Response to interpellation 2022/23:381 on the legislation on children's rights
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
M considers the Children and Parents Code to be a living legislation that is adapted continuously and that there is no need to redo it from scratch 1. M argues that the best interests of the child should be decisive and that the government prioritizes strengthening the protection for children 1. M considers the presumption of paternity to be practical 2 and advocates for organic changes 2 3. M argues that shifts in perspective have already been made and that it is a matter of legislative technical methods 4 3. C considers that the Children and Parents Code is based on old values and that the primary source should be changed from the very beginning 5 6 7. C argues that children's rights are not sufficiently strong 7.
Written by AI in advance and may contain errors. The numbers lead to the speech a statement builds on; check against the text below.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Martina Johansson has asked me if I will act so that the government will appoint an inquiry in order to review all parts of the Children and Parents Code in order to update it according to today's requirements.
Martina Johansson has recently asked a similar question, and we have had an exchange of views on this here in the chamber. As I answered then, it is of course the case that the Children and Parents Code, like all other legislation, needs to be continuously reviewed and adapted to societal changes and new legal needs. On the other hand, I see no need to redo the Children and Parents Code from scratch.
To develop this further, I want to point out that the Children and Parents Code is a highly living piece of legislation that is constantly adapted as society and the view on family life evolve. Since 2010 alone, 32 major and minor changes have been made to the Children and Parents Code.
A couple of years ago, the rules on custody were reformed. It was the latest in a series of modernizations in that area. A few years earlier, a review of the rules on adoption was conducted. Recently, the rules on parenthood were also changed, where, among other things, a presumption of parenthood for same-sex married couples was introduced. The Parental Code is thus constantly changing.
Martina Johansson specifically addresses the child's perspective in cases concerning custody, residence, and access. This is an issue that is also close to my heart. According to the Children and Parents Code, it currently applies that the child's best interests shall be decisive for all questions regarding custody, residence, and access.
When assessing the best interests of the child, particular consideration shall be given to the risk of the child being harmed, and the child's need for contact with both parents shall also be considered. The child's views in the matters shall be given weight in relation to the child's age and maturity. Recently, younger children have been given better opportunities to be heard in these matters.
Children have the right to protection against all forms of violence, even according to the UN Convention on the Rights of the Child, that is, the Convention on the Rights of the Child. It is a self-evident fact for me and the government that children have the right to a safe upbringing free from violence and other degrading treatment.
It is therefore very pleasing that there is a broad consensus in the Riksdag on increasing protection against children being harmed. The proposals in the report Safer homes for children are an important basis for the government's work to achieve this. I also want to mention the report A childhood free from violence, which is currently out for consultation with a large number of referral bodies.
In this context, one can also mention the proposals in the report All times parenting, which were presented last summer. The proposals aim to achieve legislation that is adapted to today's society, among other things by clarifying the important role that social parents can play in many cases. But several of the issues addressed in the report are complicated, and the preparation of the proposals is ongoing.
I and the government will prioritize the child's rights by continuing to develop the family law legislation at the pace that is needed and based on the needs that exist. Above all, the government will prioritize strengthening the protection for children in various ways.
Martina Johansson (C)
Madam Speaker! Thank you, Minister, for the answer!
There have been 32 changes in recent years with adjustments to a law from 1949. It is a law that fundamentally is based on values from a hundred years ago.
The starting point in the legislation is that the parents are a man and a woman and are married. Everything else is something else in the legislation. Children do not clearly have their own standing. In the legislation, we have, via adjustments, inserted same-sex relations. We also need to strengthen social parents, or bonus parents. They are created when parents separate and create new relations.
When making small changes, there is a risk of missing the big picture. That is why I ask myself: Why can't we completely turn the perspective around? There are many different ways to become a parent today, and more ways can be added. Surrogacy is not regulated in the Parentage Code.
We must start from the child's right to their parents regardless of whether they are the biological, legal, or social parents. It is often the same people, but it can be several different ones. We must do this regardless of the parents' status. They can be married, unmarried, separated, cohabiting, divorced, remarried, and so on.
In an investigation in 2020, when the Convention on the Rights of the Child was reviewed as Swedish law and how it relates to other Swedish legislation, it was specifically highlighted, among other things, that fathers who are not married to the mother who gives birth do not automatically become guardians.
It is symbolic of how we view parenthood in the legislation. It is based on old values. The birth mother is more important than the father who is unmarried, because he, for example, does not automatically receive custody. What image does that give of the equal family moving forward?
What I have spoken about now concerns when the children are born. But it also affects what happens in an eventual custody dispute if the parents separate.
Even here, it was noted in the 2020 investigation that we do not ensure that the children are allowed to express themselves. In the implementation, concerns are seen regarding the fact that the children's perspective is not included.
We need to have better formulations that truly uphold the child's rights. It must also be shown in the execution that it is meant that younger children cannot express themselves and that it is directly harmful.
The UN Committee on the Rights of the Child also issued its recommendations to Sweden this March. They note with concern the lack of a children's rights perspective in the Parental Code as it stands today.
Again: They recommend that we review the law to ensure that we receive sufficient guarantees that the child rights perspective is taken into account in disputes between parents.
When it comes to custody disputes that we handle based on what the legislation says, it is not black or white. There are very many shades of color when we talk about custody disputes.
Who assesses parental ability? What about the child's right to express themselves and the child's right to be heard? It is about considering risk and protective factors. It concerns the risk of psychological violence, physical violence, or sabotage during a meeting.
There are many parts where we do not have the child rights perspective all the way through. Therefore, I want to see that we look at the whole and that we start from the child. It will also become easier to change practice.
I return again to the question: Does the Minister see an opportunity to look at an investigation of the Children and Parents Code to bring in the child's perspective and not the parents', instead of us having different investigations that are layered on top of each other?
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Fundamentally, my view is that we are in agreement. In the society we live in today, family formations appear in different ways. This must also be reflected in a modern family law legislation.
We also agree, and it is also part of a societal development, that children have their own rights. Children's perspectives shall have a significant impact in the practical application of family law.
If development is to go in any direction, it is to further strengthen the right for children to express their own views and to participate in influencing the concrete outcome of various assessments and various trade-offs that are made with family law as support.
Then perhaps it is more a question of how one views what constitutes the most effective legislative work to achieve those goals. It is quite true that the legislation is a little over half a century old. There are also quite many other laws in our law book.
On the other hand, a continuous modernization process is taking place regarding the legislation. This applies in particular to family law. If one speaks of family formations, it is quite true that the norm has been the heterosexual nuclear family. But over time, with cohabitation legislation, recognition of same-sex couples, and same-sex parental relationships, it has gradually developed in step with the times.
I think it is difficult to say that the practical effects of it have become negative in any particular respect. On the other hand, when one addresses each individual part, one must consider how everything is connected to the whole. I also believe that it is a good way to move forward to organically change the legislation so that it is in line with the present day.
When it comes to certain parts, I can take up the symbolic issue that Martina Johansson raises regarding the presumption of paternity. If one is to be truly blunt, I do not think it is so much a question of norms as it is of practicalities.
The only certainty is that the mother is the mother, everything else is a presumption. The question then is: What should be the basis for that presumption? The legislation has taken a step by saying that for those who decide to enter into a close relationship with each other in a legal sense, it is presumed that the father is the father. But beyond that, it must be proven specifically.
If one were to be truly consistent, one should almost go in the other direction, that is to say, remove the presumption of paternity even within marriage. I do not see it as a norm issue but more as a practical issue. What can one say for sure about parenthood and not? In one way, it is perhaps a compelling example, but in another way, I do not personally experience it as being so compelling because, as was said, it is not so much a norm as practicality in this.
When it finally concerns the child's perspective, it is absolutely correct that it should permeate the entire legislation. If the development goes in any direction, it is towards strengthening the child's perspective in different parts of the legislation and to increasingly give children a right to express their views within the framework of various proceedings that occur in family law.
Then it lies in the nature of the matter that this must, in practice, be adapted to the child's age and maturity. I think that is also a quite important point from a children's rights perspective, because we also do not want children to become tools that are exploited, for example, in their parents' disputes. Children must probably have a certain degree of maturity and/or, of course, receive serious support from experts on children from social services and elsewhere. I perceive that we are heading in the right direction regarding this part as well.
Martina Johansson (C)
Madam Speaker! Thank you again, Gunnar Strömmer, for the answer! I can agree that it is a strange order we have. If the parents are married, both are automatically parents. What we know is one thing, for most often it is the woman who gives birth who is the mother. But we also know that today there are other ways to become a parent: embryo donations, surrogacy and so on. Nor is it ensured in the same way today as it was a hundred years ago, even regarding that part.
I can imagine turning the perspective completely around and instead starting from the premise that we have a child and then talking about who the biological parents, the legal parents, and the potential social parents are. Then it is from a child's perspective, where the child has a right to their parents regardless of whether they are married or not. It is a way to show what I mean: to turn the entire perspective around and not start from whether you and I are married or not.
That is why I am still requesting these things – to focus on the child specifically and to clarify the responsibility. But it is not just about this part, but also about what happens in court when one ends up in a custody dispute. I desire legislation that ensures we counteract custody disputes – and I have proposals for that as well – but what happens today is that the courts perfunctorily write a sentence about the child's right to be heard and how it has occurred.
There is a clear mapping that came from the Gender Equality Authority a couple of years ago regarding the occurrence of violence in custody disputes, where the courts routinely write a sentence about whether the children have – or have not – said this or that. In 60 percent of the cases, it is not even mentioned.
Children must be allowed to give their account. It is clear that an infant cannot do that. But when children begin to communicate, there are opportunities to communicate with the children as well. That requires research, a better social service, and a better investigation.
For what happens when we stand there in a dispute? As it looks today, I of course do everything a parent does to highlight the other parent's shortcomings, and she does the same in return. Then we lose the child's perspective.
It is not simple with a custody dispute; it is very difficult. Who is it that assesses parental ability? Can a parent's behavior change along the way? Is one disqualified for all time if one has deficiencies in their parental ability? Because it is not black or white but very many different shades of gray, red, or green, we need to take a new approach and ensure that we get a nuance in all of this so that we once again put the child at the center.
The government has said that it should deliver on the investigation that came out during the previous mandate period regarding fundamentally reforming the Social Services Act. It has served its purpose as a piece of legislation that has been good, but where we have patched and repaired. That is what I feel here as well; we need to do the same with the Children and Parents Code. We need to take a new approach so that it can be adapted to today's situation, just like the new Social Services Act. I am waiting for that bill, because it has been promised. With the same arguments that the government says we need a new Social Services Act, we therefore need a new Children and Parents Code, which is based on the children.
How does the Minister intend to address the various parts that I have highlighted as deficiencies, both in the 2020 investigation, in the 2021 mapping, and finally in the UN's 2023 recommendations?
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Thank you, Martina Johansson, for the good follow-up questions! Let me first take the question about which legislative technique we shall use to approach the Parentage Code.
It is quite true that it can sometimes be worth taking a holistic approach to a piece of legislation. The Social Services Act involves a shift in perspective from a one-sided social and perhaps more care-oriented legislation to a more demanding legislation with a more integrated cut towards other, more mandatory and legal measures.
The overhaul we are undertaking regarding the Penal Code is a major shift in perspective, where it is about moving from a one-sided focus on the perpetrator to a clearer focus on the crime victim and on the surrounding society's need for protection against serious crime. It is a shift in perspective that nevertheless cannot be said to mean that one is rewriting the Penal Code from scratch. But it is a clear shift in perspective that permeates a broader overhaul.
When it comes to the family legislation, I probably mean that this shift in perspective is already underway and has been for a very long time. Let us take two clear parts that Martina Johansson raises.
The first is the child's perspective and the child rights perspective, which is something that the legislation has been accommodated in over several decades in a kind of gradual development towards a clearer child perspective. The second is, of course, the recognition that families look different and that parenthood also looks different.
There is an investigation that we are analyzing right now which includes what we today usually describe as social parenting, i.e., adults who are neither biological nor legal parents but who nevertheless in practice play a very important role as a kind of de facto-parents in relation to children.
I mean that the shifts in perspective are already made. They are developed, reinforced, or concretized over time in the legislative work that has been ongoing for a long time and which we also want to continue. We can, of course, discuss exactly which legislative technical grip we should take. I believe there are different ways to, so to speak, settle it and agree that that is where we are going.
If we are to take a concrete issue, it concerns precisely the child's position in legal proceedings and the child's opportunity to be heard in a legal proceeding. There is no doubt that the development in that area as well has, for a long time, moved towards a point where the child gains a greater impact in various legal processes.
I want to take note of the investigation *Tryggare hem för barn*, which points out that there are deficiencies in the current order. The investigation speaks of various possibilities to strengthen the child's position and the child's opportunity to be heard in the legal processes. We have just received the referral responses, and we are analyzing them and will take a firm stand regarding exactly which path we shall take.
I still want to include two things regarding the direction. One is to strengthen the child's position in the legal process in various ways. That is one important landmark for the path we will continue to tread. The other is simply the warning not to do it in such a way that children—if one is to see it as a major risk for the children's best interests—are drawn into their parents' conflicts or are given a role in the handling of their parents' conflicts that ultimately is not for the benefit of the child, but instead risks jeopardizing what is best for the child. That balancing act can be found, and we will come back and specify exactly where the balance point lies.
Martina Johansson (C)
Mr. Speaker! Thank you, Minister of Justice, for the answer again! One can discuss what is the right tool and when one should do what.
I believe there are two parts. Partly, it is actually about changing the legislation, because if we constantly need to work with investigations and adjustments to strengthen children's rights in different situations, children do not have sufficiently strong rights from the outset. Children's rights regarding family law situations together with parents are located in the Children and Parents Code. If children's rights are not sufficiently strong, we must work on changes, and then perhaps we should change the primary source from the beginning.
I know that there are a couple of investigations that I am also following. I hope that they turn out well. Then, I am not sure that I will land exactly the same as the minister. We do not quite have the same view in all parts and on how we should act. I want to assert that there are situations when we strengthen the work against crime, then innocent children are also affected.
No, children should not be dragged into the adults' conflicts. But as it is handled today, the children are in the middle of the adults' conflicts without even being allowed to speak. It is not the same as children having to make decisions, but they must be allowed to speak. Here, family law in the municipalities has a great responsibility, but also our courts have an incredibly great responsibility to ensure that children, even small children, are allowed to speak. Then assessments shall be made and decisions made based on an investigation. If the court is not satisfied with the investigation it has received, the court may conduct its own or request a new investigation so that children's rights truly come into the center.
If we overhaul the Children and Parents Code from the ground up, we do not need to strengthen children's rights in the next breath.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Children's rights are not only evident from family law in that part. We also have the Convention on the Rights of the Child, which is Swedish law. It is more about implementing that perspective in all legislation relevant to children. We will therefore not achieve the full impact for children's rights even with a systematic approach to family law.
I say frankly that this is more of a legislative technical question. We agree on where we are going; the question is only exactly with which method we should reach there. I believe strongly in the organic, gradual change of the different parts of the legislation that are relevant precisely so that children's rights can achieve full impact in practice.
When it comes to the position of children in custody disputes, I naturally agree: That children become involved in the parents' conflicts is inevitable. Certainly, they also become tools for the parents' different interests in a custody dispute – or can at least become so. It is in that perspective that it is so important to see the children as individual rights-holders and that the legal system also protects the children's perspective, the children's interests, and the children's opportunities to be heard.
Let me nevertheless take note of some proposals that are now on the table and which we are considering. In the investigation *Tryggare hem för barn*, the investigator points out that there are deficiencies in the courts' assessments and has various proposals on how to rectify that. Among other things, it concerns how one can develop today's procedure where the child's opinions are obtained through persons within social services who have special competence for that. They are also looking at letting courts obtain statements from expert psychologists and in other ways find "advocates" for the children's interests in persons who are very well suited and have great experience in speaking with children about such matters.
We agree on the goals. Let us find common paths forward to achieve them.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.