Barnets bästa eller föräldrars intresse? - En undersökning om återföreningsprincipens förenlighet med principen om barnets bästa
Sammanfattning: According to the law (1990:52) with special regulation regarding the care of young people (LVU) the state can take a child into care without consent from the parents if the child’s health or development is at risk of being harmed due to poor conditions in the child’s home. The purpose of the care is to reunite the biological family, according to the principle of reunification. When deciding on the care, the decision-maker must consider the best interest of the child, the parents' will to reunite the family, and the conflict of interest between them. By using a legal dogmatic method this essay examines if the principle of reunification is compatible with the principle of the best interest of the child, and the relationship between the right to respect for private and family life and the principle of reunification. To take a child into care against the parents' will is an acceptable interference in the parents' right to respect for private and family life granted by the article 8 in the European Convention on Human Rights. The interference is acceptable if it’s appropriate and proportionate. The European Court of Human Rights has declared that an act of care is appropriate and proportionate if the care is in the best interest of the child and if the authority actively works to reunite the biological family. Hereby, it is clear that the principle of reunification has a close connection to the right to respect for private and family life. In all decisions regarding a child, the best interest of the child must be decisive. When assessing what is best for the child the decision-maker shall combine what is objectively known to be the best for children with what the child in question needs and wishes. By combining these two aspects, the outcome of the assessment is always unique. Due to the individual situations, and the unique assessments, it cannot be only one answer to if the principle of reunification is compatible with the best interest of the child or not. Because of a judgment from the Supreme Administrative Court, courts cannot make an adequate assessment of all aspects to determine what is the best for the child, and it has been shown that courts tend to presume that the best interest of the child is to be reunited with the parents. To ensure the best interest of the child is decisive the decision-maker must be careful not to presume that the best for the child is to reunite with its biological parents.
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