried out by other social work professionals. AliceaRodríguez analyzes the activities that expert reviewers include in their examinations and promotes a professional dialogue that can help forensic practitioners.

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As social workers, we argue that the legal system intervenes in people’s lives when conflicts cannot be resolved by the parties themselves or when the persons in charge of the care of the family members no longer fulfill their role or become a threat to members of the family. In other words, the judicial system emerges when some members of a community do not respond to people’s needs and/or are a threat to other community members. Indeed, Ponce de León (2014) asserted that forensic social work can become part of judicial matters because, from a sociolegal perspective, social work integrates dimensions that are foundational to social interventions, whether the field develops within the framework of the administration systems of justice through expert practice, advisory functions, and prejudicial interventions or outside of these systems, through the protection and promotion of rights in the civic community, the problematization of rights violations, and the encouragement of new rights. In both cases, whether positioned inside or outside the justice administration systems, forensic social workers fulfill their role by advising, evaluating, and serving as witnesses or experts in situations that are part of the legal narrative, whether people involved in these situations are being prosecuted. Furthermore, several Latin American scholars have agreed that forensic social workers assume the role of experts when they issue a sentence and that this role does not emerge out of practice but rather out of the judges’ needs to issue sentences that are based on evidence and to ensure the best interest of the child (Aguilar Arrieta et al., 2007; Ponce de León, 2014; Rosas, 2012; Salum-Alvarado & Salum-Alvarado, 2018). Sociolegal social workers’ practices have increasingly been based on the requirements of the judiciary to provide the best solutions in biopsychosocial situations that involve people involved in civil and criminal matters. Hence, it is possible to divide the different roles of practitioners on the basis of the point in time during the judicial trial (pre-sentence and post-sentence) in civil or criminal matters, depending on the implication of the parties as victims of human rights violations or as criminal offenders.

1.2.1 Practitioners’ Pre-sentence Role in Civil Matters Depending on the judicial matters at stake, such as child protection matters, several Latin American and Caribbean countries, such as Argentina, Chile, Cosa Rica, Ecuador, and the Dominican Republic,3 use family judges or judges specialized in adjudicating cases in which children and adolescents are involved; these judges may

 Law 1,009 (1992). Código de procedimiento del Tribunal de Familia. (1992. 6 de Agosto de 1992. Boletín Oficial Argentina, 1 de Septiembre de 1992. Retrieved from: 18 October 2022. http://www. saij.gob.ar/LPP0001009 Law N° 19,968 (2004). Crea los tribunales de familia. Chile. Retrieved from: 18 October 2022. https://www.bcn.cl/leychile/navegar?idNorma=229557 Law N° 7,739 (1998) Código de la Niñez y la Adolescencia. Costa Rica. Retrieved from: 18 October 2022. https://www.oas.org/dil/esp/codigo_ninez_adolescencia_costa_rica.pdf 3

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ask social workers for their assessments of the family and children and may ask social workers to make recommendations before these judges apply their sentence or judicial order in an effort to protect children and adolescents whose rights have been violated in any way (e.g., child abuse of drug consumption). At this stage of a trial, practitioners serve as court experts (peritos, in Spanish), and they use methodological tools to recall evidence and triangulate information by using social work techniques, such as interviews, analyses of documents, reviews of previously produced reports, interviews with experts with knowledge of the cases, and home visits. Specific models have been implemented regarding these procedures, and the professional profile of a court expert has been defined (Rosas, 2012). In some countries, people may become court experts through certification programs; in Colombia or Puerto Rico, this possibility is offered at the undergraduate level. Civil matters are broad and include not only child abuse and drug consumption but also domestic violence, adoption, family relationships, custody, jurisdictional changes for children and adolescents, and juvenile offenders (Rosas, 2012). However, in some countries, offenses committed by juveniles are not considered civil matters; instead, they constitute criminal matters (e.g., in Chile and Costa Rica4). Practitioners have also played a role inside the courts. In some countries, social workers are hired to advise judges who specialize in cases implicating families, minors, children, and adolescents. For example, in the Dominican Republic, judges ask an external institution, CONANI (Consejo Nacional para la Niñez y la Adolescencia, in Spanish) for recommendations (Law N° 136/03, 2003). Moreover, in other countries, some practitioners work directly in the prosecutor’s office supporting victims of abuse, domestic violence, or violent crimes (e.g., in Chile and the Dominican Republic). Moreover, in Peru and in Cordoba (Argentina), there are family prosecutor’s offices (Benavides Santos, 2006). At this point, it is relevant to explain that family courts address different legal matters in different countries. Indeed, in some countries, these courts address claims and contestations about legitimate and natural filiation and marital status, divorce, adoption and adoptive annulment, marriage, domestic violence, alimony and visiting regimes, custody, guardianship, the administration of children’s funds, or child protection. Meanwhile, in other countries, these matters may be scattered across different types of courts. Law N° 100. (2003). Código de la niñez y adolescencia. Ecuador. Registro Oficial 737 de 03-ene.-2003 https://www.igualdad.gob.ec/wp-content/uploads/downloads/2017/11/codigo_ninezyadolescencia.pdf Law 136-03 (2003). Código para el sistema de protección de los derechos fundamentales de niños, niñas y adolescentes. República Dominicana. https://www.oas.org/dil/esp/LEY%20 136-­03%20-%20Codigo%20para%20el%20Sistema%20de%20Protecci%C3%B3n%20y%20 los%20Derechos%20Fundamentales%20de%20Ni%C3%B1os%20Ni%C3%B1as%20y%20 Adolescentes%20Republica%20Dominicana.pdf 4  Law N° 20,084 (2005). Establece un sistema de responsabilidad de los adolescentes por la infracción a la ley penal. República de Chile. Retrieved from: 18 October 2022. https://www.bcn.cl/ leychile/navegar?idNorma=244803&buscar=ley%2B20.084 Law 7576 (1996). Ley de justicia penal juvenil. Costa Rica. Retrieved from: 18 October 2022 https://www.acnur.org/fileadmin/Documentos/BDL/2002/1817.pdf

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1.2.2 Practitioners’ Post-sentence Role in Civil Matters Once the judicial sentence or judges’ decisions have been determined, child social services and programs of intervention in domestic violence should execute the judicial orders. Here, social workers develop an intervention plan with the victims and with the children and their families or significant others. Not only do social workers have to develop expertise in their field for this role, but they are also mandated to report to the judge about the progress of the case, the schedule for the program applied to the case, and the case follow-up. Hence, practitioners must have court expertise to communicate the needs of the parties to the judicial actors. Therefore, the ability to work interdisciplinarily is fundamental for social workers to communicate with lawyers, health professionals, educators, and other experts. When under the care of child protection services, extremely vulnerable children may be adopted. In this context, social workers intervene to declare in court that a child may be adopted and assess the biopsychosocial situation of the child and their family to make a recommendation to the ethics court. According to the Convention on the Rights of the Child, practitioners must look after the best interest of the child. Nevertheless, doing so is not always an easy task, because practitioners may also see the child’s right to grow withing their family; sadly, family reunification is not always an alternative. In Chapter 9, LaBrenz and Arévalo write about their research, allowing us to understand some of the factors influencing social workers’ decisions and how their bias against the family of origin may lead to the prioritization of adoptive families over advocacy for a child’s interest and need. This discussion presents a common dilemma that is hard to resolve in our practice. Furthermore, authors Campos and Tononi further this discussion by questioning the principle of the best interest of the child and the outcome of its application for children and families. Child-centered public policy has placed the interest of children in opposition to the interest of parents; hence, this opposition has become one of the main devices for regulating family and gender relations. These authors highlight how the neoliberal model and public policy have pointed to mothers and their weaknesses to explain the vulnerability of their children’s rights without delving into the violation of rights experienced by mothers while they raise their children in poverty and often alone. The authors lead us to question how social workers reproduce concepts that deepen the stereotypes associated with gender and the gender roles expected by neoliberal societies. In most Latin American countries, minors’ courts and children’s and adolescents’ courts handle juvenile offenders. Therefore, cases in which juveniles are involved are administered by these civil courts and by centers and programs that specialize in addressing juvenile offenders. Hence, in these cases, the role of social workers is very similar to that previously described. The differences could be related to the needs of the young offenders and the fact that an intervention plan is based on the behavior of the offenders. Domestic violence cases are heard by civil courts or criminal courts, depending on the country and the type of violence perpetrated against the victims. In the case

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of Chile, family courts administer domestic violence cases unless the violence is recurrent or severe, in which situation criminal courts hear the cases (Law N° 20.066, 2005). Other countries, such as Costa Rica, have domestic violence courts (Juzgado de Violencia Doméstica, in Spanish) (Benavides Santos, 2006). Social workers are tasked with assisting the victims of domestic violence, whether in court or outside of court. When cases are prosecuted, practitioners must report to the court on the progress of the case and when they discharge the victims from treatment programs. Each country uses different intervention programs, depending on the needs of the children, adolescents, and their families or on the ways they have been affected by some violations of their rights. Hence, the role of social workers is closely bound to programmatic specialization; for example, programs may focus on drug consumption, child sexual abuse, youth offenders, domestic violence, or child adoption. Moreover, not only do social workers have to respond to the needs of different parties, but their role has also been shaped by legal instruments in specific cultural and historical contexts, which Salum-Alvarado and Salum-Alvarado discuss in Chapter 2, where they describe in detail the different factors and historical moments that have shaped Chilean sociolegal social work and the new challenges facing the profession.

1.2.3 Practitioners’ Pre-sentence Role in Criminal Matters In the criminal justice system, social workers have also assumed the role of court experts. According to Garzón Muñoz (2000), a court expert looks at the social indicators of a given situation that must be resolved through the courts. The function of social workers is to offer evidence to clarify facts and provide additional elements to allow the judicial authority to issue a ruling on the situation under evaluation and about which it does not know the particulars. Practitioners’ tasks are focused on recalling and submitting to the court biopsychosocial information; however, the reporting depends on who asks for this information. That is, a court expert’s assessment and report could be summoned by the prosecutor’s office, the public defender’s office, or the criminal court. Indeed, forensic social workers may be ordered to assess cases of child and adolescent sexual abuse; Chapter 8, by Jusino-Sierra and De-Jesús-Rosa, proposes various models on this issue. The authors discuss the characteristics of the evaluators, the methodological and technical aspects of the assessment process, the forensic interview process, and the forensic analysis to determine whether the allegations are substantiated. This detailed discussion allows forensic practitioners to reflect on their role in the attention of child and adolescent sexual abuse. As previously discussed, assessing is a required task for forensic social workers. In fact, social workers from the province of Buenos Aires, Argentina, are commanded to assess juvenile offenders to submit information to judicial actors. In Chapter 4, authors Utrera and Azcacibar describe the relevance of the legal

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framework in a practitioner’s daily work and also discuss the use of a historical clinical risk (HCR) assessment tool, which is a Canadian technical instrument that has been adapted to help assess risk factors in young offenders. If we follow Ponce de León’s (2014) definition of the role of sociolegal social work, we can include a larger group of practitioners who also denounce violations of human rights and crimes against people. Hence, any social work could be related to sociolegal social work because social workers must evaluate cases and submit reports to criminal courts; moreover, they can serve as witnesses during criminal trials. In this context, we can establish that any practitioner should have training that allows them to assess and report a crime to legal authorities. Indeed, Chilean practitioners are ordered to do so under the law. In the prosecutor’s office, practitioners participate in sociolegal work actions, intervene directly with parties in the penal system, attend to psychosocial problems, and network, whether in the areas of health, education, housing, social security, judicial services, and other areas of the justice system. In their chapter, Norambuena and Contreras discuss these different roles by advancing that the exercise of defense be known as “specialized defense” and that social workers support vulnerable populations and criminal defense attorneys as they defend offenders within the framework of human rights. In countries such as Chile, the juvenile criminal justice system handles juvenile offenders under the age of 18 in specialized courtrooms. In the meantime, Colombia, Costa Rica, Mexico, and Uruguay5 have implemented juvenile criminal courts. In the juvenile criminal justice system, the judges, prosecutors, and defense attorneys may request that a court expert assess the case during a judicial trial. However, in Chile, this practice is not common, because public defense attorneys have argued that court experts’ reports could lead the judges to apply harsher sanctions. Meanwhile, prosecutors have claimed that these reports could lead to softer punishments. This debate deserves analysis because prosecutors and public defense attorneys focus on the severity of the sentence, and they do not consider the sentence that could best promote the social reintegration of the adolescents and reduce the ­likelihood that they will suffer psychosocial damages. The criminal ideology that has been developed for adult offenders has dominated the way justice has been administered in juvenile cases. Indeed, one of the weaknesses of the system is that  Law N° 1,098 (2006). Código de infancia y adolescencia. Colombia. Retrieved from: 19 October 2022. https://www.oas.org/dil/esp/codigo_de_la_infancia_y_la_adolescencia_colombia.pdf Law N° 7,576 (1996). Ley de justicia penal juvenil. Costa Rica. Retrieved from: 19 October 2022. https://www.acnur.org/fileadmin/Documentos/BDL/2002/1817.pdf Ley Nacional del Sistema Integral de Justicia Penal para Adolescentes Nueva Ley (2016). México publicada en el Diario Oficial de la Federación el 16 de junio de 2016. Retrieved from: 19 October 2022. https://www.diputados.gob.mx/LeyesBiblio/pdf/LNSIJPA_011220.pdf Law N° 17, 823 (2004). Código de la niñez y la adolescencia. Uruguay. Retrieved from: 19 October 2022. https://www.impo.com.uy/bases/codigo-ninez-adolescencia/17823-2004 5

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specialized judges, public defense attorneys, and prosecutors no longer work with juvenile offenders in a specialized courtroom, because these offenders meet the threshold needed to be treated as adult offenders (Santibañez & Alarcón, 2009). At odds with this approach, Costa Rica has instituted its Social Work and Psychology Department (Departamento de Trabajo Social y Psicología in Spanish6), which depends on the judicial branch and assesses youth offenders’ cases, suggesting sanctions or plea bargains on the basis of the needs and features of the cases at stake. A similar approach has been used in most Latin American and Caribbean countries as cases involving juvenile offenders are handled by child and adolescent courts or family courts. Nevertheless, in recent years, the Uruguayan juvenile criminal justice system has toughened sentences, in contrast to proposals made by the United Nations (1990, 2018). In Chapter 10, Sandra Leopold reflects on these changes and discusses the perception of the different actors in the Uruguayan justice system. Her research highlights the ways that harsher sentences for juvenile offenders could damage their social integration process. The variations across countries lead the discussion by Calderón and Muñoz-Chiguay, who compare the juvenile judicial system in Mexico and Chile. They observe that despite the differences in the implementation of the laws covering juvenile offenders, the common problem of Chile and Mexico is that practitioners’ skills to work with juvenile offenders have not been clearly established. This aspect gives wide discretion to professionals and programs in interventions with young people, who could benefit young people in that these interventions respond to their particular needs, or the interventions could harm them because there are no clearly established standards of quality or professional expertise requirements. The judicial system also focuses on victims of human rights violations. Sadly, political violence in Latin American and Caribbean countries has been present throughout history. People have disappeared or suffered direct aggressions. Social workers have been present not only to accompany victims of severe human rights violations and their families but also to support them in the reparatory processes during and after the judicial trial. Here, it is relevant to know that the practitioners’ experiences and the model of intervention help us to develop specialized interventions with families who have lost a family member. In Chapter 7, Cruz-Castillo, Pinto-Quijano, and Calderón-Martínez describe their experience in working with Colombian victims of political violence and share how, from our role as social workers, we may accompany and support families in the process of restructuring their rights, which have been severely violated. They also share the ways that they handled the painful absence of disappeared family members.

 Departamento de Trabajo Social y Psicología de Costa Rica. Founded in 1955. Retrieved from: 18 October 2022. https://trabajosocial.poder-judicial.go.cr/ 6

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1.2.4 Practitioners’ Post-sentence Role in Criminal Matters There are different types of criminal punishments in Latin American and Caribbean countries. However, common forms of punishment include incarceration, probation, parole, or nighttime confinement. Each of these modalities implies the presence of a social worker working directly with inmates and their families in the process of rehabilitation and social reinsertion. Practitioners may diagnose the case and develop a plan of intervention; furthermore, practitioners should work as part of an interdisciplinary team and report on the case to the criminal court. Unfortunately, in recent years, we have heard on the news about cases in which inmates suffered severe violations of their human rights and prison violence in Brazil, Chile, Honduras, Peru, Mexico, and Uruguay (Ariza et al., 2020; Reyes-Quilodran et al., 2021). Hence, in these contexts, it has been difficult for social workers to develop an intervention plan to promote rehabilitation and social reintegration, particularly when prisons do not offer educational or job programs and psychosocial treatments. This problem is analyzed in the Chapter 13 by Berenice Pérez Mexico, who examines the carceral experience of female inmates who have psychosocial disabilities. Incarcerated women face more-severe punishments, which may exclude therapy or other forms of rehabilitation. Incarceration has become a form of compulsory refeminization during which women are resocialized to conform to gender norms and expectations. Punishment determines the way that they express their psychological and emotional distress. The challenge for practitioners is not only to denounce human rights violations but also to create innovative practices that reverse the psychosocial damages suffered by women inside prison systems. In the adult criminal sanctions system, the role of social workers also implies offering recommendations to criminal courts for alternative exit strategies or for reduced sanctions for custodial and noncustodial inmates. In these cases, practitioners work very closely with interdisciplinary teams and prison or noncustodial authorities to give the best recommendations to the judges, recommendations that are based on the characteristics and assessment of the case. The juvenile sanctions system in Latin America offers a wider range of programs for young offenders. These are programs such as community service, probation, parole, incarceration, semiopen centers, alternative release, alternative measures such as drug treatment, and restorative justice programs. In each of these programs, social workers are tasked with assessing cases, developing intervention plans, following up on cases, reporting to judges on the adolescent’s progress, and suggesting the dismissal of cases from these programs when the sentence has been served or when the case has been successful in requesting a referral. Social workers apply their skills to the judicial context and closely interact with judicial actors. Hence, social workers develop an expertise that allows them to communicate with judicial authorities about the needs of young offenders and to encourage these offenders to grow. This duty is not always easy to carry out, because social workers may find themselves in tension over two factors: first, the vulnerability of young offenders, which is due to their life histories, which are marked by violence and psychosocial

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neglect, and second, an understanding of these young people as subjects who harm society. This tension is discussed in Chapter 12, by Theldo Flores, which leads us to reflect on the ways that we intervene in the lives of young offenders. In this book, we share the experiences of social workers working in the judicial system in Latin American and Caribbean countries. Unfortunately, the English language is a barrier that did not make it possible for each country to be represented in this book, but we strongly believe that the contributions from Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Puerto Rico, and Uruguay describe experiences and contributions to the discipline that need to be shared with other practitioners around the world to create communication bridges between us.

References Aguilar Arrieta, I., Chacón Mora, L., González Aguilar, M., González Brenes, R., Jiménez Villalobos, S., Loaiza Coronado, M., et  al. (2007). La intervención de trabajo social y psicología en la administración de justicia costarricense. Editorama. https://pdfhoney.com/ compress-­pdf.html Ariza, L. J., Arboleda, T., & León, F. (2020). El cuerpo de los condenados. Cárcel y violencia en América Latina. Revista de Estudios Sociales, 73, 83–95. https://doi.org/10.7440/res73.2020.07 Benavides Santos, D. (2006). Tendencias del proceso familiar en América Latina. Revista para el Análisis del Derecho. Retrieved from: May 25, 2022. https://raco.cat/index.php/InDret/article/ view/80982/105454 Cabrera Cirilo, J. M. (2013). El Trabajo Social de Puerto Rico en conflicto: debates profesionales sobre las leyes reglamentarias. Eleuthera, 9(2), 236–265. Cepal. (2020). Panorama de América Latina. Comisión Económica para América Latina. Naciones Unidas. Retrieved from: May 25, 2022. https://www.cepal.org/sites/default/files/presentation/ files/version_final_panorama_social_para_sala_prebisch-­403-­2021.pdf Chilito, N. D., Guevara Peña, N. L., Rubio Gaviria, J., Fernández Tovar, C. R., Sierra Tapiro, J. P., et al. (2011). Trabajo Social en América Latina y Colombia: Aproximaciones históricas. Plaza Pública. Revista de Trabajo Social, 4(5), 72–97. Retrieved from: 24 May 2022. https://revistaplazapublica.files.wordpress.com/2014/06/chilito-­y-­otros.pdf Código Judicial de la República de Panamá. (1987). Retrieved from: 18 October 2022. https://vlex. com.pa/vid/codigo-­judicial-­58511374 Convention on the Rights of the Child. (1989). United Nations. Accessed 15 March 2022. https:// www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/crc.pdf Decree 2-89. (1989). Ley del organismo Judicial. Guatemala. Retrieved from: 18 October 2022. https://www.oas.org/juridico/pdfs/mesicic4_gtm_org.pdf Decree N° 76. (1996). Ley de organización y atribuciones de los tribunales. Honduras. http://www. cedoh.org/Biblioteca_CEDOH/archivos/00235%20LEY%20DE%20ORGANIZACION%20 Y%20ATRIBUCIONES%20DE%20LOS%20TRIBUNALES.pdf Law 136-03. (2003). Código para el sistema de protección de los derechos fundamentales de niños, niñas y adolescentes. República Dominicana. https://www.oas.org/dil/esp/LEY%20 136-­03%20-­%20Codigo%20para%20el%20Sistema%20de%20Protecci%C3%B3n%20y%20 los%20Derechos%20Fundamentales%20de%20Ni%C3%B1os%20Ni%C3%B1as%20y%20Adolescentes%20Republica%20Dominicana.pdf Law 7,576. (1996). Ley de justicia penal juvenil. Costa Rica Retrieved from: 18 October 2022. https://www.acnur.org/fileadmin/Documentos/BDL/2002/1817.pdf Law N° 1,098. (2006). Código de infancia y adolescencia. Colombia. Retrieved from: 18 October 2022. https://www.oas.org/dil/esp/codigo_de_la_infancia_y_la_adolescencia_colombia.pdf

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Law N° 17, 823. (2004). Código de la niñez y la adolescencia. Uruguay. Retrieved from: 18 October 2022. https://www.impo.com.uy/bases/codigo-­ninez-­adolescencia/17823-­2004 Law N° 20,066. (2005). Establece Ley de violencia Intrafamiliar. República de Chile. Retrieved from: 04 July 2022. https://www.bcn.cl/leychile/navegar?idNorma=242648&idParte=8653129 Law N° 20,084. (2005). Establece un sistema de responsabilidad de los adolescentes por la infracción a la ley penal. República de Chile. Retrieved from: 18 October 2022. https://www.bcn.cl/ leychile/navegar?idNorma=244803&buscar=ley%2B20.084 Mellizo Rojas, W. (2019). Proyecciones profesionales, académicas y de investigación para el Trabajo Social en América Latina y El Caribe el desafío de la crisis mundial. XXII Seminario Latinoamericano y del Caribe de Trabajo Social. Asociación Latinoamericana de Enseñanza e Investigación en Trabajo Social (ALAEITS) y Consejo Nacional para la Educación en Trabajo Social (CONETS). First edition. Retrieved on: May 24, 2022. https://conetsco.org/wp-­content/ uploads/2019/10/Portada-­Vf.pdf Muñoz Arce, G. (2015). Imperialismo profesional y trabajo social en América Latina. Polis, 14(40), 421–438. Retrived on: 24 May 2022. https://doi.org/10.4067/S0718-65682015000100020 National Organization of Forensic Social Work. (1997). What is forensic social work? Retrieved on June 6, 2022, from https://www.nofsw.org/what-­is-­forensic-­social-­work-­1 Normas Jurídicas de Nicaragua. (1929). Disposiciones sobre los juzgados locales. Publicado en la Gaceta No. 75 del 5 de Abril de 1929. Retrieved from: October 18, 2022. http://legislacion.asamblea.gob.ni/normaweb.nsf/($All)/BEF32F4DD74903D0062574DB005CB9ED?Op enDocument PNUD (2021). Programa de las Naciones Unidas para el Desarrollo. Informe Regional de Desarrollo Humano 2021. Atrapados: alta desigualdad y bajo crecimiento en América Latina y el Caribe. Naciones Unidas. Retrieved from: May 25, 2022. https://www.undp.org/es/latin-­ america/publications/informe-­regional-­de-­desarrollo-­humano-­atrapados-­alta-­desigualdad-­y-­ bajo-­crecimiento-­en-­am%C3%A9rica-­latina-­y-­el-­caribe Ponce de León, A. (2014). Recorrido conceptual y anclaje socio histórico del Trabajo Social forense o Trabajo Social en perspectiva socio-jurídica. XXVII Congreso Nacional de Trabajo Social. Retrieved on: July 5, 2022. https://issuu.com/faapss/docs/ponce_de_leon Reyes-Quilodran, C., Calderón-Canales, D., & Muñoz-Chiguay, M. (2021). Similitudes y diferencias entre mujeres y hombres privados de libertad con conductas violentas. Revista Criminalidad, 63(3), 147–166. https://doi.org/10.47741/17943108.302 Rosas, I. J. (2012). El trabajo social forense y los retos para su desarrollo futuro en Puerto Rico. Voces desde el Trabajo Social, 1(1), 73–99. https://doi.org/10.31919/voces.v1i1.118 Salum-Alvarado, S., & Salum-Alvarado, E. (2018). Trabajo Social Socio Jurídico en Chile: génesis, desarrollo histórico y desafíos disciplinares. Serviço Social & Sociedade, 131, 15–28. https://doi.org/10.1590/0101-­6628.128 Santibañez, M. & Alarcón C. (2009). Análisis crítico de la aplicación práctica de la Ley de Responsabilidad Penal Juvenil y propuestas de mejoramiento, 4 (27). Dirección de Asuntos Públicos. Retrieved from: June 20, 2022. https://politicaspublicas.uc.cl/wp-­content/ uploads/2015/02/analisis-­critico-­de-­la-­aplicacion-­practica-­de-­la-­ley-­de-­responsabilidad-­ penal-­juvenil.pdf United Nations (1990). Rules for the Protection of Juveniles Deprived of their Liberty Adopted by General Assembly resolution 45/113 of 14 December. https://www.unodc.org/pdf/criminal_justice/United_Nations_Rules_for_the_Protection_of_Juveniles_Deprived_of_their_Liberty.pdf United Nations. (2018). Fact Sheet on Young. https://www.un.org/esa/socdev/unyin/documents/ wyr11/FactSheetonYouthandJuvenileJustice.pdf

Part II

Forensic and Sociolegal Social Work in Latin America

Chapter 2

Family Courts in Chile and the Evolution of Sociolegal Social Work Sara Salum

and Elena Salum

2.1 Childhood a Residual Figure: The Juvenile in an Irregular Situation Concern for the welfare of children and the prevention of maltreatment have Anglo-­ Saxon origins. Social awareness of child abuse arose in the United States with the so-called movement for the welfare of children. In 1871, the Society for the Prevention of Cruelty to Children was founded in New  York, followed by other associations with similar objectives in various parts of the United States and the United Kingdom, awakening public awareness of neglected children, about whom existed little information and who were rarely considered. The first action for the protection of children took the form of protection against animal abuse because children did not have the legal status of a person. By 1881, the British Society of Animal Welfare had extended its call for the protection of children, resulting in the founding of the National Society for the Prevention of Cruelty to Children in 1889. (Lachica, 2010, p. 55)

The reformers’ movement, which caused the first rupture concerning children’s policies, began with the birth of the first juvenile court in Illinois, in 1899, which proposed the consecration of a social/penal control model for minors different from that of the adult world. The living conditions in prisons where young offenders lived S. Salum (*) Observatorio Desigualdades y Políticas Públicas Escuela de Trabajo Social, Universidad de Valparíso, Valparaíso, Región de Valparaíso, Chile e-mail: [email protected] E. Salum Observatorio Desigualdades y Políticas Públicas Escuela de Trabajo Social, Universidad de Valparíso, Valparaíso, Región de Valparaíso, Chile e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_2

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with adults and the lack of specific regulations were causes of struggle for the reformers. This movement sought to differentiate the legal treatment of children from that of adults and sought specific places of internment for children (Acosta, 2016). With this movement arose the doctrine of irregular minority, characterized by the creation of a legal framework that legitimizes discretionary state intervention on this sort of residual product of the category of childhood, constituted by the world of minors. The indistinction between abandoned children and delinquents is the cornerstone of this legal magma. As a result, the extent to which the doctrine of irregular situation extends is inversely proportional to the extent and quality of basic social policies. (García Méndez, 1994, p. 79)

The doctrine of irregular minority posed a “residual” notion of the category of childhood; i.e., it differentiates children from minors, which is the basis for creating a legal framework that legitimizes state intervention on the basis of the institutional control of minors. This doctrine permeated the interventions of the state and propitiated the emergence of a scientific view of children in an irregular situation, of a justice system conducive to its intervention, and of judicial operators specialized in these matters, where social and sociolegal work arose thanks to judicial social visitors in the early twentieth century in a context of using crisis as a tool for state intervention on children, leaving behind charity as social action.

2.2 State Intervention: Sociolegal Social Work The diversity of social problems that affected a large part of the population in Chile during the first two decades of the twentieth century demanded actions that would go beyond charity, and the state had to assume an active and decisive role in the face of the social demands that arose. This led the state to move from palliative-­assistance responses in the beginning to technical responses based on a scientific investigation into the origins of social problems. In this way, several laws were enacted to establish the role of the state in these matters, which led to the emergence of sociolegal social work. In 1911, Decree N° 2,140 was issued, which established the prison regulations for penitentiary facilities, Article 1 of which classified penitentiary establishments into penitentiaries, prisons, houses of correction for women, and correctional schools for minors, all of which were institutions for serving criminal sentences and in which adults and children were held without distinguishing on the basis of age. In 1912, the first legal norm for the protection of children under the concept of underprivileged minorities was enacted, Law N° 2,675. It did not provide broad protection to all children, because its emphasis was on the role and obligations of their parents; it also focused on abandoned children, who were seen as dangers to society under the hygienist view of the time and its expression in irregular minorities. In this context, and in the absence of an institutional framework to take in unprotected children, women’s correctional institutions and correctional schools

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became the recipients of children in situations of their being abandoned, committing crimes, failing to comply with parental authority, or begging. The dire social situation caused by misery and poverty, the severe conditions of the correctional institutions, and the rapid increase in the population of incarcerated children required science-based solutions, which led to the creation of the figure of social visitors. Social visitors exercised a social-control role over families and evaluated families’ poverty situations and children’s conditions in the most deprived classes. Their origins date back to the trip made by the physician Alejandro del Río to Europe, who contacted various schools of social service at the time and saw these professionals as efficient collaborators in the field of health under the auspices of the National Welfare Board, which later became known as the Chilean National Health Service (Quiroz, 1998). Dr. Del Río thus founded the first School of Social Service in Chile. In addition to establishing the professionalization of social services, this marked an important milestone in Chile and Latin America, as it led to the development of social work in several countries on the continent (Quiroz, 1998). State intervention in family–child relationships was the beginning of sociolegal social work. According to Susan Turner (2002), the intervention of the state in the field of childhood can be classified into three chronological stages. The first stage was marked by the application of civil and penal codes (1857 and 1875, respectively) to underprivileged children from the mid-nineteenth century to the first two decades of the twentieth century for irregular minorities. The second stage started with Law N° 4447 of 1928, where the state created the juvenile justice system, giving rise to the judicial social visitors. Finally, the third stage started in 1967, with Law N° 16,618, which established the systems of care for children under the state and the emergence of judicial social workers. In addition to the three stages defined by Turner (2002), this study identifies a fourth stage that arose with the creation of the family courts in 2005 with Law N° 19.968, which eliminated the figure of the judicial social worker and established the presence of a collegiate body called the technical council and the counselor technician, the latter replacing the historical figure of the judicial social worker.

2.3 First Stage State Intervention: Emergence of the Category of Irregular Minorities and the Shift from Charity to Welfare in State Intervention By the end of the nineteenth century and the beginning of the twentieth century, the Chilean state’s recent and progressive interest in childhood protection began to enter into force, adopting the doctrine of the irregular minority. At the same time, healthcare in the country needed a social component that would materialize into a new profession and that, for the public health system, could contribute to improving the quality of life of people suffering from specific health problems, which had

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marginality, poverty, severe hygienic problems, and high illiteracy rates as a backdrop (Aylwin et al., 2004; Quiroz, 1998; Reyes, 2019; Salum & Salum, 2018). Thus, assistance and its female intermediation were developed in the early twentieth century following the charitable-liberal paradigm, mainly by civil institutions, which reached their best physiognomy in the Patronato Nacional de la Infancia, and its Gotas de Leche, scattered throughout the working-class neighborhoods. This new model of linkage between people and state through assistance and feminine mediation arises, thus, from an experience of power and civil government previously evaluated and that will penetrate inside and surround outside the new National Welfare State. (Illanes, 2008, p. 19)

Against this background, social workers’ actions would be guided by the vision of hygiene, the doctrine of the irregular minor, and the search for socioenvironmental solutions without a methodological or disciplinary horizon and oriented by assistance, at least in the early development of the discipline in the first decades of the twentieth century. Thus, the practice of social visitors was developed mainly in welfare, hospital, asylum, and dispensary establishments—exercising functions aimed at solving socioeconomic problems, unhealthy housing, and family disintegration, due to abandonment, illegality, or parental incompetence and aimed at protecting vulnerable children (Reyes, 2019). At this point, the doctrine of irregular minority, which came from the United States and the United Kingdom, was installed.

2.4 Second Stage: Juvenile Guardianship System. From the Social Visitors to the Social Judicial Assistants and the Modernization of the Intervention of the State In 1928, Law N° 4,447, on the protection of minors, established for the first time a model for the guardianship of minors, which was conceived as a social reaction to a complex set of diverse social situations that required the protection of underprivileged or abandoned children under the doctrine of irregular minors. In this tutelary model, two opposing purposes are confronted. On the one hand, the objective was to protect these underprivileged children from the situations of moral and material danger in which they found themselves, and on the other hand, the objectives was to achieve greater social control, taking these children off the streets and placing them in juvenile centers to protect society in general from the growing number of delinquent children and youngsters. Both objectives and the measures adopted for them ended up violating the rights of these children (Fuenzalida, 2014). Law N° 4,447 in Article 1 stated that the function of attending to the personal care and the moral, intellectual, and professional education of minors, which, in the cases contemplated by this law, falls to the state, will be exercised through the General Directorate for the Protection of Minors. Article 2 establishes that in all educational institutions, whether public or private, fundamental subjects such as morality and hygiene must be taught.

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Decree N° 2,531 of 1928 created the Regulations of the Law for the Protection of Minors. Article 1 of the Regulations confers on the general management for the protection of minors an obligation to deal with the personal care and the moral, intellectual, and professional education of abandoned minors, delinquents, or those in moral or material danger. Article 11 establishes that the juvenile homes receive the minors who must appear before the juvenile and family judge, and Article 13 states that they must remain there for observation and until the resolution of the case. Article 14 established the first reference to the presence of the social report issued by the social visitors as part of the individual observation of the minor. In addition to other reports from doctors and teachers, this observation was monitored by the juvenile court. The technical view of the court social visitors arose, and they, through their social report, gave legal life to everyday social situations. Article 19 established the number of four social visitors per juvenile home and the collaboration of ad honorem social visitors. Article 24 of the law stated that the judge should consider the social report together with other reports in their decisions, establishing that the report of the social worker contain information on the living, financial, hygienic, and social conditions of the parents or guardians and on the personal background of the minor and their family, whether pathological or delinquent. Article 45 established the obligation of social visitors to immediately inform the juvenile judge of any unfavorable circumstance for the juvenile so that the judge may adopt a resolution. With the entry into force of Law N° 4,447 of 1928, the doctrine of the “irregular situation” of minors was introduced—applicable in preference to the Civil Code of 1857—for minors in irregular situations—in other words, juveniles facing material or moral risk. This law does not apply to all children for whom family guardianship is still in force but rather applies only to those who find themselves in an exceptional situation lacking protection. Indeed, it is precisely this unprotected situation that makes state intervention through the civil courts possible. Consequently, at this stage, the national guardianship system approached a system of authority in which state intervention was justified. It emphasized the protection of society against these “problem minors” over children’s rights. This view of childhood would last for decades (Turner, 2002). In the 1940s, the Social Service Schools of the state of Chile began their activities because the profession had proven to be helpful in different fields of social reality, integrating men into the training in this profession. In 1948, these schools were annexed to the University of Chile and depended on the Faculty of Juridical and Social Sciences, approving the university degree on December 5, 1950, by the University Council (Quiroz, 1998). As a result, two significant changes in the profession were made possible: the title social visitor was changed to social worker, which implied a new professional identity, and the years of study were increased, incorporating social science subjects and methodologies specific to social work, such as casework and group work (Reyes, 2019). Complex cases related to legal problems and rights violations involving direct intervention in social work with families were attended by a social worker from the National Health Service, appointed by the respective court. This situation lasted

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until 1961, when the juvenile courts linked to family issues were created (Reyes, 2019). The lack of primary source studies prevented the further development of the performance of social workers before the creation of juvenile courts. Until then, the intervention form was always subordinate to the judge, and from that perspective, social reports, social diagnoses, and specialized reports were developed, all of which had a significant weight in the family judge’s sentence, even though they were still in the process of being professionalized. Article 14 of Law N°14,550 of 1961 on juvenile courts established that the hiring of social assistants for these courts should be provided by the judge of a juvenile court after a competitive examination. Likewise, Article 17 of this law established that any information provided by the social workers to the court would have background information that the judge should evaluate according to the general rules of the law. According to the legal culture imposed in these courts, the interview with the social worker, the home visit conducted by them, and the professional opinion they issued had preponderant weight in the sentence issued by the juvenile judge—so much so that they were feared because of the power they came to have. Thus, with time, the hegemonic power of the social workers in the juvenile courts was consolidated, establishing a tension between reality and social changes on one hand and on the other judicial decisions, most of which were based on the social worker’s opinion. During this period, social work progressed from the mere assistance that characterized it in the previous period to a period of professionalization. It coincided with social service as the state’s response to child intervention in Chile. The transition from the former social visitors to modern social workers took place, which allowed the accumulation of expertise on social, family, economic, housing, and dangerous issues, establishing a privileged professional scenario with clearly established limits to other professions that tried to compete for the social sphere and expertise in the judicial system.

2.5 Third Stage: Professionalization of Justice System Social Workers and the Internment of Minors as State Intervention In March 1967, Law No°16,618 was passed, which established a definitive text of the law for juveniles, but the tutelary model continued to prevail without alterations, giving power to the figure of the juvenile tutelary judge, who had a protective and educational role, differentiating it from the repressive function of the penal system for adults. During this period, the guardianship system structured a single institutional framework to provide a social response to two diverse and not necessarily

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interconnected problems: children and adolescents in violation of the law and those in need of protection and/or rehabilitation. “This social response assumes internment as an effective and efficient instrument to protect minors in an irregular situation, replacing in practice, in cases of “irregularity,” the primary role that the family should play in the upbringing of children and adolescents” (Tello, 2004). At the same time, a significant role was given to social work—with a strong female presence—since the decision of the juvenile and family judge had to depend on the information in the reports issued by these professionals (Salum & Salum, 2018). During this time, social work emerged as a mechanism of social control given that social work was linked to the social controls of poor and marginalized families, establishing a model to follow centered on strongly rooted the social norms and patriarchal family models of the time (Salum & Salum, 2018). In the 1970s, there was a trend in the profession toward paternalistic intervention that emphasized the social pathology associated with poverty and marginality, giving way to the institutionalization of juveniles in an irregular situation. As a result, juvenile internment measures in state protection institutions were often applied by the juvenile judge, supported by reports and social diagnoses prepared by justice system social workers. Many of these measures involved the uprooting of families and the institutionalization of children in the system because of structural situations such as poverty rather than because of rights violations, which translates into a double violation of rights. In this way, justice system social workers were effective instruments of applying the tutelary model of juvenile justice, neither stressing the system nor seeking explanations for social problems that went beyond the linear causality of the issues. These factors combined with the existence of a markedly traditional and patriarchal view of the concept of family, which was reinforced by the predominance of women who held the position of juvenile judge and the predominance of women who occupied positions as social workers, thus creating a female hegemony in this judicial system, with a marked emphasis on the “traditional family.” Thus, the figure of the family judge and the social worker appeared as subordinate and complimentary figures who functioned as social-control devices in matters of childhood and family. From 1973, at the beginning of the military dictatorship, until the beginning of the year 2000, there was a radical change in public social policy, promoting a subsidiary role for the state and privileging the market as the primary decision-making body for the allocation of resources and provision of services. The main characteristics of this change were as follows: the subordination of social policy objectives to the requirements of economic policy; the drastic reduction of public social spending in the areas of housing, health, and education; the transfer of functions and responsibilities to the municipalities and the private sector; and the introduction of demand-­ side subsidies. In childhood, this change implied a system of subsidies administered by the Servicio Nacional de Menores (SENAME), the privatization of SENAME centers to private institutions (reducing their functions), and a focusing of resources on juveniles who were indeed in irregular situations (Tello, 2004).

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Thus, during this period in sociolegal social work, there was no appropriation of methodologies that influenced the development of their methodologies and intervention instruments beyond the judicial social report, home visits, and technical reports were elaborated, which played significant roles in judge’s’ decisions. Even though in juvenile courts, there was predominantly casuistic professional attention, case and family attention and group and community attention were almost nonexistent. In the casework of sociolegal social workers, one of the main methods of practice was subordinated to the function of the judiciary, in which the social worker became an auxiliary of justice and a disciplinary device of social control, fulfilling within their practice a role of inspection, surveillance, and police investigator—translated into the phrase the “eyes and ears of the judge” (Salum & Salum, 2018). During this time, justice system social workers did not adopt the Anglo-Saxon trend of applying casework associated with systemic theories, instead moving away from the therapeutic conception of family problems. Thus, the methodological option adopted developed social diagnoses that were based on linear causal relationships, discarding the systemic view of explaining social and family phenomena. For decades, one of the main functions of justice system social workers was to conduct social diagnoses, instruments with which they explained to the judge the social situations of the individuals to whom the law was to be applied. This extensive experience was not catalyzed by the construction of specialized judicial diagnostic instruments, justice system social evaluation scales, or a scientific body of knowledge that would systematize the expertise and position it as an essential element in the development of the function of the juvenile justice system. As a result, the extensive knowledge, experience, and expertise that accumulated over decades did not translate into new scientific knowledge or into demonstrable or refutable scientific evidence, and they were not passed on to new generations of social workers, so these social workers were relegated to one small area of the justice system. At this stage, there was no place for judicial social workers in the new system of family and juvenile courts established in 2004 with Law N° 19,968 on family and juvenile courts, which did away with judicial social workers and replaced them with a collegiate body called a technical council. According to its functions and nature, this council allowed the family judge to take a holistic approach to the problems to be solved.

2.6 Fourth Stage: Integral Protection Doctrine and the Elimination of Justice System Social Workers in the Family Courts In 1990, Chile ratified the Convention of the Rights of the Child, which led to a change in the role of the state regarding children and adolescents, transforming it from a tutelary state into a state that guarantees rights, requiring that domestic

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legislation be based on the principles and rights of this convention. As a result, a new conception of childhood and children as subjects of rights, known as the Doctrine of the Integral Protection of Minors (Beloff, 2009; Turner, 2002), established the concept of vulnerability and created a new institutional framework, generating changes in public policy. In 2004, Chile reformed the juvenile and family judicial system in force in 1928 in response to the need to establish new judicial processes that were based on oral proceedings, which led to the creation of the current family courts, with the enactment of Law N° 19,968. Therefore, there was a drastic change in the family procedure, moving from a rigid system to a modern oral procedural system, with the influence of technology and involving the presence of new judicial operators. Under this law, the justice system social workers of the old system were replaced by a new figure: the technical council. Its introduction was based on the need for the judge to be advised from an interdisciplinary point of view, overcoming the linear perspective of the former professional social worker. In this way, the arguments for this elimination struck an irreparable blow to Chilean sociolegal social work and were reflected in the discussion of its draft law.

2.7 The Emergence of the Technical Council and Its Rationale in the Discussion of the Family Courts Law Project The Family Commission of the Chamber of Deputies in 1999 invited various people to present their points of view and observations on the initiative in the context of the reform of the family procedural system when the bill on the civil procedure on children and families was being discussed. In the debate, which gave rise to this new law, on the need for a specialized professional to accompany the judge in understanding social and family situations, judicial social workers did not appear as transcendental figures who should have had places in their own right in the new system, even though they were in the system for longer than seven decades. On the contrary, the argumentation was trivial, revolving around the number of positions and the functions to be performed, taking for granted their transfer into the new system. However, this never happened. Lawmakers didn’t realize that the new psychosocial doctrine questioned the position of judicial social workers and devalued their contribution to the development of the judicial function in family courts. Finally, this led the law to create a new figure that would guarantee an interdisciplinary perspective to provide better advice to the new family judges. In this debate, the participation of academia—which defended the role of the discipline—was minimal, with representatives of two private universities attending. The contribution of the state universities that had trained the justice system social workers for decades was not reflected. In terms of trade unions, only the

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participation of representatives of the National Association of Social Workers of the Judiciary was noted, thanks to the participation of representatives from the National Association of Social Workers of Judicial Administration (Cámara de Diputados, Boletín Número 2118-18, 1999). We should highlight how, in the discussion of legislation of such importance to the field of childhood, there was a notable absence of social work school representatives from state universities, social worker association representatives, and social worker experts in the field of childhood who could have made exhaustive reflections and disciplinary contributions that would have supported the role that the justice system social worker played for decades. The contributions of the representatives of the Association of Social Workers of Judicial Administration focused on (a) the number of social workers that would integrate into the technical councils; (b) the criteria to establish the number of social workers because at that time, there were between three and five professionals in each juvenile court; and (c) the role of the social workers in this new system (Cámara de Diputados, Boletín Número 2118-18, 1999, pp. 86–87). In this logic, the concern of the social workers of the Judicial Administration took for granted the continuity of social work in the new family courts, without making a disciplinary argument as to the need for these figures to remain. Their interest focused on the staffing of the new judiciary, which was a secondary design element in a project of the magnitude of a new family judiciary. Regarding the role of social workers, they pointed out the following: Many of the functions they perform today are not recognized in the law since Article 457 of the Organic Code of Courts limits their work to inform the courts about the social, economic, and environmental aspects required of them concerning the parties in litigation. Despite this, they perform functions of reception (general information), diagnosis, coordination with institutions and support networks outside the courts, orientation, support, control, and follow-up of cases, all of which should be included in the project, which also extends this work to advising the family judge in understanding the facts and situations that have caused the conflict or the irregular conduct of the individual. (Cámara de Diputados, Boletín Número 2118-18, 1999, p. 87)

In the second constitutional procedure of the bill in the Senate of the republic, the Constitution Commission Report of June 9, 2003, states that the Chilean Association of Social Assistants expressed its opinion, valuing the creation of the new courts and recognizing the contribution of mediation as a procedure for the extrajudicial resolution of conflicts. The contribution to the law project was based on the following factors: 1. The need to define the functions of the social workers who would integrate into the technical council and a resolution of the binding nature of the opinions of these professionals in the resolution of cases, because in Chile, 268 social workers were working in the juvenile, civil and civil courts or were attached to the courts, and in addition to their professional work, they were recognized as judicial experts and ministers of faith.

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2. The number of assistants, which in the project was not proportionally related to the increase in the number of judges, which could affect the efficiency and effectiveness of the activity of the new judiciary. 3. The definition of the number of social workers that each court would require to deal with the number of families assigned to its court. 4. The placement of social workers on the professional salary scale because their level of professional responsibility should bring their salaries back to the equivalence they had with the salaries of court clerks. 5. The social intervention they perform ensuring the theoretical and practical quality of their training and ethical performance given that postgraduate training is desirable. 6. The need for social workers to have adequate knowledge of social research that would allow them to systematize and evaluate the professional action of court social workers. However, these crucial aspects for the development of the discipline in the sociolegal field were not investigated into greater depth (Cámara de Diputados, Boletín Número 2118-18, 1999, pp. 823–825). All the above show the lack of a disciplinary analysis focused on professional intervention in the sociolegal field. In addition to the lack of a disciplinary, theoretical, and methodological project that social work could have contributed to in the new law, thanks to the expertise of social workers that had been acquired over decades, social workers would now share their roles with other technical advisors: psychologists and family counselors.

2.8 The Concept of “Psychosocial” Law N° 19,968 introduced the concept of the psychosocial to the family courts; the concept explains to the judge the problems to be solved and the characteristics of the parties and does so from an interdisciplinary and collegiate perspective, opening the judicial field to other professions, psychology among them. With the incorporation of the psychosocial perspective in the family judiciary, “it is understood that these courts are, in particular, micro-social spaces where cases converge that must be attended and resolved under the objectives of the family jurisdiction, responding to the complexity of these problems. Accordingly, these instances are established as interdisciplinary spaces to generate a complex, multidimensional understanding, and a comprehensive resolution of the cases” (Miranda et al., 2022, p. 272). In this way, the law established that any social science professional might become a technical advisor, preferably a social worker, psychologist, or family counselor, which would impact the profession.

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2.9 The Technical Council The technical council is an auxiliary body of the administration of justice, and it is composed of a number of professionals within the requirements established by the law, where its principal function is to advise, individually or collectively, judges with competence in family matters in the analysis and better understanding of the matters submitted to their knowledge, in the field of their specialty. Henríquez (2017) deepened this definition: A body, a structure composed of technical advisors, of a multidisciplinary nature, acting individually or jointly, as auxiliaries to the administration of justice, led by a coordinator, advising family judges, or managing the relationship with relevant actors of the network of intervention and psycho-socio-legal and health support in contact with the family court. (p. 135)

Article 457 of the Organic Code of Courts refers to the functions of the technical council, reiterating the tasks already established in Article 5 of Law N° 19,968, stating that “The technical councils are auxiliary bodies of the administration of justice, composed of professionals in the number and with the requirements established by law. Their function is to advise individually or collectively the judges with competence in family matters, in the analysis and better understanding of the matters submitted to their knowledge around their specialty.” By the provisions of the Organic Code of the Courts, Law N° 19,968, the judges’ committee, and a work plan, this body regulates its operation and is headed by a coordinator who acts as an official liaison with the presiding judge, the court administrator, and the judges’ committee. It is a space for reflection by the technical advisors when faced with complex cases or internal management problems. It is here that the collective action of the technical advisors is defined, and it consists of advising in the analysis and better understanding of the cases, based on the specialties of each of its members, acting in an multidisciplinary or interdisciplinary manner. Here, multidisciplinary refers to separately applying each discipline to the specific case, whereas interdisciplinarity refers to the joint and interrelated application of each discipline, in a complementary and harmonic manner, to the given case (Henríquez, 2017). The multidisciplinary characteristic of its composition is contained in the agreement act 93-2005, which in its third article indicates that the family courts must tend to the multidisciplinary integration of the technical councils, such that its conformation must include professionals from diverse disciplines. The definition of the functions of the technical council, and therefore of technical advisors, has been ambiguous. For this reason, the Supreme Court of Chile has issued Agreed Orders that have been expanding these functions, such as the following: • Agreement on the role and functions of the technical councils in the family courts, Act No. 93-2005. • Agreement that regulates the follow-up of internment measures and visits to residential centers by the family courts in coordination with the National Service for Minors and the Ministry of Justice, Act N°37-2014.

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• Agreement on the operation of the family courts, Act N°104-2005 (expands the functions of the technical councils). • Agreement on procedures in the courts that process with electronic files, Record N°91-2007 (admission of oral claims related to domestic violence and/or protection measures). • Agreement on management and administration in family courts, Act N° 98-2009 (an annual work plan of each court). • Procedures for Family Courts 2006 (the systematization of best practices of the family courts). In the new family judiciary, there is a formal definition of the technical council understood as a body; however, there is no formal definition of the technical counselor understood as a member of that body. There should be given that the two are not the same. Article 34 of Agreement 98-2009 defines it similarly to how it is defined in Article 457 of the Organic Code of the Courts. Henríquez (2017), though, developed a conceptualization of the technical advisor position: an assistant to the administration of justice, a professional social worker, family counselor or psychologist with accredited postgraduate training in child, adolescent and family matters, who performs advisory work for the family judge. This person is the public official who performs the individual function of technical advice and may act in a hearing or writing, issuing a professional opinion on a given matter and case. He/she is not an expert, since he/she does not develop expertise, nor does he/she make expert reports. She/he is not a party to the case since she/he assists the judge. She/he is not a judge either, since her/his opinions are not binding for the judge in the exercise of her/his jurisdiction. She/he is not a party, is not a judge, is not an expert, but her/his opinions may be considered by the judge. (Henríquez, 2017, p. 138)

According to the judicial branch, the technical advisor must carry out 16 functions: counseling, analysis, reviewing cases, evaluation, and coordination, among others (see Article 5 of Law N° 19,.968). Under this new scenario, the technical advisor has an advisory function for the judge, given that council members have no connection with the evidentiary activity in the process. In other words, they no longer produce reports or social diagnoses that influence the judge’s decision, as in the old model, because in this new model, the judge makes their decision on the basis of rational criticism. In this new scenario, the technical advisor can give their opinion in the hearings (preparatory hearing and trial hearing), can give their opinion outside the hearings, can recommend mediation or conciliation procedures, and plays the role of the coordinator and articulator of the social network in matters that might risk violating rights in cases involving children and adolescents. Miranda et al. (2022) pointed out that, in short, the technical advisor is a support to the judge that allows the technical advisor to organize litigation and to contribute to the assessment of evidence, but this intervening role now comes with a psychosocial orientation that diminishes the efficiency of an overdemanding system. In 2005, the nomenclature of the profession changed: the title of social worker would be used thanks to Law N° 20,054 of September 27, 2005, which restored the

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academic quality of the profession, and from this date, the universities would confer the title of social worker and the corresponding degree.

2.10 The Social Worker and Their Role as a Technical Advisor This collegiate instance of the technical advisor established in Law N° 19,968 of 2004 required the social worker to split to fulfill the role of technical advisor and their intervention criteria. This is fundamental to understand because, in this scenario, there is no social intervention in the form of social diagnoses, evaluations, or social reports produced within the court. As a result, the social intervention has been displaced to the social network, relying on social workers, especially in the health area, to make up for the absence of this figure in the court. In addition, the social worker as a technical advisor can request evaluations of habitual abuse and imminent risk as established in the Family Violence Law N° 20,066 and suggest precautionary measures for the protection and reparation of violated rights. In practice, new functions not described in the family courts law took over. These included obligatory visits to residential centers accompanying the family judge; interviews with the party before the hearing in search of conciliatory agreements; the registration and updating of children and adolescents’ admissions to residential centers; records of visits made by the judge; the preparation of files; and counseling. Even though these functions were not clearly described in the family courts law, this fact itself caused an overload of administrative work, resulting in a deterioration in the quality of the functions of the technical advisors and social workers. We can observe this in this new family judiciary—in how the specialized work and the professional hegemony that fundamentally consisted of the elaboration of diagnoses, evaluations, and social reports began to fade away. The new role of the social worker as technical advisor marked a significant milestone in justice system social work, as the exclusivity and hegemony that the profession held for decades was lost, and the presence of the judicial social worker as a fundamental official in this new judiciary disappeared. Thus, in 2005, the social worker disappeared as a relevant actor in the work of the courts. The disciplinary role was externally produced through the work of the social worker in charge of social expertise. In the new family courts, social expert opinions are similar to witness testimony and may be refuted by other expert opinions requested by the opposing party. In the preceding paragraphs, we noted that the family courts aimed at a multidisciplinary integration of the technical councils. Nicolescu (1998, p. 39) pointed out that “disciplinarity, multidisciplinary, interdisciplinary, and transdisciplinary are the four arrows of the same bow: that of knowledge.” Interdisciplinarity is an essential element in current scientific development. In this regard, Pérez and Setién (2008) stated that it is not feasible to conceive of an explanation of social problems from a

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scientific conception without the interaction of related disciplines. In this context, the design of family courts relies on interdisciplinarity. In this new scenario, the technical advisor social worker does exercise their professional competencies to advise the family judge, because they have not been able to develop the functions of disciplinary social work. They have not been able to delineate their path and have not designed methods or instruments for measurement and validation, and as a result, the praxis of the judicial social worker remains heterogeneous and discretionary. Finally, the reason for this lack of development is that, once again, the norm and the model of justice impose a route to be followed by sociolegal social work in the field of the court.

2.11 Conclusions Chilean sociolegal social work has followed an evolutionary route that goes from the beginnings of beneficence, transitions toward assistance, and finally arrives at professionalization. This evolution has been indelibly marked by the legal norm and by the models of justice. The beneficence model remained in Chile until 1911; the welfare model prevailed between 1911 and 1928; the irregular minority justice model ruled the period 1928–1990; and finally, the vulnerability model, based on the rights of the child and the “psychosocial” concept, began in 1990 and remains today. In the old system, social workers articulated the language of two worlds: the social world and the legal world, now that this field has been hegemonized by law. In this regard, the socio-legal field, its professional practices, and discourses are shaped from the legal norm, that is, from the Judiciary, from the professional agents of law and legal knowledge. The professional practice of social work in this field is predominantly demarcated, in terms of problems, occupied spaces, and theoretical and factual references, by the habitus of the legal field. That defines the forms of the professional approach to those same problems by social work. (Mitjavila et al., 2008, p. 156)

Although this is the place of sociolegal social work, the professionals of the former juvenile courts fail to recognize the importance of the intervention of court work. Thus, there is little or no systematization of these experiences of social workers in the former family courts in disciplinary studies. This resulted in a stagnation of social work as a discipline: they could not transcend or install themselves in the new procedure as essential operators, losing all influence on the judge’s resolution, while other disciplines set themselves up with batteries of instruments and protocols, such as in the case of psychology, but social work did not manage to do so. With the support of the interdisciplinary team, the new paradigm sought to include new approaches to integrate nonlegal dimensions into family decisions, including guidelines on how to resolve conflicts from a systemic perspective.

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The approach to vulnerability in justice served to support the modernization of management at the procedural level. However, psychosocial action did not modify the supply of justice but instead restricted it to comply with management objectives. Therefore, interdisciplinarity is considered a practical term and not an interventive basis for a new social role of justice for citizens (Miranda et al., 2022). Social workers became part of this logic as operators of justice in the judicial system’s efficient service, leaving behind their role as social intervenor, which was typical of the discipline’s origins. In the family courts, there are no specific positions for social workers. The intervention of the state in the field of childhood is fundamental to understanding the development of judicial social and legal social work. Paradoxically, although Chile ratified the Convention on the Rights of the Child, it took 25 years for the state to adapt its legislation and create family courts, and the violation of children’s rights continued. This could be one of the factors that contributed to the stagnation of the disciplinary practice of social work in the sociolegal field. At the beginning of sociolegal social work, Mary Richmond pointed out the following: We would probably all agree that tradition and precedent weigh down and block day-to-day actions to a greater extent in the courts than in hospitals. Both institutions, however, are under the control of long-established professions, to the extent that they are highly organized and class-conscious professions, so the social worker acting in hospitals or courts is at a slight disadvantage. It is essential, therefore, that social workers entering hospitals and courtrooms have a solid knowledge of social work principles and techniques beforehand. (Richmond (as cited in Soto, 2019))

As of 1917, Mary Richmond had already pointed out the fundamental need for social workers entering hospitals and courts to have solid prior knowledge of social work principles and techniques. In 2022, we could consider, in addition to this requirement, the fundamental need to empower ourselves in this profession, rethink our praxis, and reflect on the meaning and value of the interdisciplinary intervention that social work currently performs in the sociolegal area and in the judicial field. This is the challenge that the profession must face in the coming years.

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Chapter 3

The Role of Work Product Review and Consultancy in Forensic Social Work Larry Emil Alicea-Rodríguez

This chapter aims to approach the roles of consultant and work product reviewer in forensic practice. Mainly, review processes will be addressed. The available literature on the subject will be analyzed to propose a definition of this dimension of forensic practice. With this, it seeks to start a debate and professional conversation about the scope of these roles, offer some initial definitions, and develop preliminary guidelines on this forensic practice’s methodological and technical-operative aspects. It is recognized that the literature and research on the reviewer’s role are scarce. This chapter intends to start a dialogue that guides these forensic processes. Forensic social work is a specialized practice that involves the collection, analysis, and application of the best available knowledge in the profession to contextualize social situations at their intersections with legal and judicial systems (Alicea-Rodríguez, 2018). For Ponce de León (2012), the sociolegal action of social work can occur at any time in the legal or judicial process. Forensic activities can be carried out before, during, and after judicial proceedings (Ponce de León, 2012). The sociojuridical exercise must have a conclusion based on principles that support it and detail the technical operations carried out (Robles, 2013). Forensic evaluation is a part of a qualitative analysis beyond the description of the legal issue that goes into the production of people’s lives on the basis of using scientific knowledge and schemes (Robles, 2013).

L. E. Alicea-Rodríguez (*) Ana G. Méndez University, San Juan, Puerto Rico e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_3

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3.1 Temporary Scope of Forensic Roles By using the temporal scope proposed by Ponce de León (2012), it can be inferred that forensic roles are not limited to the formal evaluation of situations such as social security, housing, child custody, adoption, guardianship, juvenile justice, criminal prosecution, gender violence, and other issues. In all the phases of the judicial processes, different forensic roles can be performed outside the evaluative spectrum, including consulting roles, the provision of services, and the role of the reviewer, among others. Figure 3.1 shows several forensic roles developed in each phase of judicial and legal proceedings. In the prejudicial phase, a social worker can be an advisor to the judge, lawyers, and formulators of public policy in sociolegal issues inherent to the profession. Social workers in justice systems can consult and advise on situations of homeless people, migrants, problematic substance use, and gender issues, such as intervention in cases of gender violence or sensitivity to sex-diverse populations. In this same phase, it is possible to consult with lawyers and case parties about possible results of evaluation processes presumed to be ordered by the court when judicial action has been filed. The intervention phase during judicial proceedings can also have various dimensions. It is essential to be clear about the boundaries of these roles and their differentiations because the simultaneous performance of some of them can lead to conflicting roles outside the ethical contours of the profession. In court proceedings, forensic evaluations are ordered usually to assess social issues. The evaluator is regularly selected by the court to answer a question. Some evaluative questions could be: Did the sexual abuse occur or not? What protective capacity does a father or mother have in certain circumstances? How does the mental health situation identified in a participant affect the safety of their partner and children? What

Fig. 3.1  Temporary scope of forensic roles in judicial and legal proceedings, author’s creation

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elements in a young person’s social history are associated with the misdemeanor or crime charged in juvenile court? What resources are available to a person evicted by court order? Does shared custody operate in the child’s best interests in the legal dispute between the parents? What is the social capital that the family has? How does a parenting plan ensure the safety of a woman who has been a victim of domestic violence? What are the results of the services offered to a parent to strengthen their parenting skills? Which affirmative actions can be taken to guarantee the rights of a person experiencing a critical mental health situation? A forensic approach must be selected to answer the referral question, structure the intervention, and avoid professional bias. The social worker will always be guided by the profession’s ethics, even when the professional is hired by one of the parties involved in the litigation. Forensic methodology in social work and other disciplines related to human behavior assumes different approaches according to the type of evaluation being carried out. For this reason, it is common to find different guidelines informed by evidence and endorsed by professional organizations that help structure forensic evaluation processes. For example, in evaluating allegations of child sexual abuse, the process may begin with extensive collateral interviews, an exhaustive review of documents, case discussions with multidisciplinary teams, and other tasks, before interviewing the alleged victim. In other forensic evaluations, the interview of the evaluated person may occur first in the process. The process that establishes guidelines for forensic evaluations is known as the standards approach. The genesis of the standards approach is in child social protection and sexual abuse procedures. Their focus is on developing protocols and guidelines informed by best practices. These approaches recommend guidelines to structure forensic evaluation processes (Faller, 2007; Kuehnle, 1996) and suggest training requirements, the format of the evaluation process, ethical aspects, record management, and sometimes suggestions for structuring the interviews. Without being a straitjacket, these documents allow forensic evaluators to have a base endorsed by the professional community to support their work. When the guidelines are used and applied correctly, the experts have a solid methodological basis on which their opinion rests. Some of the normative approaches for different forensic scenarios are as follows: Guidelines for the Evaluation of Parenting Plans in Family Law Cases of the Association of Family Courts and Conciliations (Association of Family and Conciliation Courts, 2022); Forensic Mental Health Evaluations When Child Maltreatment Is at Issue (American Professional Society on the Abuse of Children, 2022); Guidelines for Examining Intimate Partner Violence (Association of Family and Conciliation Courts, 2016), and Forensic Social Work Practice Standards: Definition and Specification (Munson, 2011). The standards approach helps the professional to structure the evaluation process. However, they are not enough. After the evaluation, the forensic social worker needs to analyze the data to make a conclusion and recommendations. The indicator approach component makes it possible and complements it. On the one hand, it helps to differentiate specific aspects that the evaluation measures (Faller, 2007; Kuehnle, 1996). Some of the aspects that can be analyzed or identified in forensic

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processes in social work can be protective capacities, criteria for determining the veracity of a sexual abuse allegation, risk factors, parenting capacities, results of the rehabilitation process, contraindications, special needs, diagnoses, antecedents, milestones in social history, factors of oppression, and elements of intersectionality, among others. On the other hand, using the indicators approach in forensic evaluations is equivalent to the theoretical triangulation process in qualitative research. Theoretical triangulation implies an analysis of the data with literature, theories, and best practices related to the allegations that arise in the case given that there are different theories to explain phenomena (Flick, 2018). Using the indicators approach allows the forensic social worker to consult best practices and be informed thanks to the available evidence on the issues they are evaluating. Part of the forensic literature that gives us indicator approaches in cases of sexual abuse is the framework of criteria to evaluate the veracity of a complaint of child sexual abuse proposed by Faller in 1993 (Kuehnle, 1996). For the evaluation of parenting plans in child custody cases, decisional trees are used, among other methods (Drozd et al., 2013, 2022). There also exist indicator approaches for forensic social work in cases of domestic violence (Pennell, 2018) and with people who have problematic substance use in co-occurrence with mental health problems (Morgen & Denison-Vesel, 2018) and for work with populations in the criminal justice system (Patterson, 2020). In these cases, the social worker must have knowledge of, training in, guidelines on, and experience in the subject on which they provide expert services. Most social work ethics codes in Latin American countries have a canon that addresses professional qualifications. In the United States, qualifications are addressed through the canon of competencies. The indicator approach is an excellent path to fulfilling ethical standards. Finally, in the judicial phase, expert testimony is presented by the social worker during the hearings established by the court. Also, experts hired by parties to advise the lawyers or to challenge the forensic evaluators may be included in these procedures. Forensic social workers in the post-legal process phases may exercise counseling and therapy roles subject to follow-up on court orders or case dispositions. Case management and follow-up activities can be part of social work roles after the judicial processes have finished. In all the phases, it is imperative that the social work professional carry out an ethical practice based on knowledge in harmony with the profession’s principles. Each professional must have a conceptual and theoretical base to explain the problems that they advise or evaluate. For forensic social work, a knowledge base is needed that starts from social justice, human rights, diversities, and multiculturalism (Barbera, 2018) and adds an understanding of the inequalities that the justice system can produce based on an analysis of the structures of power and their effects on individuals and groups (Maschi & Leibowitz, 2018). Forensic practice must be informed by the evidence and the best available research (Grady et  al., 2018), with a gender approach (Turner, 2018), working from intersectoral components (Fitzpatrick et al., 2018). The skills of collaborating and working in multidisciplinary teams is another essential component of forensic practice (Dickie & Maschi, 2018).

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3.2 Role of Consultant-Reviewer in Forensic Practice Consultant Role  The role of a consultant is performed when a social worker is hired by a justice system official, the public prosecutor’s office, or lawyers, to advise about the management of the social issues and processes of a legal case. This professional recommends services needed by people subject to legal proceedings. Another service that can be provided is advising about the strengths, challenges, and errors of forensic assessments performed by other professionals. In the litigation process, a consultant helps the legal team develop strategies to use in judicial processes or promote extrajudicial solutions. In addition, a social worker in this role can assist in evidence discovery processes and advise on depositions. The consultant also helps the legal representatives prepare the parties for the evaluation process, educate them on specialized issues, and prepare people who testify in court. In this role, the professional also assists attorneys in managing participants stressed by court proceedings (Mann & Roberts, 2022). The work as a product of this role requires confidentiality between the parties as long as it has not been announced as testimony in the case (Austin et al., 2011a). For example, an experienced substance use forensic social worker may advise an attorney on what services a person needs to reach a plea deal or order appropriate treatment after a sentence has been established. An experienced domestic violence social worker can advise a party on whether the services the abuser received promote the victim’s safety. An expert in the condition of autism can report in a child custody lawsuit what type of parenting plan promotes the best welfare of the child. The social work forensic consultant can also provide opinions on any forensic assessment within their area of expertise (Gould et al., 2011; Deutsch et al., 2011). In those cases, the professional can help attorneys to prepare direct examination and cross-examination in court proceedings. Among other roles, the consultant can attend the hearing and collaborate with the lawyers by listening to witnesses’ and experts’ testimony, proposing questions, and suggesting specific actions on the basis of using their knowledge. Reviewer Role  The reviewer is presented to render an opinion about the quality of the forensic assessment carried out by another social worker. This professional often issues a report and gives an expert opinion on their work. Also, it is expected that the work product reviewer must render an objective analysis of the evaluation carried out by another professional, indicating their strengths, errors, and weaknesses. Once the review is done, the parties decide whether they will use this reviewer as a witness during the legal proceedings. Usually, when an expert evaluation is presented, the lawyers have access to it and make decisions to accept it or challenge it entirely or partially. The court gives the parties time to announce their position. If one disagrees, one often challenges the assessment (Alicea-Rodríguez, 2021). Challenge is a process seen as the right of the parties to formulate or provide evidence that distorts the content of a document that is adverse to them (Lluch, 2019). An expert reviewer can be one of the evidence

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mechanisms used by the parties for the challenge processes. However, the role of this professional is exclusively for review. The challenge process is broader than a review and is carried out by the lawyer with other evidence. Finally, the judge decides whether the evaluation has been challenged. The work product review is not a new evaluation (Austin et al., 2011a, b). It is unnecessary and not recommended for this professional to contact the parties in the dispute, as this contact may affect the objectivity expected of forensic review processes. The revision work is expected to focus exclusively on the evaluation carried out by another professional (Association of Family and Conciliation Courts, 2006). Any new information received by the parties could turn the reviewer into a one-­ sided evaluator (Gould-Saltman, 2011). For Gould-Saltman (2011), the one-sided evaluator has little validity because they do not have all the data that the evaluator who analyzed the parties had. Avoiding re-evaluations, mainly when what is intended to be re-evaluated are aspects related to people who have suffered violence or childhood custody disputes, is part of guaranteeing these populations’ rights. Unless it is shown in the challenge proceedings that there is a clear need for reassessment because the evaluation has fatal flaws that mislead the court, duplications of these assessments should be avoided. Reviewers should be prohibited from conducting interviews and processes that repeat the forensic evaluation. Their review work does not make it necessary to repeat the evaluation process. They are two roles. Precisely, the challenge process will show whether it is necessary to correct issues in the evaluation or whether the judges believe that they have other evidence that allows them to make decisions in the case. When a reviewer is used as a consultant, their review work must be done first. After their expert conclusion of the review has been made, they can advise and consult on aspects of the case. File management is critical in these cases. The record must show that the review process was conducted objectively. The consultant and the reviewer are separate roles but may be performed simultaneously on a case, as long as ethics are followed. Usually, these professionals are hired by one of the parties in a legal case. Therefore, many believe that this is a professional with a biased position that favors the party that hires them. However, this goes against professional ethics. It does not matter whether the reviewer is hired by one of the parties. The social worker’s responsibility in forensic roles is to develop conclusions that are based on professional autonomy without interference from any parties. The expert judgment of the forensic social worker must always be the result of the theoretical-­methodological and technical-operative scheme they apply to their professional intervention. Sometimes, the social worker will be in a position contrary to the hiring parties. They may also enter into contradictions with the justice system and at the level of certainty aspired by the courts. Judicial forums tend to adjudicate on the basis of the evidence they have before their consideration. In human dynamics analysis and most social work assessments, obtaining evidence that meets those standards is complicated and sometimes impossible. The justice system may be looking to determine whether a person is guilty of a crime. However, in their analysis, the forensic social worker identifies all the social factors that influenced this person’s social history and all the structural and oppressive elements associated

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with the criminalization of vulnerable people. Both are in the legal system, but the perspective of social work is different and more complex. The role of the reviewer has been frequently discussed in forensic evaluations of parenting plans in child custody proceedings (Austin et  al., 2011a, b; Bow & Quinnell, 2004; Brodsky et al., 2010; Deutsch et al., 2011; Gould et al., 2004, 2011; Gould & Martindale, 2008; Gould-Saltman, 2011; Kaufman & Lee, 2011; Kirkpatrick et  al., 2011; Margaret Lee & Nachlis, 2011; Martindale, 2007; Martindale & Gould, 2004). The works of these authors present debates on this expert role and the scope of this forensic process. One of the agreements of most authors is the prohibition of having contact with the parties of the evaluation or discussing the case before the reviewer report has been made. An important debate about the reviewers’ work lies in the data that can be considered. The cited authors agree that the evaluation report and the assessment file are the primary working material that the reviewer will use. However, some jurisdictions, such as Puerto Rico, do not allow access to the evaluator’s file. This group of authors also agree that new data provided by the parties should not be received. A debate where they have different positions is the number of new data the reviewer can obtain independently. An example of this debate is when information is open and available on the Internet or in databases that the evaluator did not review, and the expert reviewer has access to that data. Other new data may be information available in the court file, reports, or assessments that the evaluator used but left data out of their report. Some authors understand that such data may be relevant to the review process and be brought in ethical form (Gould et al., 2004; Kirkpatrick et al., 2011). In a hypothetical case, the evaluator in a child relocation case may not have reviewed the relocating parent’s proposed school rankings. That school’s data are openly available in Internet databases. The reviewer can identify these data and bring them as examples of available information that the evaluator did not use. The absence of these data can lead to fatal errors that mislead the court. The reviewer can bring in those openly available data that the evaluator did not bring into their evaluation. Austin et al. (2011a, b) developed a guide for reviewing cases of parenting plan evaluations in custody disputes based on questions answered by the reviewing professional. They created 23 questions aimed at verifying whether the referred question was responded to, consideration of hypotheses, the ethical handling of the case, the sufficiency of the data, the use of social research, the presence of biases, any discussion of substantive issues of the case, the qualifications of the evaluator, and the use of forensic models and conceptual approaches, among others. Another model developed for custody evaluations is Wittmann’s (2013a, b), which is based on an analysis of the management of professional relationships, the adequacy of data, the evaluation of techniques, and expert reasoning. For each of those areas, he presented suggestions for reviewing the quality of the assessments. As discussed throughout this section, forensic social workers must be clear about their role. In the forensic evaluation role, the professional must avoid the duality of roles and not compromise the objectivity that is aspired to in these processes. Objectivity should never be understood as neutrality. In the forensic field, it implies a position where the social worker remains faithful to their professional autonomy

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Fig. 3.2  Evaluator, consultant, and work product reviewer roles in forensic social work practice, author’s creation

and does not allow pressures to interfere with their judgment. Social work is an ideological profession with a firm commitment to social justice, human rights, and the freedom of people and countries by following strong emancipatory and counter-­ hegemonic principles. Finally, the role of the consultant can be performed independently or jointly with that of the reviewer as long as the review process has been completed. The role of the consultant should not be exercised at the same time as that of the reviewer. Once the review has been completed, the party can be consulted. The review process must be independent and free from the pressure that undermines the professional’s judgment. Figure 3.2 summarizes the different expert roles that have been explained.

3.3 Review Processes The work product review must include activities that protect objectivity and ethics before, during, and after the forensic process. Below are some recommendations to structure the expert review process. Processes Before the Review  First of all, the expert reviewer must have a hiring process. It is recommended that the professional hold a meeting with the lawyer in the case to explain the process, agree on fees, and sign the contract. In this process,

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the reviewer must explain to the lawyer their expert role and their limitations in the process. Some attorneys expect the social worker to perform evaluation activities such as reinterviewing the parties, reinterviewing collaterals, or receiving new documents. Others expect the reviewer to receive information about events that occurred after the assessment had been performed. In this process, it should be made clear that the evaluation captures a particular moment in the history of the people evaluated, and they reflect on what happened at that moment (Gould et al., 2004). In a review process, new information provided by lawyers or case litigants is not part of the analysis data for the reviewer job. It is essential in confidential cases that the reviewer not have contact with the reports and evaluations until authorized by the court. Cases of abuse, domestic violence, sexual assault, child custody, and others require confidential handling. Below is a list of aspects that must be clarified in the contracting procedures: 1. Include an informed consent clause specifying the work to be carried out. Some suggestions are an explanation of the intervention, activities that are expected to be carried out, and the final product of the review. 2. Make clear that the review process is not a second evaluation. 3. Clarify in the contract the ethical guidelines used for the work. The professional must be subject to ethical regulations by the examining boards that regulate social work in their jurisdiction or by professional colleges and associations with professional oversight functions. 4. Detail the regulatory approaches that apply to the situation and that will guide the expert review. On this, it is essential to include limitations established by law, professional ethics, or specific processes that require the approaches of standards and indicators that are applied. 5. Specify that professional communications in the review process will be exclusive to legal advisors and that no information will be received from the party. 6. Document how the review process outcome will be reported. Once the expert has their review, they must inform the party of their conclusions and opinions on the strengths and weaknesses of the evaluation process. 7. If the professional is expected to assume consulting roles after the review, it should be specified that consultations will not occur until the review has been completed. Detail what the consultation process may include after their review (meetings, preparation of legal documents, attendance at depositions, attendance at hearings, or any other activity for the consultation process). 8. Anticipate the possible conclusions of a review process. The professional can conclude that the evaluation has been carried out correctly. Another conclusion is that the evaluation has some errors but that the decision is still correct. In addition, the reviewer may figure that there are missing data that do not support the conclusion. Also, the review process can find that methodological or operational technical flaws invalidate the conclusion. One area of a possible conclusion is the possibility of finding biases that impact the objectivity of the process and, therefore, the quality of the conclusion. Another factor related to the ­findings could be that data were collected correctly but that the triangulation of

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these data with specialized literature on the subject should lead to another conclusion. The reviewer must refrain from drawing conclusions not supported by the case data. For example, the reviewer may state that the conclusion should differ from the data collected. However, when the review process indicates that there were insufficient data or that there were methodological and operational technical flaws, the reviewer may not be conclusive, because they would be making the same mistake of giving an opinion without complete data. The reviewer should recommend that the identified flaws be corrected in those cases. Pointing this out is essential in the hiring process so that lawyers do not have incorrect expectations about the scope of the review work. 9. Include a professional autonomy clause that details that the work is not committed to the contracting party and that the conclusions of the review process will be the results of the standards and indicators approach applied in the case. 10. Include in the contract any possible conflict of interest that invalidates the expert reviewer. 11. Include a clause on issues of retainer handling, fees, and how billing will take place. 12. Describe how the delivery of documents needed for review will be coordinated. 13. Be clear on any limitations on confidentiality that apply to the reviewer’s forensic role.

3.4 The Review Processes The review process begins with the authorization of the professional’s intervention in the case. It is recommended to start with a critical reading of the evaluation report. The review process must be structured. In that first critical reading, taking notes and classifying the information is recommended. One approach for a structured information gathering process is the comprehensive model (Faller & Everson, 2012; Intebi, 2011); another is the forensic model (Martindale & Gould, 2004). These are two of the many models for systemic information gathering. The comprehensive model makes it possible to identify the data collected from multiple information sources and separate the case’s allegations. From these data, various hypotheses must emerge that elaborate alternative explanations to the evaluation questions that arise in the case. Next, the model seeks that each allegation has independent corroboration sources (Faller & Everson, 2012). For review processes, the comprehensive or systemic analysis model helps to organize the case data and identify whether the quality and quantity of information necessary to support the conclusion exists. Once these data are available, the reviewer can develop opinions on the following areas: 1. Evaluator qualifications 2. The quantity and quality of the data collected

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3. The management of hypotheses and research questions 4. Bias 5. Ethics 6. Methodological, evaluators, and theory triangulation 7. Conclusions 8. Recommendations Suggestions for analyzing each of the eight proposed areas are presented below. In each of them, a series of questions will be shown that will allow the structuring of the expert review process to render an opinion on the quality of the evaluation process. Figure 3.3 presents a panoramic view of all the areas that could be addressed during the expert review. Evaluator Qualifications  Usually, these qualifications are obtained from the study of the curriculum vitae, the processes of discovery of evidence, and the expert qualification or voir dire (Boals & Lubet, 2020; Dowben, 2000; Postal, 2022; Stern, 1997). As part of the review, it is possible to analyze the evaluator’s qualifications, if available. Here is a guide on questions to structure the review on qualifications: 1. Is the evaluator licensed and authorized to practice the profession in their jurisdiction? 2. Is the evaluator up to date with legally required professional credentials, such as continuing education? 3. Does the evaluator have specialized training or certifications? 4. If the evaluator does not have professional training or certifications, was the review supervised or did it receive peer consultation by a person with professional training?

Fig. 3.3  Areas of revision in work product review role, author’s creation

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5. Does the evaluator have enough experience to perform the assessment? 6. If the evaluator does not have the experience, was the review supervised or did it receive peer consultation by a person with sufficient experience? 7. Does the evaluator have training in the methodological or operational technical aspects necessary to conduct the evaluation? Training topics include forensic interviews, development, special conditions or needs, and handling evidence. 8. Does the evaluator have training on the laws and jurisprudence applicable to the forensic evaluation that they perform? 9. Can the evaluator’s professional credentials be verified? Quantity and Quality of Data Collected  Collecting data from multiple sources of balanced information and consulting with the parties are essential in the forensic evaluation process. Lacking sufficient data undermines the quality of the expert conclusion in any evaluation. Good data collection helps avoid confirmatory bias and anchoring. Confirmatory biases are characterized by collecting and considering data that favor one hypothesis while ignoring data and information that lead to other hypotheses and conclusions (Garber, 2020; Stahl, 2011; Stahl & Stahl, 2018). Anchorage is characterized by favoring a single topic while ignoring others and by overgeneralizing or minimizing on the basis of an exclusive aspect. Below are several questions to guide the reviewer’s analysis of the evaluation data: 1. Were the data sufficient in quantity and quality to either confirm or rule out each possible hypothesis in the evaluation? 2. Was each party interviewed and allowed to show evidence of their allegations? 3. Does the evaluator request from each party the information and documents necessary to verify the allegations? 4. Was each party allowed to react to information against them presented by another party or raised during the process to obtain their opinion or identify material that refutes the allegations against them? 5. Were the necessary collaterals interviewed according to the type of evaluation required? For example, was the community visited in a case of domestic violence? Were the children interviewed? Was the psychologist or clinical social worker who provided services to the aggressor interviewed? Was the police officer who investigated the case interviewed? In a problematic substance use case, was the treating professional interviewed? Was the professional who conducted the substance evaluations interviewed? Were the doctors who treated the person during hospitalization interviewed? Were family members or witnesses to substance use interviewed? 6. Were enough questions asked of collateral professionals, family members, or the community that would allow the collection of data pertinent to the evaluation? 7. Was all the documentary evidence related to the allegations in the case requested and reviewed, including, but not limited to, reports from other professionals, court records, complaints, protection orders, texts, emails, videos, hospitalization records, pharmacology documentation, medical records, and treatment records, among others?

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8. Were specialized evaluations on topics outside the evaluator’s expertise identified and referred to, and were these conclusions of the professionals discussed? 9. Is the information organized in a structured way, and does it allow the allegations to be identified and the process followed to corroborate the data provided by the parties? 10. Can the reviewer identify how the evaluator assigned a weight to each piece of information? Management of Hypotheses and Evaluation Questions  The hypotheses are required as part of the forensic evaluation processes in different areas of intervention (American Professional Society on the Abuse of Children, 2022; Fuhrman & Zibbell, 2012; Association of Family and Conciliation Courts, 2022). Apart from the hypotheses, the evaluator must answer the evaluative question. Below are some recommendations for the process of reviewing the hypotheses. 1. Have all the main and alternative hypotheses been evaluated to consider all possible explanations for the referral question? 2. Are the hypotheses included in the corroboration process, and are they endorsed by the case data? 3. Has the court’s evaluation question been answered? Biases or Prejudices  Biases are a human predisposition to confirm what one wants to see and hear (Garber et  al., 2022). According to the position of this group of authors, the presence of biases undermines the evaluator’s need to remain open-­ minded during the forensic process. For other authors (Robb, 2006), the biases are based on prejudices and have systematic errors of judgment. Robb (2006) states that some evaluators engage in anchorage, where they have an initial idea and then everything that is sought and achieved in the evaluation is interpreted through that initial impression. Impressions based on early data produce initial inaccuracies that cause later information to be rejected or not all information to be reviewed. Biases are counteracted by collecting information in a structured manner and seeking the best available data from collateral and other sources to validate the information. Finally, these other authors expressed the importance of considering hypotheses that encompass all possible alternatives to the evaluator’s impressions (Robb, 2006). Confirmatory biases may exist because of a preconceived idea of the evaluator that leads them to look for data that favor that idea and reject data and information that contraindicate it. There may be gender bias. These biases are based on stigmas, stereotypes, and prejudices about social constructions and impositions centered on people based on their birth sex. For example, a typical gender bias is that women should be in charge of parenting and are naturally better at caregiving tasks than men are. There are biases in the use of literature, where literature that favors a single point of view is chosen, and other literature is discarded. In this bias, frequently, literature is used out of context. On some occasions, these biases cause people to use information from sources that do not have a peer review or are from people who lobby in

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their writings for particular points of view that are not supported by professional knowledge. Here is a guide to reviewing bias in a forensic evaluation: 1. Was all necessary information solicited and balanced by allowing rebuttals from affected parties, and were external sources of corroboration sought? 2. Does the analysis reflect the evaluator’s affiliation with a particular idea without foundation in the data or the scientific literature? 3. Does the evaluator focus on one topic and ignore others necessary in the evaluation process? 4. Are there prejudiced or discriminatory ideas toward oppressed groups such as women, children, elderly people, LGBTIQQ+ populations, low-income people, people with disabilities, people of color, or any other group subjected to a structure of oppression? Ethics  Ethics is essential in forensic processes because it forces professional activities to be based on the profession’s philosophical foundations and general principles and not on the adversarial dynamics of judicial procedures. The social work professional in forensic functions must move away from the adversarial model that characterizes most legal actions that, far from seeking the solution to conflicts, seem to promote it (Alicea-Rodríguez, 2021). Here are some recommendations for evaluating compliance with ethical standards: 1. Did the evaluator develop their intervention on the basis of their code of ethics? 2. Did the evaluator engage in any conflicting role? 3. Did the evaluator adequately manage their professional relationship with the parties subject to the evaluation? 4. Did the evaluator demonstrate professional qualifications and competence in professional performance? Triangulation of Evaluators, Methodological and Theoretical  Triangulation is a methodology used to observe research—in this case, evaluations—from different points of view so that events and descriptions reported in a study can be corroborated. For the social sciences, triangulation in research includes using multiple data sources, theories, or research. It is used not to confirm the existence of truth but rather to observe from various perspectives and develop a deeper understanding from the perspective of different investigations (Grant, 2019). In the investigation of the phenomena, Grant (2019) establishes that it is necessary to consider the contextual variations of the behavior of phenomena and people and to have perspectives that explain to us what we are observing. For the forensic scenario, triangulation implies collecting the facts of the case necessary to explain and answer the research questions that motivate the expert investigation and then integrating these with the laws and jurisprudence and with the scientific literature (Alicea-Rodríguez, 2018). The objective of triangulation is that the information obtained can be presented and seen from different angles to reduce the prejudices that are held when an issue is seen from a single perspective

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(Santos et al., 2020). Triangulation allows for observing the same matter from different observers, correcting the subjective prejudices that arise in human dynamics (Flick, 2021). Instead of including the look of the person who evaluates, triangulation allows for obtaining multiple looks, building a more profound understanding (Grant, 2019). Triangulation relies mainly on various types of corroboration, which can be data between evaluators, theories, or methods (Yin, 2018). In the first place, the corroboration of data provided by the parties in the forensic report implies that there had to be independent corroboration of the allegations outlined in the report. In any investigation, it is necessary to particularize the data because there is no universally accepted way to collect data (Fusch et al., 2018). This group of authors states that having multiple data sources helps build trust in the data. The triangulation of evaluators seeks consensus and comparative work between people, evaluators, and researchers who have had contact with a case (Flick, 2018). The triangulation of methods seeks to ensure that the techniques, questions, and activities used in the investigation are carried out appropriately and that reliable processes are used. In it, the person who investigates or evaluates a social phenomenon is desired to maintain a continuous and critical analysis of the methods used to approach them. The triangulation of methods is based on the research question (Flick, 2018). In forensic cases the research question is in the referral made by the court. What the evaluator wants to investigate might require taking different methodological approaches. This type of triangulation helps to minimize the prejudices and biases of the person conducting the research (Fusch et al., 2018). Theoretical triangulation implies an analysis of the data with peer review literature, research, theories, and best practices related to the issues that arise in the case given that there are different theories to explain phenomena (Flick, 2018). Finally, evaluators triangulate review assessments made on the case by other professionals and explore their impact on current issues and how the situation has changed since that assessment. Below are some recommendations to review the triangulation of evaluators and the methods carried out by the evaluator and the theories they relied on: 1. Were previous evaluations carried out in the case on the same matter considered and given weight in the expert analysis? For example, in a case where the last review had recommended that an offender receive services, the new evaluation should investigate whether those services were received. Similarly, interview the providers of those services. If changes have occurred from one assessment to another, the providers should explain the changes in the context of the previous evaluation. 2. Have all the evaluations necessary to complete the forensic analysis been performed? For example, if there is an allegation of substance use, did a substance use specialist conduct an assessment, and were aspects of their findings relevant to the case discussed with that specialist? 3. Was a peer-reviewed standards or rules approach used to structure the assessment process?

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4. Was that standards approach applied appropriately? 5. Were the best methods and techniques used for the type of forensic evaluation performed? 6. Were the best methods and techniques for forensic evaluation used appropriately and correctly? For example, were forensic interview rules for children used? Was a comparison of memory sources carried out? Were developmentally appropriate questions asked? In a custody case, were several interviews conducted with the children involved in the case brought by different parents? Do and of the conclusions and generalizations drawn from the observed dynamics contradict other data in the case? Was recent, peer-reviewed professional literature used to support the evaluation processes and explain the specific issues in the case? 7. Is the research used for the theoretical triangulation applicable to the facts of the case? We must be careful because the analysis could be carried out in different contexts or with diverse populations to which it is intended to apply in the evaluations (Association of Family and Conciliation Courts, 2018). Findings from such investigations in other contexts should not be used to reach conclusions in a forensic evaluation. 8. Was one of the points of a debate the author addressed in professional writing included as an author’s position? There is scientific literature that highlights debates on a topic. Using a position in the discussion that the author does not share, as the author’s position, is a contraindication for forensic evaluations. When there were controversial issues and debates about topics, were these debates presented? 9. When citing research, were the limitations of that research presented when they may affect its use in the evaluative process?

3.5 Conclusions The conclusion is the process of determining which of the hypotheses is sustained. This process provides the basis for evaluation recommendations. Conclusions are usually brief but should have a succinct narrative that places the reader of the evaluation in the context that was considered in arriving at that opinion. Suggestions for reviewing the findings are presented below: 1. Is the conclusion supported by an adequate process of data, methods, evaluations, and theory triangulation? 2. Were the data collected correctly, but the analysis according to the theoretical triangulation should have led to another conclusion? 3. Were indicator approaches used to assess the specialized topics of the evaluation, and did they substantiate the conclusions?

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3.6 Recommendations The recommendations must address all activities necessary to prevent relitigation in the case. They must be based on the conclusions and, if possible, justified and supported by the professional literature. Here are some suggested questions to review the recommendations: 1. Are the recommendations consistent with the conclusions, and do they give alternatives to the referral question? 2. Does the scientific literature support the recommendations? 3. Do the recommendations address security aspects for the parties in the case? For example, security plans may be needed for people who feel threatened by a person’s release from jail. 4. Were recommendations followed for specialized topics such as problematic substance use, domestic violence, sexual abuse, and others? For example, in cases of the sexual abuse of children, it is not recommended that victims have direct or indirect contact with their alleged aggressor. In proven cases of domestic violence, shared custody is contraindicated.

3.7 Final Thoughts Review and consultation roles in forensic social work can be viewed as an emerging role or subspecialization of forensic practice. These roles must begin to be discussed and studied because their use is part of the due process of law. In these roles, expert reviewers and consultants must be prevented from entering into a litigious environment that promotes conflict. Similarly, it is essential to point out and avoid promoting the injustices that can occur in judicial contexts, specifically in criminal law. The reviewer’s commitment is to the ethics of the social work profession. In the review work, is essential to point out when the evaluative work has been carried out acceptably. Also, the fact that errors have been found does not mean that the evaluative expert work is invalid. The reviewer’s role must distinguish errors in evaluation from those that are fatal and could lead to miscarriages of justice. There is a need to carry out studies and promote professional dialogues that can provide specific contours to this practice and protect forensic practitioners dedicated to it. It is hoped that this work initiates a professional discussion that allows for the elaboration of more information and knowledge about this practice. The experts used in review processes are necessary as part of the due process of law and are essential to the right of access to justice. Meaningful conversations about the cost of these practices, their accessibility to impoverished sectors, and the development of guidelines remain pending.

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References Alicea Rodríguez, L. (2018). Trabajo social forense en latinoamérica y el caribe: Una mirada al ejercicio profesional en el campo jurídico. In E. Pastor, C. Verde, & A. Lima (Eds.), El trabajo social ante los desafíos del Siglo XXI desde una perspectiva iberoamericana (pp. 267–278). Thomson Reuters-Aranzadi. Alicea-Rodríguez, L. E. (2021). Shared custody: A critical analysis of the discourses of the court of appeals in the child custody adjudication processes of law 223 of 2011. Doctoral dissertation. Available from ProQuest Dissertations & Theses Global. (2626931415). Retrieved from https:// www.proquest.com/dissertations-­theses/shared-­custody-­critical-­analysis-­discourses-­court/ docview/2626931415/se-­2 American Professional Society on the Abuse of Children. (2022). Forensic mental health evaluations when child maltreatment is at issue. Retrieved from https://www.apsac.org/guidelines Association of Family and Conciliation Courts. (2006). Model standards of practice for child custody evaluations. Retrieved from https://www.afccnet.org/Portals/0/Committees/ ModelStdsChildCustodyEvalSept2006.pdf Association of Family and Conciliation Courts. (2016). Guidelines for examining intimate partner violence: A supplement to the AFCC model standards of practice for child custody evaluation. Retrieved from https://www.afccnet.org/Portals/0/Committees/Guidelines%20for%20 Examining%20Intimate%20Partner%20Violence.pdf?ver=2016-­05-­16-­183725-­603 Association of Family and Conciliation Courts. (2018). Guidelines for the use of social science research in family law. Retrieved from: https://www.afccnet.org/Portals/0/PDF/AFCC%20 Guidelines%20for%20the%20Use%20of%20Social%20Science%20Research%20in%20 Family%20Law%20(1).pdf?ver=GO_nGCdSk6NYfKFiCGGkpg%3D%3D Association of Family and Conciliation Courts. (2022). Guidelines for parenting plan evaluations in family law cases. Retrieved from: www.afccnet.org Austin, W. G., Dale, M. D., Kirkpatrick, H. D., & Flens, J. R. (2011a). Forensic expert roles and services in child custody litigation: Work product review and case consultation. Journal of Child Custody, 8(1–2), 47–83. https://doi.org/10.1080/15379418.2010.547444 Austin, W. G., Kirkpatrick, H. D., & Flens, J. R. (2011b). The emerging forensic role for work product review and case analysis in child access and parenting plan disputes. Family Court Review, 49(4), 737–749. Barbera, R. (2018). Human rights: Some implications for social work. In T. Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (2nd ed., pp. 50–61). Springer. Boals, E., & Lubet, S. (2020). Expert testimony: A guide for expert witnesses and the lawyers who examine them (4th ed.). National Institute from Trial Advocacy. Bow, J. N., & Quinnell, F. A. (2004). Critique of child custody evaluations by the legal profession. Family Court Review, 42(1), 115–127. https://doi.org/10.1177/1531244504421009 Brodsky, S. L., Griffin, M. P., & Cramer, R. J. (2010). The Witness Credibility Scale: An outcome measure for expert witness research. Behavioral Sciences & the Law, 28(6), 892–907. https:// doi.org/10.1002/bsl.917 Deutsch, R. M., Schepard, A., Margaret Lee, S., Valley, M., Renee Lehr, C., Monica, S., David Martindale, C., Petersburg, S., Martha McCarthy, F. A., Medoff, D., Ortiz, P. C., & Wittmann, J. P. (2011). Special feature: A focus on mental health consultants in child custody disputes. Family Court Review, 49(4), 723–736. Dickie, I., & Maschi, T. (2018). Collaboration and care coordination. In T. Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (2nd ed., pp. 416–431). Springer. Dowben, J. (2000). Expert testimony: A guide for expert witnesses and the lawyers who examine them. Journal of the American Academy of Child & Adolescent Psychiatry, 39(6), 802. https:// doi.org/10.1097/00004583-­200006000-­00023

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Drozd, L., Olesen, N., & Saini, M. (2013). Parenting plan and child custody evaluations: Using decision trees to increase evaluator competence and avoid preventable errors. Professional Resource Press. Drozd, L., Carson, C., & Saini, M. (2022). And evidence-informed family systems decision tree for intervening in parent-child contact problems. In AFCC 59th annual conference Chicago, pp. 1–34. Faller, K. (2007). Interviewing children about sexual abuse: Controversies and best practice. Oxford University Press. Faller, K., & Everson, M. (2012). Contested issues in the evaluation of child sexual abuse allegations: Why consensus on best practice remains elusive. Journal of Child Sexual Abuse, 21(1), 3–18. https://doi.org/10.1080/10538712.2012.642944 Fitzpatrick, D., Hall, J., & Bullock, K. (2018). Intersectoral collaboration: Mental health, substance abuse, and homelessness among vulnerable populations. In T. Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (2nd ed., pp. 292–303). Springer. Flick, U. (2018). Doing triangulation and mixed methods (2nd ed.). Sage. Flick, U. (2021). Triangulation. In N. Denzin & Y. Lincoln (Eds.), The SAGE handbook of qualitative research (5th ed.). Sage. Fuhrman, G., & Zibbell, R. (2012). Evaluation for child custody: Best practices in forensic mental health assessment. Oxford University Press. Fusch, P., Fusch, G. E., & Ness, L. R. (2018). Denzin’s paradigm shift: Revisiting triangulation in qualitative research. Journal of Social Change, 10(1). https://doi.org/10.5590/josc.2018.10.1.02 Garber, B. D. (2020). Sherlock Holmes and the case of resist/refuse dynamics: Confirmatory bias and abductive inference in child custody evaluations. Family Court Review, 58(2), 386–402. https://doi.org/10.1111/fcre.12478 Garber, B., Prescott, D., & Mulchay, C. (2022). High-conflict litigation: Dynamics, not diagnosis. American Bar Association. Gould, J. W., & Martindale, D. (2008). Custody evaluation reports: The case for references to the peer-reviewed professional literature. Journal of Child Custody, 5(3–4), 217–227. https://doi. org/10.1080/15379410802583700 Gould, J.  W., Kirkpatrick, H.  D., Austin, W.  G., & Martindale, D.  A. (2004). Critiquing a colleague’s forensic advisory report. Journal of Child Custody, 1(3), 37–64. https://doi. org/10.1300/J190v01n03_04 Gould, J., Martindale, D., Tippins, T., & Wittmann, J. (2011). Testifying experts and non-­testifying trial consultants: Appreciating the differences. Journal of Child Custody, 8(1–2), 32–46. https:// doi.org/10.1080/15379418.2010.547442 Gould-Saltman, D. (2011). A view from the cross-road: Considerations for mental health professionals consulting with attorneys (by a judge and former lawyer... with a degree in psychology). Journal of Child Custody, 8(1–2), 135–141. https://doi.org/10.1080/15379418.2011.547747 Grady, M., Levenson, J., & Prescott, D. (2018). Empirically informed forensic social work practice. In T. Maschi & G. Leibowitz (Eds.), Forensic social work psychosocial and legal issues across diverse populations and settings (pp. 306–321). Springer. Grant, A. (2019). Doing excellent research with documents: Practical examples and guidance for qualitative researchers. Routledge. Intebi, I. (2011). Proteger, reparar, penalizar: Evaluación de las sospechas de abuso sexual infantil. Granica. Kaufman, R. L., & Lee, S. M. (2011). Introduction to the special issue on forensic mental health consulting in family law: Part of the problem or part of the solution? Journal of Child Custody, 8(1–2), 1–4. https://doi.org/10.1080/15379418.2011.547750 Kirkpatrick, H. D., Austin, W. G., & Flens, J. R. (2011). Psychological and legal considerations in reviewing the work product of a colleague in child custody evaluations. Journal of Child Custody, 8(1–2), 103–123. https://doi.org/10.1080/15379418.2010.547450 Kuehnle, K. (1996). Assessing allegations of child sexual abuse. Professional Resource Press.

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Lluch, X. (2019). La impugnación de la prueba electrónica. Justicia, 1(1), 217–266. Mann, D., & Roberts, K. (2022). Reviewing child custody reports: Ethical examination, consultation, and testimony. In AFCC 59th annual conference. Margaret Lee, S., & Nachlis, L. S. (2011). Consulting with attorneys: An alternative hybrid model. Journal of Child Custody, 8(1–2), 84–102. https://doi.org/10.1080/15379418.2010.547448 Martindale, D.  A. (2007). Forensic consultation in litigated custody disputes. The Journal of Psychiatry & Law, 35(3), 281–298. https://doi.org/10.1177/009318530703500304 Martindale, D. A., & Gould, J. W. (2004). The forensic model: Ethics and scientific methodology applied to custody evaluations. Journal of Child Custody, 1(2), 1–22. https://doi.org/10.1300/ J190v01n02_01 Maschi, T., & Leibowitz, G. (2018). Life-course systems power analysis: Understanding health and justice disparities for forensic assessment and intervention. In T. Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (2nd ed., pp. 30–49). Springer. Morgen, K., & Denison-Vesel, K. (2018). Substance use and co-occurring psychiatric disorders treatment: Systems and issues for those in jail, prison, and on parole. In T.  Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (2nd ed., pp. 194–211). Springer. Munson, C. (2011). Forensic social work practice standards: Definition and specification. Journal of Forensic Social Work, 1(1), 37–60. https://doi.org/10.1080/1936928X.2011.541200 Patterson, G. (2020). Social work practice in the criminal justice system. Routledge. Pennell, J. (2018). Domestic violence. In T. Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (pp. 182–193). Springer. Ponce de León, A. (2012). Los desafíos en la formación profesional: Programa de Especialización en Trabajo Social Forense de la Fadecs-UNComahue. In A.  Ponce de León & C.  Krmpotic (Eds.), Trabajo Social Forense: Balance y perspectivas (pp. 19–36). Espacio Editorial. Postal, K. (2022). The art and science of expert witness testimony. Routledge. Robb, A. (2006). Strategies to address clinical bias in the child custody evaluation process. Journal of Child Custody, 3(2), 45–69. https://doi.org/10.1300/J190v03n02_03 Robles, C. (2013). El informe social forense. Aciertos y debilidades de la intervención profesional. In C. Robles (Ed.), Trabajo Social en el campo jurídico (pp. 133–155). Espacio Editorial. Santos, K. da S., Ribeiro, M. C., Queiroga, D. E. U. de, Silva, I. A. P. da, & Ferreira, S. M. S. (2020). O uso de triangulação múltipla como estratégia de validação em um estudo qualitativo. Ciência & Saúde Coletiva, 25(2), 655–664. https://doi.org/10.1590/1413-­81232020252.12302018 Stahl, P. (2011). Conducting child custody evaluations: From basic to complex issues. Sage. Stahl, R., & Stahl, P. (2018). Representing children in dependency and family court beyond the law. American Bar Association. Stern, P. (1997). Preparing and presenting expert testimony in child abuse litigation. Sage. Turner, S. (2018). Empowerment and feminist practice with forensic populations. In T. Maschi & G. Leibowitz (Eds.), Forensic social work: Psychosocial and legal issues across diverse populations and settings (2nd ed., pp. 376–387). Springer. Wittmann, J. P. (2013a). Custody assessment analysis system workbook (CAAS) companion workbook for “Evaluating Evaluations.” The Center for Forensic Psychology. Wittmann, J. P. (2013b). Evaluating evaluations: An Attorney’s handbook for analyzing child custody reports. The Center for Forensic Psychology. Yin, R. (2018). Case study research and applications: Design and methods. Sage.

Chapter 4

Forensic Social Work: The Construction of Possible Ways of Conducting a Criminal Intervention María de las Mercedes  Utrera and Mariel Lucia Azcacibar

4.1 Introduction Social work is a profession that has been consolidated over the past few decades in Argentina, and it has been built on the education in its universities. It has been developed and is now in force thanks to the following: professional practice laws; in the province of Buenos Aires, Law No 10751 (1988) and its amendments; codes of ethics; and the federal law of social work, Law No 27072 (2014), to which several provinces have adhered. It has been socially assigned a place that positions it next to the working class and close to the most vulnerable people. Social workers commonly express a certain level of sensitivity in their responding to marginalized groups. Behind this brand of assistance is the political dimension of the profession, which derives from its beginnings in the socio-productive dynamics of the country and its role as a buffer for social conflicts arising from the unequal distribution of income. As Marilda Iamamoto (2000) states, social work also emerges as a type of social action that is essentially political but that appears in the guise of dispersed, bureaucratic, discontinuous, philanthropic activities, marked by the granting of social benefits. Historically, the tasks of assistance and resource management have been recognized functions in the daily work of social workers. There is an ideology supported by other workers and professionals of related institutions, authorities, and service users, and an important part of social workers’ professionalism can be found in the tasks of providing direct assistance. Along with the functions of direct assistance, resource management, and writing social reports is a daily practice that, with greater or lesser achievement, professionals develop to bring awareness to certain living

M. Utrera (*) · M. L. Azcacibar National University of La Plata, Provincia de Buenos Aires, La Plata, Argentina © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_4

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conditions, manage benefits for those who rely on the institutions where they develop their practice, and so on (Azcacibar, 2018). In the judiciary, the social reports developed by social workers come with their social expertise. Unlike the social reports traditionally developed in assistance or resource management processes, social expertise has a different logic, and these reports are the result of contextualized strategic research, documented in writing and directed to provide an answer to an external question. Social workers’ expertise is demonstrated through their delivering diagnoses in a judicial process (Azcacibar, 2018).

4.2 The Socio-geographical and Historical Context of Intervention The authors have developed their professional intervention in a judicial institution whose geographical space covers the whole province of Buenos Aires.1 The province of Buenos Aires has a population that grows year by year. According to the National Geographic Institute, it had 15,625,084 inhabitants in 2010, 16,659,931 in 2015, and 17,541,141 in 2020. The metropolitan area of Buenos Aires (AMBA, which includes the autonomous city of Buenos Aires), Greater Buenos Aires, and the city of La Plata (the place of residence of the authors and the capital of the province) together have, according to the same source, slightly more than 23,000,000 inhabitants, making them together one of the most populated urban centers in the country. The province of Buenos Aires as a whole is a very diverse geographical, social, and cultural area. As we have said, it is one of the country’s large urban centers, but it is also made up of smaller cities with their own social and economic lives; small rural towns dependent on or satellites of other cities, with agricultural and livestock activities; and tourist cities (those on the Atlantic coast, including Mar del Plata)— together constituting a diverse and dense working territory with its own characteristics.

 This is the Dirección General de Asesorías Periciales de la Suprema Corte de Justicia de la Provincia de Buenos Aires, created by Agreement 1783/78. The Dirección General de Asesoría Pericial del Poder Judicial is the body in charge of producing the technical expert reports required by the courts or by order of the Supreme Court of Justice. Its reports are an important contribution to the magistrates when they decide on cases within their competence that involve the defense and protection of fundamental rights, such as freedom, patrimony, status, and the integrity of persons, regardless of their jurisdiction. Its work is directed to all judicial bodies of the Administration of Justice, the Public Prosecutor’s Office, and the administrative bodies of the Supreme Court of Justice. It also responds to the requirements of state and nonstate public agencies and to requests made by the justice services of federal jurisdiction and other provinces. The General Directorate is in charge of 18 departmental expert offices and 18 departmental auxiliary technical bodies with six suboffices. More than 900 agents depend on it, of which more than 600 are professionals. 1

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This particular geography and its population density maintain a particular relationship with crime, its punishments, and the legal measures taken to try to mitigate insecurity, which we will see is a central concern of our society. The audiovisual and written media devote a large part of their time to the subject, with diverse characteristics and modalities. Crime is increasing year after year in Argentina. Urban crime has increased during the past few decades in many of the big cities in Argentina and has become an almost-daily topic of conversation. In 2010, insecurity took first place among the population’s concerns, sharing the podium with those of an economic nature, such as unemployment and inflation. According to the figures at both extremes (1991 and 2016), criminal acts in total increased 2.3 times, those against persons 3.0 times, and those against property 1.9 times. Moreover, the beginning of a sustained increase in urban crime can be traced back to 1971. As for homicides, Argentina has low rates compared with other Latin American countries, but those rates are higher than those of countries in Western Europe or Oceania, where those in Argentina register on average between two and three cases over 100,000 inhabitants (Kessler & Bruno, 2018). This trend of increasing crime is also reflected in the statistics on the official website of the Public Ministry of the province of Buenos Aires (https://www.mpba. gov.ar/estadisticas), which refers to statistics from several years: In 2007, 559,385 preparatory criminal investigations had been initiated;2 2008 had 646,061; 2015 had 719,728; 2016 had 746,952; 2019 had 928,450; 2020, a year during which people were in isolation or lockdown owing to the COVID-19 pandemic, had 786,110, a number that is clearly lower, but we understand that this isolation should be accounted for.

4.3 Institutional Legal Organization Buenos Aires has had a provincial constitution since 1854. In 1856, the first judicial departments were created (north, center, and south, dividing almost the entire province), and by 1877, the prisons of San Nicolás and Dolores had already been built. The city of La Plata, the provincial capital, was founded on November 19, 1882. The province has a chamber of deputies and provincial senators, as well as representatives in the chambers of senators and national deputies. The Criminal Procedural Code of the Province of Buenos Aires (which regulates all the procedures of the jurisdiction) was substantially reformed, and the current one came into force in 1997 (Law No 11922, 1996). The law that codifies crimes and establishes their penalties is the Criminal Code of the nation, Law No 11179 (1921). The first penal code for the nation, Law No 1920, entered into force in 1887.

 An IPP, or preparatory criminal investigation, is the beginning of a case and the initial investigation upon the denunciation of a crime. 2

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Before 1810, Argentina as such did not exist. The term Argentines was occasionally used to talk about those who lived around the Rio de la Plata because argentum in Latin means silver. The Act of Independence of July 9, 1816, created a new country: The United Provinces in South America. In 1826, the Argentine Republic came into being, a name that was definitively adopted in the 1860s.

4.4 The Judiciary of the Province of Buenos Aires The province of Buenos Aires is currently divided, as far as judicial intervention is concerned, into 20 judicial departments. Each one of them has jurisdictional bodies of all jurisdictions, in 18 of these; there are expert advisors (asesores peritos, or APs, in Spanish) and auxiliary technical bodies (cuerpos técnicos auxiliares, or CTAs, in Spanish) in the juvenile criminal liability jurisdiction. The remaining two are of recent formation, and their professional bodies have not yet been created; the requests made of these bodies are attended to by the APs and CTAs who had previously intervened in such scenarios (https://www.scba.gov.ar/guia/mapadeptos.asp). The organization is headed by the judges who are members of the Supreme Court of Justice, secretaries, undersecretaries, members of other administrative and jurisdictional bodies, and the attorney general, on whom the prosecutor’s offices (prosecution in criminal cases) and official defender’s offices depend. The history states that the Expert Office of the Supreme Court of Justice has its origin in the provincial budget law for the year 1947. This is expressed in the resolution of the High Court that on March 11 of the same year, which fleshes out the law by appointing those who would carry it out. For the prompt start-up of this office, by Law No 5228 (1947), 100,000 Argentinean pesos were allocated for the acquisition of elements, glassware, furniture, supplies, and reference books. The amount established is delivered by the executive branch to the Supreme Court of Justice, which authorizes and supervises this amount according to the needs of the Expert Office. Dr. Danilo Vucetich, whose doctorate is in chemistry, one of the first professionals in the Expert Office, became the director in charge of the Expert Office of the Supreme Court of Justice thanks to the budget law for the year 1949. The Organic Law of the Judicial Branch, Law No 5827, enacted on July 4, 1955, in sections 123 to 142, created and delimited the legal functions of the Expert Office. The Organic Law—with amendments made on September 16, 2004, in chapter IV, on the Expert Office of the courts, specifically articles 120–127—also created and delimited in legal form the functions of the General Directorate of Expert Advisors. Currently, APs and CTAs come from various professions, all of whom are social worker experts, and together with psychologists, social works are the best-­ represented professionals.

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4.5 The Expert Task of Social Workers In the first instance, we emphasize that we conceive of professional practices as framed in different institutional environments, mostly in the state, operating with the dual function of serving the interests of clients and at the same time adjusting to the demands of, generally a priori, answering formal questions. This tension, fundamental to social work, allows the politically, historically, and ideologically committed professional to direct their intervention. The judiciary is not an institution that is exempt from this tension. The greater formality that professional practice sometimes acquires in its sphere does not invalidate the possibility of choosing how a professional acts and what form that action takes. We start, then, from this fundamental premise, which allows us to outline strategies and move in the institutional fissures, making good use of the possibilities that the organizations themselves present (Azcacibar et al., 2014). Expert practices are substantial different from other the interventions of social workers. It is organized with a delimited objective, not its own objective—in that all the activity is aimed at providing expertise3 to a justice operator within the framework of a court case in any jurisdiction. This point of expertise must be pertinent to the profession’s competences, as established by the laws of professional practice. The expert social worker is obligated to answer only what is within their subject matter and area of knowledge. The expert social worker must also answer every question possible: what they have been able to investigate and everything that is supported by the social research that they have conducted. To elaborate conceptual categories without relying on accurate data on that particular situation is to proffer unsubstantiated conclusions. It is necessary to reach an understanding of what has been observed, and an expert must evaluate this both within the universal context of interpretation and in light of each particular situation or life history. We understand social work in its territorial enclave. The proximity of the professional to the world that they are going to reconstruct with others (the subjects of the intervention) is essential to their social expertise. The passage from the individual to the singular must be mediated by theory and how people live. Reproduction in the domestic and social sphere is the field of intervention of social work, particularly in criminal cases involving early release from prison. We do not use knowledge in general, but rather, we prefer situated knowledge, and to obtain this, it is essential to question each particular situation from all available angles (this subject, this family, and this context), in the present, and under the given circumstances. The necessary truth in a judicial process that deals with the rights of individuals always goes through an inevitable process of editing, one that in no way implies

 Questions raised in a judicial process from non-social workers need to be elucidated by the professional with their own technique and method. Questions may be externally guided, but they must be elaborated from the autonomy of the social worker, who will choose the way to develop the task and the theoretical and methodological imprint to be used. Their ethical obligations are to objectivity and to demonstrating the highest possible qualification. 3

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falsehood but rather simple narrative rigor. After all, the organization of multiple sources, in a finite repertoire combining chance and necessity, lends credence to a story, whether real or fabricated, truthful or merely plausible (Blatt, 2018). But this passage from reality to our interpretation of it and what is finally written about it as a mode of expert opinion must include theoretical transparency in our concepts. Here, we are faced with ethical imperatives that cannot be waived for a profession that respects human rights: objectivity here must be based on clarity and theoretical coherence in analyzing the reality on which we form an opinion, and transparency requires detailing the procedures, techniques, and intervention strategies for all the parties involved in the process. This will provide all the relevant elements to all those involved in the judicial process so that they can understand the professional opinion and have all the available resources and so that they can have those elements if they decide to appeal. Social workers develop tasks in scenarios of conflict and tensions among interests. We must use our ability to choose the most appropriate form of intervention for the intended purpose to answer the question posed in a case. This professional autonomy, which we hold and understand to be fundamental, must be based on and built in relation to the contemporary general professional consensus; the recommendations and/or provisions of the professional associations to which the experts that make up the technical bodies belong; the knowledge achieved in each science; the means and ends of each relationship; and always seeking to prioritize the quality of a professional response to a demand of the jurisdictional bodies; respecting all the ethical, scientific, and methodological considerations inherent in the function and performance of each discipline; and not being tied or directly related to the subjectivity of the expert. These requirements give rise to the need to develop consensus criteria within the professional bodies, in order to provide high-quality answers in line with the expectations of the task and the responsibility involved in the development of an expert opinion on whose basis judges can make decisions on fundamental aspects of the lives of social subjects. The Code of Professional Ethics (1988) establishes the condition of possibility for a professional to choose the manner of intervention according to their knowledge (Article 12). They shall (and are obliged to enforce their right to) choose, designate, and use the methods, strategies, and professional techniques that in each case they consider appropriate for the proper performance of their duties. However, this choice must be capricious; rather, it must be established by virtue of the relative autonomy concept—which was worked out by several authors and which refers to the professional space built in the tension of interests, among which are the provision of service, functional dependence, respect for the rights of the people with whom social workers work (to an adequate service, to receive clear information, etc.), and other conditioning factors. Family interrelationships operate in everyday life, one of the aspects on which the social worker expert has to report. Although everyday life in its reproduction does not leave aside the historicity of the subject, for essential reproduction to be possible, we do not think or reflect on each act but instead act pragmatically (e.g., when I eat, I do not think every time about the distributive origin of wealth and how

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some eat better than others), because if we ruminated on each one, it would be impossible to meet all our needs. There are three fundamental determinations of everyday life, according to Netto (2012): heterogeneity, immediacy, and extensive superficiality. Heterogeneity implies a world of intersections of activities (language, work, affections, etc.). Immediacy is made it possible through automatisms and spontaneity to satisfy basic needs (drinking water, talking, etc.). Extensive superficiality implies that everyday life mobilizes in each person all possible attention and all possible forces. On the other hand, heterogeneity and immediacy imply that the individual responds by taking into account the sum of the phenomena that appear in each specific situation, without considering the relationships that link them (Netto, 2012). Therefore, the objectification of everyday life, real knowledge, and reflection requires moments of suspension of everyday life (Netto, 2012), in order to achieve knowledge of this reality, not just casual assessments or automatic responses. The contribution of the social work interview to the construction of a report is not the data alone without analysis, the thinking or feeling of the interviewee (their subjectivity or how they see and transmit the reality that they are going through), or the beliefs and theories elaborated from the social sciences but rather the interpretation of all facets of the situation, without disregarding any of these facets. Our professional practice always takes place within a framework of a tense scenario because it is inscribed in conflictive social spaces and therefore must define intervention strategies that overcome immediacy, daily superficiality, and spontaneity (Mallardi & Oliva, 2011). The search for that knowledge requires going beyond what is apparent, beyond what is presented at a glance, beyond what is said by others, and beyond what has been assumed. The tactical-operational modalities, as conceptualizations that go beyond so-­ called techniques, allow one to articulate the objective and subjective dimensions of social processes and ethical-political purposes (without being partisan), which lead social workers to reassess the various elements of the records, home visits, interviews, and so on (Mallardi & Oliva, 2011).

4.6 The Expert Intervention of Social Workers in the Criminal Courts Expert social workers of the APs and CTAs carry out work with all the subjects of the criminal court, both adults and minors (the juvenile criminal court in Argentina intervenes with all those persons who have committed an act classified as a crime and who are up to 18 years of age). We intervene at all stages, whether in the preparatory investigation stage; during the instance of elevation to an oral trial; or, once sentenced, during the execution of a sentence. We do so at the request of prosecutors, the public defender’s office, or the courts that hear the cases (unipersonal or collegiate).

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The requests for social expertise generally have the following objectives: 1. Follow the instruction of the case in its initial stage and, at the request of the prosecutor,4 know the characteristics of the social subject and/or their closest reference group, in order to build their life history to consider them for either fixing, mitigating, or aggravating the circumstances of the penalty, as per Articles 40 and 41 of the Criminal Code. 2. During any stage of the process, consider them for an early release, for different reasons and under various circumstances (procedural, health, family, etc.). 3. Evaluate their living conditions through habeas corpus. In the case of early release, we carry out an evaluation of the risk or vulnerability of the subjects and social groups involved, in consideration of possible accommodations after release from prison, an intervention that is always requested of the experts by the judge handling the case (usually at the request of the defense or the interested party). Home detentions are established by Article 10 of the Criminal Code (article substituted by Article 4 of Law No 26472 B.O., 2009) and in Article 159 of the Code of Criminal Procedure as an alternative to preventive imprisonment and in Article 163 as an attenuation of coercion (Law No 11179 T.O., 1984 updated). In the social worker section of the expert advice offices of the Supreme Court of Justice of the Province of Buenos Aires, requests for social expertise in criminal cases are received daily to resolve incidents of mitigation—that is, to mitigate the coercive measure from detention in a police station, penitentiary unit, or prison to home detention. It is up to the social worker to evaluate the subject deprived of liberty, the receiving group, and the domicile in which this moratorium measure will be served and to evaluate the possibility of future employment. These requests are made once the preventive detention has been dictated, mostly requested in the instruction part of the case, by the courts in criminal matters. When the cases are elevated to trial, the mitigation incidents are requested by the criminal oral courts or the correctional courts. In order to comply with the request required in a judicial process, the expert social worker carries out an approach to the object to be investigated: a problem or a problematic field in which the daily lives of social subjects take place and that contextualizes the conflict within the legal field. The importance of the approach to these contexts lies not the mere description of environments, behaviors, or problems but rather in the interpretation of the data that derived from this approach. The observation, description, and interpretation of the environment where the subjects live constitute the privileged place for the intervention of the social worker because the social, family, and community interactions make up the professional specificity of social work.

 In the province of Buenos Aires, according to the Code of Criminal Procedure, the investigating prosecutor is the one who conducts the investigation of the case and prosecutes on behalf of the state. 4

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4.7 HCR 20, Version 3 (History, Clinic, and Risk): Violence Risk Assessment Over the years, there has been considerable research related to violence risk assessments. Initially, it emerged and gained importance in Canada, but soon after, the use of structured professional judgment guides and actuarial procedures extended to prison assessment and management, civilian settings, and various types of specific violence. They have also been used by other disciplines, such as psychology and forensic psychiatry. These investigations into violence have been able to define some characteristics of people in their social contexts that were identified as risk factors of violence. In Argentina, studies have been carried out to characterize the population by including items from HCR 20, version 2, with local empirical antecedents on aspects of its validity and reliability. Both investigations were carried out by Jorge Folino et al. (2005). As a result of these local investigations on the subject, it has been concluded that, according to the social sciences, social vulnerability factors include those that constitute an unstable zone, which combines the precariousness of work and the fragility of proximity supports. Being in this zone may lead to marginality or exclusion. With regard to risk assessment, conceptualization has progressed particularly in the past three decades, and numerous facets or dimensions of violence and risk have been specified. Risk and violence are not static, simple, or unidimensional concepts. The usefulness of a risk assessment is directly related to the importance of violence management in the relevant professional setting. HCR 20 is a guide whose first version was created in 1995, and it takes on the characteristics of a structured professional judgment. Its objective is to assess the risk of violence in institutional or community contexts, such that this assessment would allow various decisions to be made, such as social reintegration. In this way, the assessment and management of the risk of violence was conceptualized in preventive terms with the intention of guiding the management of risk. Its main objective is to identify people at risk of violence, and it functions as a guide with which to reach probabilistic judgments about the risk of violence occurring in the future. The first version was revised, and version 2 was published in 1997. Subsequently, a further revision was made, and version 3 was published in 2013 (Douglas et  al., 2014; Arbach-Lucioni & Andrés-Pueyo, 2007). The guide has a three-pronged temporal focus: the past, the present, and the future. It includes 20 risk factors that the evaluator has to score and that are organized into three subscales. They group past (history items), present (clinic items), and future (risk items) risk factors (Pueyo & Echeburúa, 2010, p. 405). The HCR 20 guide is used to assess the risk of violence in correctional, general psychiatric, and forensic settings. It has several applications, one of the most frequent is in the decision-making for discharging or releasing someone from these correctional, psychiatric, or forensic services (Douglas et al., 2014; Arbach-Lucioni & Andrés-Pueyo, 2007). As stated in HCR 20, version 3, under assessor qualifications, “a social worker … could complete the items on social history and future

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plans” (Arbach-Lucioni & Andrés-Pueyo, 2007, p. 59). Thus, for the evaluation of an anticipated release, we must take into account the following variables (and their definitions), among others (and their definitions), that correspond to the items and subitems of the risk management subscale of HCR 20, version 3, (Douglas et al., 2014; Arbach-Lucioni & Andrés-Pueyo, 2007): 1. Future problems with professional services and plans include the future problems related to the development of the overall plans for the evaluator to make appropriate use of professional services and programs. Professional services include health, social, educational, vocational, and criminal justice programs designed to manage the risk of violence through monitoring, supervision, or assessment and treatment. 2. Future problems in living conditions include the domains of housing, work, personal relationships, and the neighborhood and exposure to factors that increase risk, such as weapons or drugs. The key consideration is whether in such settings there are characteristics that could destabilize the subject’s functioning and that are relevant to risk or that expose the subject to factors that may increase risk. Within this item, the living conditions of the receiving group, the residence or housing dimension, and the environment or neighborhood dimension must be evaluated. 2.1. Living conditions refer to the specific subsistence conditions of the target group and are combined with their average monthly income at the time of the interview, in pesos. These data are considered important in relation to other dimensions, such as the composition of the family group and the possibility of covering their basic needs at the time of the interview, comparing the data obtained with the monthly estimates corresponding to the basic food basket and the total basic basket provided by INDEC. Another aspect to be considered is the source of such income (work, subsidy, retirement, food quota, others) and the regularity (determining whether it is a permanent or irregular source of income, emphasizing the continuity of income for the daily sustenance of the recipient group). The composition of the receiving group (number of members, gender, age, and kinship relationship with the detainee) and its characteristics (nuclear family, extended family, or blended family, referring to the congregation of several generations or distant relatives living together and to nonfamily groups) must be defined beforehand. 2.2. The residence or housing situation refers to the conditions of the dwelling that houses the receiving group, including its ownership regime, its habitability conditions (hygiene, lighting, and services), and the number of occupants, the latter data being related to one of the indicators of unsatisfied basic needs, namely overcrowding (dwellings with more than three persons per room). 2.3. The neighborhood environment includes a record of the geographical location (address and city) of the receiving group, accessibility (means of transport circulating in the area, condition of streets, fast roads connecting to

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commercial centers), and population density (overpopulated areas, urban centers and their periphery with higher population density, regular or sparsely populated areas such as sparsely populated peripheral neighborhoods and unpopulated areas, and others identified in rural areas). 3. Future problems with social support include daily contact with members of the social network of the person being evaluated, which is expected to favor risk management by facilitating psychological and social adjustments. Within this item, the disposition of the family or host group in relation to the subject’s entry into their daily dynamic will be evaluated. 4. Future problems with coping with stress may be the result of stressful circumstances that would test the coping resources of any person or may come from an inadequate ability to cope with stress such that they are left with few resources to cope with daily difficulties. 5. The last variable includes reflections and conclusions for us to think about in our professional interventions. Social expertise is oriented toward an analysis of a situation, the interweaving of variables (units of analysis that represent aspects of a problem or a hypothesis) and indicators (descriptors of such variables) from different conceptual theoretical frameworks, which are fundamentally linked to social theory and other currents of the social sciences. This evaluation must be based on the data provided to the expert so that they can interpret and weigh such data from that frame of reference, which gives the data foundation and validity. The absence of any of these instances jeopardizes the scientific nature of such expertise, restricting it to the mere enumeration of data or to an aprioristic consideration (Association of Experts of Expert Advice of Buenos Aires, 2005, p. 4). In this sense, the professional practice of social work produces social expertise. The activity directed toward this production supposes an interpellation of the realities and lives of other people, which often has a concrete effect on different aspects of those lives. As the authors Kessler and Bruno (2018) state, urban crime has increased during the past few decades in many of the large cities of Argentina and has become a daily topic of conversation. In 2010, insecurity came in first place among the population’s concerns, sharing the podium with those of an economic nature, such as unemployment and inflation (Kessler & Bruno, 2018). Therefore, these evaluations are always controversial—not free from social repercussion—and require ever-greater theoretical and technical adjustments. We understand that this is a rich field of professional development and that social work has an ethical duty to adjust its social assessments to continue to respect human rights.

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References Arbach-Lucioni, K., & Andrés-Pueyo, A. (2007). Assessment of the risk of violence in mentally ill people with the HCR-20. Psychologist Papers, 28(3), 174–186. Association of Experts of the Judicial Branch of the Buenos Aires Province. (2005). The forensic social worker in expert advice. SCJBA. Azcacibar, M. (2018). Professional intervention: Construction of social reports in justice. In M. S. Cavalieri, S. P. Torrecilla, & S. Pantanali (coordinators), Intervention processes in social work. Contributions to training and professional practice from a critical perspective. School of Social Work. National University of La Plata. Edulp. ISBN:978-950-34-1667-9. Azcacibar, M., Chillemi, A., Novillo, M.  J., & Utrera, M.  M. (2014). What do social workers do in justice? Reflections from university teaching and professional intervention. Exchanges Magazine N° 16, Faculty of Law and Social Sciences. ISSN:1666-5457. Available at: http:// intercambios.jursoc.unlp.edu.ar/documentos/nro_16/ap/AP_Azcabicar_y_otros Blatt, R. (2018). Recent history of truth. Turner Publications. Douglas, H., Webster, B., Guy, & Wilson. (2014). Historical-clinical-risk management-20, version 3 (HCR-20V3): Development and overview. International Journal of Forensic Mental Health, 13(2), 93–108. Federal Law of Social Work No 27072. (2014). https://www.argentina.gob.ar/normativa/nacional/ ley-­27072-­239854 Folino, J., Cáceres, M., Campos, M., Silveri, M., Ucín, S., & Azcacibar, M. (2005). Evaluation of dynamic risk factors for violence. Vertex. N° 68(4), 188–195. Iamamoto, M. (2000). Methodology in social service: Guidelines for the debate. In E. Borgiani & C. Montaño (organizers), Methodology in social service. Cortez Editors. Kessler, G., y Bruno, M. (2018). Insecurity and vulnerability to crime. In J. I. Piovani & A. Salvia (Eds.), Argentina in the XXI century. How we are, live and coexist in an unequal society. XXI Century Editors. Law No 11179. (1984). Penal Code of the Argentine Nation. Congress of the Argentine Nation. Retrieved from http://servicios.infoleg.gob.ar/infolegInternet/anexos/270000-­74999/273567/ norma.htm. Argentinian National Congress. (2010). Law No 11922. (1996). Code of Criminal Procedure of the Province of Buenos Aires Senate and Chamber of Deputies of the Province of Buenos Aires. Mallardi, M., y Oliva, A. (2011). Tactical-operational contributions to professional social work intervention processes. REUN y National University of the center of Buenos Aires Province. Netto, J.  P. (2012). Social work: Critique of everyday life and method in Marx. Institute for Training and Professional Studies, College of Social Workers of the Province of Buenos Aires, Debates in Social Work Collection. Organic Law of the Judicial Branch No. 5827 (1955). Enacted on July 4th, Retrieved from https:// www.scba.gov.ar/ Pueyo, A. y Echeburúa, E. (2010) Valoración de riesgo de violencia: instrumentos disponibles e indicaciones de aplicación. Psicothema. Vol. 22, N°3, 403 a 409. Barcelona, España. https:// www.psicothema.com/pi?pii=3744

Chapter 5

Sociolegal Social Work in the Field of Criminal Defense Felipe Norambuena-Conejeros and Milton Contreras-Sáez

5.1 Introduction Ever since the first efforts for professionalizing Social Work in Chile, it has been linked to other areas of knowledge, particularly that of the legal world. Proof of this is that the second professional school of Elvira Matte De Cruchaga, which was created in 1929, depended (at that time) on the Law School of the Pontificia Universidad Católica de Chile (Fernandez Garcia & Garcia, 2015). This is how Salum-Alvarado and Salum-Alvarado (2018) refers to Chile, whose Sociolegal Social Work is longstanding and finds its formal origins in the mid-­1920s, with a link to family law, to the administration of the juvenile system and family justice of the time and the incipient laws that sought to lay the foundations of a child protection system. Accordingly, there is a historical link between the emergence and development of the professional work of the social worker and the field of action in the justice system. It was initially linked to family law, but it gradually permeated different spheres of the administration of justice. Its development has been closely linked to the processes and modernization of the Chilean judicial system, which seeks to respond to the demands of society and the modernization of the state. In the criminal justice field, one of the main modern milestones in relation to sociolegal work arose with what was called “Chilean Criminal Procedural Law Reform,” which began to be implemented progressively from the year 2000 to 2005. Said law sought to generate a transition from an inquisitorial system to the establishment of an accusatory system. In this new mentioned, the functions of investigating and accusing, defending, and judging are divided, in this way creating the F. Norambuena-Conejeros (*) Defensoría Penal Pública Biobío, Concepción, Región del Biobío, Chile M. Contreras-Sáez Universidad Católica del Maule, Curicó, Región del Maule, Chile © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_5

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public ministry, the public criminal defender and the courts of guarantee and criminal oral trial courts. One of the characteristics of the Chilean reform process is that it is not just an effort to change from one procedure to another but rather an attempt to radically transform the criminal justice system in Chile. In this sense, the change not only comes from the substantial progress in terms of procedures (from a tremendously orthodox inquisitorial system to an adversarial accusatory model) but, fundamentally, from a very serious attempt to completely change the way of understanding and exercising criminal justice in Chile. (Duce, 2004, p. 36)

Within this context, with the enactment of Law No 19,718 on February 27, 2001, the Public Criminal Defense Office was created. Its function was and is to provide criminal defense to those who have been accused of a crime, simple crime, or offense that is within the jurisdiction of a supervisory court or an oral criminal trial court and the respective courts (as the case may be) and who also lack a lawyer— with the mission of ensuring the dignity and human rights of those represented, guaranteeing access to justice to those in a situation of special vulnerability (Public Criminal Defense, 2022). This new system allowed not only the emergence of a new field of professional practice but also a disciplinary space, forging new lines of research and development for Social Work, where disciplinary inputs ideally based on evidence are required (Contreras, 2021). That is why within this manuscript the professional work of social workers will be addressed. Here, we try to understand the context, the intervention phenomena, and the role of professionals in the institution and in society—by describing the social and cultural contexts in which their intervention processes and the ethical aspects present in it are developed. On the other hand, the access barriers to justice for groups that are in a particularly vulnerable situation will be reviewed, in the context of criminal defense in Chile. This paper highlights how these situations are linked to professional work and the concepts of social justice and human rights.

5.2 Professional Work 5.2.1 The Work of the Social Worker in Criminal Defense The tension between disciplinary Social Work and professional Social Work, especially in the social processes of epistemic construction or cognitive practices, such as the systematization of knowledge from the “ecology of knowledge,” has generally involved discussions about how the work of a social worker should be carried out, generating ongoing dialogue between professionals and academics (Olivé, 2019). This work must be articulated with the recognition of human needs, which in its essence is constitutive of basic social relations (Lasso-Urbano, 2019). In the case of Chile, the Public Criminal Defense Office has developed efforts to provide defense services in increasingly complex and demanding social, cultural, and institutional

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contexts. In its institutional mission, it declares to care for people who are in a “special situation of vulnerability.” In the exercise of defense, this is known as “specialized defense,” where social workers play a leading role in promoting work with said users of the system and provide support to defense attorneys in the exercise of their criminal defense role. The International Law of Human Rights recognizes in multiple instruments the principle of equality and nondiscrimination as a fundamental and guiding principle of the work of exercising justice, but it also recognizes the existence of groups of people who are in a situation of vulnerability. This is made explicit in the 100 Rules of Brasilia of 2008, on access to justice for people in conditions of vulnerability. This would incorporate vectors of vulnerability such as age, disability, Indigeneity, migration, gender, minority status, poverty, and deprivation of liberty, among others. Despite these recognitions, sociocultural, ethnic, and economic studies where public justice services are used have pointed out that there are substantial inequalities and inequities that still cannot be resolved (Bywaters et al., 2017; Zettler et al., 2018; Williams, 2022). In this sense, the situation of vulnerability is determined by multiple social, contextual, economic, cultural, and institutional factors that influence marginality, privilege, and oppression within society (Choo & Ferree, 2010; McCall, 2005; Williams, 2022). The Manual for the Prevention of Violation of Human Rights in Prisons of Deprivation of Liberty (2022) recognizes that some people are in a special situation of vulnerability, usually due to their social context and their status in society. Among these are women, migrants, LGBTQ+ groups, and Indigenous peoples, among others. For this reason, the need arises to provide reinforced protection to achieve substantial equality, through so-called affirmative actions or differentiated approaches. This situation of vulnerability is also based on international human rights laws, where the intersectionality of a rights approach emerges, which finds its roots in gender discrimination, where introduced this concept to recognize that when a person experiences multiple forms of exclusion, they will all be involved. This has been extensively developed by the Inter-American Court of Human Rights, understanding it as the confluence of violations of different types of rights and recognizing groups who endure them as victims of discrimination. In this understanding, the confluence of these multiple sources of discrimination compounds the devastating effect on the human dignity of the people who suffer them and causes a more intense violation of rights (La Barbera, 2016). The extralegal knowledge that is particularly articulated in the law mentions that Social Work can provide fundamental contributions to skills, educational-­preventive interventions, the promotion of human rights, and even participation in social movements, legal reforms and the internal professional performance of justice institutions (Ponce de Leon, 2012; Nicollini, 2013). As a response, and in order to deal with multiple sources of action that work on nondiscrimination causes and that facilitate adequate access to justice, the Public Criminal Defense Office proposes different areas of professional development for social workers. This is divided into specialized work in the following areas:

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First, penitentiary Social Work is carried out inside prison facilities with the convicted population deprived of liberty. This is known as penitentiary defense, establishing work within sociolegal pairs and with prison defenders. Second, professionals whose work is linked to Law 20.084, on Responsabilidad Penal Adolescente (RPA), carry out interdisciplinary work together with juvenile criminal defenders. Specific actions are taken and different devices are used to collaborate with the Servicio Nacional de Menores (SENAME) in the areas of juvenile justice and reintegration and with the Servicio Nacional de Protección Especializada de la Niñez y Adolescencia  (Mejor Niñez), which is linked to programs for the protection and promotion of children. Third, some of the work carried out by the professionals of the defense management support units supports vulnerable groups, where an intercultural defense that takes a gender-based approach stands out (for women deprived of liberty, women who are mothers of infants up to two years old, and LGBTQ+ communities) but which also includes those with a psychosocial disability, migrants, people who are immune from prosecution or who have mental health problems that affect their passing through the judicial system, low-income people, those in extreme vulnerability or who are unhoused (Coloma, 2022). All these professionals are part of sociolegal work actions, direct intervention for users of the penal system, attending to psychosocial problems, and networking, whether in the areas of health, education, housing, social security system, judicial services, and other executors of the justice system. They are also involved in the counseling processes in various psychosocial or technical matters that defense attorneys and/or experts from various disciplines require for the processing of cases. Finally, they are part of the management standards that incorporate providing assistance, information management and defense support actions, control and improvement management, and the development of skills and specialization for public criminal defenders and defense support personnel (Public Criminal Defense Office, 2022).

5.3 Social Work and Access to Criminal Justice When speaking of access to justice, in broad terms, one is faced with an institutional framework or channels that allow the broadest exercise of human freedom and its multiple forms of expression. However, in the words of we know that in the ideal world, we would all be equal; we would know our rights and freedoms and problemsolving mechanisms. However, reality shows us the opposite, in that effective access to justice is not within reach for everyone (Castilla & Artemio, 2012). However, it is necessary to consider, in the first place, a legal or formal dimension that is determined by the possibility that within a country there are institutions that guarantee access to said rights. In the Chilean case, in criminal matters, these

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are the Public Prosecution Office;1 the Public Criminal Defense Office, which guarantees the representation of the different parties involved, before a judge; and the respective guarantee and oral trial courts. Second, access to justice also has a dimension that implies the possibility of justiciability, that is, the possibility that people can demand respect and protection of their fundamental rights, both at the national level and through international channels. Finally, as has already been stated, access to justice has a dimension that is given by the given social structure, and its manifestations can be multiple, the most frequent being cultural, linguistic, and material infrastructure elements, among others. The presence or absence of these elements shapes what are known as “barriers to access to justice” in different societies, and therefore, discussions of access to justice are complex and not merely instrumental (Moreno, 2000; Gómez, 2007). Access to justice is a constantly discussed subject in the context of fundamental rights, especially from an inter-American human rights perspective. Here, “despite not having formal recognition,” access to justice is a fundamental right, whose content is given by the criteria and standards that emerge from the jurisprudence of the Inter-American Court of Human Rights. Said court has been productive in the matter, ensuring better protection for fundamental rights thanks to interpretations under the principles of pro homine and progressiveness (Bernales, 2019). In addition to this, soft law in the region the Brasilia involves rules on access to justice for people in vulnerable condition; makes explicit people’s access to justice; and indicate guidelines for the processing of different kinds of vulnerabilities in these systems (Pizarro, 2001). The universal system for the protection of human rights contains instruments makes said right explicit—for example, Article 13 of the Convention on the Rights of Persons with Disabilities. All of this affirms that access to justice has been accepted more and more as a basic social right in the national and international justice systems and in modern states (Universal Declaration of Human Rights, 1948). Given the international regulations in this area, it is necessary to think of an interdisciplinary and holistic approach to understand and address the various barriers to accessing justice that impede the full exercise of rights. Said barriers may be of a legal nature or merely jurisdictional. But also, they can be social, cultural, and linked to the capacity of the state to solve or manage said social conflicts through institutional means. According to diverse authors such as Bernales (2019), Mendez (2000), Nash (2007), for there to be adequate access to justice, it is not enough for the institutions in charge of the administration of justice in particular or the state in general to explicitly state their interest in protection and access to justice. Access to justice is enabled by concrete actions in relation to guiding principles, such as the principles of universality, equality, and nondiscrimination. Karlos Castilla and Artemio (2012), developed a classification containing eight barriers to adequate access to justice: the first barriers are based on inequality; a second set of barriers is

 It is an autonomous body whose function is to direct the investigation of crimes, bring the accused to court if appropriate, and provide protection to victims and witnesses. 1

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legal or regulatory; the third set includes procedural barriers; the fourth classification corresponds to material analysis; the fifth barrier is credibility; the sixth barrier is the training of the executors of the justice system; the seventh features cultural barriers; and the eighth set includes measurement barriers. Finally, in the Latin American context, actions carried out by the Legal Defense Institute (IDL) of Peru, the Due Process of Law Foundation (DPLF), the Center for Human Rights in the Americas of De Paul University of Chicago, the Center for Human Rights and Advisory to Indigenous People (CEDHAPI) of Mexico, and the Center for Studies on Justice and Participation (CEJIP) of Bolivia in 2018 expose, before the Inter-American Commission on Human Rights, the main barriers to equal access to justice in Latin America—recognizing cultural, linguistic, economic, and gender-based barriers. This has been a fundamental contribution to show the inflexibility and sluggishness in the processes. In this context, the Chilean Public Criminal Defense Office is an institution that makes criminal justice and the justiciability of rights more accessible, given that it helps overcome several of the points previously addressed through the work carried out by specialized criminal defense, by developing professional interventions of a sociolegal nature; seeking, through a specialized professional exercise, to overcome or shorten the gap caused by these barriers; and taking charge of groups that have special vulnerability. In this context, a social worker is a facilitator of adequate access to justice (Pérez et al., 2016).

5.4 Social Work, Social Justice, and Human Rights The International Federation of Social Workers defines Social Work as “a practice-­ based profession and an academic discipline that promotes social change and its development, social cohesion, and the empowerment and liberation of people. The principles of social justice, human rights, collective responsibility, and respect for diversity are fundamental to Social Work, underpinned by theories of Social Work, Social Sciences, humanities, and Indigenous knowledge. The Social Work engages people and the structures involved in it to address life challenges and enhance well-­ being” (International Federation of Social Workers, 2014). The transformative mission of Social Work can be found in its texts, which promote social change through guiding principles such as social justice and the defense of human rights. This is one of the main challenges of Social Work linked to the field of justice, even from the privileged professional position that working in the justice institution has for professional work oriented toward the promotion of human rights. In this way, social justice becomes a primary way of doing justice, be it commutative, contributory, distributive, or restorative. All these options are framed in the inherent, equal, and inalienable human rights of any person and are therefore basic principles that Social Work adopts in any field of disciplinary action and above all in sociolegal work (Himchak, 2011). On this same point, Amnesty International (2022) points out that human rights defenders are people who work, individually or collectively, to fulfill

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the rights contained in the Universal Declaration of Human Rights (1948) and in the various standards that undergird it. This commitment has been shown to be fundamental in making situations of social injustice visible, fighting against impunity, and promoting democratic processes throughout the world. Social Work is defined as a profession that strives to achieve social justice and human rights. To the extent that the work of professionals is closely linked to what is stated above and that there is a commitment to the exercise of their functions that goes beyond the strict fulfillment of their professional functions assigned, said professionals are human rights defenders. Therefore, Human rights are inseparable from the theory, values, ethics, and practice of Social Work. Rights that respond to human needs must be defended and promoted; and those rights embody the justification and motivation for the practice of social work. Thus, the defense of these rights must be an integral part of Social Work. (Manual for Schools of Social Service and Professional Social Workers, 1995, p. 15) Wacquant (2009), in his work “Punishing the poor: The neoliberal government of social insecurity,” analyzes American societies and points out that criminal policies in advanced societies do not respond to the simple binomial of “crime and punishment” but instead obey a triad where public policies and economic ones play their fundamental roles in the creation of what he calls “a new government of social insecurity,” aimed at modifying the social imbalances caused by the deregulation of the economic crisis and the reconversion of welfare. This would seek to regulate social disorder through assistance policies, on the one hand, and punitive policies on the other, which in turn have a strong orientation toward strengthening the logic of social and ethnoracial selectivity, where social work is an active agent, both in care work and in punitive work.

5.5 Methodology 5.5.1 Participants In total, 10 participants were selected in this study. The people participating in the present exploratory-descriptive study were selected according to three inclusion criteria: (1) professional social workers, (2) officials of the public criminal defender, (3) those who have at least four years of professional practice in that institution. Previously, a pilot study was carried out with four participants who met the first two inclusion criteria but who had less than four years of professional practice. After analyzing the information, four academics (two lawyers and two social workers) in Chilean criminal matters and research collaborated to adjust the language, organizing the order of questions and the inclusion of different answer options. After these adjustments had been made, the subjects of the final study were contacted: 10 social workers, representing the Metropolitan, Arica and Parinacota, Tarapacá, Antofagasta, Biobío, Araucanía, Magallanes, and Aysén regions. Eight of

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the professionals were female, and two were male. Regarding the universities from which these social workers graduated, two social workers were trained at the University of Concepción and the rest at the Universidad Santo Tomás, Universidad de la Frontera, Universidad Católica de la Santísima Concepción, Universidad de Valparaíso, Universidad Católica de Temuco, University of Bio Bío, University of Antofagasta, and Technological University of Chile (INACAP). Regarding the years of graduation, three participants graduated between 1998 and 2000, two between 2001 and 2005, and four between 2012 and 2015. As for the number of years as officials of the Public Criminal Defense Office, four have been working in this field between four and eight years, two between 9 and 13 years and three for longer than 14 years. Moreover, five of the participants have a bachelor’s degree, while the remaining five have a master’s degree. In terms of specializations, six have completed diplomas, and four have completed doctorate degrees.

5.6 Instruments The first part of the instrument involved developing a scale of evaluation of the work of the social worker in the criminal field. The mentioned scale was designed to evaluate professional work; the barriers to accessing justice in the context of criminal defense; and Social Work, social justice, and human rights in the context of the Chilean criminal justice system. (a) Professional work: the recognition of needs and demands, grasp of the phenomenon and solutions to it, networking, intervention, and ethics. (b) Barriers to accessing justice in the context of criminal defense in Chile: vulnerable people and/or people whose rights have already been violated, the principle of equality and nondiscrimination, and the intersectionality of rights. (c) Social Work, social justice, and human rights in the context of Chilean criminal justice: promoting and defending human rights and social justice, respecting diversity, and challenging unfair policies and practices. In order to ensure the validity of the content and the applicability of the instrument, a literature review was initially conducted within a period of three months. (1) It was possible to identify a relationship between the principles declared by the International Federation of Social Workers and the work of social workers in the field of Chilean criminal defense; (2) the variables and dimensions that are best identified and are necessary in the field of criminal defense within a month were selected; finally (3), these were subjected to a filtering process made by expert judgments, within two weeks. The criteria for choosing experts from the two disciplines (Social Work and law) included being a Social Work academic, an expert in forensic Social Work, an academic in criminal law, an expert in research methodology, and a Spanish speaker. Finally, four academics (two Social Workers and two lawyers) participated, which allowed us to take an interdisciplinary view of the subject.

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5.7 Procedure The information was collected from a qualitative study, first through an anonymous self-applied questionnaire, after a pilot test. The participation of the social workers was authorized by the Public Criminal Defense Office, who voluntarily agreed to answer the questionnaire. The questionnaire was taken online through Google Forms, where participants also agreed to participate through online informed consent. Second, semistructured individual interviews were applied by using a guideline in relation to the topics discussed. Third, a qualitative section was added so that participants could list observations in each dimension of the study.

5.8 Analysis of Data Statistical analyzes were performed by using the SPSS 25.0 program. The content validity of the study was analyzed through the judgment of experts, and its reliability was checked by using the Pearson’s correlation coefficient. Regarding the qualitative observations, an organization of categories was manually carried out in Microsoft Word, extracting the main phrases from each one of them to establish relationships and categories.

5.9 Results 5.9.1 Professional Work 5.9.1.1 Recognition of Needs and Demands The professional work of the social workers of the Public Criminal Defense Office faces different social problems on a daily basis, which all of the participants indicated that they have been able to diagnose by using interviews, where they also point out that “the origin of the main problems is in the historical, socioeconomic, cultural, and personal background of the accused and/or convicted.” 5.9.1.2 Understanding the Phenomena and Possible Solutions Participants were consulted on the theoretical approach, paradigm, or model used to understand social phenomena and possible solutions. Eight of the participants indicated doing so, while only two of them stated that they almost never do it. On a daily work basis, the most used were the systemic, ecological, relational, and developmental theories and models. In terms of perspectives, those of law and gender were the most often considered.

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5.9.1.3 Networking All the participants indicated networking in their professional work, which could be differentiated according to health, social services, judicial services, and prison systems. Half the participants work with community organizations, civil society services, and universities and other educational institutions. Only four social workers declared that they worked with housing. In general, although the participants said that they network constantly, this was not always done in every context, but rather, they adjusted it to the labor demands of professional work. According to an analysis of the correlations between networking and its specificities (see Table 5.1), there was not a high or perfect correlation between the declaration of networking and actually carrying out that networking. There was only a high correlation between networking and social services, while in health, a moderate correlation was shown. In networking with the penitentiary system, a low correlation (0.375)—and a very low one in the case of judicial and civil society services—was revealed. For housing, community organizations, and universities and other educational institutions, there was no correlation. In the evaluation made by the participants regarding networking, 30% of users stated that it was very good, 60% that it was good, and only 10% that it was insufficient. 5.9.1.4 Intervention Regarding the intervention carried out by professionals in the Public Criminal Defense Office, in terms of support for hearings, nine indicated that they do so, while one indicated that they almost never did so. On the other hand, when ensuring the appearance of interveners, seven indicated that they did so, while three indicated that they almost never did so. The tasks that the participants always carried out were as follows: counseling provided to the defender for expert reports; assessing the psychosocial dimension of the case with the family of the accused; preparing psychosocial or situational reports; and interviews in prisons. As for the interviews with curator ad litem, six indicated that they did so sometimes or always, while the remaining four indicated that they rarely or never did so. Regarding the interviews with defendants in the mental health center, seven indicated that they did it sometimes or always, while the remaining three stated that they never or almost never did it. 5.9.1.5 Ethical Component Regarding the ethical components that the participants used during the intervention, four indicated that they did not obtain informed consent at the beginning, where they state that, on occasions, they were unable to obtain it. The remaining six indicated that they obtain it sometimes or always. However, all social workers stated

Living place

Education

Health

Networking

Pearson correlation Next (2-sided) N Pearson correlation Next (2-sided) N Pearson correlation Next (2-sided) N Pearson correlation Next (2-sided) N 0.676 10 10 −0.383 0.377 0.275 10

0.799

10 −0.156

0.667

10

10

0.283

10 1.0

10 0.152

10 −0.93

10 0.152 0.676

10 1.0

0.799

10

10 1.0

0.283

10 0.377

0.275

10 −0.383

0.667

Living Education place −0.93 −0.156

0.242

10 0.408

0.242

Networking Health 1.0 0.408

Table 5.1  Networking correlation analysis

10

0.477

10 −0.255

0.676

10 −0.152

0.035

10 0.667*

0.060

Social services 0.612

10

0.286

10 −0.375

0.427

10 0.284

0.111

10 0.535

0.545

Judicial services 0.218

10

0.102

10 −0.547

0.799

10 −0.093

0.242

10 0.408

0.286

Prison system 0.375

10

0.038

10 0.659*

0.758

10 0.112

0.735

10 0.123

0.836

Community organizations −0.075

10

0.279

10 0.380

0.102

10 −0.547

0.170

10 −0.470

0.724

Civil society services 0.128

(continued)

10

0.078

10 0.582

0.703

10 −0.138

0.062

10 −0.609

1.00

Universities 0.000

5  Sociolegal Social Work in the Field of Criminal Defense 79

Pearson correlation Next (2-sided) N Judicial services Pearson correlation Next (2-sided) N Prison system Pearson correlation Next (2-sided) N Community Pearson organizations correlation Next (2-sided) N Civil society Pearson services correlation Next (2-sided) N

Social services

Table 5.1 (continued)

0.111 10 0.408 0.242 10 0.123 0.735 10 10 −0.470 −0.547 0.170 10

0.545

10 0.375

0.286

10 −0.075

0.836

10 0.128

0.724

10

10

0.102

0.758

10 0.112

0.799

10 −0.093

0.427

10 0.284

10 0.535

10 0.218

0.676

0.35

0.060

10

0.279

10 0.380

0.038

10 0.659*

0.102

10 −0.547

0.286

10 −0.375

0.477

Living Networking Health Education place 0.612 0.667* −0.152 −0.255

10

0.886

10 –0.052

0.735

10 −0.123

0.060

10 0.612

0.312

10 0.356

Social services 1.0

10

0.114

10 −0.531

0.463

10 −0.263

0.10

10 0.764*

10 1.0

0.312

Judicial services 0.356

10

0.595

10 −0.192

0.189

10 −0.452

10 1.0

0.010

10 0.764¨*

0.060

Prison system 0.612

10

0.221

10 0.425

10 1.0

0.189

10 −0.452

0.463

10 −0.263

0.735

Community organizations −0.123

10

10 1.0

0.221

10 0.425

0.595

10 −0.192

0.114

10 −0.531

0.886

Civil society services −0.052

10

0.001

10 0.859

0.193

10 0.449

0.289

10 −0.373

0.153

10 −0.488

0.393

Universities −0.304

80 F. Norambuena-Conejeros and M. Contreras-Sáez

*

Own elaboration

Universities

Pearson correlation Next (2-sided) N 10

10

10

10

10

0.393

0.078

0.062

1.00

0.703

Social services −0.304

Living Networking Health Education place 0.000 −0.609 −0.138 0.582

10

0.153

Judicial services −0.488

10

0.289

Prison system −0.373

10

0.193

Community organizations 0.449

10

0.001

Civil society services 0.859*

10

Universities 1.0

5  Sociolegal Social Work in the Field of Criminal Defense 81

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F. Norambuena-Conejeros and M. Contreras-Sáez

that in their professional work, they manage to respect all the people served, regardless of the type of criminal case, applying the principles of confidentiality, self-­ determination, equal treatment, and nondiscrimination in the interventions that they carry out.

5.10 Barriers to Accessing Justice in the Context of Criminal Defense in Chile 5.10.1 Vulnerable People and People Whose Rights Have Already Been Violated The most common social problems are unjustified arrests; a low understanding of the criminal justice process; a lack of access to the medical health system, especially mental health and social aid; a lack of training; and a lack of vocational education for people deprived of liberty. Other social problems show up in working with highly vulnerable groups, such as children and adolescents whose rights are violated, migrants, LGBTQ+, unhoused people, and women deprived of liberty who have nursing children. The main consequences are social exclusion and constant discrimination, as well as a lack of knowledge of the networks of the work of the Public Criminal Defender, which means that social reintegration is not achieved. When inquiring into the vulnerability faced by clients, the participants indicated that the main factors were poverty, gender, sexual orientation, disability, race, social class, culture, and language (Graph 5.1). At the time of evaluating the promotion of human rights, there was a differentiation made between what the public criminal defender does at the institutional level, what they do in their professional work, and how clients evaluate the promotion of their rights (Table  5.2). Social workers positively evaluated how well the Public Criminal Defense Office promoted human rights. In their own professional work, they reported that they manage to promote human rights. Additionally, most clients evaluated this service as sufficient (seven of 12 people). Within the context of professional work, the professionals who participated in the research recognize in their work a significant role for the promotion and defense of human rights, particularly when they take actions aimed at demanding and favoring access to diverse social services. On the timely delivery of physical healthcare and mental health, as well as when they participate in training for students, officials of the Chilean Gendarmerie or the academic world constantly find issues of human rights, the prevention of torture and inhuman behaviors, and cruel and abusive behavior in their daily work, recognizing in this way a very clear relationship between the defense of human rights and their professional work. However, clients and peers do not always recognize the human rights defense work that social workers carry out.

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Vulnerability Vector 30 25 20 15 10 5 0 Class

Gender

Sexual Poverty Orientation

Disability

Culture

Race

Language

Graph 5.1  Vulnerability of clients of the Public Criminal Defense Office (own elaboration). Table 5.2  Evaluation on the promotion of human rights Insufficient Enough Good Very good

Public criminal defense – 3 5 2

Professional work 1 1 6 2

User’s evaluation 2 7 1 2

Own elaboration

5.11 Final Thoughts and Findings Since its origins, Chilean social work has been linked to the sociolegal field and with it to the growth, development, and modernization of the justice system. This has generated the need for more specialization for professional social workers and the incorporation of a social worker network into professional work and interdisciplinary work, to meet the needs of the different vulnerable groups that pass through the justice system. In this sense, the professional work is closely linked to promoting access to justice, not only from a mere statement of interest in the protection of human rights and declarations aimed at breaking down the different barriers to access it but also in developing concrete actions that follow its guiding principles, such as social justice, universality, equality and nondiscrimination, and the defense of human rights in the professional practice of social workers. It is in this work of promoting access to justice where specialized defense becomes relevant. We define special defense as “the development of criminal defense work with an emphasis on groups that, due to some particular characteristic, are in a situation of special vulnerability when facing their passing through the judicial system.” In practice, implies special care in the development of these cases. The operators of the justice system must be clear about the special characteristics of these groups; they also must be clear about the needs these groups have, conceptual

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clarity, national and international regulations that contribute to the defense of these groups, and undergoing constant training on these issues. Networking is precisely the main path of intervention used by social workers in the sociolegal interventions that they carry out and is the main source of diagnostic information collection, given by the interviews they carry out with their clients. Another point of interest is that the participants recognize themselves as human rights defenders because of the actions they take in their work, especially when they demand attention be paid to social, educational, health, and mental health services for their clients. However, these professionals believe that the importance of their work cannot be fully recognized by their clients and that this role of human rights defender is not recognized by third parties. The main findings of the research include three major components: improvements for social workers, improvements in the Public Criminal Defense Office, and improvements in criminal justice policies (legislative and judicial).

5.11.1 Social Workers To improve the ethical aspects of interventions, the participants pointed out that it is necessary that three categories be incorporated into their professional practice: intervention, self-training, and the use of theoretical perspectives. Regarding the first, a greater emphasis should be placed on confidentiality, respect for the self-­ determination of clients, probity, professional secrecy, dignity toward clients, equal treatment, and the ethics of urgency. On self-training, the emphasis should be on having more scientific rigor, actually obtaining informed consent, and the delivery of professional opinions in a technical and rigorous manner. Finally, from theoretical perspectives, the approaches of law and gender, among other theoretical models that are relevant to intervention, should be considered in all cases.

5.11.2 Public Criminal Defense The interviewed social workers pointed out that the main challenges that the Public Criminal Defense Office has in terms of human rights are establishing an image of the institution as necessary and positive for a democratic state and communicating this image to the public, which also manages to recognize that there is a vulnerable population who needs to be seen and treated according to its characteristics and needs, under the logic of differentiating approaches. On the other hand, they mention that it is important to empower the teams that work directly in the ombudsperson’s office and other collaborators. As for networking, they want to be able to create protocols with the Chilean Gendarmerie to gain faster access to information about the prison population. Finally, the institution must develop constant training and education processes in various topics related to professional practice.

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Furthermore, concrete tools for intervention in the various contexts of professional action are needed, particularly for groups of special vulnerability.

5.11.3 Legislative and Judicial Criminal Justice Policies The main challenges presented show the importance of having up-to-date judicial policies that allow recognizing dignity and granting greater dignity to people who pass through the criminal justice system, given the vulnerability vectors analyzed and articulated. These policies must be centered on the person and must promote restorative or reparatory justice, under the guiding principle of nondiscrimination. On the other hand, in the context of the defense of people who are deprived of their liberty, a law of criminal execution with specialized judges is needed. In addition, the treatment given to people deprived of liberty requires legal regulations, and it must be executed by highly specialized professionals. Finally, it would be necessary to address in greater detail the categories of social class and poverty, which are recognized as relevant variables for social workers in criminal defense work. They also coincide with the recommendations of Wacquant (2009), who alludes to the control exercised by the neoliberal states through the double regulation of poverty, on the one hand through depressed social policy, which is exemplified through welfare and populist policies such as the delivery of bonuses and benefits with short-term impacts, and on the other hand through the robust policy of criminal prosecution as the main tool of social containment.

5.12 Limitations The main limitations of this research are that it was carried out on a specific population facing the high technical demands of professional training in public criminal defense. Despite the small size of the sample (10) and the fact that the representatives were from only half of the country’s regions, it did not include professionals who had spent fewer years in professional practice, because in this research, the inclusion criterion was that they had spent longer than four years, so that they would have a strong overview of the work they do. In methodological terms, even though an innovative scale was used, given the historical experience of social workers in sociolegal fields, reliability and validity tests, which could have applied to a larger sample, were not carried out. In addition, this study did not integrate specific questions about the specialization of the academic degrees and diplomas in order to review the relevance of their training in job development in the Public Criminal Defense Office. Not was a variable on mental health included, because it is one of the categories that come with the greatest difficulty for social work, according to the participants. Finally, the professional visits to clients should differentiate not only between home visits and homes interviews

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but also between prison visits and prison interviews, because this would allow for a more specific assessment of the professional work of sociolegal social workers.

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Legal Defense Institute of Peru and Due Process of Law Foundation. (2018). Technical report presented at the Inter-American Juridical Committee. Retrieved from: https://www.dplf.org/sites/ default/files/obstaculos_para_el_acceso_a_la_justicia_en_las_americas_version_final.pdf McCall, L. (2005). The complexity of intersectionality. Signs: Journal of Women in Culture and Society, 30(3), 1771–1800. Mendez, J. (2000). Access to Justice, a Human Rights Approach. Adaptation of the paper presented on the occasion of the International Forum “Access to Justice and Equity in Latin America”. Available at: https://www.academia.edu/1030270/El_Acceso_a_la_Justicia_un_ focus_from_los_rights_humans Moreno, L. (2000). Acceso a la justicia. Ediciones Academia Colombiana de Jurisprudencia. Nash, C. (2007). Access to international justice. Asunción, Paraguay. Material prepared for students of the International Diploma Course “The New Challenges of the Rule of Law”, on July 5 and 6, 2007. Nicollini, G. (2013). Disciplinary knowledge in the judicial traversal of families. Buenos Aires. In C. Oaks (Ed.), Social Work in the legal field. Editorial Space. Olivé, L. (2019). For an authentic interculturality based on the recognition of epistemological plurality. In L. Olive, B. de Sousa Santos, C. S. de la Torre, L. H. Antezana, W. Navia Romero, L. Tapia, G. Valencia Garcia, M. Puchet Anyul, M. Gil, M. Aguiluz Ibargüen, et al. (Coords.), Epistemological pluralism. CLACSO. Pérez, J.  J. N., Botija, M., & i Maza, F.  X. U. (2016). Juvenile justice in Spain: A collective responsibility proposals from social work. Interaction and Perspective: Journal of Social Work, 6(2), 3. Pizarro, R. (2001). Social vulnerability and its challenges: A look from Latin America (Statistical studies series) (p. 69). Division of Statistics and Economic Projections. Ponce De Leon, A. (2012). Challenges in vocational training. The specialized program in forensic social work of La Fadecs. “UNComahue”. In A. Ponce de León & C. Krmpotic (coordinators), Forensic social work. Balance and perspectives. Volume I. Editorial Space. Public Criminal Defender’s Office. (2022, March). The Defender’s Office. Retrieved from: https:// www.dpp.cl/pag/1/13/la_institucion Salum-Alvarado, S., & Salum-Alvarado, E. (2018, January/April). Socio-legal Social Work in Chile: Genesis, development and disciplinary challenges. Ser. Soc. Coc. São Paulo, b. 131, pp.  15–28. Retrieved from https://www.scielo.br/j/sssoc/a/pYyWX3s6nzGMCfFFdVzph8v/? lang=es&format=pdf#:~:text=El%20trabajo%20Social%20Socio%20Jur %C3%ADdic%20 in%20the%20current%20is%20presented,the%20which%20%C3%A9this%20must%20 unwrap United Nations Organization. (1995). Manual for schools of social service and professional social workers. Professional Training Series N°1 Human Rights and Social Work. Third edition, December 2009. P. 99. United Nations Organization General Assembly. (1948). Universal Declaration of Human Rights. “United Nations”, 217 (III) A, 1948, Paris, art. 1. http://www.un.org/en/ universal-­declaration-­human-­rights/ Universal Declaration of Human Rights, United Nations, 1948. Wacquant, L. (2009). Punish the poor. The neoliberal government of social insecurity (1st ed. April 2010, p. 442). Editorial Gedisa. Williams, K. (2022). Social work ethics and values as a mitigating force in migration: Lessons from Caribbean child lifers in the USA. International Journal of Social Work Values and Ethics, 19(2), 174–208. Zettler, H. R., Wolff, K., Baglivio, M., Craig, J. M., & Epps, N. (2018). The racial and gender differences in the impact of adverse childhood experiences on juvenile residential placement. Youth Violence and Juvenile Justice, 16(3), 319–337.

Part III

Forensic and Sociolegal Social Work with Family and Community

Chapter 6

Family and Community Life: Contributions of Social Work to the Debate in Family Courts Maria Luiza Campos da Silva-Valente and Thais Tononi-Batista

6.1 Introduction This paper has as its starting point the reflections that originated in the professional practice of the authors, both social workers active in family courts in different courts of justice, in southeastern Brazil. In short, such reflections pointed to the need to debate the right of children and adolescents to family and community coexistence after the breakup of the parental unit. At first, approaches to this debate lead to a discussion on the best interest of the child or adolescent, a principle that guides the policies aimed at children, youths, and the family. The changes brought about by Brazil’s accession to the UN International Convention on the Rights of the Child (UNCRC) resulted in the recognition of the child and youth population as subjects endowed with absolute priority. However, according to available evidence, such advances have not necessarily resulted in improvements in the living conditions of these populations. The consolidation of neoliberalism and its impacts on social policies have been obstacles to the materialization of rights affecting children and adolescents, especially those in the most vulnerable conditions. Anthropologist Cláudia Fonseca (2019) identifies a setback in the discourse of social justice and family reintegration that, in Brazil, marked the first years of the implementation of the Child and Adolescent Statute. On the other hand, the same source points to the emergence of “a pragmatic vision based on the individualized rights of the child as a guiding principle of protection policies.” According to Valéria Llobet (2020), from the University of Buenos Aires, the new assumption of the child M. L. C. da Silva-Valente Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil T. Tononi-Batista (*) Court of Justice of the state of Espírito Santo, Vitória, Brazil © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_6

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as a subject of rights is also permeable to a hegemonic, markedly Eurocentric discourse about childhood. A group of researchers from that university, including Villalta (2021) and Llobet (2013, 2021), has contributed to broadening the understanding of the principle of the best interest of the child, pointing to the imprecision and ambiguity that make it apt to become a discourse with great tactical versatility. From a theoretical point of view, the issue of family and community coexistence, which is the central theme of this article, presupposes that social policies carry the mark of the neoliberal project, forging ideas and creating demands that impact institutional actions aimed at the management of children, adolescents, and their families. In this paper, the topic is approached from the basis of the literature produced in the area of social work in Brazil, namely that by Mioto et al. (2015) and Abrão and Mioto (2017), thus providing an understanding of social policies under the neoliberal creed in the Brazilian context. The reflection on familism  – here understood as a social pattern in which the family assumes a position of centrality in social policy in the context of neoliberalism – provides a way to examine the principle of the best interest of the child and the difficulties that arise in its application. According to Mioto (2010), the suffering of thousands of children and adolescents around the world places the family in a central position in confronting the “manifestations of child and adolescent malaise.” As the role of the state is modified, the right to family coexistence, as governed by the principle of the best interest of the child, tends to place the rights of children in opposition to the rights of adults. Families become the preferred target of the blaming processes that place on individuals the onus for social problems. The second part of this paper explores the relationship between the centrality of working with families and its repercussions on the design of social policies. This centrality, in the neoliberal context, masks the processes of individualization, moralization, and accountability of subjects, which are constructed and reinforced by narratives of “problem” or “dysfunctional” families, terms still used by professionals working in institutions. The literature that explores the social construction of problematic families refers to the work of British researchers Stephen Crossley (2015) and Rachel Rosen (2018). The authors reflect on how neoliberal ideas contribute to the establishment of institutional practices aimed at families and children, drawing attention to the establishment of criteria based on classifications and legitimized by institutions. American researcher Linda Gordon (2008) warns that the demands imposed on mothers are even stricter, placing them in a universe of suspicion. According to Crossley (2015), the discourse on “problem families,” as assumed by mainstream media and political actors, constitutes part of a broad consolidation process of the neoliberal state. In this arena, the debate on family coexistence cannot be understood solely as a question of interpersonal relationships but instead must also be addressed as part of the neoliberal strategy and rhetoric present in austerity programs. In the Brazilian context, Mioto (2010) and de Loiola (2020) draw attention to the creation of discourses on families classified as incapable. According to Mioto (2010), this “classification” is due to the historical relationship between family and state, imbued with the ideology that families must be able to overcome obstacles to

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meet the needs of their members. In Brazil, social work has long broken with the diagnostic perspective that, guided by a classificatory logic, prevailed in the first decades of the profession’s existence. By transforming itself into a profession that conceives of truths as historically constructed, subject to changes and transformations, and operated by people in a given society, social work recovered the political dimension of the debate. By establishing a dialogue with critical theories on family, childhood, and public policies, this paper proposes a break with the practices that classify families as capable or incapable. Therefore, the paper seeks to understand the multiple issues that arise when the reality of family life, after processes of marital rupture, becomes a legal battle.

6.2 Policies for Childhood, Youth, and Family in the Construction of the Neoliberal State: Familism and the Principle of the Best Interest of the Child In general, social protection systems in Western societies have always been organized, from their early stages to the present, on the basis of the idea of the ​​ bourgeois family, with the father figure as provider and the mother as caretaker of the home and family. Therefore, the family, the state, and the market formed a triad upon which Western social protection systems were built (Mioto et  al., 2015). On the other hand, the centrality of the family in social policies, and its implications for citizenship rights, reflects the loosening or rupture of the centrality of the state in the provision of well-being. Pereira-Pereira (2010, 2015) identifies this process of rupture as a welfare pluralism, which has essentially consisted of a true rediscovery of the family as an important private agent of social protection since the economic crisis of the 1970s. In this context, most government agendas begin to adopt family support measures especially aimed at children. Such measures involve counseling practices, the expansion of home visits by state agents, programs to reduce child poverty, and the expansion of policies for valuing domestic life and reconciling parents with paid work, varying according to the reality of each country (Pereira-Pereira, 2010). In the Latin American context, as the author points out, families are expected not only to assume responsibility for the provision of care for their members but also to constitute productive units acting in protection networks parallel to the state (Pereira-Pereira, 2015). De Martino (2015) also discusses welfare regimes in Latin America, explaining that such regimes had familist bases until the end of the 1980s, in order to conciliate the social protection of a contributory nature, based on the figure of the man as provider and the woman as caregiver and therefore responsible for the well-being of the family. From the 1980s and 1990s, patterns of social protection and the format of public policies began to change, maintaining the familist orientation, with a strong shift of responsibilities to families, a process known as

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neofamilism, coined by De Martino (2015). Teixeira (2015) also points out that in the context of the “postadjustment” of social policies, families “resurfaced” as agents of informal social protection, occupying centrality either as objects, subjects, or instruments of public policies in national and international contexts. Nevertheless, in the Brazilian context, most of the social policies with a focus on the centrality of the family, such as health, social assistance, and child and youth policies, recognize the right to family and community coexistence, as provided for in the Child and Adolescent Statute (Teixeira, 2015). The neoliberal policies that have overtaken Latin America since the 1990s focused on three key aspects: poverty, family, and risk. As a result, state actions are based on targeting the poor, on the “redefinition of the role of the family in the management of social problems, and in the incorporation of risk as a criterion to categorize and weigh both issues and populational groups” (De Martino, 2015). In Brazil, the redesign of social policy since the 1990s is a topic addressed by several scholars in social work. This literature shows that the state’s withdrawal from the social arena and the consequent greater responsibility of the family in providing for the need of its members are the results of a process of state counter-reform. According to Behring (2008), it is a counter-reform because it evokes the neoliberal past, applying a rather aggressive prescription to restrict the role of nation states to territories that are more attractive to “foreign investments.” In this context, the process of holding families responsible occurs essentially through the so-called field of care, which is constituted as a field of negotiations. Permeated with uncertainties, the field of care is also present in the daily life of services in that they reproduce the idea of ​​responsibility for the family in the provision of well-being (Mioto & Dal Prá, 2015). Because families do not experience the same material and cultural conditions, their abilities to access services are also unequal. Thus, processes imposing and shifting the costs of care to the family take place under the aegis of care, overburdening family members from emotional, financial, and labor standpoints (Mioto & Dal Prá, 2015). The centrality of the family in social policies in Brazil, therefore, has at its core a familist perspective; that is to say, it takes on families as the center of public policies. Such a perspective can be understood “as a secular, cultural and political pattern” that permeates both the configuration of social policy and legislation as a form of regulating family relationships (Moraes et al., 2020). Zola’s work (2015) presents data from a survey covering family policies in different countries/cities in Europe and Latin American: Milan/Italy; Nantes/France; Bellavista/Peru; Soriano/Uruguay; and São Bernardo do Campo/Brazil. In the scope of the survey, family policies are understood as the concrete contents of political decisions. They are selected on the basis of specific legislation, on the basis of topics that are part of the political agenda, and according to the moment of their operationalization, through programs, projects, services, and benefits. According to the author, the survey found precedence for children and adolescents in the regulations for the protection and fight against the violation of social rights, as applied in the countries investigated. Therefore, “the principle of family and community coexistence is a right provided for children and adolescents in the legislation of the five partner countries in Latin America and Europe” (Zola 2015). Mioto (2010) points

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out that the suffering of thousands of children and adolescents around the world is an important component that places the discourse on the centrality of the family in social life at the center of the debate. In this way, the family is increasingly valued in the context of policies to fight the “manifestations of child and adolescent malaise,” which is generally carried out through orientation and socio-family support programs. It so happens that, amid a “host of propositions and under the aegis of a ‘homogeneous’ discourse on justice and citizenship, socio-family support programs are imbued with principles of a welfarist nature and that regulate family life” (Mioto, 2010). This fact highlights the paradoxical nature of the interaction between state and family, given the centrality of the family in social life, pari passu with its never-­ ending penalization, particularly for poor families. Thus, there is a contradiction in the ideology that prioritizes children in the neoliberal context given the incompatibility between the expectations for the standard of care to be provided to children and the miserable situation of their parents. In such a context, mothers, to whom caretaking tasks are traditionally assigned, become the targets of intense control. At the legal level, actions aimed at children and adolescents are guided by the principle of the best interest of the child, the doctrine of which is laid out, in the case of Brazil, by the Child and Adolescent Statute. However, the logic of the so-called principle of the best interest of the child, also adopted in other countries, has been the subject of investigation by many scholars. According to Linda Gordon (2008), an American researcher in the field of law and social work, prioritizing children has become a guideline identified by the aforementioned principle. Thus, as a concept, the principle of the best interest of the child has been questioned on the bases of its breadth and its indeterminacy, despite the definitions that have been provided to limit its operational uncertainty. In most parts of the world, the prospect of putting children first comes with the growth of the cultural and political power of women, whose organizational movements have played a pioneering role in creating the modern consciousness of children’s well-being. This female activism was, “paradoxically, rooted in the traditional responsibility of women towards children, insofar as it constitutes part of the modern women’s rights movement” (Gordon, 2008). In examining the principle of the best interest of the child and its impact on children and families, Gordon (2008) identifies competing definitions. In the same vein, Argentinian researcher Valéria Llobet (2020) warns that the principle has been used for different and even-­opposing social purposes. For Llobet (2020), the child-centered imperative put in opposition the interests of children and those of their parents, thus becoming one of the main devices for regulating family and gender relations. According to Gordon (2008), the history of social policies for children in the United States reveals that prioritizing children is a mark of the country’s modernity, driving and guiding its economy, individualism, and the relative disrespect for tradition and elderly people. However, the United States treats children worse than countries with comparable wealth. Among developed countries, the United States has the second-worst infant mortality rate, the worst poverty rate among children, and the lowest rate of social spending, around 3% of GDP, making it difficult to reconcile such circumstances

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with the ideology of putting children first. Thus, a contradiction lies in the fact that the caregiver may go hungry but must ensure that the child is well fed (Gordon, 2008). As examples, the author mentions the economic assumptions that guide the criteria for granting food supplementation to children, restricting the right of parents to access these very same foods. On the same logic, there is a contradiction between keeping children in good health conditions and allowing their parents to continue to suffer from the lack of access to the same services (Gordon, 2008). Gordon (2008) also highlights the maternalistic orientation, combined with the precepts of class and race, that insists that all mothers benefiting from certain social programs need counseling and supervision to ensure that they perform their motherly duties well, a demand imposed on widowed and separated mothers that places them in a universe of suspicion. For Llobet (2020), the moralization and the nuclearization of the family within the framework of social protection policies have been broadly and correctly analyzed as forms “of reorganizing the social reproduction that defined maternity and broadened the controls on the body and sexuality of women and on girls and boys.” Therefore, a review of the historical process of placing the rights and interests of women in opposition to those of girls and boys “challenges the supposedly non-gendered and often expressly anti-feminist character of the children’s rights paradigm” (Llobet, 2020). According to Rosen (2018), the neoliberal model of coresponsibility between mothers and the state continues the old maternalist tradition of altruism and self-­ sacrifice, where women are expected to comply with such standards because of responsibilities that are socially attributed to them. The researcher concludes that neoliberal strategies to fight poverty on the basis of “investing in children” do little to address its structural causes. For Rosen (2018), the state acts as an accomplice by going back to the traditional (thus “retraditionalizing”) division of labor between genders, feminizing the responsibility for managing poverty and the survival of the household. In terms of social policies, the ideology of prioritizing children not infrequently opposes the rights of children and those of adults, making the situation of the most vulnerable populations even more dramatic. Rosen (2018) admits that there are tensions in woman–child relationships and in the way they are experienced. In part, this is a result of the deep entanglements of women’s and children’s everyday lives, given the “durable binding of the lives and fates of women and of children in the public imaginaries.” However, it is in this frame of reference – that is, of the state’s withdrawal from the social arena and of greater responsibility assigned to the family – that the professional activities of social workers are situated, aimed at intervening “in the emblematic issue regarding the right to coexistence within the family and community” (Mioto et al., 2018). According to Cláudia Fonseca (2019), the idealized notion of mothering is that of the woman who, supported by her husband, can dedicate herself to her children full time, especially in their first years of life. According to this reasoning, the obvious “solution” not only for children in situations of great vulnerability but also for the problems that most afflict society (violence, unemployment, etc.) would be to

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effect the transfer, as quickly as possible, of poor children to upper-middle class families where, eventually, this ideal can be achieved.

6.2.1 The Right to Family and Community Life in Family Courts: The Social Construction of Problematic Families The contradictory partnership between state and family takes different forms in different countries. “Family solidarity” may be required by law, as can be seen in the legislation dealing with shared family life. In some countries, legislation focuses on broader solidarity, encompassing siblings and grandparents, while in others, it is more about parents and children (Mioto, 2010). In addition to the right to family life for children and adolescents, Mioto et  al. (2018) bring to the fore the rights of elderly people, which have been marked by the idea of children’s ​​ legal obligation to their parents, even when family history has shown clear evidence of parental violence or even parental absence from their children’s lives. The authors discuss the judicialization processes in the context of the state’s withdrawal from the social arena, noting that an even-greater burden falls on the family, not to mention the social vulnerabilities that it faces. They comment that it has been constant to legally delegate a sick elderly person who needs full-time care to a daughter who lives alone with her young children and cannot leave the job market, thus invoking the “legal obligation of care” (Mioto et al. 2018). Therefore, they state that it is in this context of judicialization that social workers are called upon to intervene in the “emblematic issue related to the right to family and community coexistence.” Professionals are required to act in situations in which rights violations occur in the domestic realm. These violations include the most varied types of violence, including negligence. At times, violence merges with other violations of rights, such as access to food, health, housing, and education, thereby worsening the dilemmas that they face. Valente and Batista (2021) address the right to family and community coexistence of children and adolescents, within the scope of family courts. This right is a theme present in the professional daily life of social workers in family courts, supporting the processes of custody and the regulation of coexistence between parents and minor children, extending to grandparents and other family members, in specific cases. Following the references of Gordon (2008) and Llobet (2020), the authors discuss the so-called best interest of children and adolescents, a guiding principle of the processes that regulate family coexistence, in family courts. They question the breadth and indeterminacy of the principle; its use for the most diverse social purposes; and its imprecision, which can collaborate to reduce the gender, racial, and social class inequalities that permeate concrete situations. In Brazil, the right to family coexistence is supported by the Federal Constitution (Brasil, 1988) and the Statute of the Child and Adolescent (Brasil, 1990), thus becoming a guiding principle of the National Social Assistance Policy (PNAS). A

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little over a decade ago, the right to family coexistence became the theme of a specific federal law, with the objective of curbing obstacles to coexistence between parents and minor children, after processes of separation or marital rupture. According to Law 12.318, of August 2010, which provides for parental alienation, Parental alienation is (considered to be) the interference in the psychological formation of the child or adolescent promoted or induced by one of the parents, the grandparents or by those who have authority over the child or adolescent, custody or surveillance so that the parent is repudiated or that causes damage to the establishment or maintenance of ties to that parent. (Brasil, 2010)

The Parental Alienation Law was passed after a campaign that strongly emphasized the suffering of children and the ensuing feelings of disapproval toward the parents involved in these processes. The idea of ​​harming a child, of separating them from a loved one or taking advantage of their dependence, is powerfully moral, according to the teachings of Ian Hacking (2013). The Parental Alienation Law and the ideas that support it have contributed to socially forge the figure of the “alienating mother” because the tasks of care have historically been assigned to women. Described as women “resentful of a separation” and even as “unbalanced” women/mothers, they are at greater risk of having their arguments delegitimized when they denounce violations of their children’s rights, in the course of litigation in family courts. According to anthropologist Camila Fernandes (2021), this placement of mothers in opposition to their children causes motherhood to be “the main source of social problems.” In this context, the centrality of work with families is aimed almost exclusively at the mothers of children and adolescents. On the other hand, the idea of ​​a “parental alienation syndrome” that can be identified in children, in the context of highly litigious divorces, is appropriated by the logic of truth production that prevails in legal discourse. The Parental Alienation Law, by judicializing parental relationships, represents the apex of the tendency to attribute social problems to individual issues, thereby reducing the discomfort caused by the expressions of the social issue to psychological factors. In this regard, Valéria Llobet (2013) inquiries into how, in Argentina, the complex process of institutionalization of the discourse on the rights of children and adolescents, as a “new epistemology” for understanding childhood, was mediated by “psi” knowledge, producing new social authorities through the management of subjectivity, strengthening the specialist’s discourse. According to Llobet, this knowledge about people is not limited to representations of subjectivity but rather also constitutes meaning regimes that permeate social programs and sets limits on intervention (Llobet, 2013). Thus, the specialist’s discourse, “as it articulates languages, vocabularies, argumentative paradigms, and modes of subjectivation,” fulfills the function of being an administrative bridge of the state, through which it depoliticizes a problem. In this way, it appears that the psychologization of social relations impoverishes the political debate, making it difficult to perceive the multiple factors that are present when the realization of family coexistence, after processes of marital rupture, becomes a legal battle. In this sense, the idea of ​​identifying parental alienation to apply punitive measures to the parent who is considered to be the “alienating” party, as established in

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Brazilian law, is quite remote from the professional project of social work, given that the profession broke decades ago with the diagnostic-classification logic that marked its origin, to become the critic and guarantor of rights. In dialogue with Llobet (2013), “the construction of classifying categories based on naturalized conceptions about the family, gender relations and childhood is central to the state treatment of childhood and the reproduction of state institutions that it builds.” When examining the narrative of “problem families,” Stephen Crossley (2015) situates the phenomenon that emerged in 2011 in England in response to the disturbances that took place that year, after the murder of a young man in London. According to the researcher, the establishment and expansion of the Troubled Families Program is part of a broad neoliberal state-building process carried out by the United Kingdom’s coalition government. The UK researcher pays particular attention to the centrality of the family in neoliberal restructuring and the reasons that make marginalized populations the focus of intense political concern. Based on the contributions of Wacquant and Bourdieu on neoliberal state building, it examines the development of the discourse on problem families. According to Crossley (2015), the disturbances that began in London and spread across the country led to the emergence of a consensus, on the part of the media and political actors, on extremely poor populations, resulting in a strong reaction against them. Attention turned to the role of fathers in controlling their children, a debate that led to the construction of the figure of single mothers as promiscuous and immoral, for having deprived their children of a “normal upbringing” within a nuclear family. Imbued with a long narrative on “problematic mothers,” the debate reignited the discussion about the dependence of the “unworthy” poor on the social welfare system, in a time of austerity (Crossley, 2015). In this context, discourses proliferate about young barbarians and failed families, avoiding and masking structural disadvantages, individualizing inequality as a result of personal disorders and pathologies, and therefore understanding material inequalities as an inherent issue in the capitalist system. According to Crossley (2015), the official discourse made it clear that the situations were not related to structural issues of poverty and race or the result of government cuts but about people with a distorted moral code and total lack of self-control. In response to the uprisings, reforms were announced in several areas, supported by the rhetoric of a social welfare system that incites laziness and excuses bad behavior. The response to the uprisings provides, in the words of Luc Wacquant, “an example of the formation of the neoliberal state: the renewal of the limits of the missions and capacities of public authority on the economic, social and penal fronts” (Crossley, 2015). Media support, the emergence of a small conference, and software industry offering solutions to the issue of “problem families” forged a consensus, distracting attention from the impact of austerity measures and social welfare reforms promoted by the government of that country. Thus, it appears that the social issue returns to the topic of families and parenting, attributing the main cause of the uprisings to “bad parenting.” The so-called problem families are described as a small number of families that are the source of most of society’s problems.

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Crossley’s (2015) journey through the upheavals that took place in the United Kingdom provides clues to reflect on the centrality of the issue of family coexistence for the neoliberal project. According to the researcher, by selecting children and families as deserving of state investment, authority programs aim to ensure the production of subjects able to live in a society governed by the neoliberal model. In this context, the concept of early intervention begins to play an ideological role in contemporary austerity policies. According to Rachel Rosen (2018), the elevation of the child to the condition of a privileged social subject of social policies has been the target of criticism by a substantial body of feminist thought. This literature highlights the new “problems” created for parents with the global focus of child-­centered policies. Mothers, owing to the gendered nature of the family, are objects of increasing surveillance and control, while their own interests and well-being are obscured, or even devalued and subordinated to the interests and needs of children rather than being part of a whole. Incidentally, according to Rosen (2018), this body of critical scholarship provides, in the words of Newberry, “insight into both the culture of responsibilization and harsh material impacts of such programs where women’s the waged and unwaged labor absorbs the vagaries of ‘flexible accumulation.’” The tendency to “invest in children” has also provided rich soil for feminist social theory, generating decisive arguments about the problem of child centering and the reduction of policies to “child citizenship.” According to Rosen (2018), this term was coined by Lauren Berlant to describe the neoliberal context of the United States and its extraordinary global impact, thanks to its imperial dominance. The author argues that the focus on “a nation made by and for children” (Berlant, 1997, in Rosen, 2018), resulting from child-centered politics, results in underpowered, passive, and overdependent citizens. As a result of this infantilization, critiques of neoliberal capitalism and the inequalities that it generates are silenced, with the child citizen providing, in Lauren Berlant’s words, “an alibi or inspiration for the moralized political rhetorics of the present and for reactionary legislative and juridical practice” (Rosen, 2018). Moreover, according to Rosen (2018), scholars working in the theme of childhood severely criticize the defenders of a view that considers the child an “investment,” not only because it is an instrumental point of view but also for moral and political reasons. The researcher evokes Qvortrup’s formulation, according to which “children are constituting becomings, not the current generation but the next one.” Carla Villalta (2021) discusses the Latin American reality, emphasizing that the family has been considered a strategic device and a privileged space for intervention policies to fight poverty in the context of neoliberalization processes in force in Latin America. The foundations underlying these rights protection policies collaborate to mask structural inequality and situations of social injustice, through the definition and construction of “situations of vulnerability of rights” for which one can easily find someone responsible. In many cases, according to Villalta (2021), state protection operates through the moralization of social inequalities, which results in the development of highly individualized initiatives. In this context, when the children’s families do not change

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their behavior, there is a tendency to place children’s rights in opposition to those of their families. De Martino (2015) studied the Conditional Cash Transfer Programs (PTCRs) in Latin America and the material and symbolic relationships with the family and gender and gender constructions that permeate such programs. The author considers that the “political and academic discourses around the plurality of family arrangements and the need for more egalitarian gender relations miss the opportunity to materialize in this new generation of social policies.” On the basis of an analysis from a gender perspective, the author highlights that the basic equation of income transfer programs is that women’s receipt of these programs would result in their empowerment. However, women end up being responsible for care and compliance with conditionalities, factors that underline the role of caregivers and further limit the possibilities of their entering the labor market. Therefore, “the PTCRs do not promote the equitable distribution of work associated with care, maintaining the sexual division of domestic work, the model of the reproductive woman and the male provider” (De Martino, 2015). In the Brazilian context, when approaching the family in the context of socio-­ family support programs, Mioto (2010) draws attention to essential issues around the distinction between “capable and incapable families.” According to the author, such “classification” occurs because the historical relationship between family and state is imbued with the ideology that families should be able to protect and meet the needs of their members, regardless of the difficulties of their living conditions and their own adversities from family life. In field research with teenage mothers living in a favela in downtown Rio de Janeiro, anthropologist Camila Fernandes Pinto (2021) observes the discourse on the inability of these adolescents to reconcile the care of their children with the exercise of their own sexuality, exposing them to pregnancies. It is a discourse that blames the adolescents, considered incapable of avoiding another pregnancy, and thus forces the demand for social programs, exhausting the possibilities of available services. Nevertheless, de Loiola (2020) draws attention to the discourses and practices that permeate the “sociolegal production of incapable families,” showing that many life trajectories that are marked by violence, abandonment, and social inequality are not considered and families are labeled as incapable of taking care of their children. In this sense, the author emphasizes the importance of professionals moving from the singular to the universal, as a way of going beyond the discourse of the incapacity of caring for families, revealing the contradictions in society and revealing that they serve only individual accountability (de Loiola, 2020). Mioto (2004) highlights, on the basis of sociological, psychological, and psychiatric theories, that the judiciary tends to resort to the educational system, which results in the regulation of violence in private life. An example of this is the fact that the transformations of the family have had a consensus only for aspects related to its structure and composition, not covering social expectations around the tasks and obligations of its members, regardless of the place the family occupies along the lines of social stratification.

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Thus, the author concludes that in their professional work, social workers can move “through processes guided by standards of normativity and stability,” in actions aimed at the perspective of functionality, integration, and social control. In this way, they fail to situate and discuss the family in the context of an unequal society and instead reinforce the vision that strengthens the family as a “producer of pathology” (Mioto, 2004).

6.3 Final Considerations Carried out on the basis of a wide national and international literature, this study allowed us to establish important dialogues on themes such shared family coexistence and the best interest of children and adolescents, pari passu with discussions on the structural determinants imposed by the capitalist system. Such determinants affect the construction of “problematic” and “disabled” families who use public services as a whole and who require the justice system, including family courts. Moreover, in family courts, judicialization processes tend to establish an opposition to the so-called principle of the best/superior interest of the child in relation to their parents, especially regarding mothers, in the contexts in which there is an alleged practice of parental alienation. This paper sought to show how this apparent opposition disadvantages both children and their mothers, in no way helping to transform the unfavorable conditions experienced by families. It is important to consider that judicialization and criminalization processes concur to increase the burdens of individual subjects and families. At the same time, such processes exempt the state from promoting social policies for families in situations that jeopardize the experience of family and community coexistence for children and adolescents, such as in family contexts marked by domestic abuse. Within the scope of their professional activities, social workers are called upon to work in the most diverse and complex family situations, which, in the case of family courts, put them at odds with the logic of litigation. In this context, it is necessary to be aware that decades ago, social work, as a profession, broke with the diagnostic-classification logic that marked its origin to become the critic and guarantor of rights.

References Abrão, K.  C. L., & Mioto, R.  C. T. (2017, setembro-dezembro). Políticas familiares: uma introdução ao debate contemporâneo. Katálysis, 20(3), 420-429. Behring, E. R. (2008). Brasil em contra-reforma: desestruturação do Estado e perda de direitos. (2ª ed). Cortez. Brasil. Constituição da República Federativa do Brasil de 1988. (1988). Brasília. Brasil. Lei N° 8.069, de 13 de julho de 1990. (1990). Estatuto da Criança e do Adolescente. Brasília: Diário Oficial da União, 13 de julho de 1990.

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Brasil. Lei N° 12.318 de 26 de agosto de 2010. (2010). Dispõe sobre a alienação parental e altera o art. 236 da Lei no 8.069, de 13 de julho de 1990. Diário Oficial [da] República Federativa do Brasil, Brasília. Crossley, S. (2015). Families, Relationships and Societies: realizing the (troubled) family, crafting the neoliberal state. Families, Relationships and Societies, 5(2), 263–279. de Loiola, G. F. (2020). Produção sociojurídica de famílias “incapazes”: do discurso da “não aderência” ao direito à proteção social. Editora CRV. De Martino, M. (2015). Programas de transferências condicionadas, famílias e gênero: aproximações a alguns dilemas e desencontros. In R. C. T. Mioto, M. S. Campos, & C. M. Carloto (orgs.). Familismo, direito e cidadania: contradições da política social. Cortez. Fonseca, C. (2019). (Re) descobrindo a adoção no Brasil trinta anos depois do Estatuto da Criança e do Adolescente. Runa, 40(2), 17–38. Instituto de Ciencias Antropológicas, Facultad de Filosofía y Letras, Universidad de Buenos Aires. Gordon, L. (2008). The perils of innocence, or what’s wrong with putting children first. Journal of the History of Childhood and Youth, 13, 331–350. Hacking, I. (2013, janeiro-junho). Construindo tipos: o caso do abusos contra crianças. Cadernos Pagu, 40, 7–66. Llobet, V. (2013). La producción de la categoria “niño-sujeto-de-derechos” y el discurso psi em las políticas sociales en Argentina. In V. Llobet, M. C. Ospina, et.al. (orgs.). Pensar la infância desde América Latina: un estado de la questión (pp. 209–235). CLACSO. Llobet, V. (2020). Tensiones entre derechos de las mujeres y protección de la ninez. Revista Estudos Feministas, Florianópolis, 28(3)1–14. Mioto, R. C. T. (2004, dezembro). Trabalho com famílias: um desafio para os assistentes sociais. Revista Virtual Textos & Contextos, 3, ano III. Mioto, R. C. T. (2010). Novas propostas e velhos princípios: a assistência às famílias no contexto de programas de orientação e apoio sociofamiliar. In M. A. Sales, M. de C. Matos, & Leal, M. C. (orgs.). Política social, família e juventude: uma questão de direitos. (6ª ed). Cortez. Mioto, R. C. T. & Dal Prá, K. R. (2015). Serviços sociais e responsabilização da família: contradições da política social brasileira. In R. C. T. Mioto, M. S. Campos, & C. M. Carloto (orgs.). Familismo, direito e cidadania: contradições da política social. Cortez. Mioto, R. C. T., Campos, M. S., Carloto, C. M., & (orgs.). (2015). Familismo, direito e cidadania: contradições da política social. Cortez. Mioto, R. C. T., Dal Prá, K. R., & Wiese, M. L. (2018, janeiro-junho). Política social e processos de judicialização: serviços sociais e famílias em foco. SER Social, Brasília, 20(42) 11–29. Moraes, P. M., Nunes, R., Horst, C. H. M., & Mioto, R. C. T. (2020). Familismo e política social: aproximações com as bases da formação sócio-histórica brasileira. Revista de Políticas Públicas, 24, 802–818. Pereira-Pereira, P. A. (2010). Mudanças estruturais, política social e papel da família: crítica ao pluralismo de bem-estar. In M. A. Sales, M. de C. Matos, & M. C. Leal (orgs.). Política social, família e juventude: uma questão de direitos. (6ª ed.). Cortez. Pereira-Pereira, P. A. (2015). Prefácio. In R. C. T. Mioto, M. S. Campos, & C. M. Carloto (orgs.). Familismo, direito e cidadania: contradições da política social. Cortez. Pinto, C. F. (2021). Figuras da causação: as novinhas, as mães nervosas e as mães que abandonam os filhos. Editora Telha. Rosen, R. (2018). Poverty and family troubles: Mothers, children, and neoliberal “antipoverty” initiatives. Journal of Family Issues, 40, 0192513X1880974. Teixeira, S. M. (2015). Política social contemporânea: a família como referência para as Políticas Sociais e para o trabalho social. In R. C. T. Mioto, M. S. Campos, & C. M. Carloto (orgs.). Familismo, direito e cidadania: contradições da política social. Cortez. Valente, M. L. C. da S., & Batista, T. T. (2021, setembro-dezembro). Violência doméstica contra a mulher, convivência familiar e alegações de alienação parental. Argum. 13(3), 76–89, Vitória, ES.

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Villalta, C. (2021, mayo-octubre). Antropología de las intervenciones estatales sobre la infancia, la adolescencia y la família: Etnografiando prácticas cotidianas, construyendo perspectivas analíticas. Cuadernos de Antropología Social, 53, 21–37. Zola, M.  B. (2015). Políticas sociais, família e proteção social: um estudo acerca das políticas familiares em diferentes cidades/países. In R. C. T. Mioto, M. S. Campos, & C. M. Carloto (orgs.). Familismo, direito e cidadania: contradições da política social. Cortez.

Chapter 7

Support to Victims in High-Conflict Scenarios: An Approach from Sociolegal, Pedagogical, and Care Perspectives Alba Lucía Cruz-Castillo , Angela Cristina Pinto-Quijano and Alejandra Calderón Martínez

,

7.1 Introduction This chapter covers reflections arising from the exercise of the professional praxis of social work in the accompaniment of relatives who are victims of forced disappearance in the municipality of Uribe-Meta in Colombia. This territory has been the subject of land disputes mediated by sociopolitical violence, and it is in a regions that reported 5281 cases of forced disappearance between 1958 and 2018. Said region comprises three subregions, among which is the so-called Ariari-Guayabero, where the municipality of Uribe is. The phenomenon of forced disappearance characterizes this municipality. As for the causes of the conflict in the area, some of them have been analyzed for political, socioeconomic, and security reasons. According to the United Nations Development Program (UNDP-Colombia), the political causes are related to the weakness of government institutions, fragile participation processes, and the centrality of state services. These weaknesses mean that the regions affected by the conflict are left with a low share of the national budget. On the other hand, the socioeconomic causes are related to poverty and inequity in the distribution not only of land but also of services such as health and education. If political causes are added to the socioeconomic ones, this implies an imbalance in terms of social justice that impedes human development. Finally, the causes related to security arise from the presence of groups outside the law, such as guerrillas, paramilitary groups, This document is the result of a research process financed and supported by the Universidad de La Salle, Bogotá, Colombia. A. L. Cruz-Castillo (*) · A. C. Pinto-Quijano · A. C. Martínez Universidad de La Salle, Bogotá, Colombia e-mail: [email protected]; [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_7

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other illegal armed groups, or even the dynamics of drug trafficking. The constant direct or indirect confrontation between illegal groups favors a scenario for the violation of human rights in the territory (UNDP-Colombia, 2010, p. 6). In this context, this chapter highlights the disciplinary role in the accompaniment processes from the sociolegal and the psycholegal professions in intervening in contexts of high conflict and in situations where suffering is continuous. Based on this, the relevance of accompaniment to victims is covered from the sociolegal dimension and the nuances that this has. Particular emphasis is placed on looking at the care practices directed at the researchers themselves as pain recipients. These subjects contribute to the search for the legal truth mediated by the imputation processes and criminal proceedings of the victimizing acts, but based on historical truth. According to Uribe de Hincapié (2006), this truth implies breaking the silence, disclosing what happened, highlighting the suffering of the victims, and creating a space for the construction of truth. Uribe de Hincapié indicates that it allows for or facilitates healing the wounds caused during the conflict and rebuilding what legal justice does not reach. This text seeks to expose the practice, the tensions, and the learning that underly these processes during a period of three years (2019–2021) when 34 families were accompanied in the search for truth, all of which made visible the relationships between legal and historical truth. In relation to this, Atehortúa-Aguirre (2020) warns that it is relevant to show the multiple perspectives and places that arise from the relationship between memory and history from a complementary perspective, and not only from the antagonistic perspective fostered by legal truth. Next, the memory–history relationship admits the participation of all actors while allowing the victims to position their voices. Therefore, victims’ understanding of accompaniment is addressed from a professional perspective, its sociolegal implications, and its reading from care practices. Finally, a methodological route is taken that provides a comprehensive look at the intervention in sociolegal contexts of social work in scenarios of sociopolitical violence, like the case of forced disappearances. In such a way, it facilitates a route of a pedagogical nature for the discipline.

7.2 Support Victims from the Sociolegal Perspective According to Buitrago and Moreno Rodríguez (2018), the National Center for Historical Memory reports various violent events in Colombia, of which different population groups have been victims. Among them are “forced displacement (1985–2012): 5,712,506, civilian deaths (1958–2012): 177,307, combatant deaths (1958–2012): 40,787, kidnappings (1970–2010): 27,023, forced disappearances (1985–2012): 25,077, mine victims (1985–2012): 10,189, massacres (1980–2012): 1,982” (Buitrago & Moreno Rodríguez, 2018, p.  2). To these data that show the harshness of the war experienced in Colombia, we must add the political causes mentioned above regarding a weak institutional framework, given the fact that the

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victims have waited for years for a process of reparation and care by official institutions, who still do not have the infrastructure to cover care for so much pain. Thus, the magnitude of the damage caused to the population in Colombia is profound not only because of war itself but also because of the inconveniences that arise from the legal process and the victim’s struggle for recognition as subjects of law and rights. From the above, it is possible to make clear that the need for a comprehensive repair process is essential to mitigate the effects that occur from one generation to another. Said comprehensive reparation, in theory, would cover the accompaniment of the victims from the sociolegal and psycholegal aspects, which helps Strengthen the victims in their processes of accessibility to justice, enhancing their resources as subjects of rights and essential social actors in the transformation of their contexts. It seeks to strengthen the victims by making them active subjects in their legal processes through the understanding and appropriation of their rights. It helps develop pedagogical strategies for teaching concepts and legal routes. (Pineda & Gómez, 2012, p. 76)

According to the Corporación AVRE (2009), the scenario of accompanying victims around the enforceability of rights frames a sociolegal process where the legal is presented as a concrete way of relating between the social and the juridical. It is possible to make rights known and restore social issues to build trust among the different actors in society, organizational processes, and information on legal procedures to guarantee nonrepetition. In this accompaniment, it is necessary to make clear that the social worker is present in the reconstruction processes not only of the historical truth of the victimizing events but also of the legal truth, and both constitute the broad universe of the transition from a war scenario to another of peace and repair. Anamaria Muñoz Rincón (2020) manages to synthesize some premises of researchers on the dimension of historical truth and legal truth. Muñoz Rincón shows the role that both truths play in the transition processes, and from there, the author infers that the two truths are directly proportional. In the same way, Saffon and Uprimny (2010) characterize this relationship and its relevance in the production of truth, warning of the limitations of judicial truth in terms of development and effectiveness in judicial processes. This brings to the fore, on the one hand, the difficulties in the reconstruction of a full truth and, on the other hand, the fundamental role of the victims in building the historical narratives from extrajudicial actions. However, for Botero and Restrepo (2006), the search for truth is nourished by several mechanisms, some of an individual nature and others of a collective nature. In this way, the legal truth accounts for the individual claims from the law, while the historical truth is fostered by the collective. Hence, both truths are fundamental for building a full truth and for protecting the right to the truth. In the accompaniment of social work in the social and legal field, therefore, humanitarian actions of accompaniment to suffering are intertwined with the activities of a social and legal agency. This field of intervention, to which the discipline of social work has paid little attention, has consolidated and systematized processes that reflexively account for a disciplinary practice that must be made visible and that

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today broadens the sociolegal perspective on social intervention. This problem has already been raised by Cruz Castillo et al. (2019), who also point to the need to include the role of the companion as a reflective subject in this process, as a receiver of all suffering, and as a conscience subject in the reparative and healing process. Therefore, the role of the social worker from the sociolegal perspective emerges from the experience of accompanying relatives who are victims of forced disappearance. This role accounts for three specific scenarios. In the first place, there is a scenario focused on making the demands on reparation visible. It includes compiling the individual and collective claims of those who have suffered damage. In this first scenario, it is relevant to locate the historical facts and the sociolegal claims of the victims in a territorial understanding of the conflict. The second scenario has to do with the visible recognition of the victims as subjects of law. For this, it is a priority to recognize them as citizens from their condition of having voices and participating in political processes as social agents. This possibility covers a process of citizen training related to knowing the legal mechanisms of a claim, gaining access to the truth, and reparation. Here, the social worker not only listens and collects information but also helps in the task of citizen training. The third scenario is associated with the pain of the victims. In other words, pain is put on the public scene from a political sphere to make it visible. The third scenario must be focused on care because it represents a rupture between the intimate and the public in a common act. This implies acts of social recognition of said pain and actions that allow access to legal mechanisms through which that pain can be repaired. These three scenarios show the role of the social worker as an agent of political processes anchored in legal processes, as an actor of socio-community actions, and as a coreporter building the memory of the conflict. That role is reflected in the accompaniment where it is possible to know and approach the victims’ reality.

7.3 Reading of Accompaniment from Care in Dialogue with the Sociolegal During the confrontation between the Revolutionary Forces of Colombia–People’s Army (FARC-EP) and the national government that lasted for longer than half a century, the government focused its actions on defeating the guerrilla group until the peace agreement was signed in 2016. Nonetheless, at the time of the direct war between these two actors, the government seemed to fulfill the function of ending the conflict by capturing the enemy and recovering the lost territory where said guerrilla group operated. When dealing with extensive portions of land in the hands of guerrilla members and other illegal groups, the presence of the state was null, and this prevented the guarantee of civil rights in the conflict zones, formally and in practice. That situation generated a constant scenario of violating rights that, with the signing of the peace agreement in 2016, became more visible, demonstrating the

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existing gap in the sociolegal dimension not only of the formal fact of law and the application of coercive norms but also of human behavior and how it is linked to the rules of law (Hernández-Pérez & Pinto-Quijano, 2021). In this context, three dimensions demand attention: the direct victims of the conflict, the strategies to repair the victims, and the due accompaniment. The first dimension requires understanding a series of concepts, such as victims, the restoration of rights, reparation to victims, and social claims. This understanding involves those directly affected by the conflict in transitional justice (Fuentes-­ Becerra & Atehortúa-Arredondo, 2016) who were somehow forgotten by the state as the violation of their rights occurred for years in the absence of the state. In order to involve the victims, it is essential to recognize them and subsequently compensate them through the law (De Grieff, 2011; Fuentes-Becerra & Atehortúa-­ Arredondo, 2016; Hernández-Pérez & Pinto-Quijano, 2021). However, the existing regulations are not enough to repair the historical memory and what this implies—for instance, in events of forced disappearance. This situation reflects one of the sociolegal gaps faced not only by the affected communities but also by the very applicability of the norm. Consequently, the normative system that facilitates the restitution of rights and memory is defective given the particularity of the Colombian internal conflict (Hernández-Pérez & Pinto-Quijano, 2021). The second dimension arises from the insufficiency mentioned above, so asking about how to repair the victims forces us to think about the concept of victim and to think about strategies that help solve the problem, strategies that are consistent with the social issue. Regarding the idea of the victim, the explanation that Arrieta Burgos provides when deconstructing the concept of citizenship is taken up, which is well summarized by Cruz Castillo et al. (2021), who highlight the author’s idea by enunciating the type of citizenship that is configured in the face of the search for justice. In this sense, the victims are associated with the claim, with the transition from their condition of victims to citizens, and with what this implies in the framework of the transitional justice that welcomes them. In this context, the victim enters a process of citizenship in transition without a transitional justice that meets all their demands. This is because they are “survivors of the armed conflict […] who live daily struggles for inclusion and recognition of their status or membership as citizens and that they may not even find answers at the hands of a transitional justice without transition” (Cruz Castillo et al., 2021, p. 86). Now, in terms of strategies, although it is true that in this scenario the participation of victims in implementing public policy to achieve reparation is essential, there are limitations to such involvement (Berrío, 2013; Naranjo-Giraldo et  al., 2009). The above has been demonstrated in transitional justice in Colombia, where the victim remains as a victim and, therefore, remains as what Arrieta Burgos (2016) calls a citizen in transition. Such a situation represents a limited citizenship, according to Fuentes-Becerra and Atehortúa-Arredondo (2016). This scenario reflects one more void in the sociolegal field, and it implies the continuous search for alternatives to the emotional aftermath, the rebuilding of social networks, and building up self-esteem (Arrieta Burgos, 2016).

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In this way, the perception of caring citizenships as part of the historical and cultural spheres embodied by the affected communities becomes valid by recognizing daily practices as scenarios of political sociability and life (Cruz Castillo et al., 2021, p. 90). This care strategy is accompanied by the sociolegal, facilitating a vindication of the political subject from the perspective of care and at the same time as a subject that needs to be repaired until its integrality has been reconstructed. It allows the victim to be visualized, and therefore, the construction of citizenship begins from the subjectivity that has caused pain and marginalization. However, bringing about the above suggests a professional intervention that repairs violated rights. In this process, the third dimension, due accompaniment of the victims by professionals, emerges. This accompaniment based on care demands paying equal attention not only to the one who is accompanied but also to the one who accompanies. Consequently, one should implement a politics-of-care perspective both ways to analyze the matter. On one hand, the analysis should focus, first, on the victim who takes the psychological effects of the conflict as a point of departure to restore rights from their life project, from their condition of care, and from their sociopolitical situation and who is also a subject in the legal order with rights that are effectively protected by the state. On the other, the analysis should also pay attention to the professional who accompanies them through an exercise of dialogue with the victim. In this last scenario, there are emotional risks that impact those who carry out the intervention when facing the realities of violence experienced by the victims, permeating the objective actions of the professionals (Arón & Llano, 2004). All this demands the creation of other strategies that would help in the professional’s process, which shows another gap in the sociolegal orbit as the process that seeks to solve the problem is affected. The next section will illustrate these new strategies.

7.4 Pedagogical Strategy of Care: Scenario to Strengthen the Tools of Sociolegal and Psychosocial Agency in Victims and Companions The strategy presented here is the result of continuous dialogues between professionals in the field. The plan aims to be a guide that, from care, addresses elements present in the intervention in an integral way for the subjects who are involved in it. The following elements should be taken as steps to follow during fieldwork in intervention contexts with family victims in high-conflict areas (Table 7.1). (a) Find a path of approach to the territory from the reconnaissance of trajectories and alliances. In Colombia, cooperation agencies, organizations, foundations, and international and national organizations join the political commitment and develop actions to make visible the initiatives that the victims lead for the restoration of their rights. In

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Table 7.1  Sociolegal and pedagogical elements present in the pedagogical strategy focused on care Aspects Construct a path based on recognizing trajectories and alliances in the territory

Contributions to the process against the sociolegal This allows the recognition of actions of legal recognition and claim of the victims in different processes carried out by nongovernmental organizations from human rights perspectives

Contributions from care Looking at social intervention as a reflexive exercise that must recognize knowledge in the territories and its conceptual interpretive networks

Pedagogical elements Construction of maps of alliances to understand the social, cultural, and historical dynamics of the actors in the territory Identification of places and the knowledge generated and their social assets Recognition of context to identify pedagogical actions to approach the context from ethnic and gender perspectives, among other diverse perspectives

Anchor concepts to It is the scene of the understand the recognition of conceptual context of conflict lines of action on which strategies of approach to the phenomena in the territory are developed; this implies the recognition of conflicts and sociolegal tensions from the historical territorial claim of the victims Dialogue with the This is an inquiry into the victims trajectories of pain and re-victimization as subjects of law and in the field of social justice

Recognition of the territory as a place that receives and gives agency to feelings, struggles, and voices

Identify impacts on the companions in the processes of giving psychosocial attention to the victims Strategize from care in the context of emotional accompaniment (emotional nursing)

The identification of accompaniment actions to strengthen skills from the condition of subjects of law Thinking of The provision of listening as a elements to organize transversal action to claim processes for agency processes, the collective and caring for the pain popular action of the trajectories, and communities transformation

This involves an analysis of the effects in the sociolegal context and within the framework of a territorial view of said effects This takes a comprehensive look at the accompaniment process as a scenario for receiving pain and, at the same time, the space to process it from all those involved in the intervention activities

Assuming that listening is a political action, as it represents the testimony and the denunciation of the facts Identifying the trajectory of damage and effects in individual and collective life

Subject recognition to mark approach paths

Note: own elaboration

the Meta region, an organizational trajectory is identified in which communities are linked with PAX Holland, universities, and groups to generate peace actions and search for their loved ones.

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Based on the above, the research seedbed PAZ SOS has built a path to approach the territory. It begins with the knowledge of the PAX Holland organization and its actions in Meta. At the same time, the armed territorial conflict is investigated together with the implications of identifying the actors involved, facts, cultures, beliefs, social norms, and local histories. Finally, workshops are formulated to implement them with women’s associations from Meta and the group of families that PAX Holland accompanies. This step is relevant because from the perspective of care, the territory is assumed not only as a condition of inhabiting but also as a condition of the struggles, claims, and trajectories of pain marked in the routes, experiences, and complaints that emerge from the facts of victimization. Thus, the workshops constitute a moment of openness to the territory and the heartbeat of those who inhabit it. In this step, the path represents a two-way recognition: on the one hand, the accompanying subject and, on the other, the vital trajectories anchored in the victims’ territory. The aforementioned is called a path as it allows for planning intervention actions in the region by taking its particularities into account. (b) Anchor the concept to understand the context of the conflict. This step carries out the compilation of epistemic concepts to understand the logic of violence in the territories, and this implies a conceptual, sociohistorical, and political reading of basic concepts in which reaching agreements between those who are at the scene of the intervention is fundamental, as both the languages and denominations of the facts are necessary to understand their ontology. Previous research was carried out that highlighted the importance of rescuing the collective memory as a right of the victims and the families searching for their loved ones who disappeared in the Colombian armed conflict. That research is based on understanding forced disappearance as a crime and a crime against humanity with a high degree of severity that includes the violation of human rights (Centro Nacional de Memoria Histórica, 2018). Moreover, forced disappearance is considered a repertoire of violence generated in a context of high conflict, and it “consists of the combination of deprivation of liberty of the victim, removal of the victim from legal protection and concealment of information about his whereabouts” (Centro Nacional de Memoria Histórica, 2016, p. 38); and those responsible can be both the state and illegal armed groups. Additionally, the previous conceptualization allowed us to understand the negative impacts at the individual, social, familial, and communitarian levels. According to Elizabeth Lira (1990 cited in Centro Nacional de Memoria Histórica, 2016), this negative feeling in a population bends the physical and mental will, generating a rupture in the social tissue, silencing people for fear of reprisals, denying local knowledge, and ignoring human rights. According to the report Until They Are Found, by the National Center for Historical Memory (2016), the searching families have faced two realities: one is related to the victimizing act of forced disappearance, seeking to claim their rights with all the risks that this implies, and the other is related to their continuing with

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their life project without the person who is missing, a fact for which they receive no social or institutional support. Understanding these elements made it possible to configure the intervention area as a meeting place between the victims and the professionals. This scenario was done from the perspective of care through the tensions that arose around the claims and demands of the victims, the legal claims, and how they occurred in the particular path of the victims’ pain. (c) Dialogue with the victims. Once the context of conflict was understood, it became necessary to generate rapprochement with the community in alliance with the organization PAX Holland to establish a dialogue and a bond of mutual recognition. The research seedbed PAZ SOS formulated meetings focused on different groups of people (women, families, Indigenous peoples, youths), allowing them to generate empathy and key safe spaces to identify potential consequences, particularities, and potential strategies to implement. These meetings provided a comprehensive vision of the realities that communities face in a social, economic, legal, and emotional way. In addition, the importance of caring for the companion of the processes was also recognized—in this case, the members of the research seedbed, who required an internal process that would allow them to sustain the basis of the meetings: empathetic listening and what affects the narrations of the families who also are victims of the armed conflict. This step marks the beginning of a reflexive action of the socioemotional responses of the professionals immersed in high-conflict contexts. Those responses imply the need to attend to and understand them as part of the process. The action of care must be continuous and necessary in the dialogue between the intervention and the construction of subjectivities of those who intervene. (d) Identify the impacts on the companions in the processes of giving psychosocial attention to the victims. The dialogues also permitted the identification of the emotional risks that can affect whoever carries out the intervention/research in conflict contexts. Mosquera Rosero-Labbé (2012) detected consequences generated by continuous contact with the stories of surviving victims: feelings of fear, mistrust, compassion, and anger. The previous idea can be seen in two possible facts: the first deals with using these emotions to mobilize and act against those emotions, and the second has to do with recognizing the difficult of the conditions and realities that the victims live in because of the weight of accumulated inequalities. Similarly, Arón and Llano (2004) affirm that compassion and social commitment can be displaced by the emotional exhaustion of the professional (in this case, students in social work programs) reflected in physical and mental conditions, such as weariness, fatigue, and other discomforts. These authors express the need for paying attention to the professional because the consequences of emotional exhaustion can extend to demotivation for the social task toward others, directly affecting the communities that are accompanied in the listening processes (Arón & Llano, 2004).

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These psychosocial impacts on social workers present, in summary, two difficulties that contribute to their emotional deterioration. On the one hand, there is one that derives from working in hostile environments and that directly causes fatigue. On the other hand, the deep connection that arises from listening to and carrying out a process of synchronization with the stories of victims’ pain is also a cause of emotional stress. Both difficulties cause secondary traumatic stress in the professional. This phenomenon is defined by Paniaga (2015) as a negative effect that occurs because of the proximity of professionals to facts, stories, and images of pain. The negative effect does not always have immediate or noticeably visible symptoms, but it is rather a long-lasting effect that is manifests in accumulated exhaustion. Secondary traumatic stress has been addressed by various authors, who have considered it not as a pathology but rather as the result of working with activities related to suffering. However, this stress can include other psychoemotional situations such as compassion fatigue, empathy exhaustion, and vicarious traumatization (Figley, 1995; Moreno-Jiménez et al., 2001). (e) Strategize from care in the context of emotional accompaniment (emotional nursing). Given this context, it is necessary to cover the edges of the intervention/investigation, starting from the companions to the victims who narrate their memories. For this reason, the strategy proposes the creation of a program for “emotional nursing.” This program aims to accompany the members of the PAZ SOS researcher seedbed in deactivating the emotional exhaustion generated by the establishment of empathetic relationships with families of victims of forced disappearance in the municipality of Uribe, Meta. The above seeks to guarantee the action without harm to the accompaniment process and its actors. For that reason, the strategy also prepared the following conditions for the correct functioning of the program: (a) places of preparation for the attention to victims of the conflict, understanding the implications of active listening, and oral narrative as a process of denunciation and silent action with a political and social impact, where these places imply meetings on the basic principles of psychosocial care and psychological first aid in contexts of armed conflict; (b) togetherness of care, in which couples meet to generate a commitment with each other; (c) the development of group and individual spaces in which artistic activities, reflections on narratives, and symbolic activities are prepared, such as “Mi Maleta.” This activity symbolically represents those factors, aspects, and ideas with which victims arrive and those with which they leave once the experience is over. It is expected that the members will recognize their emotions and generate an evaluation of self-care improvement for future experiences and a critical analysis of the realities, generating a call to action. The previous strategy is assumed as a process of pedagogical order insofar as it is a reflection that arises from the practice, so the methodology involves dialoguing with the subjects immersed in it. It manages to contain elements of an epistemic order that frame their understanding and configure a strategy that is carried out again into practice as a result of comprehensive action. This can be replicated in

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similar contexts and when social, legal, and psychoemotional components are present in the intervention. Thus, the aspects of the strategy presented here are the result of the accompaniment of victims and taking a look at the psychoemotional effects that said accompaniment has on social work professionals. Therefore, the strategy must be read in two ways because it provides elements to accompany and to be accompanied. Consequently, it is assumed that accompaniment in the context of high-conflict scenarios is, on the one hand, emancipatory and, on the other, protective. This perspective allows us to redefine accompaniment in the sociolegal field with victims because of the access to legal protection measures within the framework of the law and because of the process where tools are generated to empower victims. Therefore, victims are recognized as active subjects in their citizenship, and researchers are identified as agents of memory, denunciation, and social commitment. This strategy is based on fieldwork with victims in scenarios where life faces fragility. In other words, the work is carried out in areas where there is a total absence of the state and where fear is an imperative with which one must dialogue. This situation makes the sociolegal work difficult, but at the same time, it allows the learning process on aspects such as care to become central to accompaniment and the affective protection of subjects of intervention. This care must be understood as the present action that emotionally accompanies and protects the intervened person. Now, the legal is identified as the element that enhances the visibility of the political life of subjects. As for the socioemotional, this is seen as the aspect present in testimony and listening. Finally, the pedagogical is understood as the vindictive element in human rights that allows for collecting the trajectories of the victims and the investigators on the path of the search for justice. In addition, the strategy exposed here offers elements to understand the victim’s place in the sociolegal processes and blurs the present tension between the role of victim and that of citizen. According to Gatti and Martínez (2017), Victims and citizens have been, until very recently, antagonistic figures. The victim was what the citizen was not, and the citizen was the opposite of the victim. […] Then, the victim was a hero, a villain, or a martyr; [in other words,] the victim was the social group that defined him for what he was no longer. If something characterized this social character, it was his condition of being expelled from the common, which in modernity is called citizenship. One was constituted by the other, so what was not was the other: the singular normality of that common was what the victim was not. Because one had lost everything or almost everything, the other exists precisely to that loss. (p. 8)

As the authors affirm, the “ways of speaking, of witnessing, of presenting themselves, of performing, typical of the victims are means to tell the pain, to talk about the pain, to cure the pain, to organize the pain” (Gatti & Martínez, 2017, p. 8). They are samples representing their denunciation, their claims, and becoming visible in the complexity of the social world. Those demands enable deployments of the professional fields that assist, care for, and accompany these actions, so it constitutes the path of action and knowledge in the anthropological, sociolegal, and emergency humanitarian catastrophe on intervention.

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From a sociolegal perspective, the strategy of accompaniment in contexts of high conflict for victims is exposed as knowledge built into action. It contributes to the victims and the claims that underlie their role of being victims: The word victim expands, supports, and defines innumerable ways of being in social life and identity. The multiplication of the victims, their competition with the citizen, and the demands for access to citizenship through their recognition, precisely, as victims, invite us to think about what until recently seemed unthinkable: that the victims act. Indeed, that victim is today able to access citizenship, and in that claim, action is deployed. (Gatti & Martínez, 2017, p. 10)

Therefore, the accompaniment strategy extends a series of actions that, in addition to the elements that compose it, express the vindication of the victim in their condition of full citizenship. The above is caused because the victim assumes that their condition as a victim and as a memory agent makes them a citizen. In this way, the accompaniment of victims from social work in the sociolegal field contributes to the configuration of citizenships through actions that make visible and promote resistance in victims’ territories as an anchor point for that recognition. In other words, what is proposed here is also a commitment to making the collective dynamics of the victims visible in their territories, in addition to an understanding of its complexities for the deployment of pedagogical tools focused on the ethics of care as a sociolegal action of the recognition of subjects in context.

7.5 Conclusions Psychosocial accompaniment from a sociolegal approach confronts the rupture between communities and institutions by positioning care as the first action to claim victims’ rights. In this way, it contributes to the processes of resistance and dignifies the struggles on the basis of recognizing painful journeys and survival. The emotional care strategy generates a social impact that transcends the listener and those who listen, so they surpass a space where collective historical memory is guaranteed as a peacebuilding policy. In summary, intervention in contexts of high conflict has various psychoemotional sides, and paying attention to how these occur in the field of accompanying action is fundamental. While intervening in the victim’s psychosocial demands and legal claims, the feelings of professionals who are exposed to scenarios of mourning and continuous pain must be addressed. It is there where the perspective of care becomes necessary to understand the dynamics and particularities of these contexts.

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References Arón, A., & Llano, M. (2004). Cuidar a los que cuidan: Agotamiento profesional y atención a equipos que trabajan con violencia [Professional exhaustion and attention to teams that work with violence]. Investigación en Psicología, 20(2), 47–56. http://www.bivipas.unal.edu.co/ handle/10720/259 Arrieta Burgos, E. (2016). Ciudadanías en transición: las víctimas del entretanto [Citizenships in transition: The victims of the meantime]. In E. Arrieta Burgos (comp.), Conflicto armado, justicia y memoria. Derecho y transiciones hacia la paz (2nd ed., pp. 57–114). Universitaria Pontificia Bolivariana. http://hdl.handle.net/20.500.11912/4453 Atehortúa-Aguirre, F.  E. (2020). Aproximación a la memoria histórica: dicotomía memoria-­ historia, diferencias entre verdad jurídica y verdad histórica, y dilemas que se presentan [Approach to historical memory: Memory-history dichotomy, differences between legal truth and historical truth, and dilemmas that arise]. RHS-Journal Humanismo y Sociedad, 8(2), 115–131. https://doi.org/10.22209/rhs.v8n2a08 Berrío, J.  M. (2013). Las mesas de participación de víctimas: ¿Una frustración más o un mecanismo de transformación social? [Victims’ participation tables: One more frustration or a mechanism of social transformation?]. Derecho Público, 31, 1–33. https://doi.org/10.15425/ redepub.31.2013.06 Botero, C., & Restrepo, E. (2006). Estándares internacionales y procesos de transición en Colombia [International standards and transition processes in Colombia]. In R.  Uprimny, C.  Botero, E. Restrepo, & M. P. Saffon (Eds.), ¿Justicia transicional sin transición? Verdad, justicia y reparación para Colombia (pp. 45–107). Edisiones Antropos. https://www.dejusticia.org/wp-­ content/uploads/2017/04/fi_name_recurso_201.pdf Buitrago, P. A., & Moreno Rodríguez, D. M. (2018). Estrategias de acompañamiento psicojurídicas a víctimas frente a la impunidad desde el Centro de Victimología de la USTA Tunja [Psycholegal accompaniment strategies for victims against impunity from the USTA Tunja Victimology Center]. Bachelor’s thesis, Universidad Santo Tomás. https://hdl.handle.net/11634/19638 Centro Nacional de Memoria Histórica. (2016). Hasta encontrarlos. El drama de la desaparición forzada en Colombia [Until you find them. The drama of forced disappearance in Colombia]. CNMH. Centro Nacional de Memoria Histórica. (2018). La memoria nos abre camino. Balance metodológico del CNMH para el esclarecimiento histórico [Memory opens the way for us. Methodological balance of the CNMH for historical clarification]. CNMH. Corporación AVRE. (2009). Manual de buenas prácticas en atención psicojurídica [Manual of good practices in psycho-legal care]. Corporación AVRE. https://biblioteca.corteidh.or.cr/tablas/29028.pdf Cruz Castillo, A. L., Romero Rodríguez, J. R., & Aldana Pardo, A. F. (2019). Escenarios para el Trabajo Social en el campo sociojurídico [Scenarios for social work in the socio -legal field]. Consejo Nacional de Trabajo Social. https://www.consejonacionaldetrabajosocial.org. co/publicacion-­escenarios-­para-­el-­trabajo-­social-­en-­el-­campo-­sociojuridico/ Cruz Castillo, A.  L., Raigosa Mejía, M., & Pinto Quijano, A.  C. (2021). Construcción de ciudadanías cuidadoras de mujeres afro, víctimas sobrevivientes del conflicto armado colombiano [Construction of caring citizenships of afro women, surviving victims of the Colombian armed conflict]. In R. García Duarte, J. A. Wilches Tinjacá, H. F. Guerrero Sierra, & M. Hernández Pérez (Eds.), Paz en crisis. Ciudadanías para transformar la crisis. Vol. III (pp.  81–119). Editorial UD Universidad Distrital Francisco José de Caldas De Grieff, P. (2011). Algunas reflexiones acerca del desarrollo de la Justicia Transicional [Some reflections on the development of Transitional Justice]. Anuario de Derechos Humanos, 1(7), 17–39. https://doi.org/10.5354/0718-­2279.2011.16994 Figley, C. (1995). Compassion fatigue as secondary traumatic stress disorder: An overview. In C. Figley (Ed.), Compassion fatigue: Coping with secondary traumatic stress disorder in those who treat the traumatized (pp. 1–19). Brunner/Mazel.

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Fuentes-Becerra, D., & Atehortúa-Arredondo, C. (2016). Sobre el sujeto-víctima: configuraciones de una ciudadanía limitada [On the subject-victim: Configurations of limited citizenship]. Opinión Pública, 15(29), 65–77. Gatti, G., & Martínez, M. (2017). Presentación El ciudadano-víctima. Notas para iniciar un debate [Presentation the citizen-victim. Notes to start a debate]. Estudios Sociales, 59, 8–13. https:// doi.org/10.7440/res59.2017.01 Hernández-Pérez, M., & Pinto Quijano, A. C. (2021). El olvido como posibilidad de reconciliación y justicia en Colombia [Forgetting as a possibility of reconciliation and justice in Colombia]. In H. F. Guerrero Sierra, I. R. Rodríguez Benavides, & N. L. Daza López (Eds.), La justicia en debate: Una mirada desde la multidisciplinariedad. Temas Transversales (pp. 168–202). USTA. https://repository.usta.edu.co/bitstream/handle/11634/38391/La%20justicia%20 en%20debate%20Una%20mirada%20desde%20la%20multidisciplinariedad%20Temas%20 Transversales.pdf?sequence=1&isAllowed=y Moreno-Jiménez, B., González, J., & Garrosa, E. (2001). Desgaste profesional (burnout), personalidad y salud percibida [Professional burnout, personality and perceived health]. In J. Buendía & F. Ramos (Eds.), Empleo, estrés y salud (pp. 59–83). Pirámide. http://www.colmed5.org.ar/ files/sitio/Desgaste%20profesional-­personalidad-­y-­salud-­percibida.pdf Mosquera Rosero-Labbé, C. (2012). Las prácticas de las intervinientes en los procesos de atención psicosocial a la población desplazada por la violencia sociopolítica colombiana [The practices of the interveners in the processes of psychosocial attention to the population displaced by Colombian socio-political violence]. Trabajo Social, 14, 11–27. https://revistas.unal.edu.co/ index.php/tsocial/article/view/37124 Muñoz Rincón, A. M. (2020). La (in)suficiencia del derecho: la producción de la verdad en escenarios transicionales [The (in)sufficiency of law: The production of truth in transitional scenarios]. Derecho del Estado, 48, 85–112. Naranjo-Giraldo, G., Morales-Lopera, J. E., & Granada-Vahos, J. (2009). Las políticas públicas territoriales como redes de política pública y gobernanza local: la experiencia de diseño y formulación de las políticas públicas sobre desplazamiento forzado en el departamento de Antioquia y la ciudad de Medellín [Territorial public policies as networks of public policy and local governance: The experience of designing and formulating public policies on forced displacement in the department of Antioquia and the city of Medellín]. Estudios políticos, (35), 81–105. Paniaga, W. (2015). Afectaciones psicosociales derivadas de la atención a víctimas de la violencia armada [Psychosocial effects derived from care for victims of armed violence]. Universidad San Carlos de Guatemala. Centro de investigación en psicología. Nueva Guatemala de la Asunción. https://digi.usac.edu.gt/bvirtual/informes/puiep/INF-­2015-­17.pdf Pineda, H. A., & Gómez, J. A. (2012). Atención psicojurídica a víctimas: experiencia de organizaciones no gubernamentales en la ley 975 de 2005 [Psycho-legal attention to victims: Experience of non-governmental organizations in 975 Act of 2005]. Master’s thesis, Universidad Nacional. https://repositorio.unal.edu.co/handle/unal/20714?locale-­attribute=pt_BR Saffon, M.  P., & Uprimny, R. (2010). Uses and abuses of transitional justice in Colombia. In M.  Bergsmo & P.  Kalmanovitz (Eds.), Law in peace negotiations (2nd ed., pp.  354–400). Torkel Opsahl Academic EPublisher and Peace Research Institute Oslo. https://www.fichl.org/ fileadmin/fichl/documents/FICHL_5_Second_Edition_web.pdf UNDP-Colombia. (2010). Meta: análisis de la conflictividad [Goal: Analysis of the conflict]. PNUD-Colombia. Uribe de Hincapié, M. T. (2006). Esclarecimiento histórico y verdad jurídica: notas introductorias sobre los usos de la verdad [Historical clarification and legal truth: Introductory notes on the uses of truth]. In C. de Gamboa Tapias (Ed.), Justicia Transicional. Teoría y praxis (pp. 324–344). Editorial Universidad del Rosario. http://tesis.udea.edu.co/handle/10495/10849

Part IV

Forensic and Sociolegal Social Work with Youth and Women

Chapter 8

The Assessment of Child and Adolescent Sexual Abuse Allegations from a Social Work Perspective Freeda Jusino-Sierra and Iván De-Jesús-Rosa

8.1 Introduction Child and adolescent sexual abuse, as a category of analysis and intervention, has historically been a focus of great interest in social work. This interest has been documented in significant contributions in the fields of university education, social research, forensic evaluation, clinical therapy, community prevention, and the formulation of social policies (Hilarski et al., 2008; Podesta & Rovea, 2003). In this chapter, we will delve into the contribution of social work in the process of forensic assessments of allegations of child and adolescent sexual abuse. To do this, we will begin by explaining how forensic social work is conceptualized, together with what are the best practices in this professional field. Next, child and adolescent sexual abuse will be defined according to the social science literature. The chapter continues presenting various models for assessing child and adolescent sexual abuse, the characteristics of the evaluators, the methodological and technical aspects of the assessment process, the forensic interview process, and the forensic analysis to determine whether the allegations are substantiated. Finally, it concludes with a reflection on the role that social work assumes in attending to child and adolescent sexual abuse.

F. Jusino-Sierra (*) Universidad de Puerto Rico, San Juan, Puerto Rico e-mail: [email protected] I. De-Jesús-Rosa Ana G. Méndez University, Carolina, Puerto Rico e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_8

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8.2 Conceptualization of Forensic Social Work Maschi (2017) defined forensic social work as a subspecialty of social work that applies an integrative approach that is generalist, specialized, and collaborative in practices with diverse populations affected by legal issues, whether civil or criminal. The author points out that forensic social work combines social work with special skills geared toward sociolegal requirements. Maschi (2017) explained that the use of the term forensic underscores the overlap with social justice and human rights principles. Its collaborative nature involves clients, professionals, and other affected parties within, as well as through, formal and informal systems of belonging and protection (Maschi, 2016, pp. 227–228). In a related way, López-Beltrán (2017) pointed out that this specialization occurs in the legal scenario, where the main objective is to advise the judge so that they can make an informed decision in the controversy before them. The author adds that under this perspective, professionals who recognize the importance of collaborative and interdisciplinary work are required, as is the need to keep their knowledge updated in the field of their competence, by applying the theories and findings of valid empirical research and by, in plain language, interpreting, predicting, and making recommendations on the possible causes of social functioning or dysfunction of individuals and families who come to the court’s attention. To establish the relationship between forensic social work and the assessment of allegations of child and adolescent sexual abuse, De-Jesús-Rosa and Jusino-Sierra (2017) highlighted that, in the Puerto Rican context, when an allegation of child or adolescent sexual abuse arises, the children and youth are referred to specialized interdisciplinary centers so that human behavior professionals, including social workers and psychologists, can carry out a psychosocial evaluation of the allegations of sexual abuse. The social workers who carry out this assessment have an ethical obligation to use the current theoretical knowledge in the field, together with the models and intervention techniques endorsed by the scientific community. In addition to conducting the evaluation, they must be available to offer expert testimony, in both civil cases and criminal cases.

8.3 The Importance of Best Practices The code of ethics applicable to social workers in Puerto Rico emphasizes the need to continually update our knowledge, qualifications, and skills in order to improve our professional performance (CPTSPR, 2017). In addition, it highlights the importance of guiding our practice in theoretical knowledge, avoiding inferences and interpretations based on speculative and subjective arguments. The requirements established in the code of ethics of social work in Puerto Rico are strongly linked to the movement of evidence-based practices. This

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movement arises from the field of medicine, emphasizing the importance of basing interventions on the literature of existing scientific evidence. The evidence-based-­practices movement has its origins in the mid nineteenth century, in the city of Paris. At that time, there was an interesting cultural debate between advocates of medicine as an art form and those of medicine as a science. However, it took until the twentieth century for the acceptance of the concepts that support evidence-based practices to increase (Sánchez-Cesáreo et  al., 2016). Within this movement, evidence is understood as the findings established through scientific research, such as controlled clinical trials, among other methods endorsed by the particular scientific community. What this movement intends is to assume a position contrary to approaches that are based on tradition, convention, belief, or anecdotal evidence (Sánchez-­ Cesáreo et al., 2016). Therefore, in the field of forensic social work in general, and in the field of child and adolescent sexual abuse in particular, carrying out an ethical intervention becomes essential to develop our professional practice on the theories, models, and intervention techniques endorsed by the professional community, which can be identified in professional journals, as in specialized texts in the field. Carrying out interventions in this field by relying on personal perceptions or subjective judgments not only would constitute an unethical practice but could put the lives of the children and youths with whom we work at risk, as well as the well-being of their families.

8.4 Conceptualization of Child and Adolescent Sexual Abuse Fuentes (2012) pointed out that child sexual abuse is not a recent problem. To a greater or lesser extent, child abuse is a historical constant that has occurred in all cultures, in all societies, and in any social stratum. The author adds that this phenomenon causes important and lasting social, physical, and psychological effects, both in the short term and in the long term, and far from believing that these are isolated events, we must understand that this crime occurs in a greater proportion within the family, the institution that should be synonymous with protection, affection, and care (Fuentes, 2012). In a related way, Giuliana (2021) highlighted that child and adolescent sexual abuse is not a recent problem, but rather, it is a historical constant that occurs in all cultures, in all societies, and in any social stratum. And this is due to the capacity for reproduction and subsistence that patriarchal logics have, which naturalize both the forms of parental and social relationships mediated by violence and the sexualization of the bodies of children and adolescents (p. 147). When conceptually addressing child and adolescent sexual abuse, Cantón and Cortés (2008) outlined that it should be defined on the basis of the concepts of coercion and age asymmetry. Coercion is defined by the authors as the use of physical

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force, pressure, or deception to perform the sexual act; any sexual interaction that implies coercion must be qualified as sexual abuse. Further, age asymmetry implies the loss of the true freedom of decision and makes consensual sexual activity impossible; any sexual act that occurs between two people at different stages of development should be considered sexual abuse, regardless of whether the conduct involved coercion. Coincidentally, Intebi (2013) identified child and adolescent sexual abuse as any type of sexual interaction in which a child or other young person is a part and in which they are present: (a) differences in power that lead to the possibility of controlling the victim physically or emotionally, (b) differences in knowledge that imply that the victim may not fully understand the meaning and potential consequences of sexual activity, and (c) differences in needs met, where the aggressor seeks to satisfy only their own sexual impulses. Miller-Perrin and Perrin (2007) pointed out four essential components that must be included in any definition of child and adolescent sexual abuse. The definition must be broad enough to include the following: (a) extra-family sexual abuse and intra-family sexual abuse; (b) the experiences of children and young people, such as physical contact and noncontact activities; (c) the exploitation of authority, knowledge, or power on the part of the adult to achieve a sexual end; and (d) advantages in the age and maturation of the perpetrator over the victim. Importantly, sexual abuse includes additional forms of child and adolescent abuse, such as psychological abuse, physical abuse, and various forms of neglect. Given this, to analyze the effect that child and adolescent sexual abuse has on children and youth, it is necessary to consider the effect that abuse, in general terms, has on the biopsychosocial development of this population. As part of this analysis, the concept of toxic stress is considered essential to be able to theoretically explain the effects of abuse, in the short, medium, and long term. In this regard, Shonkoff et al. (2012) highlighted those changes in the environment of children that will have an impact on their development, with lifelong consequences in their educational, economic, health, and longevity areas. They postulate that toxic stress is seen as the genesis of health-threatening behaviors. In this way, the toxic stress that occurs because of the absence of support and protection relationships on the part of adults can degenerate into anatomical changes in the brain that will be the basis of physical and mental illnesses. The authors continue by arguing that those early experiences are embedded in our physiognomy, whereby significant adversities experienced in childhood and adolescence produce physiological problems or biological memories that negatively affect the development of the body’s stress response system and affect brain development and the development of other systems. These physiological problems can persist throughout adulthood and degenerate into lifelong physical and psychological problems. Shonkoff et al. (2012) also pointed out that the plasticity of the children’s brain makes them especially susceptible to biological changes resulting from the toxic

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stress generated by their social environment, child and adolescent sexual abuse being one of the main sources of said stress. It is in this way that toxic stress can generate permanent changes in their learning, behavioral, and physiological fields, in addition to causing chronic diseases and the prevalence of unhealthy lifestyles (Shonkoff et al., 2012). In this regard, Martínez-Taboas (2017) highlighted epidemiological studies that confirm that victims of abuse, including child and adolescent sexual abuse, will be more likely to develop internalizing disorders such as depression, anxiety, and dissociation and externalizing disorders such as criminal or antisocial behaviors. The author adds that abuse will have a deleterious impact on memory processes, self-­ coherence, and self-agency, disrupting the development of an appropriate sense of self.

8.5 Assessment Models of Child Sexual Abuse Allegations There are different models for assessing allegations of child sexual abuse. A structural aspect for the evaluator is the format of the assessment and, consequently, the information to be collected. Four main models have emerged to structure and guide the format of assessments. Four of them were presented by Everson (1993, cited in Kuehnle, 1996): the interview children model, the parent–child observation model, the child observation model, and the comprehensive model.

8.5.1 Interview Children Model In this model, the primary caregiver is interviewed. The developmental history is collected. The overall functioning of the minor is explored. The caregiver’s ability to protect is assessed. One or more interviews are conducted with the child. And a medical evaluation should be made.

8.5.2 Parent–Child Observation Model In this model, the child is interviewed only once. In addition, in one or two sessions, the evaluator observes how the child plays. An interview is conducted with the parent who is not accused while the child is present. The parent discusses the allegations with the child present. During another session, the alleged perpetrator is observed with the child. The alleged perpetrator talks to the child about the allegations.

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8.5.3 Child Observation Model In this model, the accused parent is interviewed if the allegation is incest. With the primary caregiver, the development history is gathered and explored to assess the general functioning of the child. The assessor watches the child play for a significant amount of time. In this observation, symbolic behavior is sought in play. The evaluator scrutinizes the game to determine whether the child is doing something that is compatible with sexual abuse.

8.5.4 Comprehensive Model In this model, information is gathered from a variety of information sources. The evaluator interviews collaterals (caregivers who are accused and not accused, professionals of the Child Protective Service Department, police, nannies, school staff, etc.). Also, the professional reviews police reports, Child Protective Service Department reports and any other prior interventions. The child is interviewed after conducting the collateral interviews and reviewing the appropriate documents. The child is interviewed two or more times. In some cases, the child’s interaction with one of their parents is observed. A medical evaluation should be made. In some cases, a comprehensive assessment of the alleged perpetrator is made. If custody or filial relationships are involved, a comprehensive assessment of both parents should be performed. The comprehensive model’s strength “is found within its format, which allows the information that is derived from the child interview to be examined against relevant background material and against empirical research” (Everson, 1993, cited in Kuehnle, 1996 p. 115, 117).

8.6 The Evaluator’s Characteristics According to best practices, several characteristics have been found in recent years. The APSAC Taskforce (1997, pp. 2–3) endorses the following for the evaluator: 1. They should have a graduate-level mental health degree in a psychiatry, psychology, social work, nursing, or child development or be supervised by a professional with a graduate-level degree. 2. They should have professional experience assessing and treating children and families and professional experience with sexually abused children. A minimum of two years of professional experience with sexually abused children is expected; three to five years is preferred for forensic evaluators. If the evaluator does not possess such experience, supervision is essential.

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3. They must have had specialized training in child development and child sexual abuse. And they must be documented in terms of formal course work, supervision, or attendance at conferences, seminars, and workshops. 4. They should be knowledgeable about the dynamics and the emotional and behavioral consequences of sexual abuse experiences. Plus, they should be familiar with the professional literature and with current issues relevant to understanding and evaluating sexual abuse experiences. 5. They should be familiar with different cultural values and practices that may affect definitions of sexual abuse, child and/or family comfort with the evaluation process, child and/or family willingness to provide complete and accurate information, and the evaluator’s own interpretation of responses. 6. If the purpose of the evaluation is forensic, they should have experience in conducting forensic evaluations and providing expert testimony. If the evaluator does not possess such experience, supervision is essential. 7. They should approach the evaluation with an open mind to all possible responses from the child and all possible explanations for the concern about sexual abuse. In addition, they should recognize that all sources of information have limitations and any such sources may contain inaccuracies. In forming an opinion, the evaluator should consider plausible alternative hypotheses.

8.7 Scope of the Assessment of Child Sexual Abuse Mandated reporting of child sexual abuse is a serious challenge to investigations and assessments (Faller, 2020b). Child sexual abuse rarely “leaves physical evidence and most often results in adamant denial by the alleged offender, [so] investigators and mental health professionals charged with determining the likelihood of sexual abuse came to rely primarily on the alleged child victim to provide information” (Faller, 2015 cited in Faller, 2020b, p. 129). The role of the physician in the medical assessment of suspected child sexual includes determining the need to report suspected cases of sexual assault; assessing the physical, emotional, and behavioral consequences of sexual abuse; providing parents with information on how they can support the child; and coordinating with other professionals to provide comprehensive treatment and monitoring for children exposed to sexual assault (Halleran et al., 2019; Hoehn et al., 2018; Jenny et al., 2013). The role of the evaluator includes providing an assessment to help the court make a decision. Aguilar et al. (2007) indicated that the forensic psychosocial evaluation process contains a valuation operation that is based on technical considerations, but it transcends the simple narration of results and carries a professional conclusion on the “formal truth.” The term formal truth implies that the expertise does not deal with the concrete facts (material truth: whether they happened or not) but rather analyzes criteria for requirements, probabilities, hypotheses, or patterns either of social performance or of psychological performance found in the case. “Formal truths” are analytic truths in the syntactical

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sense, and analytic judgments are not about objects at all (Lu-Adler, 2012). The notion of “formal truth” was subsumed under the broader discussion of truth as such, and it could be associated with intellectual truth, material truth, or God as truth (Clem, 2018). In addition, a person decides to tell a lie or a truth, or that person gives the impression that they are speaking the truth as others perceive it (Clem, 2018). Moreover, “material truth” also depends on the context. Clem (2018) explained that if someone said a specific hour at the time when it really was that hour, it was a “material truth,” but if the hour had already passed, then it ceased to be a “material truth” as soon as the circumstances changed. When we translate this into allegations of child sexual abuse, we could sew it with language. When a child claims that someone penetrated them, it could happen that when doctors do the medical examination, there are no findings, and they may think that the child has lied. But it could happen that the child said that they had been penetrated because they felt that that was what happened, and in their language, “penetration” is what adults see as “friction.” So it wasn’t that there was no “material truth”; it was that there was an inconsistency in language. Language inconsistencies have nothing to do with truthful inconsistencies (Walker & Kenniston, 2013). Thus, in the psychosocial assessment of allegations of sexual abuse, when it is stated that the allegation meets the criteria necessary to sustain itself, it means that the specific content of the child’s or the youth’s story and the particular context surrounding it have met certain requirements for probabilities and performance patterns consistent with an experience of sexual abuse. It differs from the “material reality” in that this could be ascertained only through a comprehensive assessment of the set of pieces of evidence presented in the judicial sphere, beyond the psychosocial expertise provided (Aguilar et al., 2007). Once this “formal truth” has been established in the psychosocial context, it is then decided, in light of the findings, what services should be offered to the child and their family, with the purpose of ensuring the protection and better welfare of the child or the young person evaluated. In summary, an assessment of child sexual abuse is a systematic process of obtaining information and forming a professional opinion on the source and meaning of the statement, behavior, and other evidence that is the basis of concern in possible sexual abuse. The results of such an assessment can be used for treatment planning and to assist in legal decision-making (APSAC Taskforce, 1997, 2022; Maddux, 2022).

8.8 Methodology in ACASAA It is the set of procedures that determine the scientific type of assessment. An essential piece of all assessments (via the scientific method) is that they follow the initiation because doing so allows for systematizing the procedures and techniques that are required to concretize the assessment. This is a concrete resource based on a theoretical and epistemological position, and it is used to

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select specific assessment techniques. It depends on the postulates that the evaluator believes are valid because the methodological action is the tool that they use to analyze the studied reality. To be effective, it must be disciplined and systematic because it must take an approach that analyzes a problem as a whole. It is essential that the method and the theory, which offers the framework where knowledge is inserted, be united in coherence (how and what should be coherent with each other); this means that the methodology must be used within an ideological framework, a system of coherent ideas that explain the purpose of the assessment. When we talk about the methodology followed in a child sexual abuse assessment, we mean being able to identify everything that was used to reach a legally defensible conclusion. The methodology should explain the following: the models used, evaluation guides, interview guides, interview protocols, techniques used, and how the hypotheses were arrived at. The methodology explains how the conclusion is reached with everything that was used; how the hypotheses were strengthened or weakened is important. It is important to state the standards approach and the indicators approach that evaluator uses in the assessment. The purpose of the standards approach is to develop protocols and guidelines for assessing and interviewing children who are alleged victims of sexual abuse. This standards approach specifies the conduct of professionals who evaluate. In the United States, two professional organizations, namely the American Academy of Child and Adolescent Psychiatry (AACAP) and the American Professional Society on the Abuse of Children (APSAC), have disseminated guidelines to evaluate allegations of sexual abuse. On the other hand, the indicators approach is aimed at distinguishing between abused children and not abused children. An opinion is formulated on this basis. It depends on several characteristics, such as verbal, emotional, and behavioral ones. Although the exception is that some children do not present indicators, these characteristics must still be evaluated. The indicators approach has been used by diverse scholars and experts in the context of sexual abuse (Benedek & Schetky, 1985; Conte et  al., 1991; Corwin, 1988; DeYoung, 1986, 1992; Jones & McGraw, 1987; Leventhal et al., 1987; Sgroi et  al., 1982; Sink, 1988). Faller (2007) and Faller and Corwin (1995) proposed integrating all the types of indicators and corroborating them through their presence or absence in the child’s story. Also, the indicator approach can be mixed with the standards approach. In summary, the methodology sets out how the findings were obtained and how they were concluded. All that is involved in the evaluation process is considered: the standards approach, the indicators approach, triangulation, hypotheses, etc. The methodology explains why theories are used to explain behaviors and/or dynamics (conceptual). The findings are based on investigations into allegations of sexual abuse, forensic interviews, memory, trauma, etc. (empirical). And it considers what the laws dictate in the country where the evaluator is doing the ACASAA (normative).

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8.9 Importance of Knowing Individual and Family History in ACASAA When a background history is collected, it takes a broad picture of what may have preceded the allegations. If the child recoils or is reluctant to give a background history, the evaluator may take this as an indicator of what could have happened to this child. Having the history helps to reduce the biases because the professional is not blind and can see the child as a holistic human being. According to Alicea (2017), in the background history, the evaluator must verify when the case was referred and under what circumstances the evaluator received it. The professional collects relevant history details associated with the reason for the referral and asks about previous treatments, such as psychological, psychiatric, or neurological treatments. The evaluator should review reports or evaluations; this is because in order to conduct an interview, the professional must consider how the child is. The evaluator must also find out the child’s medications and their side effects. This professional must consider how medicines influence the behavior of the child and whether there are side effects that directly affect memory and recovery. The evaluator must also explore the physical and mental conditions that affect the interview in order for them to adapt it accordingly. Discretion should be exercised to disclose sensitive personal and family histories that are not directly relevant to the purpose of the assessment (APSAC Taskforce, 1997, pp. 4–5; APSAC Taskforce, 2022, pp. 15–18). Broaddus-Shea et  al. (2021) indicated that collecting medical history and other background information is important for determining whether there are other things that were not sexual abuse and could be interpreted as if there was a kind of abuse. These authors pointed out that at the time of collecting the information, it is necessary to exercise a lot of sensitivity because the type of questions could be insidious in recalling the trauma in the family; if the history is collected from the alleged victim, it is necessary to be much more careful. In the study published by Hobbs and Wright (2014), they discussed the importance of collecting a medical history of anal conditions, diarrhea, and constipation when fissures are found in a physical examination. They found that when a careful history was collected of conditions that directly affected the area presenting findings, this information helped doctors to obtain higher accuracy in their diagnoses. The authors made comparisons with children with conditions and without them. It was feasible to confuse sexual abuse with penetration when the true medical history was unknown. In conclusion, collecting a good background history is key to making the assessment compassionate and legally defensible. Alstott and Rigaud (2021) pointed out that the history would lead evaluator to see the case in a comprehensive way.

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8.10 Collateral Interviews When we go to interview collateral people, we must ask ourselves the following: What is it for? What am I looking for in that interview? What do I need from this person? We didn’t interview for the sake of interviewing. We interviewed for a reason. The reason should be to seek information that helps us in our analyses and at arriving at conclusions and recommendations. The interviews with collateral people can be divided into categories: professionals, family members, and anyone who the child has accused of abuse or who has knowledge of it.

8.10.1 Professional Interviews Alicea (2017) proposed that, depending on the professional, the evaluator must collect psychosocial and developmental history relevant to the situation. The background of the case is explored (what, when, how, who, the reason for the referral, who refers, reactions of the family, psychosocial development, who interviewed the child, interventions of protection services, medical evaluations, police, and the context of the allegation). The legal status of the allegation is examined. And a preliminary impression is obtained from the professional.

8.10.2 Family Interview Family interviews should not only intend to determine what family members know about sexual abuse but also collect a good history from them. Gutiérrez and Lefèvre (2019) and Hewitt (1999) postulated that the professional should cover as much as possible with these inputs, as they are key. With these collateral people, we identify the following: the family component; the history of abuse or drugs of the parents; physical abuse in the family; pornography in the home; who visits the home, along with the frequency and reason; who takes cares or has taken care of the child; arrests against the mother or father; family histories of mental disorders (all assessments that have been made to the child or parents); the psychosocial history of the child (product of a desired pregnancy, use of alcohol or drugs during pregnancy, medical care, etc.); and any history of possible traumatic events (medical procedures, witnessing violence, or abusive situations). Furthermore, the interviewee is asked for a description of the child and a description of the alleged aggressor. If there are custody situations or filial relationships, the evaluator explores how parents relate. In addition, the evaluator explores how the child refers to each member of the family and how they refer to private parts. Another question to ask is who the child sleeps with or has slept with. They also ask whether there is suspicion of previous abuse and what happened. Another

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relevant thing is to explore is whether the child has been exposed to sexual activities, has witnessed intercourse, has been exposed to pornographic films, or has read sexually explicit literature. Remember the purpose of the interview: look for relevant information that can help in the analysis, conclusions, and recommendations for the case. If the child exhibits sexualized behavior, it should be explored to determine whether it is a product of family culture. Faced with this, Hoyle (2000) indicated that the professional should explore sexual boundaries in the family. The evaluator should ask about the following: nudity practices in the family, how they leave the bathroom, how they dress/undress, how many people enter the bathroom at the same time, the status of how the doors of the rooms are left (closed, open, or otherwise), whether there are signs of affection in front of the children, and both whether the parents practice cosleeping and (if so) the rules for it.

8.10.3 Interview of Person Whom the Child Has Accused of Abuse or Who Has Knowledge of It This person will be asked to give a free account of the alleged sexual abuse. Once the person has offered their narrative, the evaluator must inquire into the following: (a) how the allegation arose; (b) what language the child used; (c) sensory, peripheral, and central details; (d) sexualized behavior; (e) with whom child spoke of victimization; (f) whether there was a change in the version of the narrative (when and under what circumstances); (g) the characteristics of the alleged perpetrator; (h) its plausibility; (i) the emotional reactions of the child; and (j) possible secondary gains from a false accusation.

8.10.4 Alleged Offender Interview The evaluator is not looking for a confession; that is what the police are for. With this interview, the plausibility of the allegation is sought. This interview focuses on the peripheral details of the allegation and whether they are possible because of proximity to or contact with the alleged perpetrator. The professional may be asked to describe or talk about themself; this will allow them to take a broader picture of how this person is perceived in society. The professional should ask them to talk about the child; this shows how the alleged perpetrator perceives the alleged victim. Finally, they should corroborate the details that they have obtained. Once the professional has finished each interview, they must ask people about whether they want to say something that the professional hasn’t asked them. This will help the person feel less uncomfortable. It can also shed light on other issues that are not on the evaluator’s mind and may help in making decisions about the

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case. The “evaluation report should reflect an objective review of collateral information relied upon in the evaluation or opinion forming process” (APSAC Taskforce, 1997, p. 4). The evaluator should conduct collateral interviews of possible witnesses, any potential additional victims, outcry witnesses, and others who may be able to corroborate any part of the child’s report or provide insight as to the child’s emotional and behavioral changes, if any, since the alleged abuse. (Russell, 2010, p. 311)

8.11 Evaluation of Hypotheses of ACASAA 8.11.1 Hypothesizing: Best Practices Are Framed as Legally Defensible The purpose is to evaluate various alternative hypotheses about the child’s allegations of sexual abuse (Cantón & Cortés, 2008). Shaw (2020) said that in contentious cases, it is always important to explore alternative hypotheses. This author indicated that several hypotheses should be made, and the data that can support them should be presented as well as those that can rule them out. Köhnken et al. (2015) postulated that to make a rigorous assessment of hypotheses, an analysis has to be made of all the potential sources or origins of the declaration. These authors recommended that the interviewer not make the effort to “discover.” The professional must remain neutral because what the child narrated may have happened or may have not. When the evaluator is not aware of this, they may fall into the error of “confirmatory bias” (Tversky & Kahneman 1974 cited in Köhnken et al., 2015, p. 15). To understand this term, we must recognize that this happens when it comes to confirming a hypothesis; we must instead more highly value the elements that confirm a hypothesis and not allow statements or circumstances that would deny it go unnoticed. Along the same lines, Intebi (2013) said that in the face of a suspicion of sexual abuse, different hypotheses should always be raised. She indicated that there is otherwise a risk that the evaluator will want only to corroborate “their hypothesis” and not explore others that could actually help corroborate what the child or young person has alleged.

8.11.2 Multiple Hypotheses Evaluators must consider multiple hypotheses to understand allegations. A specific hypothesis-discard approach should be used on the basis of the data collected (Faller, 2020c). There are several authors who can shed light on how or what hypotheses should be raised in cases of sexual abuse (American Academy of Child and Adolescent Psychiatry 1997 cited in Faller, 2007; Cantón & Cortés, 2008; Intebi,

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2013; Kuehnle, 1996; Raskin & Esplin, 1991). It is recommended to attach them to the case being evaluated and consider them when assessing whether the sexual abuse occurred.

8.11.3 Alternative Hypotheses Köhnken et al. (2015) reported that multiple alternative hypotheses can be considered. They indicated that false negatives could be present and that the statement of the child or adolescent could be inaccurate owing to unintentional (and perhaps unconscious) errors. This may have been a result of incomplete perceptions, a lack of attention to the event in question, forgetfulness, and/or confusions in memory. But also, the child or adolescent may have given testimony that was based on false memories because they were convinced that the event happened (Bruck & Ceci, 2009; Erdmann, 2001; Loftus, 2005; Volbert & Steller, 2014 all cited in Köhnken et al., 2015). Another aspect to consider is that the events narrated by the child or adolescent may have taken place but that there are inconsistencies in the story owing to the risks in memory, which may be involuntary when a given variable is present during the encoding, storage, and retrieval processes. Muñoz et al. (2016 p. 209) and Köhnken et al. (2015 p. 17) recommend a series of steps to draft hypotheses. Both groups of authors agree that the first thing to consider are which hypotheses to contrast. Once you have that, they are divided into whether the story corresponds to a lived experience or whether it corresponds to a nonlived one. If it corresponds to a lived one, then the evaluator must consider the sources that can affect the accuracy of the story (what, how, when, where, who, etc.). From there, the professional looks at the factors that affect the encoding, storage, and recovery of memory; the type of victimization (one or more events); and limitations on the ability to testify. For its part, if the hypothesis to be contrasted to determine whether the story corresponds to a nonlived experience, the professional needs to look at what caused the induction or the fabulation (both are inadvertent errors or a false memory); the lie (intentional error); and the subconscious and how this works in memory. Under this type of hypothesis, secondary motivations, psychopathology, the context of hatching, factors affecting recovery (previous explorations), and psychotherapeutic interventions are also considered.

8.12 Interview Guidelines of ACASAA There are many interview guides. Those that are the most often used, according to the experience of the authors of this chapter, will be presented below.

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8.12.1 Interview Step by Step (Based on the Reduction of Trauma) This protocol is linked to the work of Yuille et al. (1993 cited in Cantón & Cortés, 2008). The global format involves nine basic steps: (1) constructing a rapport, (2) asking the child to remember two specific events, (3) explaining to the child the need to tell the truth, (4) introducing the subject of the interview, (5) stimulating free narration, (6) asking general questions, (7) asking specific questions (if necessary), (8) using aid instruments in the interview (if necessary), and (9) concluding the interview.

8.12.2 NCAC Forensic Interview Protocol (National Children’s Advocacy Center, 2019) In the context of the interview, a multidisciplinary team should consider the following: the time (closest to the alleged event), the place where the interview is done (friendly and safe for the child), the documentation, the number of interviews (the least number possible, which have been conducted by a trained interviewer), the participants (the interview is conducted by a single interviewer while the others observe on the other side), and the time and duration (the child is considered holistically). The interview includes but is not limited to the goal (gather as much information as possible through free narrative), the promotion of the narrative, wh-questions, direct (but not suggestive) questions, and the purpose of the question, and the interviewer implements a continuous strategy.

8.12.3 Revised Investigative Interview Protocol (Version 2018) from National Institute of Child Health and Human Development (NICHD) First, “interviewers are asked to ensure that the room is free of distractions such as other people, noise, toys, and incoming phone calls” (Lamb et  al., 2018, p.  89). According to Lamb et  al. (2018), the “absence of toys, including dolls, prevents inadvertent suggestions or ambiguous statements relating to pretense or fantasy, rather than to the real experiences of the child” (p. 89). This protocol contains the following phases: (1) an introductory phase explaining the purpose and the ground rules, (2) a rapport-building phase, (3) a narrative-training phase, (4) a phase explaining and practicing the ground rules, (5) a phase for further rapport building and episodic memory training, (6) a substantive phase, (7) a free-recall phase, (8) a

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phase featuring follow-up questions (the pairing principle), (9) a disclosure-of-­ information phase, and (10) an a conclusion ending the interview.

8.12.4 Ten Steps (Lyon, 2005) The protocol has a research-based, child-friendly interview structure that builds on the National Institute of Child Health and Human Development (NICHD) protocol. The ten steps are as follows: (1) Don’t know (2) Don’t understand (3) You’re wrong (4) Ignorant interviewer (5) Promise to tell the truth (6) Practice narratives (7) Allegation. (8) Allegation follow-up (9) Tell me more (and) what happened next (10) Multiple incidents

8.13 Child Forensic Interview of ACASAA A forensic interview is “a fact-finding conversation conducted by a specially-trained Forensic Interviewer” (Children’s Advocacy Center of Suffolk County, 2022). Children’s and adolescents’ ability to provide coherent narratives in forensic interviews suggests that they struggle with providing a causal-temporal framework and describing their subjective reactions to the events they are questioned about (Westcott & Kynan, 2004 cited in Szojka et al., 2020, p. 944). Usually, forensic interviews have occurred in face-to-face scenarios with children. In many places, they are done through a one-way mirror, or in a camera room, and a group of professionals are on the other side watching the interview. In other places, such as Puerto Rico, it was not until a few years ago that this methodology was used. Previously, interviews were only conducted face to face, and the interviewer took note of the questions and the child’s answers. With the approval of Law 158 of 2013, in Puerto Rico, the recordings began to be implemented. Then came the pandemic, which forced interviews to adopt other ways of doing interviews. Puerto Rico had its lockdown in March 2020. As early as April, we started remote training in forensic tele-interviews by looking for webinars and reading about them. A group of professionals dedicated to the evaluation of allegations of sexual abuse (forensic interviewers and forensic evaluators) were trained in the modality of the tele-forensic interview in June 2020 by the Baltimore Child Abuse Center (Baltimore

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CAC) (now Center for Hope). The use of this interview began then, ensuring that the rights of children were covered. Face-to-face and tele-forensic (on screen) interviews elicit similar amounts of accurate and inaccurate information from child witnesses. Thus, tele-forensic interviews can be a reasonable alternative to face-to-face interviews when there is a need for social distancing or when expert interviewers are not available locally. (Dickinson et al., 2021, p. 97)

Anne Lukas Miller (2020) from Cornerhouse Forensic Interviewer & Trainer; Dickinson et  al. (2021), the Emergency Tele-Forensic Interview Guidelines (2020) of the National Children’s Alliance; and the Provisional Tele-Forensic Interview Guidelines (2020) of the Michigan Department of Health & Human Services website for updates and revisions proposed that the tele-forensic interview is a legally defensible alternative as the face-to-face interview. Tele-forensic interviews change the way children see and hear interviewees but do not alter the fundamental structure of interviews or waive interviewer training requirements or agency policies (Provisional Tele-Forensic Interview Guidelines, 2020). Like face-to-face interviews, tele-forensic interviews are part of broader efforts to reduce trauma in children and provide post-victimization services (Lukas Miller, 2020; National Children Alliance, 2020; Provisional Tele-Forensic Interview Guidelines, 2020).

8.13.1 Recording Forensic Interviews Video recording is considered the best practice. The advantages of recording the interview are include not only the profits of the team that investigates but helping to avoid revictimizing the child by significantly reducing their exposure to interviews by different professionals (Faller, 2020a). The recording gives the opportunity to observe the nonverbal, along with the child’s expressions, and thus facilitates understanding their narrative in context. According to the consensus of best practices in forensic interviews with children and adolescents, electronic recording is the most complete and accurate way to document the interview, capturing the exchange between the child and the interviewer with the exact words of the questions (Newlin et al., 2015).

8.14 Forensic Analysis of ACASSA A forensic interview does not reach a conclusion. An assessment of a sexual abuse allegation does reach a conclusion. The analysis is the preamble to the conclusion. It should begin with a brief description of the child within their family dynamic. Then, the child’s background and behaviors should be woven together with theories of family and developmental stages. Once this has been

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done, the reason for evaluating the child is explained. In the analysis, the hypotheses that were used should be detailed. Afterward, the framework of indicators (indicators approach) that will be used to test the hypotheses and analyze all the information obtained should be presented. The indicator framework should be one based on the triangulation of the legal, the empirical, and the conceptual terms (see the explanation given under the topic of methodology). Once the exercise of weakening or strengthening the hypotheses has been completed, a conclusion can be reached.

8.15 Assessment’s Conclusion of ACASAA The evaluator “may state an opinion that abuse did or did not occur, an opinion about the likelihood of the occurrence of abuse or simply provide a description and analysis of the gathered information” (APSAC Taskforce, 1997, p. 8). In order to reach a conclusion, all available information should be reviewed, and all assumptions made should be considered (Kuehnle, 1996). For this, corroboration is important. Graves and Sgroi postulated the following: Since child sexual abuse is frequently nonviolent, with no physical force employed against the victim, there is usually little or no evidence of physical trauma to be found. There may not be emission of semen when children are sexually abused by male offenders; absence of semen is to be expected when the offender is a female. Child sexual abuse usually involves a secretive one-on-one relationship between the victim and the offender. Witnesses to sexually abusive behavior are rare; when present, they are likely to be other young children. However, some states require one or more of the above types of corroboration for a charge of sexual assault against a child. Thus, the presence or absence of corroborating evidence is important in determining the type of charge that is filed when a complaint of child sexual abuse is made. (Graves & Sgroi 1982 p. 315)

The conclusion can be written in a variety of ways. We, as forensic evaluators, recommend the following terms: “allegation of sexual abuse is sustained,” “at the time of writing this report, we could not sustain the allegation of sexual abuse,” or (the one lawyers and judges hate) “the determination is inconclusive.” When determining whether to support the allegation of sexual abuse, that determination is undergirded by the hypothesis that had the most evidence. When it is determined that it cannot be sustained, it is because that hypothesis lacked sufficient evidence. When an indeterminate or inconclusive determination has been reached, it is because everything possible was done to obtain information, but there was no way to be able to weigh some hypothesis against the others. The evaluator “should cite the information that causes continuing concern but does not enable confirmation or disconfirmation of abuse” (APSAC Taskforce, 1997, p. 8). On the other hand, “if inconclusiveness is due to such problems as missing information or an untimely or poorly conducted investigation, these obstacles should be clearly noted in the report” (APSAC Taskforce, 1997, p. 8).

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8.16 Importance of Recommendations Focused on the Best Interest of the Child Garzón Muñoz (2009 cited in De-Jesús-Rosa, 2012) indicated that the work of those who make forensic assessments is to provide support and advice to the judge and/or the prosecutor, through the social assessment; afterward, conclusions and recommendations considered relevant are made. Along the same legal lines, the recommendations should be framed in conceptualizing children and youths as subjects of rights, which are not negotiable; we should not treat them as objects in need of assistance (De-Jesús-Rosa, 2018; Lee & Kim, 2018). De-Jesús-Rosa (2018) said that those who could have an impact on the field of the safety of children and youths must be constantly vigilant about how professional work is affecting or hindering the recognition and empowerment of the human rights of this population. He indicated that such a critical look should lead us to promote the ideological, institutional, and interpersonal changes necessary to ensure the best safety of children and youths. In the clinical area, “recommendations should be made regarding therapeutic or environmental interventions to address the child’s emotional and behavioral functioning and to ensure the child’s safety” (APSAC Taskforce, 1997, p. 8). Recommendations should be made from a human rights perspective. Consideration should be given to the principle of the best interests of the child and to the need for special protection and immediate care that preserves the psychophysical integrity of each child or adolescent involved in an investigation (De-JesúsRosa & Jusino-Sierra, 2017; Gallego, 2008). Therefore, recommendations are made according to what is specified in the report. Recommendations are made in the best interest of the child and must be specific. According to Alicea (2017), the content must be feasible, based on the case, justified, and within the evaluator’s field of competence.

8.17 Final Thoughts Currently, Puerto Rico is undergoing a transition process in the service provision model for child and adolescent sexual abuse cases, as a result of the approval of Law 158 of 2013 (Enabling Law on Integrated Service Centers for Minors Who Have Been Victims of Sexual Abuse). This law enables the creation of specialized centers that must execute their work on the basis of the child advocacy center model, as proposed by the National Children’s Alliance. In the child advocacy center model, the figure of the forensic interviewer is presented, whose role is to carry out scientifically guided interviews with children and youths, trying to collect the greatest amount of information, in the least suggestive way possible, through a joint investigation process with the police and social service agencies. Historically, in Puerto Rico, the Comprehensive Model for the Evaluation of Allegations of Sexual Abuse has traditionally been used, in which a human behavior

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professional, specialized in child and adolescent sexual abuse, autonomously carries out a complete evaluation of the agency’s authorities, aimed at establishing the probability that a child or other young person has been a victim of abuse. As documented by De-Jesús-Rosa (2018), this transition process has generated resistance from multiple agencies. In the first instance, resistance to the assignment of specialized personnel by government agencies to child advocacy centers has been identified. Likewise, difficulties linked to adult-centric ideological notions from government officials have been identified, and they prevent children and youths from being seen as subjects of rights that must be guaranteed by the state instead of as objects of investigations. It was not until a couple of years ago that it was possible to interview a child with a multidisciplinary component. Today, only some CIMVAS (Law 158 of 2013) professionals carry out this practice. We believe that addressing the challenges to paying adequate attention to child and adolescent sexual abuse in Puerto Rico must start from a human rights perspective, which, as Gallego (2008) points out, allows the preservation of the psychophysical integrity of each child or other young person who is involved in an investigation.

References Aguilar-Arrieta, I., Chacón-Mora, L., González-Aguilar, M., González-Brenes, R., Jiménez-­ Villalobos, S., Loaiza-Coronado, M., Meza-Peña, L., Mora-Lizano, N. L., Murillo-Vindas, F., & Ortiz-Mora, J. (2007). La intervención de trabajo social y psicología en la administración de justicia costarricense. Editorama. Alicea, L.  E. (2017, April 4, 11, 19, 26). Certificación intervención profesional en abuso sexual [certification through the Continuing Education Institute of the College of Social Work Professionals in Puerto Rico]. Intensive training of forensic interviewers of the Programa de Apoyo a Víctimas de Abuso sexual y sus Familias. Universidad Albizu, San Juan. Alstott, A., & Rigaud, J.  P. (2021, August 18). MEC [Missing and Exploited Children] Child abuse: From suspicion to disclosure. [Live, Online Instructor Led of de Effective communication strategies for first responders when dealing with alleged victims of child abuse]. National Criminal Justice Training Center of Fox Valley Technical College. APSAC Taskforce. (1997). Psychosocial evaluation of suspected sexual abuse in children (2nd ed.) [Guideline]. American Professional Society on the Abuse of Children. Retrieved from https://www.apsac.org/guidelines APSAC Taskforce. (2012). Forensic interviewing in cases of suspected child abuse [Guideline]. American Professional Society on the Abuse of Children. Retrieved from https://www.apsac. org/guidelines APSAC Taskforce. (2022). Forensic mental health evaluations when child maltreatment is at issue [Guideline]. The American Professional Society on the Abuse of Children. Retrieved from https://www.apsac.org/guidelines Benedek, E., & Schetky, D. (1985). Allegations of sexual abuse in child custody cases. In E. Benedek & D. Schetky (Eds.), Emerging issues in child psychiatry and the law (pp. 145–156). Brunner/Mazel. Broaddus-Shea, E. T., Scott, K., Reijnders, M., & Amin, A. (2021). A review of the literature on good practice considerations for initial health system response to child and adolescent sexual abuse. Child Abuse & Neglect, 116, N.PAG.  Retrieve from https://doi-­org.uprrp.idm.oclc. org/10.1016/j.chiabu.2019.104225

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Chapter 9

Decision-Making Related to Termination of Parental Rights: A Case Study of Child Protection in Chile Catherine LaBrenz and Miguel Arévalo-Contreras

9.1 Introduction The termination of parental rights (TPR), or the severance of the legal relationship between a parent and their child, is considered the last resort through which a child can achieve permanence. In the 1990s and 2000s, policies in several countries established a protocol to initiate the TPR within a specific timeframe of children’s entering foster care, to avoid having children languish in care. However, the TPR has been critiqued recently as a “destructive legal structure” that creates additional trauma for families (Dettlaff et al., 2020, p. 513). While international statutes recognize the importance of preserving family connections, involuntary termination processes still occur in several countries across the globe. Involuntary termination processes are often contentious and require state attorneys to provide evidence, often in the form of psychosocial assessments that the family is unable to safely care for their child. Processes to terminate parental rights are often initiated when reunification, or return to a primary caregiver from foster care, is deemed unattainable in a short or intermediate period of time. Although reunification is the priority in policy (LaBrenz et al., 2022a, b), only 29.7% (n = 6295) of children who exited foster care in 2020 in Chile reunified with a primary caregiver (SENAME, 2021). Notably, statistics are not publicly available on rates of reunification on the basis of a child’s age. However, prior research from across the globe has found that older children are more likely to C. LaBrenz (*) University of Texas at Arlington, Arlington, TX, USA e-mail: [email protected] M. Arévalo-Contreras Universidad Iberoamericana, Ciudad de Mexico, Mexico e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_9

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reunify (Carnochan et al., 2013; LaBrenz et al., 2021; Wulczyn, 2004). That, coupled with a high percentage of infants and young children involved in TPR cases in Chile during 2020 (SENAME, 2021), makes it plausible that a child’s age may be associated with decisions to reunify and/or terminate parental rights. In Chile, the adoption law, Law N° 19,620, provides a legal framework for the termination of parental rights. In addition to voluntary relinquishments of parental rights, Law N° 19,620 also stipulates that parents may be found to be inhabilitados (unable) if a court finds them to be “morally or physically unable to take custody” of their child or if they do not give financial or personal support to their child while in foster care for 30 days (if the child is under 1 year of age) or 60 days (if the child is over 1 year of age). Experts have critiqued the vagueness of policies related to the TPR in Chile (Commission on Family 2014; Marchant 2013) and abroad (Miller, 2011; Vesneski, 2011), calling for more transparency in the decision-making process (LaBrenz et al., 2022a, b). This chapter presents the findings from an exploratory, qualitative study that was conducted among psychosocial child protection teams in Chile.

9.2 History of TPR and Adoption in Chile During the Pinochet dictatorship, Chile became one of the top six sending countries for intercountry adoption (Selman, 2012). Several experts framed this increase in adoptions and forced separations from the family of origin as a result of pathologizing poverty (De Martino & Giorgi, 2016) and eradicating social services and supports that had previously been available to families (Rauld Farías, 2020). Since the return of democracy in 1990, several irregularities in these processes have been identified, including narratives of women coerced or persuaded into relinquishing rights (Gesteira et al., 2021; Salvo Agoglia & Alfaro Monsalve, 2019). Notably, in an interview with a social worker who recruited low-income women during the dictatorship, Salvo Agoglia and Alfaro Monsalve (2019) identified a narrative of saviorism that made professionals feel that they were doing the right thing for children. Although decades have passed since the return to democracy, saviorism continues to permeate child welfare systems, both in Chile and abroad (Hall, 2019; Inguanta & Sciolla, 2021). Since the return of democracy, several changes have been made to child protection and adoption. Notably, Chile ratified the United Nations Convention on the Rights of the Child (CRC) in 1990, which reaffirmed a commitment to guaranteeing several rights for children, including a child’s right to live with family and to identity. While this provided a framework for child-centered practice, some experts noted that it conflicted with the policies enacted and implemented through the Servicio Nacional de Menores (SENAME), or the National Service for Minors, the state agency responsible for child protection (Rauld Farías, 2020). Furthermore, although the CRC guaranteed a child’s right to their name (and to be looked after by their parents whenever possible), keeping families together, and identity, it also

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established the precedent of ensuring the “best interests of the child” (UNICEF, NPD). Since ratifying the CRC, Adoption Law N° 19,620 in Chile (the same law that stipulates criteria to deem parents incapable of caring for their children) has been modified to include the following language: “adoption has an objective of ensuring the adoptee’s best interests, through restoring their right to live and develop in a family unit that provides affection and provides daily care, as well as satisfying their spiritual and material needs, when these can not be met by the family of origin” (Adoption Law N° 19,620, p. 1). Thus, the CRC’s focus on the child’s best interest may perpetuate the saviorism that was present during the dictatorship, through which forced removals and adoptions were “justified” by professionals, even in cases where no child maltreatment was present. Although some of the irregularities, particularly in intercountry adoption, were addressed, critics have remained skeptical of the transparency of processes to terminate parental rights. In fact, as of 2020, 78.1% of adoptions in Chile were executed without consent from the biological parents (SENAME, 2021). As social movements across the globe have begun to recognize biases and discrimination in child welfare (Dettlaff et  al., 2020), there has been growing critiques of forced family separation and the severance of connections to one’s family of origin. Notably, in response to widespread critiques of the abuse of power within SENAME, a series of policies were proposed to be reformed during the first two decades of the twenty-­ first century. In 2022, the responsibility for child protection shifted from SENAME to Mejor Niñez, a newly created state agency. With this split, SENAME retained responsibility for juvenile detention and criminal cases involving youth, while Mejor Niñez took on all cases related to child protection, from the initial referrals and investigation to family-based services, out-of-home placements, and adoptions. As the state is currently in a transition phase, it is not yet clear how, if at all, processes related to reunification and/or termination of parental rights may be impacted.

9.3 Current Process to Terminate Parental Rights Traditionally, termination of parental rights is either a voluntary or an involuntary process. In voluntary processes, parents may decide to relinquish rights before a child is born, opting to “give the child up” for adoption. However, the vast majority of TPR cases in Chile and in other countries are done involuntarily—when the parent(s) do not wish to relinquish rights. In most cases, the involuntary TPR occurs through a process initiated in the family courts to terminate parental rights, through which the parent is, or the parents are, declared to be unable (inhabilitado) to care for their child. Through this process, the child is declared legally free for adoption (declaración de susceptibilidad de adopción), and then an adoptive family can be matched with the child. Although adoption itself is a separate process from the TPR, parental rights must be terminated in Chile before an adoption can be finalized. In addition to parental risk factors, other factors, such as a child’s age and disability status, may be considered before initiating the TPR. In fact, as of 2020 (the last year

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for which data are publicly available in Chile), only 8.3% of TPR processes in Chile involved children aged eight or older (SENAME, 2021). An overwhelming majority of TPR cases (64.2%) involved children between 0 and 3  years of age, with the remaining 27.5% involving children between ages four and seven. While the TPR process is separate from the adoption process in Chile, the same family courts that oversee the TPR also oversee adoptions. In some protection courts, family judges may order caseworkers to send the file to the Adoption Unit to start a study of adoptability, through which parental competencies are assessed to determine whether parental inability is present. In other cases, caseworkers may send a child’s file to the Adoption Unit to open a study of adoptability if reunification with a primary caregiver or extended family has not resulted in a timely fashion. Caseworkers are expected to have assessed and intervened with the child’s parents and any extended kinship networks prior to initiating the process to terminate parental rights. Notably, the Civil Registry in Chile can provide names, identification numbers, and addresses for kinship networks up to three degrees away from a child (e.g., parents, grandparents, siblings, and uncles/aunts). However, with the current laws, only blood or legal kin are considered. Therefore, there are instances in which an individual may become aware of family they did not know existed (e.g., a child in foster care whose parent is a half sibling of an individual that was not aware their parents had children outside of their marriage) who may be legally able to assume custody; yet, there are cases where fictive kin such as neighbors, godparents, or other significant figures in a child’s life may not have any priority or possibility to assume their care. Again, this reflects an area where longstanding policies and the legal framework contradict the CRC guiding principles of a child’s right to family (loosely defined) and identity.

9.4 Bias in Decision-Making Another important dimension to consider across the lifespan of a child welfare case is how professionals make decisions related to reunification or the termination of parental rights. Although few studies to date have explored bias and discrimination in decision-making in child welfare, several have explored different levels of dimensions of bias that may impact individuals. Specific to race, the Race Forward model explores four levels of racism that are present in our society: internalized, interpersonal, institutional, and structural (Keleher & Race Forward, 2014). Figure 9.1 displays the four levels of bias, with examples of each. Specific to child welfare, biases related to race, social class, and other identities have been examined. Researchers have recognized that undue influence from poverty and inequality drives decision-making in child protection across the globe (Bradt et al., 2015; Keddell, 2014). Moreover, research has identified different levels of bias within child welfare, such as implicit biases within child welfare workers such as cultural biases and personal influences, and larger structural disparities such as the availability of culturally responsive services (LaBrenz et al., 2022a, b; Miller

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Internalized

• Internalized beliefs about superiority/inferiority

Interpersonal

• Interactions that are affected by internalized biases

Institutional

• Inequitable policies and practices that privilege one group over another

Structural

• Institutional biases permeate multiple systems

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Note. This figure was created by the authors for this study.

Fig. 9.1  Levels of bias, adapted from the Race Forward model. (Note: This figure was created by the authors for this study)

et al., 2013). Therefore, biases can impact everything from individual attitudes and interactions with families to policies that allow the oversurveillance of entire communities. In Chile, a report conducted by the family courts and UNICEF in 2013 highlighted several deficiencies in the child welfare system, including the lack of adequate family engagement and intervention (Jeldres & Bascuñan, 2013). In the aftermath of this report, several researchers identified practitioner, institutional, and structural biases that impacted decision-making in child welfare in Chile. At the internalized and interpersonal levels, researchers found that families were often stigmatized by child welfare practitioners (Muñoz-Guzmán et  al., 2015; Reyes-­ Quilodran et al., 2020), particularly in cases where there may be cultural differences (Andrade-Guzmán & Lombe, 2022). At the institutional and structural levels, LaBrenz and colleagues (2022a, b) found systemic barriers to adequate family engagement and intervention, which in turn led practitioners to tend to recommend terminating parental rights.

9.5 Current Study This study explored the decision-making process among psychosocial child protection teams in Chile. Through this project, we sought to understand child protection team decision-making related to the termination of parental rights. The research question that guided the current analysis was, how do child protection teams in Chile determine whether to advocate for the termination of parental rights? In analyzing the data, we also considered decision-making related to reunification, as the TPR is often the next step when reunification is no longer the primary case goal.

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9.5.1 Method Data for this study came from an exploratory qualitative study that explored decision-­making processes among psychosocial child protection teams. Between January and June 2013, 14 professionals participated in five discussion groups. The psychosocial teams were recruited from a public list of state-administered child protective services (CPS) programs in the Metropolitan Region of Chile and accredited collaborating institutions. Emails were sent to the directors of Oficinas de Protección de Derechos (OPD; overseeing CPS investigations), Centros de Diagnóstico Ambulatorio (DAM; overseeing parenting assessments related to parenting competencies and abilities), Centros Residenciales de Lactantes Párvulos (CREAD; providing residential care to children ages zero to five in out-of-home foster placements), and Programas de Familias de Acogida (FAE; state-accredited child-placement agencies). All group discussions were conducted in person at the work office of the psychosocial team. In each case, the psychosocial dyad participated in the discussion group, consisting of one psychologist and one social worker. In some groups, other members of the team also participated, including social workers with associate’s degrees and center directors or leadership. Group discussions ranged from 45 min to 90 min in duration. In the first part of the group discussion, a vignette was presented of a case that had appeared in the national media 1 month before. In the case, a 17-year-old mother was arrested for child endangerment for leaving her newborn on the rooftop of a building. The mother had a history of mental illness and substance misuse. The newborn was transported to a hospital and then discharged into foster care. After reading the vignette out loud, the psychosocial teams were asked how they would have responded if the case were referred to them. A semistructured guide was used to ensure that each team was asked the same questions.

9.6 Data Analysis All the discussion groups were audio recorded and transcribed verbatim by the first author of the chapter. Line-by-line coding was conducted by using a thematic analysis approach. Coding was conducted in two main stages: in the first stage, codes were identified within each line of the transcript on the basis of the main idea underlying each statement (Guest et al., 2012). In the second stage of coding, codes were grouped by an overarching theme, and a constant-comparison approach was used to develop themes on the basis of similarities and differences in the initial codes. During the coding process, the first author of the chapter met weekly with a mentor to go over the emerging codes, themes, and memos. An audit was kept to document each decision. During the first round of coding, this included the creation of a codebook with a description and a definition of each code, the location in the transcript, and direct quote(s) that accompanied it. The second round of coding included an

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Excel file in which codes were grouped by similarity and theme. The first author of the chapter documented each decision related to grouping as part of the audit trail in the Excel document. The initial themes were sent to two experts in Chilean child protection as a means of member checking, and slight modifications were made on the basis of their feedback. In accordance with university protocols and procedures, all the participants were read an informed consent and signed an informed consent form prior to participating in their respective focus groups. To protect participant confidentiality, no identifiable information was reported.

9.7 Positionality The first author of this chapter is a US-born, White, cisgender woman. She was responsible for facilitating all the group discussions. At the time of data collection, she had been working with families involved in child welfare in Chile for 5 years. As a former CPS caseworker, she has had experience in providing expert testimony in cases related to child protection, child maltreatment, and the termination of parental rights. The second author of this chapter is male and Mestizo and was born in the south of Chile. He has worked in areas related to children and adolescents across his professional trajectory and has particular expertise in interventions in juvenile justice and program administration. As a former social worker in organizations that collaborate with SENAME and a former employee of the Public Ministry in Chile, he has participated in diverse social intervention processes specific to children and adolescents.

9.7.1 Results Three main themes emerged on how professionals made decisions about terminating parental rights: (1) focusing on the child’s rights; (2) “not wasting time”; and (3) addressing contextual vulnerability. Each of these themes involved separating the child’s interest from the larger family system and othering the family of origin. The three themes are explored in more detail below.

9.8 Focusing on the Child’s Rights Given that the CRC has been ratified by Chile, its principles guide much of the legal framework for child protection. One of the key concepts from the CRC is the “child’s best interest,” which requires entities to consider dimensions of well-being in the decision-making process. As a psychosocial team at a children’s home stated,

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Generally, we focus first on the child’s rights, first with just the children and then with families. We always consider the child’s best interest. If it is best for the child to be adopted, knowing that this mother might be a drug addict, that maybe she didn’t go to any check-ups during the seven months the baby was in her womb, maybe she has some sort of illness, the child could have some sort of pathology, a developmental delay, there could be any one of many issues that would make it a disadvantage for the child to be with its mother. (Psychosocial Group I)

As depicted in the example above, professionals often cited various risk factors, such as parental substance use, child developmental delays, or a lack of prenatal care, all of which could factor into an assessment of whether parental rights should be terminated. Another interesting component that emerged within discussions about the child’s rights was that the child’s interests were often influenced by their age. Several psychosocial teams noted the young age of the child in the vignette, stating that there would be more options for the child to be adopted if parental rights were terminated quickly. As a psychosocial team at a foster parent agency reported, We try to find family so that the infant can go with kin, if we are able to locate anyone. But, if we can’t locate anyone or no one wants to get involved, the most likely scenario is that we would terminate parental rights, especially since in this case the child is so little. (Psychosocial Group IV)

In fact, child protection teams often prioritized the child’s right to live with a family (any family) over their right to identity or their ongoing connections to their family of origin. This was particularly evident when discussing cases of infants or toddlers. For example, as one psychosocial team stated, We would start the process to terminate parental rights, so that this child could have the possibility to live with a family, be it a Chilean or foreign family. That is in accordance with [state] policy, especially when it comes to infants who are abandoned because they have better chances [of getting adopted]. (Psychosocial Team I)

Indeed, some psychosocial teams minimized the importance of the family of origin, stating that “it doesn’t matter” as long as the child is able to attach to a significant adult figure. As one psychosocial team that worked in child protection investigations reported, We would have to generate an attachment with a significant figure, not necessarily the mother or father. In this case, we would have to consider the child’s best interest. In this case, this particular mother was not fulfilling this function, so the child would definitely need to be with a family that could give him love, protection, and stability. And if we can’t work with the mother, it doesn’t matter. (Psychosocial Group III)

9.9 “Not Wasting Time” While child age was an important aspect when considering the child’s interest, teams also focused on the importance of achieving timely permanence, “not wasting time” with the child in foster care.

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Several of the psychosocial teams mentioned strict timelines that were given for families to reunify. In many cases, professionals reported that they had 2  years, although some programs reported 12- or 18-month timeframes, based on the time that families were allowed to be provided services through their program. As one psychosocial team at a children’s home stated, The family should overcome their problems within two years. If they have not sufficiently addressed them, then their child should be given an opportunity to have an alternate form of permanency, such as adoption. (Psychosocial Group I)

Beyond the reunification requirements, time constraints also impacted families that required intermediate or long-term substance use or mental health treatment. As the psychosocial team at a free health clinic stated, We have a snowball effect in the end because there is no prevention. So it just gets bigger and bigger, people get sicker and sicker, but the system doesn’t, it isn’t able to catch everyone. So what happens, is that it does not provide things in the way it should. For example, psychiatrists may recommend inpatient treatment for a certain time, drug addicts may need inpatient to be successful for a certain period of time, but no. The system is not set up to do that. It is set up for temporary outpatient services, and that is it. (Psychosocial Team V)

Requirements related to substance use and mental health treatment could be particularly challenging to meet within the timeframe given for reunification, as individuals with chronic issues often require longer-term assistance. As one of the psychosocial teams stated, We often don’t bother to intervene, because there may be cases where the mom wants to get her child back, but they think the process will be really short. Then, the months go by, and after a month or two they think they will be alright, but it doesn’t work like that. These processes last years. (Psychosocial Group III)

9.10 Addressing Contextual Vulnerability The final theme that emerged from the discussion groups was the need to address contextual vulnerability. As participants stated, a child’s removal was often the last resort for a family, done only after all other alternatives had been exhausted. Therefore, children entering care often came from families and communities with historical and/or collective trauma. As a psychosocial team at a children’s home stated, The whole context is sick. From the social context, everyone that surrounds the family like the problems that appear in this case, also have issues. So there is an entire context of vulnerability, of rejection, and abandonment. So it is complicated to rely on other adults. (Psychosocial Group I)

For others, the context of vulnerability, rejection, and abandonment extended to communities, the state, and larger systems. Communities overrepresented in child welfare have often been neglected and/or targeted by the state through oversurveillance, a lack of infrastructure, and a lack of opportunities for social mobility. As a

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psychosocial team at a free health clinic in a community with high rates of child removals stated, What [families] fear the most is the concrete part of cases, where you go to their house to see how they are living and it is literally a garbage dump. And what power do you have to help that family get out of there? We can call the police and make a report, they will come and take the kids, but they often go from a bad situation to worse. In foster care, there is not family, just like [social worker’s name] said. So they maybe get into a system that may offer a bit more protection but if the family didn’t have to live in such a run-down place, or if the mother were able to get drug treatment with her children, it would be much easier. But we have had numerous cases of single women, overwhelmed with a bunch of children, and they are being referred all over. So that’s it. (Psychosocial Team V)

9.10.1 Discussion This chapter explored decision-making related to the termination of parental rights in cases of child maltreatment in Chile. We can map the three themes that emerged from our discussion groups onto the four levels of racism/bias identified in the Race Forward model, to contextualize and understand the different dimensions of reflection and critical humility necessary when making decisions related to child welfare.

9.11 Internalized/Interpersonal Biases The first two biases, internalized and interpersonal, were reflected in the first two themes: focusing on the child’s rights and not wasting time. The implicit assumption, which was actually stated in one discussion group, was that the child’s connection to their family of origin “doesn’t matter.” Despite a plethora of research that has documented the importance of ongoing connections with a child’s family of origin (Burge, 2020; Faulkner et al., 2018; LaBrenz et al., 2022b) and the significance of these connections to a child’s right to identity (Von Korff & Grotevant, 2011), professionals’ personal views and beliefs about the families of origin of children in foster care often led them to prioritize severing ties with their parents. This is particularly alarming in that research suggests that the majority of youth who age out of foster care or are adopted reconnect with their families of origin after they have reached legal age (Antle et al., 2009; Havlicek, 2021). Furthermore, although the professionals attempted to justify the quick decision to terminate parental rights as “in the child’s best interest,” the bias against the family of origin may lead to the prioritization of adoptive families instead of advocating for a child’s interest and need to preserve meaningful connections with their family of origin. Indeed, what truly may be in the child’s best interest appears to take a backseat to the professional’s preconceived notions of what an ideal family looks like. Concerningly, some of the professionals noted that they don’t “even bother” to intervene, because of an assumed lack of interest or ability to make meaningful

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change among child welfare–involved parents. This aligns with some literature that has found parents to report conflictual relationships with child protection workers (Tuttle et  al., 2007), in which parents feel that they are treated unfairly (Palmer et al., 2006), particularly in the beginning of their case. Indeed, prior studies have found that parents often reported feeling dehumanized and denigrated in their interactions with child welfare practitioners (Maiter et  al., 2006). In contrast, parents who receive family-centered engagement and interventions have better odds of reunifying successfully (Berrick et  al., 2011; Maltais et  al., 2018). Furthermore, children whose caseworkers are involved and engage their parents have a higher likelihood of reunification (Cheng, 2010; Jedwab et al., 2018). Therefore, it is likely that the psychosocial teams who participated in our study are missing key opportunities to meaningfully engage parents and help families achieve reunification.

9.12 Institutional/Structural Bias The second theme, not wasting time, also included elements related to institutional or structural biases, along with the second theme of addressing contextual vulnerability. Under the theme of not wasting time, the psychosocial teams commented on the time constraints given by the family courts and how those failed to adjust for the time needed for parents to start their journeys on recovery from substance use and/ or treatment for mental health issues. On the one hand, this may lead to rushed reunification processes to meet the deadlines set by the family courts; premature reunification before substance misuse treatment has been completed has been linked to higher rates of child welfare recidivism (Carlson et al., 2008). On the other hand, children in care because of parental substance misuse often have longer stays owing to the time required for recovery (Brook et al., 2010). Therefore, it is important for agencies and systems to provide adequate time for parents to address risk factors, without compromising their ability to regain custody of their children. Furthermore, matching and coordinating mental health and substance misuse services for parents with co-occurring disorders can help increase the likelihood of reunification (Choi & Ryan, 2007; Marsh et al., 2006; Murphy et al., 2017), decreasing the risk of parents’ having their parental rights terminated. In addition to the time constraints that contributed to the termination of parental rights in cases where families may have been able to reunify with adequate support, structural biases led to entire family and community contexts of vulnerability and abandonment. Although Chile is often lauded as an example of a stable economic market within Latin America, the rapid growth of some sectors at the expense of others has led to high rates of inequity and inequality. In the Metropolitan Region, several researchers have identified lingering structural and cultural violence that systems and policies have perpetuated since the dictatorship (Garreton, 2017; Mendez, 2018). This has included the loss of the welfare state, increased spatial segregation, structural economic violence, and housing developments that have been abandoned by the state (Garreton, 2017; Rodríguez et al., 2014). Thus, even in

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cases where the psychosocial teams expressed a desire to engage and intervene with a parent, institutional and structural barriers often impeded the process.

9.13 Limitations There are several limitations that should be noted in this study. First, all the group discussions were conducted before the recent reforms to child protection in Chile. Although policies had been proposed at the time of the groups to separate child protection from juvenile criminal processes, they had not been approved. Thus, some of the institutional policies and procedures have likely shifted during this current period of transformation. Second, recruitment for this study targeted psychosocial teams in the Metropolitan Region. As much of Chile’s population is centralized, contextual aspects  that impact decision-making may vary outside of Santiago. Third, we conducted five group discussions; therefore, additional themes may have emerged with the inclusion of more psychosocial teams, and our findings are not necessarily transferable to all child protection teams.

9.14 Implications In light of the findings of our study and the limitations, there are several implications for research, practice, and policy. Furthermore, from an ecological perspective, there are micro, meso, and macro implications within each area for future steps. Table 9.1 displays the main dimensions and levels of implications. As seen in Table 9.1, there are important directions for future research, particularly as Chile continues to transition to Mejor Niñez. First, and from a micro perspective, it is crucial to include the voices of diverse families involved with child welfare in future research, including those with positive and negative case outcomes. This can help give voice to and empower families and can help understand their experiences with decision-making throughout the span of their child welfare case. At the meso level, findings from this study could be compared with decision-­making around the TPR with psychosocial teams currently serving families. Again, with the transition to Mejor Niñez, it is plausible that there will be changes to institutional policies, through which there could be opportunities to have more-equitable decision-­ making processes with more-meaningful involvement from families. However, for meaningful changes to occur, new institutional policies must be implemented, and psychosocial teams and leadership must be trained to increase buy-in and motivation for change and to understand the importance of engaging families. Finally, as child welfare transitions and is transformed, it will be important to evaluate the changes to institutional policies, national laws, and agency procedures related to the termination of parental rights.

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Table 9.1  Key Takeaways from an ecological perspective Dimension Micro Research Explore lived experiences of children + parents

Practice

Encourage self-reflection among professionals to recognize implicit bias

Policy

Include analysis of institutional and structural policies in supervision with caseworkers to identify areas for improvement

Meso Expand discussion groups to current psychosocial teams working during the transition Integrate institutional policies with minimum standards for family engagement Provide training to child welfare workers to familiarize them with policy changes

Macro Evaluate TPR rates because new policies have been implemented under Mejor Niñez Identify and implement community-wide prevention efforts in vulnerable neighborhoods Advocate for flexibility in timeframes set for reunification

Note: This table was created by the authors for this study

With regard to practice, based on the authors’ analysis, internalized biases were evident in several of the discussion groups. Notably, the psychosocial teams overwhelmingly expressed negative images and perceptions of families of origin, labeling parents as “addicts,” “having other mentalities,” and “the main violator of their children’s rights.” Practitioners and supervisors should engage in critical self-­ reflection to recognize implicit biases and have opportunities for clinical supervision to address them. Of particular concern in the discussion groups was that in several instances, the psychosocial teams stated that the child’s connection with their family of origin “didn’t matter” and that it was “pointless” to try to engage the family. Thus, the internalization of beliefs and attitudes about families seemingly impacted the interpersonal interactions between the professional and parents. Consequently, agencies and institutions should establish minimum standards for family engagement and ensure that all practitioners are trained to understand the importance of and techniques for meaningful family engagement. Finally, given the contextual vulnerability that emerged as a key theme across discussion groups, it is crucial that preventive and intervention efforts focus on building community-wide resilience. This could include preventive efforts such as universal home visiting, community centers, and targeted interventions such as legal assistance in communities with high rates of child maltreatment referrals. The final dimension with implications from the current study is policy. As policies continue to evolve with the current transformation of child welfare in Chile, weekly supervision and meetings with agency staff could include time for critical analyses of institutional and state policies to ensure that they are being implemented and interpreted as equitably as possible. Similarly, as policies for child protection change, it is important to have ongoing training and information sessions for all caseworkers and supervisors so that they are made aware of new expectations and guidelines. At the macro level, the transformation of child welfare is opening unique opportunities to advocate for more equitable, just, and family-centered policies.

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Given the vagueness of parental inability in the current adoption laws, reforms could also establish clearer criteria for terminating parental rights, integrate more flexibility so that families with histories of substance misuse and/or mental health disorders have sufficient time for recovery, and connect the principle of the child’s best interest with the abundance of literature that documents the importance of connections and ongoing relationships to one’s family of origin. By taking a more holistic, family-centered approach to child welfare, decision-making can include more-meaningful family engagement and participation, reflect the child and family’s voice and desires, and ensure that family preservation and maintenance is prioritized.

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Miller, M.  K. (2011). How judges decide whether social parents have parental rights: A five-­ factor typology. Family Court Review: An Interdisciplinary Journal, 49(1), 72–83. https://doi. org/10.1111/j.1744-­1617.2010.01354.x Miller, K. M., Cahn, K., Anderson-Nathe, B., Cause, A. G., & Bender, R. (2013). Individual and systemic/structural bias in child welfare decision making: Implications for children and families of color. Children and Youth Services Review, 35(9), 1634–1642. https://doi.org/10.1016/j. childyouth.2013.07.002 Muñoz-Guzmán, C., Fischer, C., Chia, E., & LaBrenz, C. (2015). Child welfare in Chile: Learning from international experiences to improve family interventions. Social Sciences, 4, 219–238. https://doi.org/10.3390/socsci4010219 Murphy, A. L., Harper, W., Griffiths, A., & Joffrion, C. (2017). Family reunification: A systematic review of interventions designed to address co-occurring issues of child maltreatment and substance use. Journal of Public Child Welfare, 11(4–5), 413–432. https://doi.org/10.108 0/15548732.2017.1340221 Palmer, S., Maiter, S., & Manji, S. (2006). Effective intervention in child protective services: Learning from parents. Children and Youth Services Review, 28(7), 812–824. https://doi. org/10.1016/j.childyouth.2005.08.010 Rauld Farías, J. C. (2020). Desprotección, instittucionalización y gobierno en la infancia del bajo pueblo chileno: Un análisis desde el pens…. Sociedad e Infancias, 4, 135–146. Reyes-Quilodran, C., Muñoz-Guzman, C., & Guerra-Aburto, L. (2020). Family conceptions and social workers’ professional judgment in Chilean social child services. Social Work Education: The International Journal. https://doi.org/10.1080/02615479.2020.1781077 Rodríguez, A., Rodríguez, P., Saborido, M., Segovia, O., & Mires, L. (2014). Visible and invisible violence and inequality in neoliberal Santiago. Environment & Urbanization, 26(2), 359–372. https://doi.org/10.1177/0956247814542723 Salvo Agoglia, I., & Alfaro Monsalve, K. (2019). ‘Irregular adoptions’ in Chile: New political narratives about the right to know one’s origins. Children & Society, 33(3), 201–212. https://doi. org/10.1111/chso.12324 Selman, P. (2012). Tendencias globales en adopción internacional: en el interés superior de la infancia? Scripta Nova, 16(395), 1–12. SENAME. (2021). Anuario estadístico 2020. https://www.sename.cl/web/wp-­content/ uploads/2021/08/Anuario-­Estadistico-­2020.pdf Tuttle, A. R., Knudson-Martin, C., Levin, S., Taylor, B., & Andres, J. (2007). Parents’ experiences in child protective services: Analysis of a dialogical group process. Family Process, 46(3), 367–380. https://doi.org/10.1111/j.1545-­5300.2007.00217.x UNICEF. (NPD). The convention on the rights of the child: The children’s version. https://www. unicef.org/child-­rights-­convention/convention-­text-­childrens-­version United Nations Convention on the Rights of the Child, November 20, 1989. https://www. ohchr.org/en Vesneski, W. (2011). State law and the termination of parental rights. Family Court Review: An Interdisciplinary Journal, 49(2), 364–378. https://doi.org/10.1111/j.1744-­1617.2011.01377.x Von Korff, L., & Grotevant, H. D. (2011). Contact in adoption and adoptive identity formation: The mediating role of family conversation. Journal of Family Psychology, 25(3), 393–401. https:// doi.org/10.1037/a0023388 Wulczyn, F. (2004). Family reunification. The Future of Children, 14(1), 94–113.

Chapter 10

Fundamentals and Professional Practices in Uruguay’s Juvenile Justice System Sandra Leopold Costábile

10.1 Preliminary Theoretical Remarks Adolescence, as both a sociohistorical construction and a cultural construction, was processed in such a way in the Western world that adolescents became the object of systematic suspicion. Socrates stated in the fifth century BCE that young people “love luxury, have bad manners, contempt for authority, show disrespect for elders, and love chatter in place of exercise.” Furthermore, he added: “they contradict their parents, cross their legs, and tyrannize their teachers” (Viñar, 2009, p.  23). The characterization of the critical moment—linked to the realization of sexual identity—with which Rousseau (1985) refers in Book IV of Emile to the first adolescent stage will be taken up and further elaborated later on. In fact, as a corollary to his study on suicide, Durkheim (1989) does not hesitate to ascribe to young people a certain orientation toward the disintegration of society. On the other hand, from another perspective, Winnicott argued in the early 1960s against that old Shakespearean The Winter’s Tale, where it was wished that “there were no age between sixteen and three-and-twenty or that youth would sleep out the rest; for there is nothing in between but getting wenches with child, wronging the ancientry, stealing, fighting” (Winnicott, 1990, p. 183). When the adolescent condition, considered as an essentially problematic period of life, is coupled with offending actions, the abovementioned historical references produce a figure that hegemonically becomes the object of criminal law control. Although on a reduced scale in the context of the country’s criminal justice issue,

S. L. Costábile (*) Universidad de la República, Montevideo, Uruguay e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_10

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criminalized adolescents cyclically emerge as figures responsible for the disruption of order and social coexistence.1 Contrary to a certain current trend, which tends to show social phenomena in terms of absolute novelty, the adolescent criminal justice issue in Uruguay seems to show an accumulation of accumulated history, according to Adorno (1996), rather than showing novelties—whose existence, however, should not be underestimated but instead explored and made visible. Full of historicity, the adolescent criminal justice issue has become a problematic field that has given rise to recurrent debates and reforms that, time and again, seem to face the risk of dissociation between purposes and results. Far from international doctrinal guidelines and national regulatory frameworks, the use of the deprivation of liberty has been the most widely adopted punitive measure in the country, to the detriment of noncustodial and community-­based measures. As a socioeducational measure, the deprivation of liberty has shown persistent weaknesses in its programmatic content. On the one hand, the situation of confinement seems to find obstacles and overcomes a series of inefficient strategies to regulate daily life, in terms of order and security within the institution. On the other hand, at the discursive level, the goal of rehabilitation seems to be attainable through education, work, and recreation initiatives that would help to restore order in the lives of adolescents by imposing a new behavioral model. In practice, however, the successive initiatives appear to be a fiction of the experience of work, education, and access to cultural goods, in a sort of simulation that pretends to escape the ever-present need for contention (González Laurino & Leopold Costábile, 2013). At the same time, when addressing the issue of adolescent offending, the selectivity with which the criminal justice system has operated in relation to the socially vulnerable population should not be overlooked. Mostly young, male, and poor people have been systematically subjected to criminal law control. Even after a favorable economic period such as the one that Uruguay experienced during most of the “progressive” cycle2 (2005–2019), with significant reductions in poverty and extreme poverty rates and with a certain recovery of the state’s role in social protection, major inequalities have persisted in the country when we consider age, gender, territorial distribution, and ethnic-racial status. The recent pandemic and the government’s change of orientation3 will worsen these social indicators and exacerbate structural problems and their

 According to information from the Attorney General’s Office, of the total number of accused persons between February and October 2019, 5.6% were adolescents, a relatively stable figure in the country. See https://www.gub.uy/fiscalia-general-nacion/datos-y-estadisticas/estadisticas 2  In Uruguay, this cycle refers to the Frente Amplio–Encuentro Progresista government during the period 2005–2019. 3  The 2019 presidential election in Uruguay was won by a conservative political electoral coalition with the Luis Lacalle Pou-Beatriz Argimón ticket for president and vice president, respectively. It consists of the National Party, the Colorado Party, Cabildo Abierto, the Independent Party, and the People’s Party. 1

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associated expressions, especially the living conditions of children and adolescents.4 The recognition of the needs and rights of children and adolescents has been a structuring element of contemporary culture and an inalienable ethical imperative since the end of the twentieth century. However, at the same time, it has shown the obstacles to be faced against a materialization that is still compromised (Bustelo, 2007; García Méndez, 2004; Leopold Costábile, 2015). The new trends in the doctrine of comprehensive protection led to a significant expansion of the discourse on the rights of children and adolescents; however, the semantic update did not magically modify social life. On the contrary, the discourse on the rights of children and adolescents has expanded as much as the recurrent set of problems that affect them has persisted. Eduardo Bustelo (2007) refers to this when he states that at the same time that rights are recognized in their “condition of existence,” they are ignored in their “condition of exercise;” and this, he warns, “…can dangerously place rights in a non-relation with life, or the other way around, which is the most frequent: Life without the protection of rights” (Bustelo, 2007, p. 114). The multiple vulnerabilities affecting adolescents and young people are not exclusively a statistical finding. The socioeconomic information is not—as Eduardo Bustelo (2007) points out—a “candid intellectual production” but rather the real conditions of existence in which the lives of many people are lived. It consists of different ways of inhabiting the world, marked by suffering and pre-established social journeys. In this sense, being born and growing up—or “saving the body,” as Baudry (2003) says—is not enough to guarantee life or to ensure full rights for adolescents and young people within social bonding.

10.2 Current Regulatory Regression in Juvenile Criminal Matters Following the ratification of the International Convention on the Rights of Children and Adolescents (Law No 16137, 1990), Uruguay began a process of reforming the 1934 Children’s Code—the country’s first set of regulations aimed at children and adolescents. This process culminated in the enactment of the Code of Children and Adolescents (Law No 17823, 2004). Before this code entered into force, there was no specialized juvenile criminal justice in the country. The behaviors classified as offenses of persons under 18 years of age were dealt with by “juvenile judges,” who were also competent to address the issue of protection. With the new code, judges for adolescents with specific authority in juvenile criminal matters were created in Montevideo, while social welfare matters became the object of interventions by the  In 2020, 116 out of every 1000 residents in the country did not have the minimum economic income to cover food and non-food needs. Poverty is at 11.6%, compared to 8.8% in 2019, where the total number of people in this condition amounts to an estimated 408,080; of these, 176,375 are children (Boletín Técnico INE, 2021). 4

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family justice system. In addition, a specific criminal procedure was enacted, and the conditions for the implementation of socioeducational measures were established. However, a review of Uruguayan legislation in recent years shows the progressive implementation of a conservative and regressive model in juvenile criminal matters. Said model has gradually modified some of the guarantees provided by the adaptation of Uruguayan legislation to the International Convention on the Rights of the Child (Díaz & Fernández, 2017; Díaz, 2018, 2019; Fernández Chiossoni, 2018; Vernazza, 2016, 2017). The first law resulting from these legislative measures, originating in 2011, Law No 18771, modified the public institutions responsible for the execution of judicial measures for adolescents who have violated criminal laws. The second law, Law No 18777, established three substantive amendments to the Code of Children and Adolescents. In the first place, it extended the time period of the precautionary measure of detention from 60 to 90  days for offenses classified as “very serious.” Second, it empowered the judge in the juvenile criminal case to issue a sentence in the absence of medical and psychosocial reports from the System for the Implementation of Measures, which, until then, had been considered mandatory. Third, it classified attempted theft and complicity under theft offenses, for which noncustodial socioeducational measures should be applied. With the third law, Law No 18778 of 2011, the National Criminal Record was created for adolescents who have undergone judicial prosecution, which must be destroyed when they reach legal age. However, this record should be maintained and will be considered as an aggravating factor in the case of “very serious” offenses provided for in the Code of Children and Adolescents, including robbery with violence (rapiña). This is the most frequently classified offense in the case of male adolescents in Montevideo. Also in 2011, a constitutional reform proposal was publicly presented, which aimed at lowering the age of criminal responsibility from 18 to 16  years old (Uruguay, 2011). It was submitted to a plebiscite in October 2014. Although the constitutional reform proposal did not reach 50% of eligible voters, it was endorsed by 46.81% of the electorate, thus showing the popular support gathered by the discourse that held young people responsible for public insecurity in the country. In turn, Law No 19055 of 2013 provided for a special regime for adolescents aged 15 to 18 years charged with offenses classified as “very serious.” First, it established the preventive deprivation of liberty until sentencing. Second, it set the duration of the custodial sentence for a minimum period of 12 months for the offenses listed in this article, thus prohibiting the request for early release until this minimum term has been met and half of the sentence imposed by final judgment has been served. This law established the mandatory deprivation of liberty for a period of 1 year, in accordance with the most frequently punished criminal offenses. In October 2017, Law No 19551 was enacted, which increased the precautionary measure from 90 to 150 days for “very serious” offenses and maintained the 60 days for “serious” offenses. On the other hand, after a long parliamentary process, the new Code of Criminal Procedure (Law No 19293, 2014) was approved, which replaced the old inquisitorial and written procedure with an abbreviated and oral one. This modification came

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into force in December 2017, expediting judicial processes and establishing an accusatory type of model in which the process came under the responsibility of the Public Prosecutor’s Office. Finally, Law No 19889, approved on July 9, 2020, and classified as Urgent Consideration Law, introduced substantive changes in adolescent criminal matters. This law increased the deprivation of liberty to the detriment of other alternative actions for the resolution of criminal conflicts, running counter to national regulations in force and international recommendations that consider it a measure of last resort and for the shortest possible time. In this regard, Article 75 limited special leaves for adolescents deprived of liberty for offenses considered “very serious.” Article 76 doubled the maximum term for the deprivation of liberty from five to 10 years, while Article 77 increased the minimum term of deprivation of liberty from 1 to 2 years. The “dangerousness” argument, which has been questioned by national legal experts in the field, was thus taken up again (Uriarte, 1999, 2006). Also, in Article 78, criminal law control was extended for a number of adolescent offenses, for which registration in the Criminal Record applies. In short, the regulatory changes implemented in the past decade in the country have ignored the special characteristics of the adolescent population. At the same time, they have reduced the possibilities of achieving the goal of “social inclusion” established in the institutions of reference and in the regulations in force. In this sense, they privilege punitive content, limit the application of alternative measures or release mechanisms, and fail to expressly mention the reinforcement of measures to counteract the detrimental effects of the deprivation of liberty and promote the social integration of adolescents.

10.3 Signs of an Institutional Framework in Permanent Crisis The National Institute for Adolescent Social Inclusion (INISA), created by Law No 19367 on December 31, 2015, is established as a decentralized service related to the executive power through the Ministry of Social Development (in Spanish, Ministerio de Desarrollo Social, MIDES). It replaces the Adolescent Criminal Responsibility System (in Spanish, Sistema de Responsabilidad Penal Adolescente, SIRPA) created under Law No 18771 on July 1, 2011. This, in turn, had replaced the Technical Institute for Juvenile Rehabilitation (in Spanish, Instituto Técnico de Rehabilitación Juvenil, INTERJ). The changes in names that the institution responsible for the implementation of socioeducational measures has historically undergone over short periods of time have not necessarily entailed overcoming the systematic situation of crisis and reform that characterizes that institution (González Laurino & Leopold Costábile, 2013).

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Even in a historical cycle that has led to a significant drop in the number of adolescents deprived of liberty,5 numerous critical points within the system have become evident at the same time as the aforementioned legislative changes have been enacted. The 2021 Annual Report of the Human Rights Institute and Ombudsman’s Office (in Spanish, Institución de Derechos Humanos y Defensoría del Pueblo, IDDHH) to the General Assembly6 accounts for this. The results of the juvenile justice system’s monitoring carried out during that year, in the context of the pandemic and its health emergency, show—among the most critical aspects—a marked increase in confinement and the worsening of its effects. This was caused by a significant reduction in activities and interactions with the outside world, including family members, but was also caused by a lack of access to justice owing to the systematic suspension of hearings. These restrictions became more evident in maximum contention facilities, where it was found that adolescents barely enjoyed two to four hours of outdoor time per day. Thus, stressful and tense situations were exacerbated, with an increase in coexistence conflicts among the youths and in the levels of violence within the facilities. In this regard, most adolescents reported that their mental health worsened during their deprivation of liberty, associated mainly with the time of entry into the system, as well as with inactivity in the case of facilities with strict confinement. The report also focused on longstanding deficiencies, such as the poor building conditions and the lack of institutional projects that could go beyond the periodic changes in management within facilities and provide ongoing guidance to the work process. The Uruguayan juvenile justice system is undergoing a permanent crisis, which goes back practically to its creation. The intention to reform it has also been constant. In this way, the system in question would seem to confirm Carlos Uriarte’s characterization of prison discourses, understood as the history of prison criticism, while the history of prison can be conceived as the history of its reform (Uriarte, 2006). The cyclical crises within the juvenile justice system come to public light either through allegations arising from the system itself or as a result of the visibility gained by the adolescents’ escapes from the control system. These escapes often cause public scandal, alarming press editorials, and political demands of those responsible for management at the time. However, the discourse of the actors involved in the juvenile justice system is limited to transferring the responsibility for the malfunctioning of one branch to the other, as if the other always had total responsibility for the failure and it was not possible to think about the contradictions of an inadequate social response to a complex problem, where historically proven proposals have repeatedly confirmed bad results. Ultimately, the discourses introduce reciprocal judgments among the different actors, in which, as Uriarte (1999) states, “responsibility for inefficiencies is foisted on each other: something like the

 According to information provided by INISA, on August 5, 2021, in the first half of 2021, there were 434 adolescents deprived of liberty (13 female adolescents and 421 male adolescents). 6  See https://parlamento.gub.uy/sites/default/files/informe_anual_a_la_asamblea_general_2021_ inddhh.pdf. 5

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old pinball game, in which a lead ball rolled down and was bounced by trigger mechanisms, from side to side, in all directions” (p. 277). When describing the components making up the crisis scenario of the juvenile justice system’s executive branch, some members of Parliament who were consulted agree on the fact that noncompliance involves both custodial and re-­ educational functions. From this perspective, the system fails because it enables escape and avoids the rehabilitation of adolescents who are penalized. The critical perception of political actors regarding the execution of socioeducational measures not only involves those in charge—who seem to succeed one another without any success—but also extends to operational staff. About them, inadequate training, insufficient staffing, low attendance, and difficulties related to occupational health are mentioned (Interviews with members of Parliament, Montevideo 2017–2019). On the other hand, the implementation of measures—custodial and noncustodial—is an important point of criticism in the discourse of all actors consulted. The lack of space available in detention facilities and of adequate building conditions would prevent any consistent action by a system that seems unable to meet its re-­ educational goals. In addition, there are bureaucratic administrative procedures and insufficient resources to meet the needs of the intervention. Critical discourse on sentence enforcement also focuses on noncustodial measures. Various actors interviewed agree in pointing out their limited operational and conceptual strength, which can be seen in the lack of a systematic and thorough follow-up strategy for punished adolescents (Interviews with representatives of the judicial branch, Montevideo 2017–2019). The multiple views that make up this critical diagnosis of the executive branch in the juvenile justice system, according to the actors interviewed, add the lack of theoretical and programmatic knowledge accumulation on the subject in question to a number of structural and operational difficulties. These aspects are associated with insufficient professionalization in the field and a lack of transparency and information in the application of criminal policy, which hinders any possibility of transparency and effectively evaluating management (Interviews with members of Parliament and representatives of the judicial and operational branch of the juvenile justice system, Montevideo 2017–2019).

10.4 On Crises and Reforms If this persistent scenario of institutional crisis calls for consensus among the different bodies consulted, the possibility of reaching broad agreements on the elaboration of reform proposals fades away. In this sense, excessive emphasis on making the custodial dimension effective or implementing the classic ideas of rehabilitation leads the system down conflicting paths. In this way, management should be based more on the perspective of what is available or what can be done rather than on what should or must be done. In sum, the analysis of this dimension warns us about the return of conceptions and practices that, by taking up the worst attributes of the

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irregular situation doctrine, anticipate the recurrence of the cyclical scenario of failures already announced and turn the concept of adolescents as subjects of rights into a utopian illusion (García Méndez, 2004; Fellini Fachinetto, 2018). In this sense, within the framework of the tutelary perspective, technical-­ industrial education was reserved for institutionally “protected” children and adolescents—or, in broader terms, “poor children.” Therefore, just as poor boys and male adolescents were “apprenticed” to trades, girls and female adolescents of the same social condition attended courses on sewing, weaving, and carpeting or on linen and lingerie (Leopold Costábile, 2002). “Trades” and “needlework” have represented the main educational proposal when it comes to minorized children, together with the implementation of a moral reformism, oriented toward the construction of a disciplined, correct, and decent subject. The similarities between the foundational proposal for child welfare in Uruguay, as well as in the rest of the continent, and the guidelines of the Reform movement have already been widely analyzed by experts in the field (Uriarte, 1999, 2006; Leopold Costábile, 2002). In this sense, perhaps the ever-present proposals for juvenile justice system reform in Uruguay follow the classic orientation of the late-nineteenth-century Reformers, who promoted educational strategies aimed at the acquisition of “lower-class skills” and “middle-class values” by poor children (Platt, 1982). The studies coordinated by Alcira Daroqui, et  al., on juvenile criminality in Buenos Aires allow us to problematize the search processes for desirable behaviors imposed on adolescents in the context of the deprivation of liberty. Confinement institutions, after defining what is allowed and what is forbidden, seek to “channel” the offender’s behavior and promote the acquisition of coexistence rules that refer to an internal order, conceived as an end in itself (Daroqui et al., 2012, pp. 371–372). On the other hand, the search for ways of reform should not simplify the existing links between the custodial dimension and re-educational intervention. Carlos Uriarte points out that the episodes that call for security “are always ostensible, easily perceptible or representable (often mythical and paranoid), intimidating, urgent, irresistible” (Uriarte, 2006, p.  72). These are not the attributes of “resocializing treatment.” On the contrary, this is displaced by the urgency of security. Therefore, it seems feasible to think that confinement will always end up taking precedence over any treatment-oriented action. When the proposed intervention in the deprivation of liberty focuses on the subject’s behavior, dependence on custodial and disciplinary strategies will be mandatory. Therefore, as Uriarte states, the disciplinary approach “is pathetically behavioral” (Uriarte, 2006, p.  73). In short, as Michel Foucault asserted, whereas penality punishes the infraction, “confinement penalizes disorder” (Foucault, 1996, p. 45).

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10.5 Methodological Concerns The long-term line of research in this chapter takes the Uruguayan juvenile justice system, understood as the system made up of the legislative, executive, and judicial branches, as its object of study. Research focuses on the discourses of political actors with parliamentary representation, agents in the judicial branch, managers in the system of the execution of judicial measures, and professionals who make up the expert system both in the judicial sphere and within the framework of the implementation of court-ordered socioeducational measures at the National Institute for Adolescent Social Inclusion (Instituto Nacional de Inclusión Social Adolescente, INISA) (the institution responsible for the implementation of the system of the execution of judicial measures). Interviews were conducted between 2015 and 2019: (i) 15 interviews with legislators of the parties represented in Parliament and representatives of the judicial branch within the juvenile justice system and (ii) 17 interviews with technical staff in the juvenile justice system in the judicial branch and in the branch in charge of the execution of socioeducational measures, both custodial and noncustodial. In total, 28 court files from the Adolescent Courts of Montevideo filed in 2014 were also collected. The selection criterion for the random sample of files was based on an analysis of cases with convictions, both in the first instance and in the second instance, if applicable. This study analyzes multiple and diverse discursive sources that express a universe of meanings and representations referring to the juvenile penal system in Uruguay. The discourse is conceived from the perspective of Michel Foucault as “a corpus of statements” that seeks to capture the singularity of its events, determine the conditions of its existence, set its limits, establish its relationships with other statements, and show that other forms of enunciation have been excluded. For this, the discourse was questioned insofar as “how it works”—that is, what it designates, what it cuts, how it is composed, and how it develops (Foucault, 1970, 1981).

10.6 Some Keys to Reading the Fundamentals and Professional Practices in the Juvenile Justice System The 28 court files (from the Adolescent Courts of Montevideo filed in 2014) analyzed in the research process on which this chapter is based show a criminal process that begins with the presentation of the infringing act, and as professional interventions take place, progress is made in proving “who is” the subject who committed the offense. The starting point is to evidence and prove when, where, and how the criminal act(s) took place while identifying a perpetrator whose name, date of birth, place of residence, and criminal record do not initially appear to be known. Nor is attention drawn to clothing, physical features (height, skin, and hair color), or body

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marks (tattoos) (Technical Report. Male adolescent. Second Court of First Instance 2011). In this way, the phenomenal aspect would seem to become a first-order matter. Consequently, those who were made “(in)visible in social life” are made “visible” in the juvenile justice system (Apolinario Sales, 2007). It is ultimately the act, and its categorization, that triggers the punitive intervention. However, once the existence of an objective conduct typified as an offense has been proven, the question of who is the subject responsible for the act arises. On the basis of the intervention of the different expert discourses involved in the juvenile criminal process, the information on the perpetrator gradually progresses in each file—although it does not always imply a linear and coherent collection of data. The same adolescent may have completed the first year of secondary school, have some work experience, use psychoactive substances, or live with their mother, and then the exact opposite may be inconsistently reported (Technical Report. Male adolescent. First Court of First Instance 2009). In some cases, a biography is gradually put together on the basis of further information or the incorporation of new data on the integration of the family group, the level of education attained, work experience, psychoactive substance use practices, and emotional characteristics. An impression is also included about the reflexive mechanisms that operate in each adolescent at the time of positioning themself with respect to the acts of which they are being accused: “The adolescent was open to dialogue, being able to visualize the negative aspects of her behavior, being aware of what had happened” (Technical Report. Female adolescent. Second Court of First Instance 2013). In the analyzed files, the interpretations about the life situation of each adolescent, in which their offending behaviors are inscribed, do not go beyond the family environment—often deteriorated—or their belonging to groups of peers “who do not carry out any activity or are responsible for messing them up” (Technical Report. Male adolescent. Second Court of First Instance 2011). Experts make assessments in relation to work and study habits, and they provide data on schooling, educational dropout, and participation in behaviors considered alternatively as “dissocial” or “antisocial”—referring mainly to the adolescent’s attitude toward normative transgression. Likewise, attitudinal aspects are observed (cleanliness, grooming and correct presentation, collaboration with the interviewer, reluctance to provide information, and distrustful attitudes) as well as other aspects (e.g., use and richness of vocabulary) and clinical impressions of the cognitive level and developmental progress according or not to chronological age (Technical Report. Male adolescent. Court of First Turn 2010). “Who are you?” is the question that, according to Foucault (1996), is intended to be answered by the penal machine that would not seem to be able to function simply with a law, an infringement, and a responsible party. Another type of discourse is required, that which the accused say about themselves or that which, as a result of their own account, experts can say about them. In this way, the juvenile criminal process advances and develops toward the actor. In the files considered, the shift from “crime” to “criminal,” as Foucault (1996) would say, shows repeated

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components that explain the offense through the subject’s way of being and living and shows the possibility or not of taking responsibility for the acts committed. Both the psychological and social reports included in the court files consulted show an individualized view of the adolescent and their family and social context. The sole responsibility for the choice, the action, and the eventual overcoming of the offense would seem to fall on each one of them. The individualization that comes into play in these situation reports generally ignores any reference to the socioeconomic and cultural context that could explain it. In part, social factors condition the attitudes and behaviors of an adolescent who becomes the object of criminal sanction. The selectivity with which the penal system in general and the juvenile system in particular operate has been the focus of many debates (Uriarte, 2006; Marcón, 2017; Moras, 2016; Zaffaroni, 2009, 2012). This could be reinterpreted in terms of social coresponsibility in the individual violation of criminal law, to the extent that it cannot seriously be considered that transgressive and violent behaviors appear only in the most underprivileged sectors. At least it is reasonable to think that these behaviors are the only ones that seem to be captured by the juvenile criminal justice system. In the technical reports consulted, the statement that some of the adolescents seem to display a kind of “autonomous,” “independent or pseudo-independent” mode of functioning in social life is reiterated. In some cases, the reference to independence also extends to the adolescent’s younger siblings. The autonomous life of underage adolescents is associated with a weak bond with parental figures because they have died or because the relationships have deteriorated and do not effectively operate, from a normative or emotional point of view. In some cases, although there is “concern” and “interest” on the part of the responsible adults in relation to the adolescent, they have “little control” over the adolescent’s behavior (Technical Report. Male adolescent. Third Adolescent Court of First Instance 2013). The concept of autonomy or independence was not conceptualized in the expert discourses analyzed. However, the situation of a 15-year-old adolescent who, when asked about the integration of his family unit, responded that he lives on the street coexists in the same report with the statement that the young boy has a deteriorated relationship with his family and “manages independently” (Technical Report. Male adolescent. First Adolescent Court of First Instance 2009). The question arises whether what is referred to as autonomy and independence is not certainly the lack of all protection, which our society has defined both legally and politically as a right inherent in the condition of a child or adolescent. In any case, it would be a subject independent of any support and any right, which leaves them exposed to deal with them existence, with extremely limited, if not nonexistent, resources. Nevertheless, the interpretations of the life situation of each adolescent—in which their offending behaviors are inscribed—do not go beyond the family environment—often deteriorated—or the belonging to peer groups whose influence is described as negative in court files. In the references that contain characterizations of “weak family bonds,” the difficulties attributed to parental figures— for the effective fulfillment of protection and provision duties with respect to their minor children—and even the negative influences of peers are presented without

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any social context. Therefore, the sense chain in which the offense is placed does not seem to transcend an extremely narrow perspective, which evaluates attitudes and procedures, regardless of the conditions of the subjects involved. Beyond these factors, it would seem that the adolescent arrives at the juvenile justice system in complete solitude after making a series of ill-advised decisions. Thus, from the dominant expert perspective gathered in court files, only by assuming responsibility for their actions would each adolescent have an alternative way out of the offense. This attitude of taking responsibility for the acts committed seems to be perceived, in the technical discourse, as linked to the adolescent’s capacity for reflection, openness to dialogue, the possibility of making appropriate choices, and the decision to “cope with” life demands. At the same time, the lack of critical or reflexive capacity, as well as a negative attitude toward changing their behavioral patterns, would not only lead adolescents to deny responsibility for their actions but also perpetuate them in the infraction. Far from any possible celebration of individualization and the possibility of constructing a “biography tailored” to their desires and aspirations or a “biography of their own” (Beck, 2001), adolescents in the justice system seem to be forced to produce a biographical narrative that shows that they understand the situation they are in, reflect critically on the offenses they have committed, and provide evidence of their efforts to take responsibility and improve themselves. It is worth remembering that biographical freedom, as promoted by the theoreticians of reflexive modernity, places the responsibility for social success, but mainly for failure, on each individual.

10.7 Final Remarks As mentioned above, the discourse on the rights of children and adolescents did not magically modify social life or institutional practices within tutelary structures (Marcón, 2017; Bustelo, 2007). Not only has it been impossible to significantly reverse the historical universe of problems faced by children and adolescents, but also, a robust and sustainable paradigm shift has not been developed to address them (Moras, 2012). This is shown by the fact that Uruguay has not been able to reverse the historical trend of poverty concentration in its youngest population while making them the most criminalized age cohort. In this sense, immediately after the enactment of the new Code of Children and Adolescents, the legal instrument was once again found to be inadequate at addressing children and adolescent issues in general and adolescent criminal conflicts in particular. Furthermore, it promoted and implemented a rapid and significant regulatory regression in the treatment of adolescent offending. At the same time, public opinion, experts, political actors, civil society actors, and juvenile justice system operators all agree on a univocal perception of permanent crisis within the system, where crisis and reform follow one another, as once expressed by Emilio García Méndez (2004), among reforms

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that do not reform and impossible reforms (González Laurino & Leopold Costábile, 2013; Moras, 2008). Responsibly addressing the adolescent criminal justice issue implies moving away from reductionist positions that consider only sanctions as correlations of offending actions. At the same time, the mechanisms enabling adolescents to become full subjects of rights in social life should be placed at the center of public debate. Ultimately, as Winnicott stated, society’s permanent task in relation to youth is to “hold and to contain,” avoiding “the false solution and that moral indignation which stems from jealousy of youthfulness” (1990, p.  185). This is still the task before us.

References Adorno, T. W. (1996). Introducción a la Sociología. Gedisa. Apolinario Sales, M. (2007). (In) visibilidade perversa: Adolescentes infratores como metáfora da violencia. Cortez. Baudry, P. (2003). El cuerpo insoportable. En D. Le Breton (Dirección), Adolescencia bajo riesgo (pp. 103–112). Trilce. Beck, U. (2001) La reinvención de la política: hacia una teoría de la modernización reflexiva. En A. Giddens, S. Lash, & U. Beck (Eds.), Modernidad reflexiva. Política tradición y estética en el orden social moderno (pp. 13–73). Alianza. Bustelo, E. (2007). El recreo de la infancia. Argumentos para otro comienzo. Siglo XXI Editores. Daroqui, A., et al. (2012). Sujeto de castigo. Hacia una sociología de la penalidad juvenil. Homo Sapiens. Díaz, D. (2018). Menos derechos y más castigos. El paulatino deterioro de las garantías establecidas en la Convención de los Derechos del Niño. En C. González Laurino & S. Leopold Costábile, (Coordinadoras.). Criminalización y castigo. Los avatares de la cuestión penal juvenil en Uruguay (pp. 43–61). Grupo de Estudios sobre infracción adolescente. Comisión Sectorial de Investigación Científica. Universidad de la República – Fin de Siglo. Díaz, D. (2019). La construcción del derecho penal juvenil uruguayo. Agencia Nacional de Investigación e Innovación – Fin de Siglo. Díaz, D., & Fernández, M. (2017). Constitucionalidad y derecho de defensa. Los adolescentes frente a la ley 19.055. En R. Abella & D. Fessler (Compiladores.). El retorno del “estado peligroso” (pp. 127–138). Casa Bertolt Brecht – CSIC, UDEAR. Durkheim, E. (1989). El suicidio. AKAL. Fellini Fachinetto, R. (2018). Adolescentes privadas de liberdade no Rio Grande do Sul: reflexões sobre gênero e controle nas medidas socioeducativas. En G. Tenenbaum y Viscardi, N. (Coordinadores), Juventudes y violencias en América Latina. Sobre los dispositivos de control en América Latina (pp. 87–102). CSIC-UDELAR. Fernández Chiossoni, M. (2018). Obstáculos normativos a la efectividad de los principios de excepcionalidad y brevedad de la privación de libertad adolescente. En: C. González Laurino & S. Leopold Costábile (Coordinadoras.). Criminalización y castigo. Los avatares de la cuestión penal juvenil en Uruguay (pp. 63–82). CSIC, UDELAR – Fin de Siglo. Foucault, M. (1970). El orden del discurso. Tusquets. Foucault, M. (1981). Las palabras y las cosas. Una arqueología de las ciencias humanas. Siglo XXI. Foucault, M. (1996). La vida de los hombres infames. Altamira. García Méndez, E. (2004). Entre el autoritarismo y la banalidad. Infancia y Derechos en América Latina en Justicia y Derechos del Niño N°6 (pp. 9–15). UNICEF.

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González Laurino, C., & Leopold Costábile, S. (2013). De crisis y reformas. El actual funcionamiento del sistema penal juvenil en Uruguay desde la perspectiva de sus actores y expertos. En C. González Laurino, S. Leopold Costábile, P. Martinis, & L. López Gallego (Coordinadores), Los sentidos del castigo. El debate uruguayo sobre la infracción adolescente (pp.  45–69). Trilce-CSIC- UDELAR. Law No 16137. (1990). Promulgada el 28.09.1990. Convención sobre los Derechos del Niño. Publicado por el Boletín Oficial del Estado el 9.11.1990. IMPO. Centro de Información Oficial. Disponible en: http://www.impo.com.uy/bases/leyes/16137-­1990/1. Acceso: 14 abril 2022. Law No 17823. (2004). Promulgada el 7.09.2004. Código del Niñez y la Adolescencia. Publicado por el Boletín Oficial del Estado el 14.09.2004. IMPO.  Centro de Información Oficial. Disponible en: https://www.impo.com.uy/bases/codigo-­ninez-­adolescencia/17823-­2004. Acceso: 17 abril 2022. Law No 18771. (2011). Promulgada el 1 de julio de 2011. Creación transitoria del Sistema de Responsabilidad Penal Adolescente (Sirpa) como órgano desconcentrado. Publicado por el Boletín Oficial del Estado el 25.07.2011. Disponible en: https://www.impo.com.uy/bases/ leyes/18771-­2011/4. Acceso: 21 abril 2022. Law No 18777. (2011). Promulgada el 15.07.2011. Publicado por el Boletín Oficial del Estado el 11.08.2011. Disponible en: https://legislativo.parlamento.gub.uy/temporales/leytemp4648254. htm. Acceso: 21 abril 2022. Law No 18778. (2011). Promulgada el 15.07.2011. Publicado por el Boletín Oficial del Estado el 11.08.2011. Disponible en: https://legislativo.parlamento.gub.uy/temporales/leytemp4294343. htm. Acceso: 21 abril 2022. Law No 19055. (2013). Promulgada el 4.01.2013. Publicado por el Boletín Oficial del Estado el 22.01.2013. IMPO. Centro de Información Oficial. Disponible en: https://www.impo.com.uy/ bases/leyes/19055-­2013/4. Acceso: 21 abril 2022. Law No 19293. (2014). Promulgada el 19.12.2014. Código de Proceso Penal. Publicado por el Boletín Oficial del Estado el 9.01.2015. IMPO.  Centro de Información Oficial. Disponible en: https://www.impo.com.uy/bases/codigo-­proceso-­penal-­2017/19293-­2014. Acceso: 23 abril 2022. Law No 19367. (2015). Promulgada el 31.12.2015. Creación del Instituto Nacional de Inclusión Social Adolescente (Inisa) como servicio descentralizado. Publicado por el Boletín Oficial del Estado el 27.01.2016. IMPO. Centro de Información Oficial. Disponible en: https://www.impo. com.uy/bases/leyes/19367-­2015/11. Acceso: 23 abril 2022. Law No 19551. (2017). Promulgada el 25.10.2017. Derogación del Instituto de Apelación automática. Publicado por el Boletín Oficial del Estado el 22.11.2017. IMPO.  Centro de Información Oficial. Disponible en: https://www.impo.com.uy/bases/leyes/19551-­2017. Acceso: 17 abril 2022. Law No 19889. (2020). Promulgada el 9.07.2020. Ley de Urgente Consideración. Publicado por el Boletín Oficial del Estado el 14.07.2020. Disponible en: https://www.impo.com.uy/bases/ leyes/19889-­2020. Acceso: 23 abril 2022. Leopold Costábile, S. (2002). Tratos y destratos. Políticas públicas de la atención a la infancia en Uruguay (1934–1973). Tesis para optar al título de Master en Servicio Social. Universidad Federal de Río de Janeiro. Universidad de la República. Leopold Costábile, S. (2015). Los laberintos de la infancia. Discursos, representaciones y crítica. CSIC – UDELAR. Marcón, O. A. (2017). Justicia juvenil: de las cicatrices de la conquista a la imaginación no punitiva: en perspectiva postcolonial. Espacio Editorial. Moras, L. E. (2008). Tensiones y desafíos en la relación entre Derecho y Sociedad. En: Red de Estudios sobre Instituciones Sociales y Prácticas Profesionales con énfasis en el Campo Socio Jurídico (compiladora), La fragmentación de lo social: construcciones profesionales y campo socio jurídico en la región (pp. 29–36). DTS. FCS. CSIC. CIEJ –AFJU. Moras, L. E. (2012). Los hijos del Estado. Fundación y crisis del modelo de protección-control de menores en Uruguay (2da. Edición). SERPAJ.

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Moras, L. E. (2016). Los enemigos de la seguridad. Desigualdad y privación de libertad adolescente. Fundación de Cultura Universitaria. Platt, A. (1982). Los “Salvadores del Niño” o la invención de la delincuencia. Siglo XXI. Rousseau, J. J. (1985). Emilio o de la Educación. Club Internacional del Libro. Uriarte, C. (1999). Control institucional de la niñez adolescencia en infracción. Un programa mínimo de contención y límites jurídicos al Sistema Penal Juvenil (las penas de los jóvenes). Carlos Álvarez Editor. Uriarte, C. (2006). Vulnerabilidad, privación de libertad de jóvenes y derechos humanos. Fundación de Cultura Universitaria – Centro de Formación y Estudios del Instituto del Niño y Adolescente del Uruguay. Uruguay. (2011). Propuesta de Reforma para bajar la edad de imputabilidad penal de 18 a 16 años. Iniciativa de Reforma Constitucional al amparo de lo dispuesto por el Artículo 331, literal A de la Constitución de la República https://vamosuruguay.com.uy/iniciativa-­de-­reforma-­ constitucional/. Acceso en: 23 abril 2022. Vernazza, L. (2016). Populismo punitivo en Uruguay. Discursos y políticas de los gobiernos de izquierda 2005–2014. En Derechos Humanos en el Uruguay. Informe 2016 (pp.  213–233). SERPAJ – Uruguay. Vernazza, L. (2017). La Cuestión Penal Juvenil en Uruguay: Entre lo cualitativo y lo cuantitativo. En R.  Abella & D.  Fessler (Compiladores), El retorno del “estado peligroso” (pp.  35–52). Casa Bertolt Brecht – CSIC, UDELAR. Viñar, M. (2009). Mundos adolescentes y vértigo civilizatorio. Trilce. Winnicott, D. W. (1990). Deprivación y delincuencia. Paidós. Zaffaroni, E. R. (2009). En busca de las penas perdidas. Deslegitimación y dogmática Jurídico-­ Penal. Ediar. Zaffaroni, E. R. (2012). La cuestión criminal. Planeta.

Chapter 11

Differences and Similarities in Juvenile Criminal Law: A Comparison Between Chile and Mexico Daniela Calderón and Maida Muñoz-Chiguay

11.1 Introduction According to Palummo (2014), the countries of Latin America and the Caribbean present different obstacles to the implementation of a juvenile criminal justice system in accordance with the Convention on the Rights of the Child (CRC) (1989). It is understood that these criminal justice systems for adolescents, from the CRC, seek the implementation of comprehensive protection for said population, which has led to the implementation of comprehensive laws for children and adolescents (Villadiego, 2016). Several Latin American countries, such as Mexico and Chile, began the implementation and legislation of penal systems for adolescents in 2005 and since then have had laws on juvenile criminal responsibility, which are implemented according to the CDN. According to Villadiego (2016), there is little information on the implementation of these criminal justice systems. Both countries maintain a commitment to legal protection for children and adolescents even though progress toward the implementation of the adolescent criminal justice system has been slow compared to other Latin American countries and has lagged behind them (Pérez, 2015). This chapter details the characteristics of the respective Mexican and Chilean adolescent criminal justice systems in order to identify the differences and similarities of each country, especially in the implementation of the sanctions of each state.

D. Calderón (*) Social Worker, Fundación Paternitas, Santiago, Región Metropolitana, Chile e-mail: [email protected] M. Muñoz-Chiguay Social Worker, Corporación Opción, Santiago, Chile e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Reyes-Quilodrán, R. Baikady (eds.), Latin American Social Work in the Justice System, Springer Series in International Social Work, https://doi.org/10.1007/978-3-031-28221-8_11

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The chapter takes a social work perspective in its assessment of the implementation of rights, according to the CRC.

11.2 Juvenile Judicial System in Chile and Mexico 11.2.1 Chile In 1912, the Law for the Protection of Helpless Children, or Law N° 2,675, was created in Chile, which understood children as people who need protection, ignoring their status as subjects of law and instead treating them as objects and thus not as human beings. During that period, the “minor laws” emerged, in which there was no difference between those who had been abandoned by their parents and those who had broken the law. The judges used the same measures for both, and they could not access due process because their rights were not guaranteed. In addition, this law lists those centers where minors who had been abandoned by their fathers would be sent (Law N° 2,675, 1912). The Penal Code (1874) focused on those children who warranted criminal sanction for having carried out an unlawful act. For both civil and criminal liability, discernment was considered. For this, the judge had to assess whether the “minor” had been aware of their actions. Those children who had been abandoned were transferred to correctional houses or detention centers where those who had committed a crime were also found. In 1928, the Law for the Protection of Minors, Law N° 4,447, was created, a law that laid the foundations for what would be the first system of protection for minors since the courts for minors and the General Directorate for the Protection of Minors were created. During this period, the state is the one who takes on a tutelary role through the juvenile courts. This institution is in charge of reviewing those cases in which a child or adolescent was involved. The state is in charge of the education and personal care of the “minor.” The state is also in charge of both those who had committed crimes and those who were in a vulnerable situation (Memoria Chilena, s.f.). Law N° 4,447 (1912) underwent a series of modifications until, in 1967, the Law of Minors, Law N° 16,618, arose and put an end to the old law. On this occasion, a child was still considered as a subject of protection and not one of rights. In this period, the police for minors, the courts and for minors, and the National Council for Minors acquired importance, the latter which was in charge of coordinating and facilitating measures for the assistance, protection, and rehabilitation of minors (Law N° 16,618, 1967). Despite this, the procedures to be applied were the same as those established in Law N° 4,447; once the minor had been reprimanded, they had to return to the person responsible for their care. Further, if the judge considered it necessary, the minor could be left in the care of an institution established by law or of an extended family member.

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In 1973, a military dictatorship was established in Chile that affected the entire country, one of the consequences being the installation of a neoliberal model, where the state acquires a secondary role in guaranteeing rights. In this model, the private sector manages the resources and is in charge of various tasks, one of which is related to childhood and adolescence issues. From that period onward, the state has played a subsidiary role while the private sector has been in charge of social activities (Álvarez, 1994). There were deficiencies in the execution of said programs and institutions, which led to the reformulation of the childcare system. For this reason, in 1979 a series of decree laws were issued, one of which was Law N° 2,465, which created the National Service for Minors (SENAME; Servicio Nacional de Menores, in Spanish). SENAME is a government agency that emerged in 1979, under the Ministry of Justice. Its task is “To help protect and promote the rights of children and adolescents and to reintegrate adolescents who have broken the law into society.” The objective of SENAME supposes a paradigm shift in that the notion of “minor” is left aside to refer to childhood and adolescence as subjects of law. For the purposes of this new service, a separation is made between the protection of rights and juvenile criminal responsibility, because unlike the previous laws, there were now specialized programs designed according to the type of subject for which the NNA entered SENAME programs. On August 14, 1991, Chile ratified the Convention on the Rights of the Child, which is governed by four fundamental principles: (1) nondiscrimination; (2) the best interests of the child; (3) their survival, development, and protection; and (4) their participation in decisions that affect them. The creation of the convention involved a change of perspective in how childhood had been understood, because children and adolescents are not subjects of charity that require protection, but rather, the convention establishes that they are agents of their own rights (UNICEF, 2010). 11.2.1.1 Characteristics of the Adolescent Criminal Responsibility Law: Law N° 20,084 In 2007, the Adolescent Criminal Responsibility Law (Law N° 20,084) was created, establishing a system of responsibility for adolescents who violated criminal law. Article 1 states that this law regulates the responsibility for the crimes committed, the procedure for the investigation and the establishment of responsibility, and the sanctions for them and how they are executed (Law N° 20,084, 2007). This law established a specialized juvenile justice system and emphasized the social reintegration of young people who committed crimes. The creation of this new law aimed to satisfy the recommendations of the International Convention on the Rights of the Child (1989), which was ratified by the government of Chile in 1990 (Cavallo, 2008) and which considers the characteristics of adolescence in dealing with grief. This and other international instruments ratified by Chile are considered in Article 2 of this law, where the best interest of the

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child or adolescent is also recognized, which must be considered both in the judicial process and in the procedure of sanctions or measures (Langer & Lillo, 2014). All young people between 14 and 18 years of age who are criminally responsible under criminal law have the right to a free defense and must have specialized procedures, prosecutors, and defenders. In addition, all sanctions are aimed at social reintegration through custodial sentences and noncustodial sentences. In the event that they are punished with a custodial sentence, this will be carried out in specialized centers for young people and not in adult prisons, as it was previously, and they will be established only for more serious crimes (Law N° 20,084, 2007). The institution in charge of executing what is determined by criminal courts is the National Service for Minors (SENAME). Within the sanctions that an adolescent can serve, there are those that are custodial, noncustodial, and accessory. In the custodial sentences, we find compliance in a juvenile prison, where young people must serve a sentence within the SENAME premises, and semi-closed centers, where they must spend the night in a center, but they also participate in activities outside SENAME’s prisons. Within the noncustodial sanctions, we find the following sanctions: Assisted release and special assisted release, where the adolescent has a professional, called a delegate, who must ensure the youth’s access to programs for their social reintegration. This sanction cannot exceed 3 years. Repairing the damage caused to the victim can take the form of monetary restitution or an unpaid service agreement between the offender and the victim. The adolescent may perform unpaid services for the benefit of the community. The sanction has a minimum of 30 h and a maximum of 120 h, and it may not exceed 4 h per day. A fine may be imposed that does not exceed 10 monthly tax units. For this, the economic conditions of the young person who broke the law and of the responsible adult in charge will be taken into account. The fine can be paid in installments or by providing benefit services to the community. Accessory sanctions are complements to those indicated above and are for the rehabilitation of drug and/or alcohol addiction. Young people who have a custodial sentence will serve it in centers managed by SENAME, while those who have a sentence in the free environment will do so in programs run by accredited collaborating organizations (OCAs) that are part of the network of SENAME collaborators (SENAME, s.f.). In Chile, young people who have a custodial sentence serve it in centers managed by SENAME, while those who have a sentence in the free environment do so in programs run by the OCAs. The subsidy received by the collaborating institutions is described in Law N° 20,032 of the year 2005, where the amounts for each type of program are defined. 11.2.1.2 Technical Orientations of the Juvenile Prison and Functions of the Professionals Involved The following section focuses on an analysis of juvenile prisons. For this, a general review of the Technical Orientations of Juvenile Prison, which are administered by SENAME, will be carried out. All the information presented below was extracted

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from the technical document that regulates the execution of said centers (Department of Juvenile Justice, 2011). Within the technical orientations of juvenile prisons, it is pointed out that the juvenile sanctions programs have to use multimodal and ecosystemic approaches. It must be multimodal because it is necessary to attend to those factors that lead a young person to commit crimes, which are varied (Department of Juvenile Justice, 2011), and ecosystemic because when intervening, it is necessary to consider adolescents as part of a family system and community (Pérez-Luco, 2003). In these juvenile prisons, the intervention program is divided into three levels, according to their degree of complexity: level 1—education, free time, and recreation; level 2—family and social integration; and level 3—specific needs such as mental health, drugs, criminal behavior, and work. All adolescents access the first level, and according to their evaluation, upon admission or entering the intervention progresses, the appropriate approach of the other levels of intervention is determined. The juvenile prisons have a wide programmatic offer that allows for addressing most of the risk factors that lead a young person to commit crimes. In the execution of these interventions, the role of professionals is fundamental, where the work carried out by the case manager, who can be a social worker, stands out. Among the functions that a case manager must have is to prepare a monthly work schedule where both community and family interventions are coordinated. For this, the following tasks must be carried out. First, the adolescent is interviewed to gather information to develop an individual intervention plan (programa de intervención individual, in Spanish, PII). Second, the case worker makes an assessment and reports monthly. Third, the case worker coordinates with the network and participates in case-analysis meetings. In addition, they must carry out socioeducational activities in order to ensure that the objectives proposed in the individual intervention plan are met. The following are the areas that case managers address with young people who are serving sentences, so that these young people comply with their intervention plans, thereby promoting social reintegration. 1. Education programs: case managers carry out support in the education of young people and develop a collaborative process with teachers. 2. Leisure and education programs: the activities contemplated in this area are carried out by the prison center’s coordinator or the direct contact educator. 3. Family and social integration programs: these are intervention programs that include families in order to promote young social reintegration. This task includes job skills and reconnecting juvenile offenders with their families to improve the relations between its members. This strengthens the life project of each young person and ensures a process of social and family reintegration. 4. Community insertion program: the objective here is to favor the social reintegration of young people by linking them to an external network that promotes social and community insertion and reduces the effects of imprisonment. 5. Programs focused on criminal behavior: this strategy focuses on criminal behavior for young people who present moderate to severe risk factors. These activi-

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ties are carried out with the adolescent in the intervention phase and include strategies oriented toward mainly the development of specific skills that allow them to recognize the act or crime, evaluating the scope that it has had (consequences), figuring the victim as a subject, and generating conceptualizations and alternative strategies to criminal activity. Although these are the objectives of the intervention, it can also be evaluated on the basis of partially achieving them.

11.2.2 Mexico In Mexico, the First Mexican Penal Code appeared in the year 1871, related to federal matters. According to Article 34, a criminal circumstance is differentiated by age in the commission of adolescent crimes, through which the discernment of the commission of the infraction is distinguished by age range, where adolescents older than 14 years of age are responsible for their acts (Solis, 1986). The execution of the adolescent sentence occurs through the Adult Penal Law. Adolescent criminals were sent to the General Prison of Belén until the year 1880, when a “correctional education school” was set up as a space used for the accused and convicted, in which within a period of 72 h, the guilt or innocence of the accused was determined (González & Reyes, 2007). In this context, adolescents shared space with the adult prison population. This was modified as of the year 1908, after the creation of an exclusive judicial body for adolescent offenders of the law, in order to develop particular actions for their social reintegration. This proposal allowed male adolescents to be sent to the Correctional School for Minors, in Tlalpan; adolescent women were sent to the Coyoacán Correctional School (López, 2018). Since 1912, multiple discussions and spaces for state debate have been held on having a judicial system that differentiates between adolescents, such that only in 1923 was a regulation project for minor offenders presented. In 1924, the first Federal Board for the Protection of Children was founded, but it was only in 1926 that the first Foundation Project for an administrative court for minors in Mexico City was drawn up, which was governed by the Regulations for the Qualification of Underage Offenders in the Federal District (Ceniceros & Garrido, 1936; Blanco, 2006; López, 2018). This court was established so that the Mexican government could have legal instances be judged and to take care of adolescents who committed crimes but who would not be judged by the same law as an adult would (Santiago, 2016). This court was only in charge of three situations: the first was judging adolescents over 14 years of age, according to the crimes detailed in the Penal Code; the second was knowing the situations of unhoused teenagers; and the third was sanctioning young people who, according to their responsible adults, were deemed “incorrigible” (Regulation for the Qualification of Minor Offenders in the Federal District, 1926; Santiago, 2016). In this way, in 1926, the judicial procedure was made up of a normalist teacher, a doctor, and an expert in psychotechnical studies. Said procedure would be

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performed through observations of the adolescent in relation to the physical, mental, social, and pedagogical spheres, and the sanctions were understood as medical care, reprimands, court surveillance, correctional education, and criminal correctional (López, 2018). Through the Law of Social Security of Child Delinquency in the Federal District and Federal Territories, in 1928, the composition of professionals was redefined: three judges and a psychologist were included, with new competencies and formations, which would allow them to better determine the sanctions that adolescents would share with adults (González & Reyes, 2007). During this period, the adolescent was understood to be socially responsible for their actions, where the government intervened through educational treatment ordered by the court. The sanctions were understood as school arrests, supervised release, or confinement in some correctional facility in the federation (Ceniceros & Garrido, 1936). In 1929, the Penal Code of the Federal District and Federal Territories made a distinction indicating that adolescents over 16 years of age will be judged by the same law as adults, but adolescents, unlike adults, would serve a sanction in an educational center. This operation gave rise to the elaboration and implementation of the Regulation for Qualification of Minor Offenders in the Federal District, which gave rise to the administrative court of minors. The specificity at the legal level only began in 1934, through the Federal Code of Criminal Procedures and the Organic Law of the Judicial Power of the Federation, which allowed adolescents to be legally judged for conduct against persons or property of the federation, implementing a court for minors in each of the capitals of the states of the republic (Villanueva, 1997; Soto et al., 2020). However, from 1941 to 1974, the Organic Law and Procedural Rules of the courts for minors and their auxiliary institutions in the Federal District and Federal Territories remained in force (Law N° 39, 1941). The main characteristic of this period is that through Law N° 39 (1941), vagrancy and prostitution were considered antisocial behaviors, such that adolescents could be subject to criminal proceedings in criminal courts (López, 2018). This law also created the Guardianship Council for Minor Offenders of the Federal District, enacted in 1974. Similar institutions to the Guardianship Council for Minor Offenders were implemented in the federal states in order to subject minors to guardianship and educational measures (Soto et al., 2020). However, the implementation of the law was questioned because of its lack of protection of basic procedural rights and because of a clearly guaranteeist position (Blanco, 1968 in Soto et al., 2020). In 1991, Mexico ratified the CRC, which included all the rights of children at the civil, political, social, economic, and cultural levels. These rights impose obligations and responsibilities on third parties for the actions of children and adolescents (Álvarez de Lara, 2011). Based on these issues, in 1991, the Promulgation of the Law for the Treatment of Minor Offenders for the Federal District in common matters and for the entire republic in federal matters created the Guardianship Council for Minors. Included in the juvenile courts were the offenders of the federal district, the figure of the defender, the term of social adaptation, and modern criminology.

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Likewise, the judicial space is empowered to intervene in the event that the lives of adolescents are in danger (Blanco, 1968; Calero, 2010; García, 2017). A comprehensive justice system for adolescents was created in 2005, through the reform of Article 18 of the Political Constitution of the United Mexican States, which guarantees the right to access juvenile justice (Moreno & Toledo, 2012). This law continued to consider adolescents as unimputable persons, so they should be subject to guardianship, which made it impossible for adolescents to become aware of and take responsibility for their acts at the criminal level, so this law was part of a paternalistic and inquisitive judicial system (Carlín, 2018). In 2015, the law was reformed. The judicial system was made comprehensive and applicable to those between 12 years and 18 years, through a typification of crimes. This law was named the National Law of the Comprehensive Criminal Justice System for Adolescents, enacted in 2016 (Zúñiga & Sandoval, 2018). 11.2.2.1 Characteristics of the National Law of the Comprehensive Criminal Justice System for Adolescents in Mexico In 2016, the comprehensive justice system for adolescents in the Mexican republic was put into effect in Mexico as a result of the issuance of the National Law of the Comprehensive Criminal Justice System for Adolescents (LNSIJPA), which was characterized by having measures of a socioeducational character, aiming to reintegrate the adolescent into their family and society, through the full development of their responsibility and capacity (LNSIJPA, 2016; Torres et al., 2019). The age range of adolescents who serve a sanction according to the law is between 12 and 18 years, and they are divided according to the following specifications: (1) from 12 to 14 years of age, only one measure may be imposed on them; (2) over 14  years of age, they may be eligible for custodial measures; and (3) between 14 and 17 years of age, they may opt for the aforementioned measure and up to two sanctions for the conduct committed. A sanction for the benefit of the community can be imposed on an adolescent starting at age 15 (LNSIJPA, 2016; Reyes, 2020). According to the National Law of the Comprehensive Justice System for Adolescents (2016), sanctions can be noncustodial or custodial. The noncustodial ones are considered as follows: (a) reprimand; (b) warning; (c) provision of services in favor of the community; (d) collective counseling sessions and similar activities; (e) family supervision; (f) prohibition against visiting certain places, driving vehicles, and using instruments, objects, or products that were used in the criminal act; (g) prohibiting the possession of weapons; (h) prohibiting traveling abroad; (i) joining specialized programs in gender theory, in cases of acts typified as sexual crimes; and (j) assisted freedom (Article 155, paragraph 1). However, there would be only three deprivations of liberty: home stay, semi-internment, or internment in free time (Article 155). The severity of the sanctions imposed by the law is determined according to age range. For those between ages 12 and 14, the maximum sentence is 1 year; for those over 14 years of age and those under 17 years of age, the sanction

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may not exceed 3 years; and for adolescents over 17 years of age and under 18 years of age, the maximum sanction is 5 years (LNSIJPA, 2016; Reyes, 2020). In particular, despite the modifications to the law on the criminal process of adolescents, the Public Ministry specialized in adolescents left the Ministry of Public Security in charge of the operation of the Prisons of Liberty (González & Reyes, 2007; LNSIJPA, 2016). In Mexico, at the national level, there are a total of six centers, of which one is for women, one is mixed, and four are for men—with a total of 717 adolescents deprived of liberty (UNICEF, 2017). In relation to the professionals involved with adolescents and/or young people who are serving sentences, according to the LNSIJPA, the facilitator in the judicial process is required to be a certified professional specialized in adolescents, and their main function is to facilitate the participation of adolescents and young people in the justice system (LNSIJPA, 2016). Likewise, in the law, the term administrative authority is understood as a body specialized in the execution of sanction measures, in charge of functions such as reporting on the level of sanction compliance, preparing and implementing an individualized execution plan, evaluating risks, monitoring, and supervising (LNSIJPA, 2016). New boarding schools would be pertinent to build outside urban areas, as they were originally conceived and built. In them, the children must be specially trained with educational programs that correspond to the infraction committed, the minor’s school age, the time of the educational program, and their release date. For this, it is also necessary that the custodians must be replaced by other trained personnel (pedagogues, psychologists, social workers, etc.) who understand the mission of training; creative staff to build strategies for the child to improve; subjects who get involved in the problem of minor offenders; and competitive individuals who prepare themselves every day with new knowledge and axiological attitudes so that they are more effective and efficient in the education and formation of values in minors (González & Reyes, 2007).

11.3 Methodology The present investigation used a qualitative methodology to collect and analyze data, which allow for describing the main characteristics of the topic already described above (Krausse, 1995), in order to obtain a close and detailed observation of the subjects in their own contexts (Herrera, 2018). A qualitative content analysis is used to interpret and describe the particularities of a phenomenon (Herrera, 2018). The objective of this study is to analyze the differences and similarities between the laws of adolescent criminal responsibility in Mexico and those in Chile, as well as the roles of professionals who intervene with the juvenile offending population. This section identifies the main historical milestones in both countries, Chile and Mexico, that are linked to the creation of adolescent criminal responsibility laws. Furthermore, it details the general aspects of the law of adolescent criminal responsibility in Chile and Mexico and the technical guidelines for punishment programs

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for adolescents. The role acquired by professionals who intervene with the juvenile offending population are identified and so are the skills and professional training that those professionals who intervene directly with young people who are currently serving sentences should have. The qualitative content analysis technique is used to analyze data, which allows for an analysis of the texts and their contents in an empirical and objective manner (Mayring, 2000). The texts examined are Chilean and Mexican adolescent criminal responsibility laws. The research questions that lead this study are, what are the differences and similarities between the Mexican and Chilean adolescent criminal responsibility laws, and what are the professional skills of those who work directly with juvenile offenders?

11.4 Results In order to highlight the differences and similarities in the judicial system of adolescent criminal responsibility, an analysis of the Chilean law of adolescent criminal responsibility and Mexican Law IN relation to the application of sanctions was reviewed. Moreover, the role of the professionals and social workers in interventions with adolescents are examined according to what is stipulated in each law. In this way, Table 11.1 allows us to observe in more detail the differences and similarities between the Chilean and Mexican legal systems—in particular the ratification of each country in the CRC and their joining and voluntarily committing to safeguard and guarantee, as states, the rights of the children and adolescents of each country. Table 11.1  Comparison between Chile and Mexico regarding the elements that allow the functioning of the adolescent penal system in each country Chile 1990

Ratification of the signature in the CDN Law specialized in Law Nº 20,084 adolescent offenders with the Law Law specialized in adolescent offenders with the law Year of validity of the law Since 2005 last modification 2017 Age of the adolescent to be From the age of 14. sanctioned Maximum age of application Until 18 years of the law Source: Authors

México 1990 National Law of the Comprehensive Criminal Justice System for Adolescents Juvenile court

Since 2005, and the last modification was in 2016 From the age of 12 Until 18 years

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According to Table 11.1, both Chile and Mexico ratified the CRC in 1990, which was associated with a change in perspective at the level of the government states of Latin America, who sought to assume greater responsibilities in relation to childhood—in this case, in the integral development of adolescents and young offenders of the law. Both countries published a law of adolescent criminal responsibility in 2005. However, Mexico has shown a historical level of interest in responsibility for adolescents and young offenders of law, generating spaces for discussion and the acceleration of adequate and specific laws for adolescents in conflict with the law since the years before the ratification of the convention, which Chile only began years later. Despite this, both countries have been making changes to improve the system. The last modification made by Chile was in 2017 and that made by Mexico in 2016. Finally, the law in Mexico applies to those at the age of 12, while in Chile, the adolescent can be charged from the age of 14. In both countries, the maximum age for the application of the adolescent criminal responsibility laws is up to 18 years of age, which aligns with the conception of adolescence in the CRC. In relation to the sanctions, it is important to understand that both countries have measures in free and custodial areas, which can be seen in the following table (Table 11.2). Both countries have sanctions for the provision of community services, probation, and juvenile prisons. However, Mexico presents a more varied range of noncustodial sanctions, aimed at participation in particular spaces such as in gender workshops or counseling, a distinctive element of what happens in Chile. Another aspect is that the Mexican law has greater specificity in terms of the sanctions imposed on adolescents who violate the law; in Mexico’s pronouncement, the sanctions that each adolescent and/or young person must comply with according to the crime committed and the time of compliance for each of these are clearly identified. This level of specification is not found in the Chilean law: the sanction programs in the free environment do not contemplate a certain temporality of the interventions that the young people must comply with for each compliance measure, but rather, the temporality depends on the sanction granted by courts. However, regarding the professionals in charge of intervention, the Chilean law specifies the figure of an official probation and prison professional in charge of the intervention process, which does not occur in the law. In Mexican law, only the institution in charge of supervising and executing the sanction is described; however, it does not describe in detail the roles of that professional.

11.5 Role of Professionals At the time of carrying out the analysis, we expected to have sufficient information from both countries, which would allow us to draw a comparison between the skills and the professional profiles that those professionals who work with young people who have broken the law should have. However, the information available on this matter in Mexico is scarce, which makes an exhaustive analysis of the professional background difficult.

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Table 11.2  Summary of the characteristics of the sanctions in Chile and Mexico, according to the law of each country México Free medium:  Admonition.  Warning.  Provision of services in favor of the community.  Group counseling sessions and similar activities.  Family supervision.  Prohibition against visiting certain places, driving vehicles, and using instruments, objects, or products that were used in the criminal act.  Prohibition against possession of weapons.  Prohibition against traveling abroad.  Integration into specialized programs in gender theory, in cases of acts classified as sexual crimes. Deprivation of liberty:  Stay home.  Semi-internment or internment in free time.  Closed regime. Sanctions according It does not indicate. Free medium: to crimes  Not indicated. Deprivation of liberty (17 years. Max. 10 years if the  Semi-internment >1 year. adolescent is