Barnets rätt att komma till tals - en studie av processer enligt 6 kap. FB

This essay is about the child's right to be consulted and express his or her views in a process on legal custody. Children's rights and the best interest of the child are key expressions. Matters concerning the children have throughout history been considered a matter for the parents. Today, the increasing acknowledgment of children's rights is contributing to a new attitude towards the child as a subject in the process, instead of an object. To analyse today's views on children's rights, the protective perspective and the actor's perspective are two important key perspectives. Difficulties arise when the children's rights and children's need for special care and protection must be respected at the same time. In other words, the actor's perspective must coexist with the protective perspective. Hence, in Swedish legislation the child has a unique position in a process on legal custody. The child is the main object of the process, but according to Swedish legislation the child is not part of the process. The child has been given a ''right to be consulted and express his or her own views'' and is therefore depending on other parties and their views on the right of the child and the best interest of the child. The question is whether the Swedish legislator has found a balance or if the child's right to be consulted and express his or her views in a process on legal custody is limited according to FB, 6th chapter? The purpose of the essay is to investigate the Swedish legislation and how it complies with The Convention on the Rights of the Child and the European Convention on the exercise on Children's Rights. The Swedish legislation is compared with the Norwegian legislation to identify advantages and disadvantages with the Swedish legislation. In the analysis, it's argued that the Swedish legislation is in conflict with the Convention on the Rights of the Child and the European Convention on the Exercise on Children's Rights on critical matters. Some key factors that limit the child's right to be consulted and express his or her views are identified. These factors are mainly: the legal development on the field, the legal terminology, the occurrence of a legal custody report, if it's concerning an interim decision, the legal ''unsuitable''-criteria, the legal age- and maturity criteria and the different perspectives on children's rights. These factors are analysed together with possible amendments in FB, 6th chapter. The Norwegian legislation is proved to be an exemplary model in many respects. In the analysis, it also becomes clear that the protective perspective is the dominant perspective, both in Swedish legislation and in legal practice. Can the child still participate in the process? Roger Hart's definition of participation and the child's unique position in the legal custody process serves as starting points for this discussion. As a conclusion, demands are made on a change of attitude towards children's rights in processes on legal custody. The child must be acknowledged as a subject in the process, with an absolute right to be consulted and express his or her views