Automatisk vårdnadsöverflyttning vid dödligt våld inom familjen och dess förenlighet med artikel 8 i Europakonventionen

Sammanfattning: In preparatory work, the research officer and the government have considered a proposal about compulsory transfer of custody in the case of deadly violence within the family. According to the research officer and the government, it is in the best interests of the child that the parent who has killed the other parent of the child no longer is the legal guardian or has any contact with the child in most cases. However, the research officer and the government noted that a provision about compulsory transfer of custody in the case of deadly violence within the family would risk contravening article 8 of the European Convention on Human Rights (ECHR). The purpose of this thesis is to analyze the article and create understanding of how a provision about compulsory transfer of custody in the case of deadly vio-lence within the family would relate to it. The legal-dogmatic method has been used to fulfil the purpose of the thesis. In the ECHR, there is no regulation that the best interests of the child must be considered when the European Court of Human Rights assesses issues according to the Convention. According to the Court´s case-law, the best interests of the child must however be considered. Furthermore, the Court uses the Convention on the Rights of the Child (CRC) as a principle of interpretation. Therefore, there is an association between the ECHR and the CRC. The conflict between the best interests of the child on an individual and group level is emphasized in the thesis. On the group level, the provision on compulsory transfer of custody in the case of deadly violence within the family would be in the best interests of the child. The Committé on the Rights of the Child has however stated that the assessment of the best interests of the child must be determined based on the circumstances in every individual case. Additionally, a provision about compulsory transfer of custody in the case of deadly violence within the family will not make it possible to give importance to the child´s opinion based on the child´s age and maturity. What contradicts that a provision about compulsory transfer of custody in the case of deadly violence within the family would risk contravening article 8 of the ECHR is that the Convention states have a wide margin of ap-preciation in custody issues. At the same time, the European Court of Hu-man Rights has emphasized the importance of the domestic court making an assessment based on the circumstances in every individual case. Furthermore, the European Court of Human Rights has ascertained that national regulations that provide a compulsory transfer of custody due to an imprisonment contravene article 8. The thesis concludes that a provision about compulsory transfer of custody in the case of deadly violence within the family would likely contravene article 8 of the ECHR.