Legal requirements for child protection work

1
Legal requirements for child protection work

• Pernilla Leviner
• Doctoral Candidate in Social Child Law
• Stockholm University, Faculty of Law
• Karolinska Institute, Division of Forensic
  Psychiatry

2

• A law is not better
• than its application
• En lag är inte bättre
• än sin tillämpning

3
Overall questions and perspective

• WHAT IS APPLICABLE ?
• WHAT IS THE PRACTICAL RESULT OF APPLICABLE LAW ?
• WHY DO THINGS TURN OUT THE WAY THEY DO ?
• Pro-active child perspective

4
Legal base for child protection

• European Convention for protection of human
  rights and the fundamental freedoms -
  INCORPORATED
• UN Convention of the Rights of the Child
  RATIFIED
• Provisions introduced in Swedish law
• The principle of the best interest of the child
• The right of the child to be heard

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Legal responsibility for children

• The guardian has the primary responsibility of
  the child and the obligation to provide for the
  childs well-being
• Considerable legal authority and power to make
  decisions in matters concerning their children
• Society via the social services - has the
  ultimate responsibility for the life and health
  of children and to provide support and protection
  to vulnerable children

6
Social services ultimate responsibility

• Obligation to ensure all persons living in the
  municipality a reasonable standard of living
  (skälig levnadsnivå)
• Consent from both guardians is required to give a
  child assistance
• Obligation to take a child into compulsory care
  if the child is at obvious and palpable risk
  (påtaglig risk)
• Large gap between
• REASONABLE STANDARD OF LIVING
• and
• OBVIOUS AND PALPABLE RISK

7
Obligation to investigate

• Social services have an obligation
• to start an investigation when there is
• a suspicion of a child being at risk
• -
• Not within the guardians right to determine

8
Rules of conduct in the child protection
investigation

• Guardians have the right to be informed that a
  investigation has begun without delay!
• Right to study all information in the
  investigation
• Proportionality not unnecessarily expose
  anyone to injury or inconvenience
• EXPLICIT RULES!

• Consider the best interest of the child
• The right of the child to be heard
• NOT EXPLICITLY LAID DOWN UNCLEAR?

9
Tools in the investigation

• Legal option to take contacts - also without the
  consent of the guardian
• Experts (psychiatrists etc.) necessary persons
  around the child (school, day care etc.)
• Interviewing children without the knowledge and
  consent of the guardian
• Not regulated - uncertain tool
• Obligation to co-operate with other authorities
• Does not eliminate secrecy rules
• Social services can report suspicions of crimes
  against children to the police - not an obligation

10
Potential legal obstacles

• Principle rule of co-operation with and the
  strict and explicit rights of parents/guardians
• Confidentiality rules
• Authorities possibility to exchange information
• Confidentiality towards the guardian
• Child protection under self-governing of
  municipalities resources and priorities
• Framework laws with goals rather than tools -
  flexibility can lead to uncertainty

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Results of applicable law

• Inconsequent application
• Questionable methods of interviewing children
• Together with and only after consent of the
  guardian
• Crimes against children are in many cases not
  reported to the police
• Investigations rarely lead to assistance
• Familyism rather than child perspective
  parents needs are in focus

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Conclusions

• Goal formulations in a framework law without
  explicit investigative tools
• Failures due to inadequate legislation?
• A law is not bettter than its application
• Parents rights as guardians are, under certain
  circumstances, needed to be limited
• Childrens rights risk of being symbolic