Mänskliga rättigheter vid domstolsbeslut gällande omhändertagande av barn : LVU-domar före och efter att barnkonventionen blev svensk lagstiftning

Sammanfattning:  Administrative courts’ view on children’s human rights are actualized when the courts rule that children should be taken into the care of society. It is a legal decision and, moreover, it is an intricate moral issue where fundamental values such as protection, autonomy and equality are at stake. Domestic violence and child abuse are grounds for custody in more than half of the judgments when Swedish Care of Young Persons (Special Provisions) Act (SFS 1990:52) (commonly referred to as LVU) are applied in the courts (Lundström et al. 2020, s. 290). Child abuse is a criminal act and a violation of human rights. Since January 1, 2020, the Convention on the Rights of the Child has been incorporated into Swedish legislation, which means that it must be applied in the administrative courts’ decisions on custody judgment, alongside the Act (SFS 1990:52). Children’s human rights must therefore be considered when such cases are decided.   This thesis aims to examine and compare the administrative courts’ view on children's rights, for children subjected to child abuse, before and after the Convention on the Rights of the Child was incorporated into Swedish legislation, when the courts apply Act (SFS 1990:52) to decide whether to separate a child from their families. The study is done through a discourse analysis of 20 judgments; 10 judgments before (between 2012-2014) and 10 judgments after (between 2020-2022) the Convention on the Rights of the Child became Swedish law. The theoretical framework is based on children’s rights, and mainly three of the governing principles of the Convention on the Rights of the Child: the best interests of the child (art. 14), the right to participation (art. 12), and the right to development (art. 6). Ideologies, values, and moral stances are made visible in the analysis of the application of these principles.   In the judgments, generally, a view of children's rights emerges as essentially related to protecting basic needs. The so-called interest perspective on rights, where rights correlate with protecting needs, rather than protecting the expressed will of the person (Maccormick, 1976, s. 306), is the overriding tendency in the study of the judgments. Implicitly, the understanding of the child perspective emerges where the children's best interest and the children's right to development become dominant over the right to participation. The administrative courts understand the children’s best interest and the right to development as mutually dependent and as protectionist principles, where security, care, and emotional support become central expressions in the judgments in general. Family law theorist John Eekelaar (1994, s. 47-48) establishes that the assessment of a child's best interests requires that an objective and a subjective element are brought together, i.e., general knowledge about the child and, also, the child's own experiences and opinion. The objective perspective is prominent in the administrative courts’ assessment of the children's best interests, and the children's needs and narratives are formulated from an adult perspective.   A distinctive change in the judgments after the Convention on the Rights of the Child became Swedish law is that the children's feelings and thoughts are given more space in the administrative courts’ reasoning. The children are referenced to as subjects, and it is thus possible to see increased tendencies towards a children's rights discourse. Also, detailed and advanced reasoning about the children's needs, vulnerability and development appears to a greater extent. Descriptions of how different areas of the children's lives are affected appear frequently in the judgments after the Convention on the Rights of the Child became Swedish law. When using Martha Nussbaum's capability approach (Nussbaum, 2013, s. 30), it is possible to discern in the judgments a view of children's rights where the protection of basic needs, such as physical and mental health, is fundamental to being able to develop autonomy and self-determination. Although the children's experiences, stories and needs are at the center of the judgment, it is formulated from an adult perspective. The children's opinions and expressed wills do not have a prominent role in most judgments. The view that eventually becomes dominant is a protectionist attitude to the rights of children. The protectionist attitude towards children's rights risks increasingly becoming paternalistic in its application when the children's opinions and wills are excluded in the judgments. The understanding of participation that appears is basically connected to participation as a procedural right that aims to protect the needs of the child. Participation as a substantial right has no impact in any of the 20 judgments. Based on an understanding of participation as an expression of human autonomy and dignity, the child does not appear as a subject of his own rights and thus indicates an incomplete children's rights discourse in the judgments both before and after the Convention on the Rights of the Child became Swedish law.