Parental Responsibilities - SWEDEN
NATIONAL REPORT: SWEDEN
Maarit
Jänterä-Jareborg & Anna Singer & Caroline Sörgjerd University of Uppsala, Sweden
A. GENERAL
1. Having regard to the concept of parental responsibilities as defined by the
Council of Europe (see above), explain the concept or concepts used in your
national legal system.
The concept of parental responsibilities is not used in autonomous Swedish
legislation.1 Instead, Swedish law distinguishes between the
concepts of custody (vårdnad, Chapter 6 Swedish Children and
Parents Code) and guardianship (förmynderskap, Chapters 9-15 in part
Swedish Children and Parents Code). Seen together, the content of these two
concepts corresponds to the Council of Europe’s definition of the concept of
parental responsibilities
In Swedish law, custody refers to the legal responsibilities a custodian
has for the child, including the duty to provide for the child’s needs for care
and protection, good upbringing, education and maintenance. In personal
affairs, the custodian represents the child and also determines the child’s
residence. Normally, custody also involves the actual care of the child,
meaning that the custodian personally lives with and looks after the child.
However, it is not necessary for the child to live with a custodian. The
child’s parents have a joint responsibility to ensure that the child’s right of
contact with the parent the child is not living with is met. The custodian(s)
shall ensure that the child’s right of contact with any other person
particularly close to the child is met.
Guardianship refers to administration of the child’s property and legal
representation of the child’s financial matters. Normally a child’s parents are
both the child‘s custodians and guardians. If custody is transferred from a
parent or parents to one or two specially appointed custodians, they normally
also become the child’s guardians. As long as either of the parents has
custody, it is not possible to appoint any other person as the child’s
custodian.
2. Explain whether your national concept or concepts encompass:
(a) Care and protection
According to Chapter 6 Sec. 1 Swedish Children and Parents Code, children
are entitled to care, security and a good upbringing. They shall be treated
with respect and may not be subjected to corporal punishment or any other
humiliating treatment. A person who has custody of a child shall ensure that
the above-mentioned needs of the child are met, Chapter 6 Sec. 2 Swedish
Children and Parents Code. The custodian’s obligation to protect the child
encompasses the necessary supervision of the child and assuring that the child
does not cause damage to any other person.
(b) Maintenance of personal relationships
In assessing the best interests of the child, particular attention shall be
paid to the child’s need of close and good contact with both parents, Chapter 6
Sec. 2a Swedish Swedish Children and Parents Code. The child’s parents have a
joint responsibility to ensure that, as far as possible, the child’s right of
contact with the parent the child is not living with is met (Chapter 6 Sec. 15
para. 2). Furthermore, a person with custody of the child has a responsibility
to ensure, as far as possible, that the child’s right of contact with any other
person particularly close to the child is met (Chapter 6 Sec. 15 para. 3).
(c) Provision of education
The obligation to see to that the child receives an adequate education is
included among the duties of the custodian, Chapter 6 Sec. 2 para. 2 Swedish
Children and Parents Code.
(d) Legal representation
In matters relating to the personal affairs of the child, the custodian
acts as the child‘s legal representative. The guardian acts as the child’s
legal representative in matters relating to the economic affairs of the child.
Normally, in Swedish law both parents are the custodians and the guardians of
their children. This means that they jointly represent their children in
personal and economic affairs.
(e) Determination of residence
Parents sharing the custody of a child may enter into an agreement
concerning the child’s residence. In addition, a court may, on application of
one or both parents sharing custody, decide with which of the parents the child
is to live. Such a decision can include residing with both parents on an
alternate basis. The relevant rules are found in Chapter 6 Sec. 14a Swedish
Children and Parents Code.
(f) Administration of property
The guardian of a child is responsible for administrating the child’s
property and representing the child in legal proceedings concerning that
property, Chapter 12 Sec. 1 Swedish Children and Parents Code.
3. In what circumstances (e.g. child reaching majority or marrying) do
parental responsibilities automatically come to an end?
The custodian’s responsibilities end when the child reaches the age of
eighteen, which in Sweden is the age of majority,2 or when the
child enters into marriage or registered partnership, if younger than eighteen,
Chapter 6 Sec. 2 Swedish Children and Parents Code. The responsibilities of the
guardians, however, do not come to end until the child reaches the age of
majority, even if the child contracts a marriage or a registered partnership
before eighteen, Chapter 9 Sec. 1 and Chapter 10 Sec. 4 Swedish Children and
Parents Code.
4. What is the current source of law for parental responsibilities?
In Swedish domestic law, the provisions on parental responsibilities are
found in the Swedish Children and Parents Code (1949:381), adopted in 1949 but
subject of numerous later amendments. The provisions concerning custody,
residence and contact are found in Chapter 6. The rules concerning guardianship
are scattered throughout Chapters 9-15, which also includes incapacitated
adults. Provisions on the enforcement of judgments and agreements on custody,
contact and residence are found in Chapter 21 of the Swedish Code.
5. Give a brief history of the main developments of the law concerning
parental responsibilities.
The present Swedish legislation concerning parental responsibilities can be
traced back to the end of the 1910’s and the 1920’s when a number of Acts,
commonly referred to as “the Child Acts”, were passed.3 In
1949, these Acts were merged into a comprehensive code, called Swedish Children
and Parents Code (Föräldrabalken), which entered into force on 1 January
1950.4 This Code is still in force, but has been the subject of
numerous amendments over the course of years. Most of these amendments have
concerned issues relating to parental responsibilities, in particular the
attribution and exercise of the custody of a child.5
In 1966, the
parents’ right to use corporal punishment was abolished. In 1979, an explicit
provision prohibiting it was inserted in Chapter 6 Sec. 1 Swedish Children and
Parents Code. In 1973, a major divorce law reform that included abolishing,
fault as a ground for divorce was enacted. As a consequence, fault to marriage
breakdown also became irrelevant to the outcome of disputes on parental
responsibilities. In 1973, the prospects for transferring custody from the
child’s mother to the child’s father, when the parents had not been married to
each other, were improved by introducing the same test of suitability to the
father as to the mother. Until then, custody could be transferred to the father
only if the mother was found unsuitable as a custodian. In 1976, all remaining
differences in the legal treatment between children born in and out of wedlock
were abolished. Furthermore, joint custody of children became available to both
divorced and unmarried parents. Until then divorced or unmarried parents could
only have sole custody of a child. In the case of divorce, it had been up to
the courts to settle the parents’ disputes and award one of them sole custody
of the children. In order to strengthen the child’s right to contact with the
parent with whom the child is not living, since 1983 the law has explicitly
stated that it is the child who has the right to contact.6 Issues of contact
re-emerged in 1993, when provisions were enacted obliging the court to regard
the risk of child abuse, kidnapping or other harm when contact with a
non-custodial parent or other person particularly close to the child takes
place.7.
Since the 1990’s, the trend has been to encourage parents to reach
agreements concerning their children. With this purpose in mind, in 1990
so-called co-operation discussions were introduced to facilitate agreements
between the parents.8 Since a 1998 law reform, a court may also order joint
custody against the wish of one of the parents whereas before the reform, joint
custody could only be ordered if neither of the parents opposed it.9 However,
the 1998 reform primarily aims at keeping parental responsibilities issues out
of court by encouraging parents to reach agreements on custody, contact and the
child’s residence. Such agreements must be confirmed by the local social
welfare committee, if they are compatible with the best interests of the child.
Finally, the
enactment of the Registered Partnership Act in 1994,10 granted a same-sex
couple with a registered partnership the same legal rights as a married couple.
Originally, the rules concerning parental responsibilities were not applicable
to registered partnership, however, since 2003 registered partners may jointly
adopt a child, and a registered partner may adopt his or her stepchild. Registered
partners may also jointly be appointed as special custodians to a child.
6. Are there any recent proposals for reform in this area?
In June 2002 a parliamentary committee was appointed by the Government to
evaluate the effects of the1998 reform,11 which allows entrusting joint
custody to parents even when one parent is against it. The committee is also to
evaluate how the local social welfare committees have succeeded in their task
to approve parental agreements on custody, contact and the child’s residence.
The rules on enforcement of decisions and agreements on custody, residence and
contact are also to be reconsidered. The committee is expected to present its
report and proposals by March 2005.
The Ministry of Justice is currently considering proposals put forth in
three memorandums, namely Ds 1999:57,12 Ds 2002:13,13 and
Ds 2004:19,14 on specific issues connected to the attribution
and exercise of parental responsibilities. The 1999 memorandum proposes
introducing a provision automatically granting unmarried parents joint custody
of their child three months after the determination of paternity, provided that
neither of the parents expressly opposes joint custody. The 2002
memorandum concerns legislative measures that need to be taken in order to
enable Sweden’s planned ratification of the European Convention on the Exercise of Children’s
Rights.15 The 2004 memorandum proposes that lesbian couples who
have registered a partnership or who are cohabiting with each other should be
allowed access to artificial insemination at public hospitals in Sweden. If
such an insemination results in the birth of a child, both the woman giving
birth and her registered partner or cohabitee should be regarded as the child’s
legal parents, also sharing the parental responsibilities.
B. THE CONTENTS OF PARENTAL RESPONSIBILITIES
7. Describe what the contents of parental responsibilities are according to
your national law including case law.
Swedish law distinguishes between the concepts of custody (vårdnad, Chapter
6 Swedish Children and Parents Code) and guardianship (förmynderskap,
Chapters 9-15 in part Swedish Children and Parents Code).
Custody refers to the legal responsibilities that a custodian has for
the child’s personal circumstances. These include a duty to ensure that the
child’s needs for care and protection, good upbringing and education are
provided. The custodian also has a responsibility to see to that the child is
maintained. In personal affairs, the custodian represents the child, and it is
the custodian who determines the child’s residence. Normally, custody also
involves the actual care of the child, meaning that the custodian lives with
and looks after the child. However, it is not necessary for the child to live
with the custodian. Custody does not necessarily entail an obligation to
personally fulfil the responsibilities of a custodian, only to make sure that
they are carried out by someone.
A person who has custody of a child is also responsible for ensuring
that the child receives necessary supervision, having regard to his or her age,
development and other circumstances. In order to prevent the child causing
detrimental damage to any other person, the person with custody shall ensure that
the child is kept under supervision or that other appropriate steps are taken,
Chapter 6 Sec. 2 para. 2 Swedish Children and Parents Code. The child’s parents
have a joint responsibility to ensure that the child’s right of contact with a
parent with whom the child is not living is living is met. The custodian shall
also ensure that the child’s need of contact with any other person particularly
close to the child is met, Chapter 6 Sec. 15 Swedish Children and Parents Code.
Guardianship refers to administration of the child’s property and
legal representation of the child in legal proceedings concerning the property,
the Chapters 10, 11 and 13 Swedish Children and Parents Code,. Normally a
child’s parents are both custodians and guardians to the child. If custody is
transferred from a parent or parents to one or two specially appointed
custodians, they normally also become guardians to the child. The guardian is
obligated to regard the child’s needs when determining the appropriate capital
needed for education and other expenses.16
8. What is the position taken in your national law with respect to:
(a) Care
The custodian’s responsibility for the care of the child is expressly
stated in the Chapter 6 Sec. 1 Swedish Children and Parents Code,. The term “care”
encompasses responsibility to satisfy the child’s material, psychological and
mental needs, and to decide important issues concerning the child. In this
context the custodian’s responsibility for the child should not be confused
with de facto care of the child. In particular in situations where the child’s
parents have joint custody but do not live together, both parents are jointly
responsible for the care of the child, whereas the de facto care is normally
exercised by the parent with whom the child lives.
It is up to the custodian to ensure that the child’s individual needs
are met. Thus, the legislature has abstained from introducing an exhaustive
list of the custodian’s duties. From the introductory provision concerning
custody, residence and contact, found in Chapter 6 Sec. 1 Swedish Children and
Parents Code: “Children are entitled to care, security and a good upbringing.
They shall be treated with respect for their person and their distinctive
character and may not be subjected to corporal punishment or any other
humiliating treatment.” The person who has custody of the child is responsible
for the child’s personal affairs and shall ensure that the child’s
above-mentioned needs are met.17 A child’s right to security includes the right
to live in a stable relationship with an adult whom the child can trust. The
right to care and a good upbringing refer to experiencing a feeling of affinity
and to develop personal resources in order to gradually gain independence from
the custodian. Furthermore, the custodian is to treat the child with respect,
being attentive of the child’s individuality and growing needs of personal
integrity. All forms of corporal punishment and demeaning treatment are
prohibited by law and can constitute a criminal offence.
(b) Education
The custodian is responsible for ensuring that the child receives a
satisfactory education, having regard to the child’s age, development and other
circumstances, Chapter 6 Sec. 2 para. 2 Swedish Children and Parents Code.
(c) Religious upbringing
In Swedish law, a custodian can normally act alone only in matters
relating to the daily care of the child. Decisions concerning religious
upbringing and membership in a religious community are considered to be of such
far-reaching significance for the child’s future that they must be made by both
parents if the child is under their joint custody.18 Correspondingly,
if the parents’ custody rights have been transferred to two specially appointed
custodians, they must make the decisions relating to the child’s religious
upbringing together. If parents sharing custody rights (or the two specially
appointed custodians) cannot agree, it is, e.g., not possible to register the
child as a member of a religious community or as a pupil in a religious school.
This position is confirmed by Art. 2 Additional protocol 1 to the European Convention on Human
Rights.19 It has been suggested in Swedish legal literature
that any kind of religious upbringing, such as teaching the child to pray or to
follow any religious traditions, requires the consent of both custodians.20
Since custodians are to pay regard to the child’s wishes depending on
the child’s age and level of maturity, it follows that the child at a certain
point acquires the freedom to make decisions on its own as regards religion. If
the child has reached the age of 12 years, the child’s consent, in addition to
that of the custodian(s) is necessary for entry into or withdrawal from a
religious community, the Swedish Act (1998:1593) on Religious Communities (Lag
om trossamfund) Section 4. However, it is claimed that in practice not all
religious communities in Sweden follow the law in this respect.21
(d) Disciplinary measures and corporal punishment
The Children and Parents Code explicitly prohibits subjecting
children to corporal punishment or any other humiliating treatment. Neither may
this be done in reaction to actions or omissions by the child, Chapter 6 Sec.
1. Such measures can constitute a criminal offence and they may not be used by
the custodian as a method of raising the child.22
Regarding other forms of disciplinary measures, the law prohibits
demeaning treatment of a child, the content of which may differ depending on
the age and maturity of the child. Measures such as systematically reading a
child’s mail23 or confining the child to his or her room (room arrest) may
constitute demeaning treatment, particularly with older children. The
prohibition of demeaning treatment aims at measures that can endanger the
child’s personal development, e.g. through ridicule or systematically ignoring
the child.24 A custodian who subjects the child to corporal punishment and
other forms of unsuitable treatment shall be deprived of the custody of the
child, if the behaviour is considered to constitute a lasting danger to the
child’s health or development, Chapter 6 Sec. 7 Swedish Children and Parents
Code.
(e) Medical treatment
Decisions concerning medical treatment of a child fall within the
responsibility of the custodian, to be jointly exercised by parents sharing
custody. Nevertheless, it is possible that some decisions could fall under the
residential parent’s authority to make decisions concerning the child’s daily
life, e.g., a decision to vaccinate the child. In respect to certain types of
medical treatment, the child may decide on its own, on condition that the child
is considered to have reached a sufficient level of maturity in relation to the
issue. For example, a child considered mature enough has the right to request
and be granted contraceptives or an abortion without the knowledge or
consent of the custodians.25 In other areas, such as treatment of mental
problems, the consent of the custodians is normally required.26
(f) Legal representation
The custodian acts as the legal representative of the child in regard
to the child’s personal affairs, Chapter 6 Sec. 11 and 12 Swedish Children and
Parents Code. This includes matters concerning the establishment of parentage
and maintenance, as well as the right to medical treatment and education. In
matters concerning the administration of the child’s property and financial
affairs (other than maintenance) the child is represented by his or her
guardians, Chapter 12 Sec. 1 Swedish Children and Parents Code. When both
parents have rights of custody and guardianship, they have joint authority to
represent the child. In some situations, the child may act on his or her own
e.g. in respect of property which the child has acquired through his or her own
labour, Chapter 9 Sec. 3 Swedish Children and Parents Code.
In certain public law proceedings aimed at providing protection for the
child, the law provides for appointing a separate representative for the child.
This is the case, e.g. in proceedings initiated by a local social
welfare committee concerning the removal of the child from the parents’ care
without their consent, when the child is under 15 years of age and there is
reason to believe that the interests of the custodians and the child are in
conflict, Sec. 39 and 36 Swedish Act on the Care of Young Persons (1990:52). On
the other hand, a child who has reached the age of 15 years in entitled to
speak on his or her own in such proceedings. It is also possible to appoint a
separate legal representative to protect the interest of the child, instead of
having the (other) custodian representing the child in criminal proceedings
against a custodian based on alleged abuse of the child, Swedish Act on Special
Legal Representative for Children (1999:997).
9. What is the position taken in respect of the child’s right to be heard with
regard to the issues mentioned under Q 8 (a)-(f). What relevance is given to
the age and maturity of the child?
The child’s right to be heard is a fundamental principle in Swedish family
law. In assessing questions concerning custody, residence and contact, regard
shall be made to the wishes of the child, taking into account the child’s age
and maturity, Chapter 6 Sec. 2b Swedish Children and Parents Cod. Furthermore,
in decisions concerning the child’s personal affairs, the person with custody
of the child shall, in keeping with the increasing age and maturity of the
child, also take the child’s views and wishes increasingly into account,
Chapter 6 Sec. 11 Swedish Children and Parents Code. As regards the child’s
economic affairs, the guardian shall hear the child where appropriate if the
child is at least 16 and the matter is important, Chapter 12 Sec. 7 Swedish
Children and Parents Code. The underlying ideology is that the child is the
expert of his or her own situation, all the more so with increasing age and
maturity. From this, it follows that very small children are not considered to
be able to have clear opinions. Mature children, on the other hand, exercise a
considerable autonomy in respect to certain types of medical treatment and
participate in the decision-making in other respects.
10. Do(es) the holder(s) of parental responsibilities has(have) the right to
administer the child's property?
The right to administer the child’s property belongs to the child’s
guardian(s), unless the child, by law or otherwise, has acquired a right of
disposition. Where property has been given to the child, e.g., as a gift or
through a testamentary disposition, the donor or testator may stipulate that the
property shall be administered by a person other than the child’s guardian,
Chapter 12 Sec. 1 Swedish Children and Parents Code.
11. If yes, explain the content of this right.
The guardian is
responsible for taking care of the child’s property and representing the child
in legal proceedings regarding the property, Chapter 12 Sec. 1 Swedish Children
and Parents Code. As a main rule, although the guardian is free to decide how
the assets shall be handled, the guardian shall carry out his or her duties
prudently, always favouring the best interests of the child.27 The guardian is
liable to compensate the child for any intentional or negligent damage,
Children and Parents Code, Chapter 12, Section 14.
The child’s
property to a reasonable extent shall be used for his or her living expenses
and education, with the remaining part invested in a manner that safeguards the
value of the property and provides profits, Chapter 12 Sec. 4 Swedish Children
and Parents Code. The guardian’s administration of the child’s property is
supervised by the Chief Guardian (Överförmyndaren) who also may order the
guardian to account for the administration, Chapter 13 Sec. 18 Swedish Children
and Parents Code.
12. Are there restrictions with respect to:
(a) Certain goods and/or values (inherited property, gift…)
The guardian’s
right to administer the child’s assets may be restricted through stipulations
by a third party. This is the case when the child receives property as a gift
or through a testamentary disposition on the condition that the property shall
be administered by a person other than the guardian.28 The guardian is also
excluded from the right to administer the child’s assets if the child has been
given the right to dispose of the property.29 Exceptionally, however, property the
child disposes himself or herself may be administered by the guardian. This
requires permission from a body supervising administration of the minor’s
property, the so-called Chief Guardian, if the child has reached the age of 16
years. Such permission should only be granted if it is necessary for the
child’s upbringing or welfare. The permission may, furthermore, be granted only
after the child has been heard.
There are also
restrictions on the guardian’s administration of the child’s property based on
the value of the property. The guardian(s) is free to administer the child’s
property, without involvement of the Chief Guardian, only if the value of the
child’s property does not exceed the sum of eight so-called “base amounts”,
annually fixed by social security law.30 In 2003, this amounted to
approximately €36,000.31 If the value of the child’s property exceeds this
amount, the assets must be placed in a manner stipulated by the law, see
Chapter 13 Sec. 2 to 7 Swedish Children and Parents Code. Exceptions may,
however, be granted by the Chief Guardian. The guardian must give the Chief
Guardian a yearly accounting of the administration of the assets.
A person who gives
the child property e.g. through a gift or a testamentary disposition, may
always stipulate that the administration of that property shall be subject to
the same provisions as property exceeding the value of eight base amounts,
irrespective of the value of the property.32
(b) Salary of the child
A child who has reached the age of 16 years may dispose of property he or
she has acquired through his or her own labour if the custodian(s) consent.33 The
guardian may, with the permission of the Chief Guardian, take over the
administration of such acquisitions, provided it is necessary for child’s upbringing
or well-being. Permission should be granted only after the child has been
heard.34
(c) Certain transactions
Irrespective of the value of the property, certain transactions always
require the consent of the Chief Guardian. Dispositions concerning real
property of the child, as well as the use of the child’s assets for support of
family or others close to the child always require the consent of the Chief
Guardian. The consent of the Chief Guardian is, furthermore, required for
investments in shares. Such a permission is also required if the child is to
run a business in his or her name. The relevant provisions are found in the
Chapter 13 Sec. 10–13 Swedish Children and Parents Code.
13. Are there special rules protecting children from indebtedness caused by the
holder(s) of parental responsibilities?
The guardian needs the consent of the Chief Guardian to any transaction
that presupposes contracting debts for the child, Chapter 13 Sec. 12 Swedish
Children and Parents Code. The same applies if the guardian wants the child to
warrant for somebody or the child’s property to provide security for the
child’s or another person’s transactions. A consent should only be granted if
the measure is necessary to secure the child’s other assets, education or
living, or for some other special reason. An action taken by the guardian
without the consent of the Chief Guardian is not valid, Chapter 12 Sec. 10
Swedish Children and Parents Code.
Although the law aims at protecting children from indebtedness caused by
the guardians, parental actions still indebt many children. In many cases in
Sweden, the child’s debt refers to cars registered by the parents in the
child’s name e.g. unpaid parking tickets. Furthermore, a
significant proportion (about 50%) of children’s debts originate from the
parents’ transactions with the child’s capital e.g. stock
investments with the resulting taxes left unpaid. This problem has only
recently received the attention of the legislature. Since October 2004, an
authority called the Enforcement Service has the duty to report to the Chief
Guardian every time a person under the age of 18 years is registered for unpaid
fees, etc. The Chief Guardian should then take the measures required by the
situation to secure the interests of the child. This entails convincing the
parents to take responsibility for debts that are not the child’s. The Chief
Guardian can also appoint a guardian ad litem to
initiate court proceedings to have the debts removed or declared invalid. The
problem may have accelerated due to parents’ lack of knowledge of the law, as
well as the limited resources of the Chief Guardian.
14.
Do the contents of parental responsibilities differ according to the holder(s)
of parental responsibilities (e.g. married, unmarried, parents not living
together, stepparents, foster parents or other persons). If so, describe in
some detail how it differs.
In Swedish law the contents of parental responsibilities do not differ
according to the family status of the holder(s). In part this is due to the
fact that a child cannot have more than two custodians at a time. The
custodians are always either the child’s parents or one or two
specially appointed custodians. As long as either one of the parents has
custody, no additional person can be appointed as a special custodian. There
are no means (other than adoption in certain cases) for example, a step-parent
to become a holder of parental responsibilities together with a parent with
custody rights.
C. ATTRIBUTION OF PARENTAL RESPONSIBILITIES
I. Married Parents
15. Who has parental responsibilities when the parents are
(a) Married at the time of the child’s birth
Parents who are
married to each other at the time of the child’s birth automatically obtain
joint custody of the child, Chapter 6 Sec. 3 para. 1 Swedish Children and
Parents Code. Married parents who have reached the age of majority (18 years)
also automatically become the guardians of the child.
(b) Not married at that time but marry later
When the parents
of a child marry after the birth of the child, they both shall have custody of
the child from then on, unless a court has previously entrusted custody to one
or two specially appointed custodians, Chapter 6 Sec. 3 para. 1 Swedish
Children and Parents Code.
16. How, if at all, is the attribution of parental responsibilities
affected by:
(a) Divorce
According to the
main rule, the parents’ joint custody also continues after divorce, Chapter 6
Sec. 3 para. 2 Swedish Children and Parents Code. The court shall remind the
parents in the divorce decree that joint custody still applies. Under certain
conditions, however, the joint custody may be dissolved, and sole custody be
entrusted to one of the parents.
(b) Legal separation
Legal separation has not existed in Swedish law since 1974.
(c) Annulment of the marriage
Marriage annulment
has not existed in Swedish law since 1974. A marriage can only be dissolved by
divorce or the death of a spouse.
(d) Factual separation
The factual separation of parents does not in itself affect the previously
existing custody. The main rule is that parents who are married to each other
have joint custody of their children, irrespective of the living arrangements.
17. To what extent, if at all, are the parents free to agree upon the
attribution of parental responsibilities after divorce, legal separation or
annulment of the marriage? If they are, are these agreements subject to
scrutiny by a competent authority.
Parents are free to enter into agreements concerning the attribution of
parental responsibilities after divorce. The agreement is valid if it is in
writing and approved by the local social welfare committee or by the court,
Chapter 6 Sec. 4, 5 and 6 Swedish Children and Parents Code.
The social welfare committee or court should approve the parents’ agreement
on joint custody, if joint custody is compatible with the best
interests of the child. The social welfare committee should also
approve an agreement providing for the sole custody of
one of the parents, if sole custody is in the best interests of the child. The court
formally remains free to decide, based on the best interests of the child,
between joint custody or sole custody, even if the agreement stipulates sole
custody. Joint custody can not be granted, however, if both parents are
opposed to it, Chapter 6 Sec. 5 para. 2 Swedish Children and Parents Code.
18. May the competent authority attribute joint parental responsibilities to
the parents of the child even against the wish of both parents/one of the
parents? To what extent, if at all, should the competent authority take account
of a parent’s violent behaviour towards the other parent?
Since the 1998 law reform, the court may order joint custody of a child
against the wish of one of the parents but not if both parents
object to it, Chapter 6 Sec. 5 Swedish Children and Parents Code. When deciding
the suitable custody position, the court shall regard the best interests of the
child. In its judgment NJA 1999 p. 451 the Swedish Supreme
Court stated that the present legislation presupposes that joint custody is, as
a rule, in the best interests of the child. The travaux préparatoires,
however, emphasize that there are cases where joint custody is not desirable.
This is the case if one of the parents is guilty of violence towards the child
or the other parent. Neither is joint custody appropriate in cases where
conflict between the parents is so severe and deep that it is impossible for
them to cooperate in matters concerning the child.35 An example
of how these exceptions are assessed is provided by the judgment of the Swedish
Supreme Court,NJA 2000 p. 345. In the Supreme Court’s opinion, the fact
that the father had been found guilty of the assault of the mother in 1999 did
not make him unfit as a custodian at the time of the proceedings a year later.
However, the assault was found to reflect the parents’ profound difficulties to
cooperate, making it impossible for them to cooperate in issues concerning the
children. Custody was therefore granted to the mother alone, with reference to
the best interests of the children.
19.
Provide statistical information on the attribution of parental responsibilities
after divorce, legal separation or annulment of the marriage.
The most recent
statistics regarding attribution of custody after divorce refer to
parents who divorced in 2002.36 After divorce, the parents had joint custody of
23,512 children; almost 97% of all the concerned children. The mother had sole
custody of 759 children; about 3%. The father was entrusted sole custody of 104
children, amounting to approximately 0.4% of the concerned children.
Joint custody,
however, does not necessarily say anything about the actual care of the child.
Most children lived with their mother after divorce (as well as after
separation between unmarried parents).37 By the end of 2002, 430,070 (83%) of
all children with divorced or separated parents lived with their mother (or
with the mother and her new partner). 78,636 children lived with their father
(or with the father and his new partner), which is about 15% of the concerned
children.38 It was estimated that in 2002 approximately 17% of all children
with divorced or separated parents lived alternately with both parents.
II. Unmarried Parents
20. Who has parental responsibilities when the parents are not married?
The unmarried
mother has sole custody, ex lege, of the child from the child’s birth, Chapter
6 Sec. 3 para. 1 Swedish Children and Parents Code. Unmarried parents with the
father’s approved acknowledgement of paternity who are in agreement can obtain
joint custody by means of registration with the tax authority (the authority in
charge of population records in Sweden) after joint notification to the social
welfare committee, Chapter 6 Sec. 4 para. 2 Swedish Children and Parents Code.
21.
Does it make a difference if the parents have formalised their mutual
relationship in some way (registered partnership, civil union, pacte civil de
solidarité…).
At present, ex
lege effect is only given to the parents’ marriage. A proposal is under
consideration that would automatically grant unmarried parents joint custody of
the child three months after the determination of paternity, on the condition
that neither of the parents opposes joint custody.39
22. Under what condition, if at all, can
(a) The unmarried mother obtain parental responsibilities
The unmarried mother automatically becomes the (sole) custodian of a child
from the child’s birth, Chapter 6 Sec. 3 para. 1 Swedish Children and Parents
Code.
(b) The unmarried father obtain parental responsibilities
Unmarried parents can obtain joint custody through a court order or through
registration with the tax authority, Chapter 6 Sec. 4 Swedish Children and
Parents Code. This registration can be done after a joint notification to the
social welfare committee in connection with the father’s acknowledgement of
paternity, or, in certain cases, through a joint application directly to the
tax authority.40
If the father alone wishes to change the existing custody position, he must
initiate court proceedings, demanding sole or joint custody, Chapter 6 Sec. 6
Swedish Children and Parents Code.
23. How, if at all, is the attribution of parental responsibilities affected by
the ending of the unmarried parents' relationship?
The ending of the unmarried parents’ relationship does not affect the
attribution of parental responsibilities. The existing custody position remains
after a separation. For it to be changed, a court order or an approved
agreement between the parents is necessary.
24. May the competent authority attribute joint parental responsibilities to
the parents also against the wish of both parents/one of the parents? To what
extent, if at all, may the competent authority take into account a parent’s
violent behaviour towards the other parent?
Unmarried parents are subject to the general rules regarding any change in
the custody position. The court may, upon application, also order joint custody
against the wish of one of the parents, but not if both parents are opposed to
joint custody, Chapter 6 Sec. 5 Swedish Children and Parents Code. A parent’s
violent behaviour towards the other parent may be a reason not to grant joint
custody, at least in conjunction with a conflict between the parents so severe
and deep that it makes it impossible for them to cooperate in matters concerning the child, see NJA
2000 p. 345.41
25. To what extent, if at all, are unmarried parents free to agree upon the
attribution of parental responsibilities after the ending of their
relationship?
Upon and after the
termination of their relationship, unmarried and married parents have the same
right to enter into agreements concerning custody, residence and contact.42
Such an agreement must be in writing and approved by the social welfare
committee. The parents’ agreement may also be confirmed by court order.
26.
Provide statistical information available regarding the attribution of parental
responsibilities for unmarried parents.
The most recent
statistics regarding the attribution of custody after separation of unmarried
parents refers to parents who separated in 2002.43 The unmarried parents who
separated that year had joint custody of 16,157 children; almost 89% of the
concerned children. The mother had sole custody of 1,987 children; about 11%. The
father had sole custody of 46 children; 0.3%. Swedish statistics show that
joint custody is the most common form of custody for both divorced and
separated parents, the figures being slightly higher among divorced parents
than among separated parents who have not been married to each other.44
III. Other Persons
27.
Under what conditions, if at all, can the partner of a parent holding parental
responsibilities obtain parental responsibilities, when, he/she is:
(a) Married to that parent
According to
Swedish law parental responsibilities are almost exclusively a right and an
obligation of the parents. A child can have no more than two legal custodians
or guardians at a time. As long as one or both parents are fit custodians, no
other custodian can be appointed. It follows that it is not possible for a
step-parent to obtain parental responsibilities as long as these belong to a
parent. Adoption of the child is the only exception to the rule, Chapter 4 Sec.
3 Swedish Children and Parents Code. This requires, in addition to the general
conditions for adoption, that the other spouse is the sole custodian of the
child and consents to the adoption.
(b)
Living with that parent in a formalised relationship (registered partnership,
civil union, pacte civil de solidarité…);
Since 2003, a
registered partner may adopt his or her partner’s child and thereby obtain full
parental responsibilities.45 The same conditions apply as when a spouse wishes
to adopt the other spouse’s child.
(b) Living with that parent in a non-formalised relationship
A person living in
a non-formalised relationship with the child’s parent is excluded from
obtaining parental responsibilities in respect of the child.46 In Swedish law,
cohabitees cannot adopt each other’s children.
28. Does it make any difference if the partner of the parent holding parental
responsibilities is of the same sex?
Since 2003, there are no differences in treatment between heterosexual and
homosexual step-parents as regards parental responsibilities.
29. How, if at all, is the attribution of parental responsibilities in the
partner affected by the ending of his/her relationship with the parent?
Distinguish according to the different relationships referred to in Questions
27 and 28.
In Swedish law, it is only through adoption that a step-parent can obtain
full parental responsibilities over a child. Where an adoption has taken place,
the end of the relationship between the parent and his or her partner has no
legal effect on the adoptive parent’s parental responsibilities.
A child, on the other hand, has the right to contact with persons
particularly close to him or her. The person with custody of the child is
responsible for ensuring that the child’s need of contact is met, Chapter 6
Sec. 15 Swedish Children and Parents Code. The child’s right to contact
primarily aims at ensuring contact between the child and his or her
relatives e.g. grandparents, but can also include other
persons emotionally close to the child, such as a former step-parent.47 It
should be noted that a step-parent48 who wishes to have contact
with the child does not have an independent right to initiate proceedings to
obtain a contact order. Proceedings can be initiated only by the local social
welfare committee, Chapter 6 Sec. 15a Swedish Children and Parents Code. There
are no published cases on this.
The legal nature of the former step-parent’s (former) relationship to the
holder of parental responsibilities is irrelevant in these respects.
30. To what extent, if at all, is the parent holding parental responsibilities
and his/her partner free to agree upon the attribution of parental
responsibilities after the ending of his/her relationship with the parent?
Distinguish according to the different relationships referred to in Questions
27 and 28.
Unless the child was adopted by the parent’s spouse or registered partner,
no such agreements can be entered into. A custodial parent cannot validly
attribute custody rights to a former step-parent.49
31.
Under what conditions, if at all, can other persons not being a parent or a
partner of a parent holding parental responsibilities, obtain parental
responsibilities (e.g. members of the child's family, close friends, foster
parent…)? Specify, where such other persons may obtain parental responsibilities,
if it is in addition to or in substitution of existing holder(s) of parental
responsibilities.
According to
Swedish law a child cannot have more than two legal custodians at a time.
Entrusting custody to persons other than the parents denotes a transfer of
custody, the existing holder(s) of parental responsibilities being substituted
by other custodians.
Custody can be
entrusted to a non-parent in three situations: (1) when the parents are unfit
to exercise custody, (2) when the child has been cared for in a home other than
the parental home and it is in the best interests of the child that custody be
transferred to the persons who have been caring for the child, and (3) when the
parents die. (This last situation is dealt with under Q 33.)
The first
situation arises when the parent exercising custody of a child is guilty of
abuse or neglect or is otherwise behaving in a manner that entails an enduring
risk to the child’s health or development, Chapter 6 Sec. 7 Swedish Children
and Parents Code. If both parents have custody and this behaviour only applies
to one of them, the court shall entrust sole custody to the other parent. If
both parents are wanting in their behaviour, the court shall transfer custody
to one or two specially appointed custodians. In practice it is very seldom
that custody is transferred from the parent(s) on this ground; the child is
considered to be sufficiently protected through child protection measures such
as placing the child in another home for care.50 The person receiving the child
for care will be in charge of the daily care of the child. The local social
welfare committee has the duty to contribute to the child’s good care and
upbringing, a favourable living environment and suitable education. To this
end, the social welfare committee shall provide the custodians and the persons
caring for the child with advice, support and other necessary assistance,
Chapter 6 Sec. 7 Swedish Social Services Act. It should however be emphasised
that neither the person receiving the child for care in another home nor the
social welfare committee obtain parental responsibilities according to the
Children and Parents Code.51
The second situation arises when social welfare authorities place the child
for care in another private home according to the Swedish Social Services Act
(2001:453) or the Swedish Care of Young Persons Act (1990:52). Normally, such a
placement is also the result of the parents’ abuse or neglect of the child and
the placement often becomes of long duration. On the condition that it is
manifestly in the best interests of the child to secure continuity in the
caring of the child, the court may transfer the custody of the child to the
person(s) in charge of the child’s care (“family home parents”), Chapter 6 Sec.
8 Swedish Children and Parents Code. The “family home parents” (foster parents)
will in this case be specially appointed custodians for the child.52 This
possibility of transferring custody is only rarely used in practice.53 This
has to do with an unwillingness to deprive parents of custody (thus regarding
them unsuitable), as well as a fear that transferring custody from the parents
would negatively affect the child’s contact with them. In addition there is an
overall uncertainty as to how the child’s best interests should be assessed in
a situation like this. Thus, the 2003 reform of the Swedish Care of Young
Persons Act obliging the social welfare committee to consider, as soon as the
placement of the child in a particular private home has lasted for three years,
if there are reasons to transfer custody to the foster parents, has had a
limited effect.54 Questions concerning transfer of custody to
foster parents will be considered by the court on application of the social
welfare committee. The foster parents cannot by themselves initiate a transfer
of custody, but they have to consent to a transfer.
Normally, a specially appointed custodian normally also becomes the child’s
guardian, but exceptionally another person can be appointed as guardian,
Chapter 10 Sec. 3 Swedish Children and Parents Code. It is also possible to
appoint several guardians e.g. if the child’s economic affairs
are complex, or if the parents with custody are not suitable to act as
guardians, Chapter 10 Sec. 8 Swedish Children and Parents Code.
32. Under what conditions, if at all, can a public body obtain parental
responsibilities? Specify, where it is so obtained, if it is in addition to or
in substitution of existing holder(s) of parental responsibilities.
When a child, through measures taken by social welfare committee, is
removed from the parents’ care in order to protect the child from abuse or
neglect, the daily care of the child is entrusted to the person in charge of
the home receiving the child.55 In most cases, however, the
parents retain their legal custody of the child. The social welfare committee
has the duty to contribute to the child’s good care and upbringing, a
favourable living environment and suitable education. To this end, the social
welfare committee shall provide the custodians and the persons caring for the
child with advice, support and other necessary assistance, Social Services Act,
Chapter 6, Section 7.
In these situations it might be possible to claim that the social welfare
committee obtains certain parental responsibilities, but not according to
provisions of the
Children and
Parents Code.56 Generally speaking, however, the idea of entrusting parental
responsibilities to a public body does not fit at all into the Swedish system
and terminology, based on a division of rights to custody and guardianship.
33. To whom are the parental responsibilities attributed in the case of:
(a) The death of a parent holding parental responsibilities
If both parents
have custody of a child and one of them dies, the other parent becomes sole
custodian of the child, Chapter 6 Sec. 9 Swedish Children and Parents Code. If
the sole custodian of a child dies, the court shall, upon the application of
the other parent or upon notification by the social welfare committee, entrust
custody to the other parent. In the latter case, if it is considered more
appropriate, the court may instead entrust custody to one or two specially
appointed custodians. In an appellate court decision RH 1983:53, the sole
custodial parent of an eleven-year-old boy died. The dead father’s cohabitee
was appointed as custodian of the child in accordance with the child’s wishes.
The person having custody of the child is also guardian to the child,
Chapter 10 Sec. 2 to 3 Swedish Children and Parents Code.
(b)
The death of both parents of whom at least one was holding parental
responsibilities at the time of the death
If both parents
die, the court shall, upon notification by the social welfare committee or when
the situation otherwise becomes known, entrust custody to one or two specially
appointed custodians, Chapter 6 Sec. 9 para. 1 Swedish Children and Parents
Code.
34.
To what extent, if at all, may the holder(s) of parental responsibilities
appoint a new holder(s) upon his/her/their death? If such an appointment is
permitted, must it take place in a special form, e.g. will?
If the court is to
appoint a custodian after the death of the child’s parents and the parents (or
one of them) have made known who they wished to be appointed custodian, the
court shall appoint that person, unless it is inappropriate to do so, Chapter 6
Sec. 10a para. 4 Swedish Children and Parents Code. Although the parents’
wishes are normally respected, the best interests of the child must be the
primary consideration of the court. If the child has reached a sufficient
degree of maturity and is opposed to the appointment of the person chosen by
the parents, it is not appropriate to appoint that person.57 It is also
possible that the circumstances changed to such an extent, after the stipulation
was made, that it is no longer appropriate to follow it.
The provision
regarding guardianship in case of the death of both parents is identical to the
one on custody and found in Chapter 10 Sec. 7 Swedish Children and Parents
Code. The persons suggested by the parents shall be appointed guardian, unless
it is inappropriate to do so.
The manifestation of the parents’ will concerning custody and guardianship
does not have to take place in a special form, but it does need to be expressed
with reasonable certainty.58
D. THE EXERCISE OF PARENTAL RESPONSIBILITIES
I. Interests of the Child
35. In exercising parental responsibilities, how are the interests of the child
defined in your national legal system?
The best interests of the child are the primary consideration when
determining issues concerning custody, residence and contact. No specific
definition is given on how the notion of the best interests of the child is to
be understood because its content may vary depending on the prevailing values
and morals of the society as well as the circumstances of the individual case.
The point of departure is found in Children and Parents Code, Chapter 6,
Section 1, stating that children are entitled to care, security and good
upbringing. Children are furthermore to be treated with respect and may not be
subjected to corporal punishment or other humiliating treatment.
Certain basic considerations characterise the Swedish position, i.e., (1)
respect of the child’s human dignity and need of special protection due to his or
her vulnerable position,59 (2) assessing the child’s best
interests on the basis of the circumstances of each individual case,60 and
(3) having regard to the wishes of the child while taking into account the
child’s age and maturity.
The present legislation is based on the assumption that joint custody,
generally speaking, is in compliance with the best interests of the child and
that the child needs close and good contact with both parents. Parental
agreements are encouraged, the aim being to keep parental disputes out of court
as far as possible.
II. Joint Parental Responsibilities
36. If parental responsibilities are held jointly by two or more persons, are
they held equally?
When parents have joint custody of their child, parental responsibilities
are equally held, and the parents are, in principle, obligated to decide all
issues concerning the child jointly, Chapter 6 Sec. 13 Swedish Children and
Parents Code. The same applies as regards guardianship, Chapter 12 Sec. 12
Swedish Children and Parents Code.
37.
If parental responsibilities holders cannot agree on an issue, how is the
dispute resolved? For example does the holder of parental responsibilities have
the authority to act alone? In this respect is a distinction made between
important decisions and decisions of a daily nature? Does it make any
difference if the child is only living with one of the holders of the parental
responsibilities?
The starting point
is that parents with joint custody (or specially appointed custodians) shall jointly
decide on issues concerning the child, Chapter 6 Sec. 13 Swedish Children and
Parents Code. If they cannot agree on relevant issues, the ultimate solution is
to apply for a court order on sole custody of the child.61
When the child
lives with only one of the parents having joint custody, the residential
custodian may make decisions of a daily nature without the consent of the other
custodian. This right includes decisions regarding the child’s meals, clothing,
bed-time routines and leisure-time activities. A suggestion to clarify the
decision-making power of the residential parent was turned down in connection
with the law reform of 1998, and uncertainty remains as to its scope.62
The child’s
guardians are also to act jointly. The law does not give one of the guardians
the right to make decisions alone. However, in case of disagreement it is
possible to turn to an authority called “Chief Guardian” (överförmyndaren) for
a decision.
38.
If holders of parental responsibilities cannot agree on an issue, can they
apply to a competent authority to resolve their dispute? If applicable, specify
whether this authority's competence is limited to certain issues e.g. residence
or contact.
Parents with joint
custody can receive assistance in the form of cooperation discussions,
supervised by the local social welfare committee, to enable them to agree on
issues concerning custody, residence and contact, Chapter 6 Sec. 18 Swedish
Children and Parents Code. If the parents fail to reach an agreement on such an
issue, the remaining option is to take the matter to court.
There is no
authority competent to resolve disputes other than attribution of custody or
concerning residence and contact, e.g., the child’s education or religious
upbringing. The only solution is to apply for sole custody.63 It is, however,
not certain that the court will grant such an application, unless both parents
are opposed to joint custody.
If the guardians
are in disagreement about what actions are to be taken in respect to the
child’s property, the matter can be referred to the Chief Guardian, Chapter 12
Sec. 12 Swedish Children and Parents Code. The opinion supported by the Chief
Guardian will then prevail.
39. To what extent, if at all, may a holder of parental responsibilities act
alone if there is more than one holder of parental responsibilities?
If owing to absence, illness or some other reason, one of the persons with
custody is prevented from participating in custody decisions relating to the
child and the decision cannot be postponed without inconvenience, the other
person may make such a decision alone, Chapter 6 Sec. 13 para. 2 Swedish
Children and Parents Code. However, that person may not make a decision alone
that has far-reaching significance for the child’s future unless it is manifestly
required by the best interests of the child.
When the child is living with only one of the parents it is acknowledged
that the residential custodian has the right to make certain decisions
regarding the daily life of the child, without the consent of the co-custodian.64 Decisions
regarding the child’s economic interests are to be made jointly by the
guardians. The law does not give one of the guardians the right to decide
alone.
40. Under what circumstances, if at all, may the competent authority permit the
residence of the child to be changed within the same country and/or abroad (so
called relocation) without the consent of one of the holders of parental
responsibilities?
If the custodians cannot reach an agreement on the child’s residence the question
of who the child will live with can be referred to the court, Chapter 6 Sec.
14a Swedish Children and Parents Code. The court’s power is limited to decide
with whom the child will reside, and does not include deciding where the
child will live. In deciding who the child will live with, the court shall
consider the best interests of the child, including possibilities of contact
with both parents. A change of the child’s residence within the same country or
abroad requires the consent of the co-custodian.65 If
such consent cannot be received, application of sole custody remains the
ultimate solution. In Swedish law, a sole custodian is in principle free to
change the child’s residence, even if it means moving to another country, but
should respect the child’s right to a close and good contact with the other
parent. Relocation orders permitting e.g. a child to move
abroad with a custodial parent, are not possible under Swedish law.
41. Under what conditions, if at all, may the competent authority decree that
the child should, on an alternating basis, reside with both holders of parental
responsibilities (e.g. every other month with mother/father)?
If both parents
have joint custody of a child, the court may, upon the application of one or
both of them, decide with which of them the child shall live, Chapter 6 Sec.
14a, para. 1 Swedish Children and Parents Code. The court may also decree that
the child shall live with both parents alternately. The best interests of the
child shall be decisive. Alternate living normally presupposes that the parents
live close to one another, considering that frequent travelling is tiresome and
challenging for a child and that a child needs continuity in school attendance
and in relations with friends.66 Where the parents live close to each other it
is not uncommon in Sweden that children live on a weekly basis alternating
between both parents.
Swedish research
shows that a prerequisite for a functioning alternate living with both parents
is that the parents can cooperate in questions concerning custody. 67 This is
seldom the case when the parents are not able to agree on alternate living
arrangements for the child. In Sweden, the suitability for children under the
age of three to live with both parents alternately has been questioned.68
Parents are free
to agree on alternate living arrangements concerning their children, but to be
valid such an agreement must be in writing and approved by a local social
welfare committee, Chapter 6 Sec. 14a para. 2 Swedish Children and Parents Code.
III. Sole Parental Responsibilities
42.
Does a parent with sole parental responsibilities have full authority to act
alone, or does he/she have a duty to consult:
(a) The other parent
A sole custodian,
as a rule, has full authority to act alone in all matters concerning the child.
If the child has the same surname as the non-custodial parent, the child’s
surname can only be changed by consent of the non-custodial parent or by
decision of a court, Sec. 6 Swedish Act on Names (1982:670). An application by
the custodial parent’s spouse or registered partner to adopt the child can only
be granted after hearing the non-custodial parent (and on condition that all
the other conditions for adoption are met), Chapter 4 Sec. 10 para. 3 Swedish
Children and Parents Code.
(b) Other persons, bodies or competent authorities
The sole
custodian’s authority can be limited by the child’s own right to decide in
certain issues, a right which increases with the child’s increasing age and
maturity.
E. CONTACT
43.
Having regard to the definition by the Council of Europe (see above), explain
the concepts of contact used in your national legal system.
Rules on contact were first introduced into Swedish law in 1915, the
purpose being to ensure, by court order, the non-custodial parent’s right to
see the child. The concept of contact in modern Swedish law focuses on the
child’s need to close and good contact with both parents, Chapter 6 Sec. 2a
Swedish Children and Parents Code. The child’s need of contact with relatives
and other important persons in the child’s life is also to be met. The
interests of a parent are not explicitly considered when deciding in contact
issues.69 It is the best interests of the child that shall
prevail over all other concerns in matters regarding contact. The child’s own
wishes shall be taken into account, increasingly with the increasing age and
maturity of the child.
Basically the same approach also prevails in legislation protecting
children. When a child is placed in care in another home, the social welfare
committee has the duty to ensure, as far as possible, that the child’s need of
contact with parents and custodians is met, Sec. 14 Swedish Care of Young
Persons Act.70
44. To what extent, if at all, does the child have a right of contact with:
(a) A parent holding parental responsibilities but not living with the
child;
A child has the right to contact with a parent with whom the child is not
living, irrespective of whether that parent has custody rights or not, Chapter
6 Sec. 15 para. 1 Swedish Children and Parents Code. The child’s parents have a
joint responsibility to ensure that the child’s need of contact with a parent
with whom the child is not living is met.
(b) A parent not holding parental responsibilities
The child’s right to contact with a parent with whom the child is not
living also applies when that parent does not have custody rights, Chapter 6
Sec. 15 para. 1 Swedish Children and Parents Code. The child’s parents have a
joint responsibility to ensure that the child’s need of contact with a parent
with whom the child is not living is met. When a child is placed for care in
another home, the social welfare committee has the duty to ensure, as far as
possible, that the child’s need of contact with parents and custodians is met, Sec. 14 Swedish Care of Young Persons
Act.71
(c) Persons other than parents (e.g. grandparents, stepparents, siblings etc…)
A person with custody of a child has a responsibility to ensure that, as
far as possible, a child’s need of contact with any other person particularly
close to the child is met, Chapter 6 Sec. 15 para. 3 Swedish Children and
Parents Code. This provision aims at encouraging the child’s contact not only
with persons the child knows well and misses, but also with, e.g., relatives
who enrich the child’s development. If contact is requested by a person other
than the parents and the custodian does not agree, proceedings may only be
initiated by the social welfare committee, Chapter 6 Sec. 15a para. 1 Swedish
Children and Parents Code. Such proceedings are very rarely – if ever –
initiated, mainly because a contact order against the will of the parents is
feared to increase the level of conflict, which would be detrimental to the interests
of the child.
45.
Is the right to have contact referred to in Q 43 also a right and/or a duty of
the parent or the other persons concerned?
The starting point
in Swedish law is that contact is the right of the child; the parents are
responsible to ensure that this right is met, Chapter 6 Sec. 15 para. 2-3
Swedish Children and Parents Code.
Nevertheless, in
regard to enforcing the right to contact it remains more accurate, in a
parent-child relationship, to describe contact as a right of the parent not
living with the child. Only a parent not living with the child can initiate
proceedings concerning contact, Chapter 6 Sec. 15a Swedish Children and Parents
Code. That parent also has an exclusive right to request enforcement of
agreements or court decisions concerning contact.72 The child has no
corresponding, legally recognised right! The parent with whom the child lives
may, according to a judgment by the Supreme Court, NJA 1994 p 128, initiate
court proceedings if the purpose is to restrict a previously determined contact
with the other parent, in the best interests of the child.
If contact with
the child is requested by any other person and the custodian does not agree to
it, a court order remains the only solution. Court proceedings can, however,
only be commenced by the social welfare committee, Chapter 6 Sec. 15a Swedish
Children and Parents Code, which rarely happens. It follows that the rights and
duties concerned remain weak.
46.
To what extent, if at all, are the parents free to make contact arrangements?
If they can, are these arrangements subject to scrutiny by a competent
authority?
If the parents
have joint custody of a child, or if one of them has sole custody, they may
enter into an agreement concerning the child’s right to contact with the
non-residential parent. The agreement is valid if it is in writing, signed by
both parties and approved by the social welfare committee. The social welfare
committee shall approve of the agreement if it complies with the best interests
of the child, Chapter 6 Sec. 15a Swedish Children and Parents Code.
47.
Can a competent authority exclude, limit or subject to conditions, the exercise
of contact? If so, which criteria are decisive?
When deciding
issues concerning contact, the best interests of the child shall always be the
primary consideration. In this respect, the law mentions certain factors to be
taken into account, Chapter 6 Sec. 2a and b Swedish Children and Parents Code.
These include the child’s need for close and good contact with both parents,
and the risk of the child abuse, kidnapping or other harm. Regard shall be
given to the child’s wishes, taking into account the child’s age and maturity.
Therefore, ensuring of the best interests of the child presupposes a right for
the court to submit the exercise of contact to certain conditions and, in some
cases, to even exclude contact with a parent.
Decisive criteria for excluding contact include the risk of the child being
abused, unlawfully removed or detained, or otherwise suffering harm. It has
been suggested in the legal literature that the risk of unlawful removal or
detention of the child might lead to full exclusion of contact.73 Also
a conflict deep and ongoing enough to prevent them from cooperating regarding
the child may result in the exclusion of contact, at least for a limited time.74 Furthermore,
the child’s opinion shall be regarded, bearing in mind that a decree on contact
generally cannot be enforced against the wish of a child who has reached the
age of twelve.75
Swedish courts are generally very reluctant to exclude contact with a
parent altogether, since such a decision is perceived as an infringement on the
child’s right to a close and good contact with both parents. The balance
between the child’s need of contact with both parents and the risk the contact
might entail arose in a case examined by the Supreme Court, NJA 2003 p.
372. The father of a three-year-old girl requested contact; the mother had
sole custody. In the Court’s opinion the father’s personality (at the time of
the decision) entailed a concrete risk that the child could be psychically
harmed by contact with the father. This risk could, however, be neutralized if
contact were limited to three hours every other week, which the Court also
ordered. In addition the Court ordered that the contact should take place in
the presence of a representative from the social welfare committee. Such
restrictions are not unusual measures, ordered to prevent abusive contact. The
court can also stipulate conditions regarding where the contact shall take
place, Chapter 6 Sec. 15 para. 3 Swedish Children and Parents Code. In case the
non-residential parent lives abroad, it might be necessary for the court to
order that contact may only take place within the country of the forum.
When parents contact the social welfare committee for approval of their
agreement on contact, all of the stipulations must be approved by the committee, save stipulations for travel costs resulting from the exercise of
contact.76 The social welfare committee can, with reference to
the best interests of the child, require that certain issues are regulated in detail in
the agreement.77
48. What if any, are the consequences on parental responsibilities, if a holder
of parental responsibilities with whom the child is living, disregards the
child's right to contact with:
(a) A parent
The child’s right
to contact with the non-residential parent is considered very important. In
several relatively recent judgments, the Supreme Court has addressed what
effect is to be given to the residential parent’s disregard of the child’s
contact with the other parent. In NJA 1989 p. 335 concerning a custody dispute
between the parents of a seven-year-old girl, (sole) custody was entrusted to
the father since the mother had obstructed contact between the child and her
father and it was assumed she would continue to do so, if custody continued to
be entrusted to her. Of relevance to the outcome was that the child was
considered to be able to deal with the changes resulting from moving to the
father.
However, with the
best interests of the child as the primary consideration, factors other than
obstruction of contact may be considered more important. The decision of the
Supreme Court in NJA 1998 p. 675, concerning custody of a three-year-old boy,
illustrates this. The boy had lived all of his life with his mother, who
systematically denied contact between the boy and his father. The father
requested a court order granting him sole custody. The Court found that the boy
had a great need for contact with his father but that a transfer of custody to
the father would entail a total change of the boy’s life, which would not be in
accordance with his best interests. As a result, the mother maintained sole
custody of the child.
(b) Other persons
A person with
custody of a child has a responsibility to ensure that, as far as possible, the
child’s need for contact with persons particularly close to the child is met.78
If a custodian neglects this duty, it is up to the social welfare committee to
initiate court proceedings. A condition is that the committee finds contact to
be in the best interests of the child.79 There are no published cases where
contact has been granted as a result of a social welfare committee’s decision
to take the issue to court.
F. DELEGATION OF PARENTAL RESPONSIBILITIES
49.
To what extent, if at all, may the holder(s) of parental responsibilities
delegate its exercise?
A custodial parent
may, in co-operation and with approval of the local social welfare committee,
entrust the care of the child to persons in a private home other than the
parental home according to the Swedish Social Service Act (2001:453). Although
the child in this case does not live with the custodial parent, the parent
retains his or her legal right of custody. The daily care of the child, on the
other hand, is entrusted to the person(s) in the home that has received the
child for care and is supervised by the social welfare committee.
50.
To what extent, if at all, may a person not holding parental responsibilities
apply to a competent authority for a delegation of parental responsibilities?
If only one of the parents has custody of the child and the other parent
wishes the custody to be changed, he or she can make an application to court
asking for joint or sole custody, Chapter 6 Sec. 5 Swedish Children and Parents
Code. This right applies only to the child’s parents. The only situation in
Swedish law where another person may request the right to take part of parental
responsibilities is when a person close to the child contacts the social
welfare committee, asking it to initiate court proceedings for the
establishment of contact.80
F. DISCHARGE OF PARENTAL RESPONSIBILITIES
51. Under what circumstances, if at all, should the competent authorities in
your legal system discharge the holder(s) of his/her/their parental
responsibilities for reasons such as maltreatment, negligence or abuse of the
child, mental illness of the holder of parental responsibilities, etc.? To what
extent, if at all, should the competent authority take into account a parent’s
violent behaviour towards the other parent?
The court shall entrust custody to the other parent alone or to one or two
specially appointed custodians if the parent who is exercising custody of a
child is guilty of abuse or neglect or is otherwise behaving in a manner that
incurs an enduring risk to the child’s health or development, Chapter 6 Sec. 7
Swedish Children and Parents Code.81
The transfer of custody stipulated by this provision to one or two
specially appointed custodians is very rarely used.82 Restriction
of its application is, instead, recommended. It is normally considered
sufficient for social welfare authorities to take measures to protect the
child e.g. removing the child from the abusing or negligent
parents’ care. The child is then placed in care in a private home authorised to
receive children for care. The child is considered to be sufficiently protected
through these measures, stipulated in the Swedish Social Services Act
(2001:453) and Swedish Care of Young Persons Act (1990:52), and the parents
retain their legal custody.
Furthermore, a transfer of custody according to Chapter 6 Sec. 7 Swedish
Children and Parents Code, presupposes that there is a person willing to take
over the responsibility. That person must also have a close relationship with
the child, so that the child accepts him or her as a custodian. A decision to immediately
discharge a parent of custody is usually only made if the other parent is
suitable to take sole custody of the child. If this is not the case, custody is
usually not transferred unless the child has resided in another home for at
least three years,83 the placement has worked out
satisfactorily and the person in charge of the child’s care is willing to be
entrusted custody.84
Often the issue of
what effect a parent’s behaviour will have on custody of the child (and
contact) arises in connection with a custody dispute between the parents. The
Supreme Court judgment, NJA 2000 p. 345, concerns the effect to be given to a
parent’s violent behaviour towards the other parent. The Court stated that a
parent’s violent behaviour towards the child or the other parent constitutes a
factor making that parent unfit as a custodian. However, one prior case of
assault on the child’s mother was not considered enough to make the father
unfit as a custodian.85
52.
Who, in the circumstances referred to in Q 51, has the right or the duty to
request the discharge of parental responsibilities?
Questions
concerning a change of custody in these circumstances shall be considered by
the court, on the application of the social welfare committee, Chapter 6 Sec. 7
para. 4 Swedish Children and Parents Code. In divorce cases between the parents
or when the custody otherwise is being considered by the court, the court shall
on its own motion consider any necessary change in custody. A parent wishing to
discharge the other parent of parental responsibilities may furthermore apply
for sole custody in court, Chapter 6 Sec. 5 Swedish Children and Parents Code.
53.
To what extent, if at all, are rights of contact permitted between the child
and the previous holder of parental responsibilities after the latter has been
discharged of his/her parental responsibilities?
When the child is
placed in care due to measures taken by the social welfare committee, the
committee has an obligation to ensure, as far as possible, that the child’s
need for contact with the parents and custodians is met, Sec. 14 Swedish Care
of Young Persons Act. If necessary, the social welfare committee may decide
upon how the child’s contact with the parents (and custodians) shall be
exercised. The social welfare committee may also decide that the child’s
residence shall not be disclosed to the parents or custodians.
When a parent has
lost custody of the child, sole custody having been entrusted to the parent
with whom the child is living, the reasons the parent was discharged of custody
is given weight. A factor such as a parent’s violent behaviour towards the
child or the other parent can be decisive to the outcome in contact
proceedings, justifying contact to be limited or subjected to certain conditions.86
The point of departure is always to ensure the child’s right to contact with a
parent with whom the child is not living, Chapter 6 Sec. 15 Swedish Children
and Parents Code. This duty rests on the custodial parent or, where special
custodians have been appointed, on the latter.
54. To what extent, if at all, can the previous holder(s) of parental
responsibilities, who has been discharged of his/her parental responsibilities,
regain them?
If custody has been transferred to one or two specially
appointed custodians according to Chapter 6 Sec. 7 Swedish Children and Parent
Code, and one of the parents wishes custody to be transferred to him or her, or
both so wish, the court shall decide in accordance with the best interests of
the child, Chapter 6 Sec. 10 Swedish Children and Parents Code. Questions
concerning transfer of custody in this situation shall be considered on the
application of one or both parents or on the application of the social welfare
committee.
A parent who has lost custody, residence or contact in a dispute with
the other parent, for whatever reason, is free to commence new proceedings
concerning the matter and request a change in the current position at any time,
Chapter 6 Sec. 5 and 15a Swedish Children and Parents Code.
H. PROCEDURAL ISSUES
55. Who is the competent authority to decide disputes concerning parental
responsibilities, questions of residence of the child or contact? Who is the
competent authority to carry out an investigation relating to the circumstances
of the child in a dispute on parental responsibility, residence or contact?
Disputes concerning custody, residence or contact shall be considered
by the district court in the place where the child habitually resides or, if
raised in conjunction with an application for divorce, by the competent divorce
court, Chapter 6 Sec. 17 para. 1 Swedish Children and Parents Code. The court
shall ensure that questions concerning custody, residence and contact are
properly investigated, Chapter 6 Sec. 19 Swedish Children and Parents Code.
Before deciding such an issue, the court shall give the social welfare
committee the opportunity to submit information. The committee has the duty to
supply the court with any information which could be of significance for the
assessment of the question. If further inquiries are necessary, the court may
instruct the social welfare committee or some other body to appoint a person to
investigate the child’s situation. The court may lay down guidelines for this
investigation and set a date by which it is to be completed.
Questions concerning change of guardian are decided by the district
court, Chapter 10 Sec. 13 Swedish Children and Parents Code. Questions
concerning the guardians’ administration of the child’s assets are handled by
the Chief Guardian in the community where the child has his or her habitual
residence, Chapter 16 Sec. 2 Swedish Children and Parents Code.
56. Under what conditions,
if any, may a legally effective decision or agreement on parental
responsibilities, the child’s residence or contact, be reviewed by a competent
authority? Is it, e.g., required that the circumstances have changed after the
decision or agreement was made and/or that a certain period of time has time
has passed since the decision or agreement?
In principle, a party unhappy with a court decree on custody,
residence or contact, is free to initiate new court proceedings on the same
issue at any time. The fact that the court’s decision is legally effective and,
as a result, enforceable does not in any way limit the right to initiate new
proceedings. An agreement between the parents on custody, residence and
contact, approved by the social welfare committee and, thus, enforceable may
also be replaced at any time by a new agreement between the parents. To be
legally effective, the new agreement must also be approved by the social
welfare committee.87 A valid agreement between the parents on custody,
residence and contact does not prevent a parent from taking the issues to
court. It is also possible to alter a previous court decree through an
agreement, on the condition that the agreement is approved by the social
welfare committee.88
Swedish law does not require for circumstances to have changed after
the decision or agreement was made, or that a certain period of time has passed
after the initial decision or agreement. 89 According to the Swedish outlook
any other approach could be detrimental to the interests of the child. However,
it can be assumed that a parent needs to claim that the circumstances have
changed in some respect, although the burden of proof in this respect must be
kept low. According to the Chapter 42 Sec. 5 Swedish Code of Civil Procedure
(Rättegångsbalken), the court may give a judgment without conducting a full
hearing when it is clear that the claim is unfounded. This provision can be
used to prevent a parent from abusing the right to initiate court proceedings
without reason.
As regards the parents’ right to replace an earlier agreement with a
new agreement, there are no explicit provisions stating that a certain period
of time must have passed. However, agreements concerning parental
responsibilities should aim at providing long-term solutions for the child and
should therefore be carefully prepared before they are approved by the social
welfare committee. Agreements concerning contact are often limited in time and
more frequently renegotiated, which is justified due to the fact that a child’s
need of contact with the non-residential parent may vary depending on the child’s
age.90
57. What alternative disputes solving mechanisms, if any e.g. mediation
or counselling, are offered in your legal system? Are such mechanisms also
available at the stage of enforcement of a decision/agreement concerning
parental responsibilities, the child’s residence or contact?
Parents can receive assistance in form of cooperative discussions
with a view to reaching an agreement on questions of (attribution of) custody,
residence and contact, Chapter 6 Sec. 17a and 18 Swedish Children and Parents
Code.91 The court where an issue on custody, residence or
contact is pending may instruct the social welfare committee to arrange for
cooperative discussions and adjourn the case for a certain period of time.92 The
parents can also receive counselling, focusing on their relationship and trying to solve their
conflicts.93 The cooperative discussions are voluntary and the
parents cannot be forced to participate. If the parents cannot reach an agreement,
the court must decide.
At present, applications for enforcement of a court decree or an
agreement on custody, residence or contact are handled by administrative
courts.94 Although the court is expected to act speedily, it is
also recognised that it is always in the best interests of the child to seek
voluntary solutions. The court may therefore instruct a member of the social
welfare committee, or certain other persons, to ensure that the person with the
child in his or her care voluntarily carries out the decision or agreement,
Chapter 21 Sec. 2 Swedish Children and Parents Code. A person given such
instructions should report back to the court within two weeks on steps that
have been taken and on any other circumstances that may have emerged.
58. To what extent, if at all, is an order or an agreement on parental
responsibilities, the child’s residence or contact enforceable and in practice
enforced? Describe the system of enforcement followed in your national legal
system. Under what conditions, if at all, may enforcement be refused?
Court orders, as well as agreements between the parents on custody,
residence and contact are enforceable.95 An agreement must,
however, be in writing, signed by both parents and approved by the social
welfare committee to be enforceable. At present, applications of enforcement
are sent to administrative county courts. It is possible that a future law
reform will transfer issues of enforcement to the district courts.
Enforcement shall be effected speedily and, as far as possible,
voluntarily with the assistance of the social welfare committee. If voluntary
efforts are found to be fruitless, the county administrative court may attach a
penalty of a fine for non-compliance with the enforcement order, or decide that
the child is to be collected by the police authority, Chapter 21 Sec. 3 para. 1
Swedish Children and Parents Code. As to custody, residence or surrender of a
child, a decision regarding collection of the child may be given if enforcement
cannot be achieved in any other way or if collection is necessary to prevent
the child from suffering serious harm, Chapter 21 Sec. 3 para. 2 Swedish
Children and Parents Code. As regards a judgment or decision concerning contact
between the child and a parent with whom the child is not living, collection of
the child may be ordered on the condition that it is the only way to achieve
enforcement and the child has a particularly strong need for contact with that
parent, Chapter 21 Sec. 3 para. 3 Swedish Children and Parents Code.96
The administrative county court may refuse enforcement if the
circumstances have manifestly changed after the judgment or decision on
custody, residence or contact was made or after the parents’ agreement was
approved by the social welfare committee and it is in the best interests of the
child that the issue is reviewed (in this case by the district court). A review
by the district court presupposes an application by a person who was a party to
the case concerning enforcement at the county administrative court or an
application by the social welfare committee, Chapter 21 Sec. 6 para. 1 Swedish
Children and Parents Code. The county administrative court also may refuse
enforcement if there is a significant risk of harm to the child’s physical or
mental health, Chapter 21 Sec. 6 para. 2 Swedish Children and Parents Code. The
extent of the court’s authority to refuse enforcement is limited, the main
principle being that a decision or an agreement shall be enforced unless
circumstances have manifestly changed or the child’s best interests demand a
review.97
In cases concerning enforcement of agreements or court orders
regarding custody, residence or contact, special attention shall be paid to the
child’s own wishes. Consequently, Chapter 21 Sec. 5 Swedish Children and
Parents Code provides that enforcement against the wishes of a child who has
reached the age of twelve, or a corresponding level of maturity, cannot be
ordered unless it is necessary with regard to the best interests of the child.
The provision is applicable when the administrative county court decides
questions concerning enforcement of orders or agreements on custody, residence
or contact, as well as when the police execute decisions on collection in these
cases.98
59. To what extent, if at
all, are children heard when a competent authority decides upon parental
responsibilities, the child’s residence or contact, e.g., upon a dispute, when
scrutinising an agreement, when appointing or discharging holder(s) of parental
responsibilities, upon enforcement of a decision or agreement?
Regard shall be paid to the wishes of the child, taking the child’s
age and maturity into account, Children and Parents Code, Chapter 6, Section 2
b. The obligation to investigate the wishes of the child, as far as possible,
applies to court proceedings concerning custody, residence and contact, as well
as to the work of the Social Welfare Committee.99
Paying regard to the wishes of the child does not, however,
necessarily entail that the child is personally heard. The court shall ensure
that questions regarding custody, residence and contact are properly
investigated by instructing the social welfare committee to appoint a person to
make inquiries into the matter, Chapter 6 Sec. 19 Swedish Children and Parents
Code. The person conducting inquiries shall, if it is not inappropriate, seek
to ascertain the views of the child and report them to the court (para. 4). In
less complicated matters e.g. in connection with cooperative
discussions where there is no deep conflict between the parents, an indirect
picture of the child’s situation through the parents’ descriptions can be
sufficient. However, direct contact with the child is often required in order
to secure the child’s right to be heard in matters concerning the child.100 Furthermore,
the child may be heard before the court if there are special reasons for doing
so and it is clear that it will not harm the child to be heard (para. 5).
Research indicates, however, that children are not heard to the extent desirable.101 In
2002, a parliamentary committee was appointed to consider rules guaranteeing
children the opportunity to be heard and have their wishes taken into account.
As to enforcement, the present law contains no explicit provision on
the child’s right to be heard, save the provision in Chapter 21 Sec. 5 Swedish
Children and Parents Code. According to this provision, enforcement may not be
ordered contrary to the wishes of a child who has reached the age of twelve
years, unless the administrative county court considers the enforcement
necessary for the best interests of the child. The same also applies in respect
to a younger child who has attained such a degree of maturity that his or her
wishes should be taken into account.
60. How will the child be heard (e.g. directly by the competent authority, a
specially appointed expert or social worker)?
The child can be heard in various ways. Most frequently one or both
parents report the opinion of the child to the deciding authority. The social
welfare committee may decide to talk with the child on its own initiative,
e.g., in connection with cooperative discussions taking place between the
parents.102 When deciding upon custody issues , residence and contact the court
may instruct the social welfare committee to appoint somebody to make
inquiries, including the child’s opinions unless it is inappropriate, and
report it to the court.103 The child may also be heard by the court, if there
are special reasons for doing so and it is clear that it will not harm the
child. This possibility is to be applied restrictively, the idea being that it
is normally sufficient to present the child’s viewpoint through an inquiry
conducted by e.g. a social worker.104
61. How, if at all, is the child legally represented in disputes
concerning:
(a) Parental responsibilities
According to Swedish law, the child is not a party to disputes
concerning custody, residence or contact, but has the right to be heard. The
interests of the child are protected by the court, which has the duty to ensure
that questions concerning custody, residence and contact are properly
investigated through assistance of the social welfare committee. Disputes on
parental responsibilities are outside the parties’ rights of disposal and the
court must ex officio regard the child’s best interests, independently of the
requests of the parties.
The child’s legal representation is somewhat different in proceedings
governed by the Social Services Act (2001:453) and the Care of Young Persons
Act (1990:52). Parties to such proceedings are the child’s custodians and the
social welfare committee. Children who have reached the age of 15 years are
entitled to speak on their own in the proceedings.105 Younger children have the
right to a legal representative of their own, replacing the custodian as the
child’s legal representative. These children also have the right to be heard if
it can benefit the investigation and it can be presumed that the child will not
suffer harm from being heard.106
Normally, the custodian is also the guardian of a child. The guardian
represents the child in proceedings concerning the child’s property, Chapter 12
Sec. 1 Swedish Children and Parents Code. A child who has reached the age of
sixteen has the right to apply to court for the discharge or appointment of a
guardian. The child may be heard in the case, but he or she is not a party to
the proceedings, Chapter 10 Sec. 18 Swedish Children and Parents Code.
(b) The child’s residence
The child is not a party to the dispute but has the right to be
heard. The court protects the child’s interests ex officio, see above under Q
61a.
(c) Contact
The child is not a party to the proceedings but has the right to be
heard. The court protects the child’s interests ex officio, see above under Q 61a.
62. What relevance is given in your national legal system to the age and
maturity of the child in respect of Q 59-61?
According to
Chapter 6 Sec. 2b Swedish Children and Parents Code, the child’s wishes, with
the child’s age and maturity taken into account, shall be regarded when
determining questions concerning custody, residence and contact. There is no
explicit age-limit specifying when the wishes of the child should be given
special regard. In a case decided by the Supreme Court, NJA 1995 p. 398, the
clearly expressed wishes of a thirteen-year-old girl were decisive for
entrusting her father with sole custody, in spite of the fact that there were
doubts, according to the Court, as to the father’s suitability as a custodian.
The weight given to the child’s wishes in this case is in line with the
rules concerning enforcement of court orders or parental agreements on custody,
residence and contact. According to Chapter 21 Sec. 5, enforcement may not be
ordered against the wishes of a child who has reached the age of twelve or a
corresponding level of maturity, unless enforcement is necessary with regard to
the best interests of the child. The same applies when the police authority is
to execute a decision on collection of the child. The relevance given to the
wishes of a child under the age of twelve is assessed individually. There are
no official guidelines in this respect.
1 The introduction of the concept of parental responsibilities was
considered, but rejected in Sweden in the 1970’s and 1980’s. The issue of
terminology re-emerged in the mid 1990’s. The present terminology, consisting
of concepts such as custody, contact, the child’s residence, and guardianship
was each time found adequate and well-established. See Å. SALDÉN, Barn
och föräldrar, Uppsala: iustus Förlag, 2001, p. 71-72.
2 The age of majority was lowered to 18 years in 1974, compared with the
previously appli-cable 20 years (1969-1974). Before 1969, a child reached
majority at the age of 21.
3 These enactments consisted of Act on marital birth (1917), Act on children
born out of wedlock (1917), Act on adoption (1917), Act on children born in
wedlock (1920) and Act on guardianship (1924).
4 The main travaux préparatoires consist of the following
committee reports (SOU) or Gov-ernmental Bills (Prop.): SOU 1946:49
Ärvdabalkssakkunnigas förslag till föräldrabalk, Prop 1949:93. See also LU
1949:34 Första lagutskottets utlåtande i anledning av dels Kungl. Maj:ts
proposition med förslag till föräldrabalk, m.m., dels ock i ämnet väckta
motioner.
5 For a comprehensive enumeration of the legislative steps taken, see Å.
SALDÉN, Barn och föräldrar, Uppsala: Iustus förlag,
2001, 4th Edition, p. 13-26.
6 Prop 1981/82:168, p. 41 et seq.
7 Prop 1992/93:139.
8 Prop 1990/91:8. See: Chapter 6 Sec. 18 Swedish Children and Parents Code,
revised in 2001.
9 Prop 1997/98:7.
10 Registered Partnership Act (1994:1117). The Act entered into force on
01.01.1995.
11 Kommittédirektiv 2002:89 Vårdnad, boende, umgänge.
12 Gemensam vårdnad för ogifta föräldrar samt en språklig och redaktionell
översyn av 6 kap. föräldrabalken (“Joint custody for unmarried parents”).
13 Utövandet av barnets rättigheter i familjerättsprocesser (“The exercise of
the rights of the child in family law proceedings”).
14 Föräldraskap vid assisterad befruktning för homosexuella (”Parenthood in
connection with artificial fertilisation of homosexuals”)
15 European Treaty Series, No. 160.
16 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 12:3.
17 Chapter 6 Sec. 2 para. 2 Swedish Children and Parents Code.
18 J. SCHIRATZKI, Barnets bästa i ett mångkulturellt Sverige,
Stockholm: Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet,
2000, p. 152-155.
19 Nordisk Børneret II, Forældreansvar, Et sammenlignende studie af dansk,
finsk, islandsk, norsk og svensk ret med drøftelser af harmoniseringsmuligheder
og reformbehov, Copenhagen: Nordisk Ministerråd, 2003, p. 108.
20 J. SCHIRATZKI, Barnets bästa i ett mångkulturellt Sverige,
Stockholm, Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet,
2000, p. 154.
21 J. SCHIRATZKI, Barnets bästa i ett mångkulturellt Sverige,
Stockholm: Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet,
2000, p. 152-153.
22 See: Prop 1978/79:67. Corporal punishment of the child is criminalised if
it corresponds to such assault against another person that is criminalised in
the Swedish Penal Code. See: G. WALIN and S. VÄNGBY, Föräldrabalken, En
kommentar, Del I, 1-13 kap., Stockholm: Norstedts Juridik, 2002, p. 6:6.
23 This prohibition is also included in Art. 16 United Nations Convention on
the Rights of the Child.
24 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:6-6:7.
25 See: E. RYNNING, Samtycke till medicinsk vård och behandling,
Uppsala: Iustus Förlag, 1994, p. 285-289.
26 J. SCHIRATZKI, “Custody of Children in Sweden – Recent Developments”, Scandinavian Studies
in Law, Volume 38, Legal Issues of the Late 1990s, p. 262, with reference
to The Yearbook of the Parliamentary Ombudsmen, 1992/93, p. 439.
27 Chapter 13 Sec. 1 and Chapter 12 Sec. 3
Swedish Children and Parents Code.
28 Chapter 12 Sec. 1 Swedish Children and Parents Code.
29 See: Chapter 12 Sec. 1 with reference to Chapter 9 Sec. 3-4 Swedish
Children and Parents Code.
30 This is a result of a law reform carried out in 1994. See G. WALIN and S.
VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13 kap., Stockholm:
Norstedts Juridik, 2002, p. 12:2.
31 In 2003, one base amount was fixed to 38,600 SEK i.e. approximately
€4,200.
32 Chapter 13 Sec. 2 Swedish Children and Parents Code.
33 Chapter 9 Sec. 3 Swedish Children and Parents Code.
34 The child’s right to take employment with the consent of the custodian is
expressed in Chapter 6 Sec. 12 Swedish Children and Parents Code and the
prerequisites of the child’s right to handle that property is expressed in
Chapter 9 Sec. 3 Swedish Children and Par-ents Code.
35 Prop. 1997/98:7 p. 49.
36 Statistics Sweden, www.scb.se.
37 Statistics Sweden, www.scb.se.
38 Statistics Sweden, www.scb.se. 9,171 (almost 2%) of all children with divorced or sepa-rated parents
lived with a person other than a parent.
39 See Ds 1999:57, above under Q 6.
40 A requirement is that no custody order has previously been issued and that
the child and the parents are Swedish citizens.
41 This Supreme Court judgment was described above under Q 18. Although the
judgment concerned children of parents that had been married to each other,
there is no reason to assume the outcome would have been different had the
parents never been married to each other.
42 See answer to Q 17.
43 Statistics Sweden, www.scb.se.
44 See the statistics provided above under Q 19.
45 SFS 2002:603.
46 The only exception relates to a duty to maintain the child, under certain
conditions. Is-sues of maintenance, however, fall outside the scope of this
Report.
47 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:33.
48 The term “stepparent” is used here to describe the partner of a parent
holding parental responsibilities, regardless of the status of the
relationship. Thus step-parenthood denotes the “social parenthood” between the
adult and the child due to marriage, cohabitation or partnership registration
between the child’s parent and the stepparent. For a discussion concerning the
role of social parenthood de lege lata and de lege ferenda, see: A.
SINGER, Föräldraskap i rättslig belysning, Uppsala: Iustus
Förlag, 2000, p. 536-542.
49 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:34 and 6:61.
50 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, pp. 6:38-6:39; A. SINGER, Föräldraskap
i rättslig belysning, Uppsala: Iustus Förlag, 2000, p. 474.
51 Swedish law could be criticised for leaving the child in a “legal vacuum”.
Legal custody, which carries with it the responsibility for the custodian to
care for the child’s personal affairs, is not in line with the real situation
where somebody else cares for the child.
52 Chapter 6 Sec. 8 Swedish Children and Parents Code. Special regard is to be
paid to the wishes of the child.
53 See:
SOU 2000:77, p. 252 et seq. According to statistics from the late 1990’s, custody was tranferred from
the parent(s) only in approximately 50 cases pro year.
54 Sec. 13 Swedish Care of Young Persons Act. See also: Prop. 2002/03:53. Oral
information by the National Board of Health and Welfare, SUZANNE JUHLIN.
55 Such placements take place in accordance with the Swedish Social Services
Act (2001:453) or the Swedish Care of Young Persons Act (1990:52).
56 See answer to Q 31.
57 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:47.
58 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 10:12.
59 Huvudbetänkande från Barnkommittén, SOU 1997:116 Barnets bästa i främsta
rummet, p. 127-129.
60 Prop 1997/98:7 p 34 and 105. See also: Vårdnad, Boende och Umgänge,
Stockholm: Social-styrelsen (National Board of Health and Welfare), 2003, p.
74.
61 See also answer to Q 39.
62 See: Prop 1997/98:9, p. 55
63 Å. SALDÉN, Barn och föräldrar, Fourth Edition,
Uppsala: Iustus förlag, 2001, p. 77
64 See above, Q 37.
65 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:55.
66 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:59.
67 G. EWERLÖF, T. SVERNE, A. SINGER, Barnets bästa. Om föräldrars och
samhällets ansvar. 5:e uppl. Stockholm: Norstedts Juridik 2004 p. 57.
68 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:60.
69 Vårdnad, Boende och Umgänge, Stockholm:
Socialstyrelsen (National Board of Health and Welfare), 2003, p.
74.
70 See also: Chapter 6 Sec. 1 and 5 Swedish Social Services Act (2001:453).
71 See also: Chapter 6 Sec. 1 and 5 Swedish Social Services Act (2001:453).
72 J. SCHIRATZKI, “Custody of Children in Sweden – Recent Developments”,
Scandinavian Studies in Law, Volume 38, 1999, p. 258.
73 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:69.
74 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:67.
75 Chapter 21 Sec. 5 Swedish Children and Parents Code.
76 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:71-6:72.
77 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:61.
78 Chapter 6 Sec. 15 para. 3 Swedish Children and Parents Code.
79 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:63.
80 See answer to Q 48b.
81 If custody has been entrusted to one or two specially appointed custodians,
questions concerning transfer of custody are governed by Chapter 6 Sec. 10b and
10c Swedish Chil-dren and Parents Code.
82 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:38-6:39; A. SINGER, Föräldraskap
i rättslig belysning, Uppsala: Iustus Förlag, 2000, p. 474.
83 Sec. 13 para. 4 Swedish Care of Young Persons Act (1990:52), as revised by
Act 2003:406.
84 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:39.
85 See: Chapter 3 Sec. 6 Swedish Social Services Act (2001:453). This
condition was applied in NJA 1995 p. 727, in order to prevent the
father from unlawfully removing the children abroad.
86 See answer to Q 18.
87 In addition, an agreement on parental responsibilities must always be in
writing and signed by the parents.
88 Prop 1997/98:7 p. 83.
89 Prop 1997/98:7 p 85. See also the ruling of the Supreme Court in NJA
1993 p. 226.
90 Vårdnad, Boende och Umgänge, Stockholm: Socialstyrelsen (National Board of Health and Welfare),
2003, p. 133.
91 This provision, as revised in 2001, refers to Chapter 5, Section 3 Swedish
Social Services Act (2001:453).
92 Chapter 6 Sec. 18 para. 2-3 Swedish Children and Parents Code.
93 Vårdnad, Boende och Umgänge, Stockholm:
Socialstyrelsen (National Board on Health and Welfare), 2003, p.
109.
94 It is however expected that issues of enforcement will in the future be
tranferred to the general courts, in charge of disputes on parental
responsibilities.
95 The relevant provisions are found in Chapter 21 Swedish Children and
Parents Code.
96 Chapter 21 Sec. 3 Swedish Children and Parents Code.
97 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del II, 14-21 kap.
och internationell föräldrarätt, Stockholm: Norstedts Juridik, 2002, p. 21:26.
98 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del II, 14-21
kap. och internationell föräldrarätt, Stockholm:
Norstedts Juridik, 2002, p. 21:23.
99 G. WALIN and S. VÄNGBY, Föräldrabalken, En kommentar, Del I, 1-13
kap., Stockholm: Norstedts Juridik, 2002, p. 6:22.
100 Vårdnad, Boende och Umgänge, Stockholm:
Socialstyrelsen (National Board of Health and Welfare) 2003, p. 83.
101 See: L. DAHLSTRAND, Barns deltagande i familjerättsliga processer,
Uppsala 2004.
102 Cooperation discussions are described under Q 57.
103 Chapter 6 Sec. 19 para. 3 and 4 Swedish Children and Parents Code.
104 Vårdnad, Boende och Umgänge, Stockholm:
Socialstyrelsen (National Board of Health and Welfare), 2003, p.
87.
105 Sec. 36 para. 1 Swedish Care of Young Persons Act (1990:52).
106 Sec. 36 para. 3 Swedish Care of Young Persons Act (1990:52)
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