Talerätt för barn. En komparation mellan vårdnadsmål, LUV-mål och brottmål

Sammanfattning: Children, just like adults, are legal entities according to Swedish law and legislation. This implies they have both rights and obligations to face, which in addition means they also have party capacity. Since children have party capacity they can also have the right to litigate in cases where the legal dispute is connected to rights or obligations of the child. It is easy to realize that children do not have the right to litigate in cases about custody matters. It is instead the child’s parents who have the rights to take legal action, refer to evidence and appeal a judicial decision. Instead of giving children the right to litigate in custody matters the legislator has chosen to establish other regulations to secure the perspective of children’s rights in such litigations. This differs from other case categories where the child and its parents possibly can have different interests. The purpose with this exam is to examine the motives to why children do not have the right to litigate in custody matters and compare them to other case categories. Criminal cases where the child is the victim and at least one of the legal guardians is the suspect or the suspect is someone standing close to one of the legal guardians is one example of such categories. In such criminal cases it is possible for the court to appoint a special representative for the child that also becomes litigation guardian during the proceeding. Additionally, in cases of The care of young peoples (special provision) act (LVU) the children have the right to litigate. In those kinds of cases the court can appoint a public council to represent the child. The public council will also act as the child’s guardian in the legal process. In these kinds of case categories there is an acknowledged conflict between the child’s interests and the legal guardians. Due to this fact the legislator needed to take more actions in order to protect the child’s rights during the processes. This kind of conflict is not acknowledged to the same extent in custody matters. However, the legislator has, by the latest amendment of the Parent Code partially begun to emphasize that conflict of interests between the child and its parents can occur even in custody matters. Even if children’s procedural status differs in custody matters and LVU cases these two case categories have a lot in common and several regulations are based on the regulations in the FN Convention on the rights of the child. This differs from the criminal proceedings. In LVU cases and the examine type of criminal cases the children has a similar procedural status instead. In conclusion, there are several circumstances that had an impact on the legislator’s choice to not give children the right to litigate in custody matters. Children should not be too close the conflict, it would be expensive and it would not be appropriate are some of the reasons according to the legislator. However, the subject has previously been discussed in doctrine where other circumstances have been pointed out to be the crucial. Lack of admitting conflicts of interests between the child and its parents, the ideology of the legislator, the concerned parties’ obligations and the approach to children in general are examples of such circumstances. I do also, in addition to these circumstances, identify proportionality as a cause. Based on the comparison between the three different case categories it is clear that the legislator do not find it proportional to limit the legal guardians right to decide over their children to the same extent as in LVU cases and criminal cases.