Upphörande av vård med stöd av LVU - En balans mellan principen om barnets bästa och legalitetsprincipen

Sammanfattning: The thesis deals with the cessation of compulsory care for children. LVU is a child protection legislation, which acts as a guarantee to fulfill the care needs of vulnerable children. In accordance with 1 § of the LVU, all decisions concerning children should be decisive as to what is best for the individual child. The society has the power to provide compulsory care if the child lives in a vulnerable home environment that presents a significant risk to the child's health and development, 2 § of the LVU. However, jurisdiction only extends until the prerequisites for compulsory care have ceased in accordance with 21 § LVU. This assessment is complicated because even though the initial reason for the compulsive care has been discontinued other circumstances may have arisen while the child has been placed in a family home, which suggests that continued compulsory care would be the best for the individual child. Because the new circumstance did not cause the compulsory care for the child the new circumstance creates a great unpredictability for the custodians if continued compulsory care would be decided. Especially if the custodians have tried to make thoroughgoing and sustainable changes to the home environment which caused the compulsory care for their child in the first place. The new circumstance may prevent reunification between the child and the guardians, even if the initial reason has been terminated completely. This can be regarded as a violation of the custodians’ right to a private- and family life. Taking a decision that compulsory care of the child should be discontinued would not be in accordance with the principle of the best interests of the child, but to decide on continued compulsory care would not be in accordance with the principle of legality. Which principle should weigh heaviest in such a decision, without the fundamental rights of either the child or its custodian being violated, and what new circumstances can be covered by both principles shall be investigated in the thesis. Furthermore, it will also be investigated if there are circumstances that indicate that continued compulsory care would be the best for the individual child but isn’t supported by law and therefore renders impossibility for a decision on continued compulsory care. My investigation concludes that new circumstances which indicates that continued compulsory care would be the best for the child and stems from either the child’s current home environment, the exceptional care needs for the child or the child’s own will all legitimizes a decision for continued compulsory care. In this case both the principles are balanced according to the weight norm between the both principles. Even though some circumstances are less rooted in the principle of legality, the weight norm is applied if the principle of the best interest of the child weighs heavier in a decision of discontinuing compulsory care. The circumstances that are considered applicable in recently mentioned requirements can’t be explicably described therefore they need to be judged case by case. No circumstances which did not have support by law but was for the best interest of the child appeared in my investigation although there was a decision that was not to the best interest of the child and not supported by law. The investigation indicates therefore that when some circumstances advocates for a decision, in whatever direction, that it is according to the principle of the best interest of the child there is a support in the law which legitimize the decision.