Response to interpellation 2024/25:597 on the child's right to the father at birth
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
The debate concerns children's right to joint custody at birth for unmarried parents. C considers that the current regulation violates the Convention on the Rights of the Child 1 and that the child has a right to both guardians from the beginning 1. C wants joint custody to become automatic upon confirmation of parenthood 2 since the Parentage Code is difficult to interpret and should proceed from the assumption that there is more than just woman and husband 3. M argues that the current order is well compatible with the Convention on the Rights of the Child 4 and well balanced 5. M emphasizes that it is practical that the mother is clearly a parent 6 and that it is simple for unmarried people to obtain joint custody digitally 5 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)
Mr. Speaker! Martina Johansson has asked me if I intend to take any measures so that a child's right to their parents is not different depending on whether the parents are married or not. We have had the pleasure of discussing this previously, even several times, and I am happy to do so again.
What is this question about then? Well, it is about the fact that unmarried parents, unlike married parents, do not automatically receive joint custody. As I just said, I recently answered a question from Martina Johansson about this. As I then pointed out, the question of automatic joint custody for unmarried parents has been investigated several times, but it has not led to any legislative changes.
It is true that the latest investigation is from 1999. At that time, the investigator considered that, with regard to the best interests of the child, it was not appropriate to introduce automatic joint custody for all unmarried parents. According to the investigator, such an arrangement was also not appropriate for parents who live together, as it can be difficult to determine who actually are cohabitants.
Instead, the investigator proposed that parents who are not married to each other when the child is born shall be granted joint custody when three months have passed since the paternity was established through a confirmation approved by the social welfare committee, if neither of the parents within this period has reported that he or she opposes joint custody.
These proposals were addressed in a government bill in the spring of 2010. In the bill, the government at that time stated that for unmarried parents who are in agreement regarding joint custody, there already existed a number of possibilities to obtain it in a simple way, and that the proposal I have just described did not represent any improvement.
When it concerns persons who disagree, it can in some cases be questioned whether the conditions for joint custody exist, especially against the background that the presumption for joint custody was abolished through the 2006 custody reform. The government at that time stated that an assessment must instead be made in each individual case based on what is best for the child. The Riksdag agreed with that assessment.
Since then, the Riksdag has, in principle annually – most recently in March this year – dealt with and rejected motions on automatic joint custody for unmarried parents. I can state that the Riksdag, in its recent positions, has taken a firm stand on, among other things, the possibility that has existed since 2022 to, in connection with digital confirmation of parenthood, make a notification of joint custody via Skatteverket's e-service. This possibility to digitally confirm a parenthood has gained significant traction. It means that more children can have two legal parents and guardians in close connection to the child's birth. It has thus become much simpler for unmarried parents to confirm a parenthood and, in connection with that, obtain joint custody.
It is against that background that there are currently no plans to investigate the issue again. I and the government will, of course, with the child's best interests as a starting point, prioritize the child's rights by continuing to develop the family law legislation at the pace that is needed. In that work, it is of course important to ensure that we have a regulatory framework that is based on the child's best interests and that is compatible with both the Convention on the Rights of the Child and the European Convention.
Martina Johansson (C)
Mr. Speaker! It is true that I have asked these questions at slightly different times. Most recently, I received the answer that several different inquiries had been conducted regarding joint custody, which surprised me a bit. I didn't quite have a grasp on the fact that there were several different inquiries. Therefore, I asked about RUT and was told that it was the one conducted in 1999. It is, therefore, 26 years old. It has been quite a long time since we let an inquiry be conducted on this issue. Just as the Minister explained, it was previously concluded that this was not needed.
Another investigation has addressed this issue. It is from 2020 and is therefore five years old. This investigation looked at how we relate to the Convention on the Rights of the Child. In that investigation, it emerged that precisely this regulation – that children do not have a right to both their guardians from the outset – violates the Convention on the Rights of the Child, which is Swedish law. This is one of the reasons to continue this discussion. It means that the government does not want to review this regulation, which actually means that we are violating the Convention on the Rights of the Child.
This is based on a very old norm in Sweden regarding a man and a woman who have children together. When unmarried women have children, they are illegitimate children. This is, after all, the norm that the Children and Parents Code still builds upon.
The best interests of the child means, at least for me, that the child has a right to its guardians from the very beginning, and preferably before the child is born. It has certainly become easier for unmarried parents to confirm parenthood and apply for joint custody, Mr. Speaker. The Center Party wants that it should be possible to do this before the child is born. We are not there yet, but we have come one step closer.
What difference does the legal agreement that the parents have between themselves for the child make? That is a running point for me. If the parents are married, this is not an issue. If they are unmarried, it is, however, an issue. Logically, I do not think it should matter for the child whether the parents are married or not. Who is it that should decide if it is best for the child if both mom and dad have custody from the very beginning or not? That is how it is when one is married.
This is, again, based on the fact that mothers are self-evident parents from the very beginning and that fathers must be approved. The question is whether the decision in this matter should really be linked to gender.
Let me sharpen this, Mr. Speaker, and take the question a bit further. If, according to the law, we do not equate mothers and fathers before the child, why should they then share the parenthood? How can we then expect the mothers to hand over the responsibility to the fathers and for the fathers to take responsibility? According to the law, the mother and father are not equal if they are unmarried.
Mr. Speaker! One might think that I am pushing the issue a bit too far, but legislation is still normative. Before we introduced a law against child abuse in Sweden, it was quite obvious to use corporal punishment as a method for child upbringing, but with the help of legislation, we have shifted the norms. It is another reason why I continue to pursue the issue.
I want to ask the minister if there is still no interest in moving forward with this and ensuring that we stop violating the Convention on the Rights of the Child, which is Swedish law and which states that children have a right to their guardians from birth.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Thank you, Martina Johansson, for the opportunity to discuss these issues again!
I turn slightly against the description that this should only be an expression of an outdated view or outdated norms. I believe, on the contrary, that one can look at this quite practically and concretize how one best takes into account the child's best in such a situation. It is not about how one views parenthood or about whether mothers should be more worthy than fathers as parents.
In short, it is well that the only certainty when a child is born is who the mother is. The one who gives birth to the child is the mother. This is nothing that needs to be proven; it is clear in connection with the birth. Everything else must be presumed or verified in some way. We have a regulation which says that the man in the relationship is presumed to be the father if two persons have entered into a marriage and in that way created a legal close community with each other. If the persons have not manifested their relationship in that way, such that it is reasonable to have that starting point, it must be verified in some other way. The only certainty, therefore, is that the mother is the mother.
There are naturally norms and values in these issues, but I still believe it is not entirely wrong to have a more practical approach here. I believe that is exactly how it is. From the child's perspective, the most important thing is surely that it is correct and that it is the right parent. If we are to equate these relationships, I think it is more straightforward to remove the presumption that the man in a marriage is the father of the child. If we were to equate this now, we would probably need to go that way. If the paternity does not need to be proven in other ways, the situation becomes very uncertain for the child.
For the child, of course, it is important to have the right to both parents. But they must be the right parents, and that is what this is fundamentally about. In light of everything I have said, I do not think there are any new circumstances or arguments that give reason to make a different assessment than the one that has been made by the Riksdag over a long sequence of years.
When it comes to the Convention on the Rights of the Child, it is quite true that it has applied in Sweden for a very long time. It was made into Swedish law a number of years ago, but Sweden has been bound by the convention for a very long time. The legal assessment has been that Sweden also in this area lives up to the requirements set forth in the Convention on the Rights of the Child. Now, an investigator has presented a different opinion. In that case, one should keep in mind that Sweden is not unique in the world with such an arrangement. Many other Western democracies in modern societies have a regulation corresponding to the Swedish one.
I also want to point out that in 2022, after the investigator submitted their assessment on this issue, which I raised earlier, an opportunity was introduced to also make a notification regarding joint custody in connection with the digital confirmation of parenthood. We have, therefore, simplified this procedure for the benefit of the child even after the investigator made their assessment. I live in the secure conviction that our procedure is very well compatible with the Convention on the Rights of the Child in this area.
Martina Johansson (C)
Mr. Speaker! Who fathers the child is not so much to be discussed. We can be completely in agreement on that. But whether I am married to the other person or not cannot be what determines who is the father of the child.
The Minister himself brings up this point about perhaps removing the presumption when it comes to marriage. After all, approximately half of the children in Sweden are born outside of marriage today. They are born to unmarried parents, who may then marry in the next generation. Then one could play with the idea that all parents should go through the same process to confirm the fatherhood – or the parenthood, to use the correct term. One confirms the parenthood when the child has arrived – who are the biological parents, and who are the guardians? That would be to go one step further. But that is not quite my idea today, even though I have played with the idea.
Mr. Speaker! It is absolutely simpler for unmarried parents to avoid going to the social services and confirming their illegitimate child. One does it digitally. But the point of my question is that when I confirm the parenthood digitally, I should also have to state whether there should be joint custody. Shouldn't it be that automatic? If I now go to Skatteverket and declare who the parents are, why is the question even asked? When I confirm the parenthood, it should become joint custody automatically, just as with the legal agreement when the parents are married. From a child's perspective, I cannot understand what the difference is. That is the reflection I have.
Things can actually happen along the way. The worst can happen. The mother can die during childbirth. If this regulation is not made, the child is suddenly left without a guardian when it is born, because the parents were unmarried and one had not checked the box regarding whether it would be joint custody or not, even though the paternity had been confirmed.
The Minister has in previous discussions said that the Parentage Act is being modernized in various ways. I can agree with that. Today we have the possibility for single women to have children through assisted reproduction. We have made changes regarding persons who change their gender identity and in how we establish parenthood if the parents are married or not.
But this is more about how one gets a child. What we have not done are regulations that strengthen the child's right to the parents after it is born. That is what I am referring to in the question we are discussing right now. We can talk about more than two guardians. We can talk about parental power, about motherhood, and about official mail being able to go to both parents after a possible separation. This is what is important for the child in the Children and Parents Code, because it is important for the child to maintain its connection to its parents.
I want to draw another parallel, Mr. Speaker. We are all now very proud that we have revised an old law and adapted it to how we live today and today's needs. It is about the new Social Services Act. Everyone agrees that the law from 1982 needed to be updated. But for the Children and Parents Code, which is from 1949, one does not want to fundamentally overhaul and adapt it to how we live today so that it matches today's lifestyle and today's values. I return to the question. Can the Minister imagine at least having a discussion on the side and considering whether it is possible to do something to get a more modern Children and Parents Code?
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! It is, in itself, true that the Parentage Code was enacted a long time ago, but it has not remained unreformed since then. A continuous reforming of the Parentage Code has occurred, largely as a consequence of societal development. Our view on a long series of different conditions related to family life has changed. Even though the Parentage Code originally came into existence a long time ago, it is therefore to a very high degree a different product today than it was when it was enacted perhaps 70–80 years ago.
As I said, I am open to making modernizations of the Children and Parents Code and the legislation in this area. But good reforms should address real societal problems, as they say. Just this question, I actually think is a bit obscure. I look at it very practically. This is not at all an expression of some kind of outdated norm-formation in the area.
I remember that when I myself studied family law once upon a time – it is perhaps 30 years ago – our professor in the field said: If you are to give a single piece of advice to prospective parents, you should give them the advice to get married. It was not an expression that he had any particularly traditional values regarding the sovereignty of marriage in relation to other forms of cohabitation, but it was about the fact that marriage is a legal package that is very predictable and that one can, of course, choose or opt out of.
With marriage, several things are presumed that are not presumed if one chooses to live their life in another way. One such thing is paternity and joint custody. I cannot see what would become better from the child's perspective if that relationship were changed. If it were the case that the man in the marriage is not the father of the child, it must be proven in some way. If it is the case that the parents want to dissolve the marriage and do not want joint custody, it must be handled in some other way. To see this practically, society offers a format where several things are presumed that must be proven in other ways if one chooses to live their life in another way. It is not a valuation, but it is a practical approach.
I return to the core issue: The only certainty is who is the mother. Everything else must either be presumed or proven. That one presumes the man in a marriage is the father is because he has entered into a legal relationship that makes it reasonable to presume it. If that has not been done, it must be proven in other ways. I honestly do not think it is that strange. The most important thing from the child's perspective is, as said, that it must be correct.
Simplifying this is something that we have done to the highest degree. It is not as if it is in any way difficult for, for example, a cohabiting couple to solve this digitally and quickly. I honestly do not think that it is so much to talk about. We have a well-balanced order. It has become much simpler for parents who are not married. In some way, the fatherhood must be confirmed. It is easy to achieve joint custody. In short, I do not see the need for reform in this specific regard, even though I am otherwise open to reforming the Parental Code in various respects.
Martina Johansson (C)
Mr. Speaker! Thank you, Gunnar Strömmer! It is always exciting and fun to debate and discuss with you.
It is clear that there have been different reforms of the Parentage Code. I mentioned some in my previous speech. But it is still an addition to something that is based on something completely different.
It becomes quite difficult to read and interpret the Children and Parents Code. It clearly states what applies for the mother and the father if they are married, and then comes a number of "if nots." It would have been simpler to rewrite it and start from the premise that there is something more than man, woman, and married.
I will move on to the practical aspects, which the Minister is proceeding from. I have not said that one should not perform a registration of a parenthood. One must, of course, confirm the parenthood, and it is clear that there is a difference between being married and not being married. I do not question that.
But I question that it says "if it is to be joint custody". It is that point I question most strongly. If I confirm the parenthood, it should automatically be joint custody. Then it becomes equal for the child regardless of whether the parents are married or not.
Even today, the answer to how we should handle issues regarding family law and civil law is that one should be married. Again: More than half of the children today are born out of wedlock.
In a relationship where there is violence, the appeal cannot be that one should be married so that it should be easy for all parties. Legally, it becomes an old-fashioned view of something we can address as a societal problem today.
We agree that it is a practical question how the paternity should be registered. But we still will not agree on whether it should be automatic custody or not, I understand. I wish that the Minister could reason further on that.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Thank you for the opportunity to discuss these very important issues today.
I want to clarify that I am not expressing any preference and am not giving any advice on how people should live their lives. I recounted what a teacher in family law said once upon a time.
Society provides different legal packages for adults to make their own decisions about how they want to live their lives. The different packages come with different rights and obligations.
If one looks at it from the children's perspective, we have overall an order that also accommodates the children's interests in a good way.
If we are now talking about the issue of paternity, it is about presuming or in some other way establishing who is the father so that it is correct.
If one chooses to enter into a relationship within the legal framework of marriage, not only is paternity presumed, but also joint custody.
If one chooses to live in a different way, one must solve those questions in a slightly different way.
But the practical consequences of that are still that everyone who have children together and who also want joint custody can get it in a very simple way. Furthermore, it takes place in a digitized format.
I am happy to continue discussing the issues. But I remain of the view that at this specific point, I do not see that the need for reform is particularly great.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.