Barnkonventionen och LSS - En analys av hur barnkonventionen implementerats i lag (1993:387) om stöd och service till vissa funktionshindrade

Sammanfattning: The UN Convention on the Rights of the Child was adopted by the UN General Assembly on November 20, 1989, and ratified by Sweden in 1990. Since then, Sweden has been bound by international law to comply with the Convention. The Convention on the Rights of the Child is built around four guiding principles. Two of these, which are the focus of this essay, are the principle of the best interests of the child in Article 3 and the child's right to be heard under Article 12. The principle of the best interests of the child means that in all actions concerning children the best interests of the child shall be investigated and taken into account. The purpose of the principle of the best interests of the child is to guarantee both full and effective enjoyment of all rights recognized in the Convention on the Rights of the Child. All rights provided for in the Convention on the Rights of the Child are in the best interests of the child, and the principle must never be interpreted as implying a restriction of any right. A prerequisite for the principle of the best interests of the child to be applied correctly is that the child's opinions are taken into account. Respecting each child's right to be heard is a mandatory step in assessing what is in the child's best interests. Both what is considered to be the child's best interests and the child's own opinions are of crucial importance when decisions are made that affect the child. The two principles complement each other and there is no contradiction between them. Since the Convention on the Rights of the Child came into force, Sweden has made many changes to Swedish legislation to ensure that it complies with the provisions of the Convention. Sweden has carried out several surveys to investigate compliance with the Convention on the Rights of the Child, and the conclusion has always been that Swedish legislation and practice are in good agreement with the Convention. The latest major change that was made was that the Convention on the Rights of the Child was incorporated into Swedish law, and since January 1, 2020, the Convention on the Rights of the Child applies as Swedish law. The Act (1993: 387) on support and services for certain disabled, LSS, came into force on January 1, 1994. Since LSS is a legislation where the individual is in a vulnerable situation, it is of the utmost importance that the rights of individuals are monitored and complied with. In the original version of LSS, there was no reference to the Convention on the Rights of the Child, and it was not until 17 years after the entry into force of the law that provisions adapted to the Convention were introduced. Sweden had then been bound by the Convention on the Rights of the Child for 21 years. 4 Since these provisions were introduced in LSS in 2011, the law has been the subject of several investigations concerning Swedish legislation and practice in accordance with the Convention on the Rights of the Child, even though no investigative activities are solely at LSS. Although ambiguities regarding LSS compliance with the Convention on the Rights of the Child can be identified, such as the fact that the best interests of the child is not a criterion for granting contributions, no change in the legal text has been implemented. This thesis aims to investigate the articles in the Convention on the Rights of the Child that are of particular importance to LSS, and to analyze how these principles have been implemented and developed in legislation and to some extent in practice. In order to fulfill the purpose, the preparatory work, government investigations and bills that formed the basis for surveys and changes in the legal text have been studied. For the essay, therefore, a mainly legal dogmatic method has been used. The thesis clearly states that even though there has been a will to protect the rights of the individual since LSS was adopted, there are still shortcomings regarding compliance with the Convention on the Rights of the Child and areas where the child's rights under LSS can be further strengthened. Although there is an inquiry proposing a completely new LSS, it does not seem obvious that these shortcomings will be resolved by the proposed law. In order to fully meet the requirements of the Convention on the Rights of the Child, further changes need to be made.