Den förtäckta möjligheten att tvångsadoptera ett familjehemsplacerat barn - En rättssäkerhetsstudie av den sociala tvångslagstiftningen för barn

Sammanfattning: There is no legal possibility to forcibly adopt a child who has been placed in a foster home in accordance with public law in Sweden. The most intru-sive measure that public authorities can take within the framework of The Care of Young Persons Act is a transfer of legal custody from the child's biological parents to the foster parents. The civil law regulation in the Pa-rental Code is intended to regulate relationships between the children and their parents and/or guardians and is important in relation to compulsion measures concerning children. This thesis aims to examine and clarify in which respects the interaction between public law and civil law is deficient and enables a transfer of legal custody that can lead to a forced adoption of children. To respond to the purpose and questions of this thesis, the legal dogmatic method has been used to examine the law and identify in which respects the regulation is deficient. This thesis examines the law from a legal certainty perspective and therefore the thesis is also based on a legal analytical method. To put the Swedish regulation in contrast to another legal system’s solution to sim-ilar issues, the thesis provides a legal outlook on Norwegian forced adop-tion regulations. The aim of compulsory care is for children who are forcibly taken into care to be reunited with their biological parents if conditions are stable enough in the future. Transfer of legal custody is a forcible measure that is taken when a reunification does not seem to be possible in the foreseeable future. However, a transfer of legal custody does not mean that all legal relations are separated between the child and the biological parents. Adoption, on the other hand, is an absolute measure that separates all legal relations be-tween the child and its parents. Adoption is an option that requires consent, and it is therefore regulated within the framework of civil law. This means that it is a measure that cannot be taken by compulsion. However, a transfer of legal custody makes it possible for foster parents to consent to adoption, despite defaulted agreement from the biological parents. Taking forcible measures in relation to children entails an extremely large interference by public law in several fundamental individual rights. Among these rights, the right to family life and the best interests of the child are two of the rights that most clearly become important when a child is deprived of his or her parents, and the parents are deprived of their child. In such intervention measures, it is of great importance that interventions are legally assured. Due to the importance of legal certainty, the thesis is based on a perspec-tive of legal certainty. Both the preparatory work and the doctrine have stated that there is a pos-sibility of circumventing the legislation that enables an adoption. It has also stated that this is not the purpose of the regulation. Due to the lack of case law, it can be understood that there are no problems with the regulation in practice. However, this thesis states that the possibility exists and that it is an actual issue from a perspective of legal certainty. When comparing the Swedish and Norwegian regulation, certain similarities were distinguished. Norway also had an uncertain regulation regarding in which cases adoption could be taken. Norway addressed the problem by regulating forced adop-tion in public law legislation. Such an alternative in Sweden would have increased legal certainty to some extent but does not detract from the fact that there is still an opportunity to circumvent the legislation. The conclusion drawn from the purpose and questions of this thesis is that there is an opportunity to go through with an adoption against the biologi-cal parents' will even though there is a lack of such opportunity in the pub-lic law regulation. Although it does not seem to be a problem regarding the lack of case law, there is still a legally uncertain regulation. Extensive in-vestigative work is required to address the issue of legal certainty regarding the interaction between public law and civil law regulation. The reason being the interaction between the different legislations.