Ett rättssäkert tvångsomhändertagande - En rättsvetenskaplig uppstats om begreppet "annat socialt nedbrytande beteende" i 3§ 1st LVU

Sammanfattning: Compulsory treatment of children and young people is a controversial and debated subject. My paper concerns the legal certainty of a necessary prerequisite in §3 section 1 in the Care of young persons act, hereafter referred to as (CYPA). The purpose of this paper is to clarify which behaviors this necessary prerequisite applies to. The rule statutes the foundation of compulsory care, in relation to children and young persons’ own behavior. The necessary prerequisite I'm analyzing is called “other socially destructive behavior”. In the first part of the paper I present that the paper is written with a legal dogmatic method and from two perspectives; a developmental perspective and a legal certainty perspective. After a brief explanation of the emergence of the compulsory care, I discuss what the concept of the “legal certainty” is. In the essay I find that the term does not have a fixed meaning, instead it varies. It turns out, that in order to have a serious debate it’s important to clarify the definition of legal certainty. The essay explains how §3 section 1 is legally applicable. First the applicable law is outlined, according to how it’s defined in the law, legislative history and in the legal literature. After this it’s described how the application of the necessary prerequisite is used in the established practice. It’s uncertain whether some of the current behaviours that youths and children are using in this society are included in the necessary prerequisite. Therefore I discuss a few court cases to see how the application looks today. In the last part of the essay an analysis follows. The questions set out are here answered. I conclude that the concept of the legal certainty is ambiguous and that the application of the necessary prerequisite sometimes lacks legal certainty. Finally, I highlight my understanding of the necessary prerequisites general form. But this does not exclude the need for some clarification of the term.