Barnkonventionen som svensk lag -- för barnets bästa?

Sammanfattning: In February 2016 The Inquiry on the rights of the child handed over a proposal for an act on incorporating the UN Convention on the Rights of the Child (CRC) into Swedish law. The purpose of this essay has been to illuminate this proposal in view of the principle of the best interests of the child, and the question at issue has been if the principle would get affected of incorporation, and in that case how. Emphasis has been given to the best interests of the child as it is stipulated in chapter 6 of the Parental Code regarding custody, residence and access. In both the CRC and chapter 6 of the Parental Code, the best interests of the child is a flexible principle with certain stated guidelines. Largely the definitions are alike. However, the best interests of the child has capacity as a general principle in the CRC and composes a threefold concept: it is both a substantive right, an interpretative principle and a rule of procedure. Furthermore, the right of the child to be heard has been pointed out as crucial for the meaning and assessment of the principle. Swedish law only consider the will of the child as a part of the assessment taken as a whole, and the right of the child to be heard can also be restricted in different manners. Incorporation would imply that the CRC became applicable as Swedish law, which is relatively rare in Sweden. Foremost, the juridical arguments in the debate have appeared to derive from a child’s perspective and have therefore been the most relevant arguments for the question at issue. Based on how the best interests of the child is defined and assessed, together with occurring arguments in the debate, it is possible that incorporation would imply that the best interests of the child would be considered more as a general principle, like in the CRC, and therefore influence more legal areas. Regarding the best interests of the child in chapter 6 of the Parental Code, incorporation would possibly imply a renewed way of assessment. In the CRC the right of the child to be heard possesses a greater and more independent function, and it is possible that this approach would get acknowledgement in Swedish law after incorporation.