Tänk om det var ett försök att skydda? - Om befarat umgängessabotage, risker och konsekvenser

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: When two parents separate, they must agree upon custody, residence and access for their common children. In cases where the parents are not successful in reaching an agreement, the Court can settle the dispute for them. The legal provisions relating to custody, residence and access are regulated in the Parental Code Chapter 6 and all decisions must be taken according to the best interests of the child. In a case of custody, residence and access, the Court also has a statutory investigation obligation. The investigation aims at protecting the child's interests and at ensuring that the decisions are consistent with the best interests of the child. The principle of the best interests of the child, is found in international, as well as in national law and this principle nowadays permeates Swedish legislation on the child. Within the principle, there are several aspects of what a child needs and is entitled to. This paper, in particular, highlights two parts of the principle of the best interests of the child. For one thing, the child has a need for a close and a good contact with his or her parents, but the child also has an unconditional right not to be harmed. The child must never be exposed to mental, physical or any other kind of abuse. In some cases, a balance must be kept between these two parts, as the actual parent might be the one harming the child. According to the Court's investigative obligation, the Court must always make a risk assessment. A child's access to a parent must never mean that the child is in danger of being harmed. In Sweden, approximately 150,000 children live in homes where violence occurs. Studies show, that children are not only harmed by witnessing domestic violence, but are also at risk of being exposed to it. Investigations show, that the Court in some cases relates violence to the separation between the parents. As a consequence, the Court does not make a risk assessment, because the risk is no longer considered to exist, when the parents have separated. The parent, who is the legal guardian of the child, has an obligation to facilitate the child's access to the other parent. Visitation sabotage means to counteract such an access, without a reasonable justification. An established visitation sabotage may lead to the transfer of custody to the other parent, as children have a right to a close and a good contact with both parents. However, the right of access will have to yield, if the child is at risk of being harmed because of the access. This balance is discussed in this essay. The methods used in this essay, are a legal dogmatic and a qualitative method. The first part of this paper investigates and challenges the established law regarding custody, residence and access, with particular attention to access rights and visitation sabotage. The second part of the essay, consists of a compilation of five interviews with professional judges and investigators. The purpose of the interviews, is to give an understanding of how the law is applied in practice. The essay problematises today’s strong emphasis on the child's need for a close and a good contact with its parents. When the main rule is the parent’s access to the child, the level of risk required for restricted access, may be too high. The main issue in this work is to find out how well cases of custody, residence and access are being investigated. Furthermore, I want to look into how much the risk of the child being harmed, is taken into account. The majority of investigations show, that the assessment of the best interests of the child, is based on presumptions, instead of being a truly unique assessment, based on the individual child. An explanation for this is, that the professional groups working with custody, residence and access, lack the education and knowledge required for these issues. As a consequence, this knowledge deficiency first of all carries a risk of making judgement a rigorous application of the law and, secondly, that certain risks are misjudged. A specific question in this essay is, how the risk of the child is judged by the Court and by the Social Welfare Board, when it comes to domestic violence. Explaining the violence by referring to an upsetting separation or to the parent's conflict, causes a risk of the Court not taking it into consideration at all.

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