Confiscating children: When parents become victims

The prohibition of torture under International Law.

Confiscating children: When parents become victims.

By Ruby Harrold-Claesson, LLM, Attorney at law, President of the Nordic Committee for Human Rights - NCHR/NKMR

 

 

 

 

 


This paper on the taking of children into public care was produced for entry in the Academy on Human Rights and Humanitarian Law, American University Washington College of Law 2005 scholarship competition on the theme:

"The prohibition of torture under International Law".

 

 

 

 

 

 

The main focus of this paper will be the Swedish Act containing Special Provisions on the Care of Young Persons 1990 (lag 1990:52)[1] med särskilda bestämmelser om vård av unga - "the 1990 Act") and its conformity with the United Nations Convention on the Rights of the Child and the European Convention on Human Rights and Fundamental Freedoms.

 

 

Definition of "Torture"

Article 5 of the UN Declaration of Human Rights reads:
"
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

 

Article 1 of the OHCHR Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[2] defines torture as follows:

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

 

In The Oxford Reference Dictionary torture[3] is defined as

1 - the infliction of severe bodily pain especially as punishment or means of coercion;

2 - the infliction of severe physical or mental pain.


How then can the term torture be applied to the situations where parents and children are forcibly separated from each other? Can the taking of children into public care be equated to torture?

 

 

Extended definition of torture

Usually the word torture is used in situations with prisoners of war. More recently "torture" has been used to describe the conditions under which people who have been kidnapped[4] have been treated. This was the term used by the French-Swedish psychotherapist and psychoanalyst David Benelbaz to describe the ordeal that the kidnapping of the millionaire son, Eric Westerberg, put both the victim and his parents through. In an interview with Dr Benelbaz, concerning the taking of children into public care, he stated that kidnapping and the removal of children from their parents care could trigger similar reactions. Dr. Benelbaz said both in the Gothenburg Post interview and in the above mentioned interview, the following: "Kidnapping is a form of torture that undermines one' faith in life. When you deprive a person of his or her freedom, you violate his/her integrity. A child who has been forcibly separated from its parents will lose faith in its parents' ability to protect him or her from danger."[5]

 

The Swedish Act (1998:204) concerning information about individuals[6] uses the terminology "Administrative deprivation of freedom" (administrativt frihetsberövande).  Section 21 of the Act forbids other bodies than authorities to publish information pertaining to such cases.

 

The greatest torture parents can be exposed to seems to be to have their child or children taken from them and being deprived of daily contact with the child. During slavery, prior to the American civil war, a slave mother related the distress that she suffered when her children were sold by the slave master. The Australian Aborigines[7] describe the taking of their children as torture; the UN classified it as genocide. One father, a former UN refugee[8] said: "I fled from one hell in my country, only to end up in an even greater hell in Sweden. They have taken my son from me." He described the situation as torture, worse than what he had experienced during the war. In the dissertation, "The Rhetoric Case"[9], Liz Edner describes the taking of her baby into public care as torture. A comparison between the photographs of her baby, Anne Edner, before she was removed from her mother's care and the photograph taken at the temporary foster home shows that the baby was suffering from the separation. The child psychologist described it as being "a normal reaction of sorrow". Gudrun Larsson, a former foster child, describes foster care and the indoctrination that her parents were unsuitable as being "Torture without instruments".[10] One of the Swedish public care cases to gain international attention was the Alexander Aminoff Case. Alexander Aminoff described his sufferings as a foster child in "My childhood", (Redogörelse för min barndom).[11]

 

There is therefore great deception in the Swedish system which displays extreme brutality towards the parents and children who are under the regime of 1990 Act. The 1990 Act gives rise to much suffering, but this does not appear in the official reports about the Law. Instead, the 1990 Act is portrayed to be "in the best interest of the child". This is a very dangerous law and a law that is unsuitable in a civilized, democratic society, based on the rule of law and which has signed and ratified international Human Rights Conventions. Yet Sweden and its vociferous anti-smacking lobbyists are seeking the proliferation of a total ban on physical discipline by parents, by re-defining discipline to abuse.

 

 

The UN Convention on the Rights of the Child
In its Preamble of the UN Convention on the Rights of the Child stipulates the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world; that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; that childhood is entitled to special care and assistance; that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community; that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding; that the child should be fully prepared to live an individual life in society and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity; that the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", that, in all countries in the world, where children are living in exceptionally difficult conditions and that such children need special consideration;  that the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally and that the importance of the traditions and cultural values of each people should be respected for the protection and harmonious development of the child.

 

 

The European Convention on Human Rights and Fundamental Freedoms

The European Convention on Human Rights and Fundamental Freedoms was signed and ratified by Sweden between 1948 and 1952, but it was not incorporated into Swedish law until January 1, 1995 (SFS 1994:1219), prior to Sweden becoming a member state in the European Union. It should also be noted that the Preamble of the European Convention on Human Rights and Fundamental Freedoms has not been included in the Swedish law. Sweden has been found guilty of violation of several families' rights to respect for private and family life (article 8).

 

Article 8 of the European Convention on Human Rights and Fundamental Freedoms reads:
 1 - Everyone has the right to respect for his private and family life, his home and his correspondence.

2 - There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

The 1990 Act with Special Provisions on the Care of Young Persons, which gives the Social District Councils the prerogative of taking children into public care in Sweden will be studied in the light of Articles 3, 5, 8, 9, 10, 12, 16, 18:1, 19, 20, 21:1 a), 28, 29, 30 and 32 of the UN Convention on the Rights of the Child and Articles 3, 6, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms, specific public care cases (case law) and European Court verdicts.[12]

 

 

The taking children into public care

In Sweden, like a few other industrial countries, the state has a long history of taking children from their parents and placing them in foster care. Formerly, children in Sweden were auctioned out to the lowest bidders. Nowadays, children are placed in well-paid, municipality-funded foster homes. It should be noted that natural parents do not receive a fraction of the economic support that the municipality pays to foster parents[13].

 

Since the emergence of the Swedish welfare state, children are being taken from their parents on a more routine basis.

 

According to Swedish child-welfare legislation, each municipality is responsible for promoting the favourable development of children and young persons by taking, if necessary, supportive or preventive measures. It may also take a child into care and place him in a foster home, a children's home or another suitable institution.

 

The legislation divides measures of the latter kind into two categories: the first concerns "voluntary care" - making a parent to place his child into the care of a local authority - which in no way is voluntary since the social workers threaten the parents to either give up their child voluntarily or the child will be taken into compulsory care; the second provides for "compulsory care", by establishing machinery whereby a local authority can take a child immediately and later obtain a court decision or order committing a child to its care.

 

 

The 1990 ACT

The process is sanctioned by the 1990 Act and supervised by the Administrative courts upon the recommendations of the competent local authorities in child-care matters called the Social District Councils.

 

The 1990 Act complements the Social Services Act 2001:453,[14] which deals with voluntary care: on entering into force on 1 January, 2002, they together replaced the 1980 Act. It must be noted that only minor changes were made in the 1990 Act as compared with the 1980 Act. On January 1, 1998, the 1980 Act received an important addition in its Section 22. A fourth subsection according to which grandparents and next-of-kin should be taken into consideration if a child should be the object of out-of-home care was added (Lag 1997:313). The new law was meant to end the discriminatory practices of the social authorities towards the extended family.

 

The introductory section of the 1990 Act stipulates

-                           that measures taken by the social services towards children and youths should be made in agreement with the parents and children involved,

-                           that the measures should be tempered with respect for the young person's human dignity and integrity,

-                           that the measures taken should be in the best interest of the child, and that

-                           the social authority is required to find out the young persons position and this should be taken into consideration depending on the age and maturity of the child.

 

Conditions for compulsory care under the 1990 Act are also set out in section 1, which reads:

"Care is to be provided pursuant to this Act for persons under eighteen years of age if it may be presumed that the necessary care cannot be given to the young person with the consent of the person or persons having custody of him and, in the case of a young person aged fifteen or more, with the consent of the young person.

Care is to be provided for a young person if:

1. lack of care for him or some other condition in the home entails a danger to his health or development; or

2. the young person is seriously endangering his health or development by abuse of habit-forming agents, criminal behaviour or any other comparable behaviour.

 

The second and third sections of the 1990 Act stipulate the pre-requisites for taking children and young people into care as follows:

The child will be taken into care if he or she is exposed to physical or mental ill-treatment, unacceptable exploitation (sexual abuse), lack of care or some other condition in the home is seriously endangering his health or development.

 

The 1990 Act also stipulates that a care order based on the Act will be pronounced by the District Administrative court upon application from the Social District Council. The application must contain a report on the conditions under which the young person is living, the circumstances that validate the need for the youngster to be taken into care, previous measures of assistance and the care that the Social District Council intends to provide.

 

 

Regulation of the parents' right of access

Under the 1990 Act, restrictions on access can be imposed by the Social District Council, in so far as this is necessary for the purposes of the care decision (section 14).  The 1990 Act expressly empowers the authority concerned to refuse to disclose the child's whereabouts.

 

The 1990 Act gives the Social District Council and the Administrative Courts the right to decide the amount or frequency of the visiting rights that are accorded to the parents and their children.



Provisions in the 1990 Act

The 1990 Act contains some clichés that are often recurring both in the law and in case law. The most misused cliché is however "the best interest of the child". What is the best interest of the child? And who is most competent to judge what is in the best interest of the child? The parent or a total stranger employed by the municipality or the courts?

 

 

The best interest of the child

"The best interest of the child" in the 1990 Act ultimately implies that the child has to be protected by the authorities against its parents and relatives, and not vice versa. It also implies that the interpretation of "the best interest for the child" can only be made by the authorities.

 

This authorized and monopolized interpretation of "the best interest of the child", created by small and non-representative but strongly influential groups of legislators, has established a powerful and legal child trade system within the Sweden. Parents live under constant threat from the social workers because their children can be removed from their homes at any time and placed into commercial foster care on the basis of purely subjective opinions. This necessarily constitutes a serious threat to family relationships. Foster care research shows that the forcible separation of children from their families has not proved to be of any advantage or "in the best interest of the child". Instead it has been destructive to the welfare of children and their future lives as adults.

 

 

Lack of care or some other condition in the home

While lack of care can be substantiated by ocular or medical examinations, the wording "some other condition in the home" leaves the field wide open for arbitrary decisions.


Some other conditions in the home can range from a parent's disagreement with a child care nurse as to what is best for her child for e g that the child should be put in a day care centre instead of being at home with its mother, disagreement with a social worker concerning social benefits, or a mother's attachment to her child[15], visits from many relatives or friends, that one parent or grandparent has a drinking problem or the like.

 

The phrasing "some other condition in the home" was criticized by the government's own group of experts.[16] During the consultation process before the 1990 Act was passed, the expert group suggested a change in the wording of the law viz omitting "some other condition in the home. The aim must have been to bring the law in accordance with the spirit of the UN Convention. However, the report did not receive support from the minister of justice and was discarded.

Several children have in fact been taken into care because mothers have applied for social benefits to pay the rent, for food or clothing for the children when they were unemployed and were receiving little or perhaps no support from the fathers.[17] There have also been cases of concealed adoptions, i.e. cases in which the social workers have taken newborn babies and given to their childless friends[18], which of course is a disloyal use of the 1990 Act.

 

 

Physical or mental ill-treatment

In her dissertation "CRIMINALIZING PARENTS: The Anti-Spanking Law Movement", Debbie v. Rochow[19] wrote:

 

"Nothing could be more personal than decisions on raising one’s children. Yet a handful of children's rights advocates are proposing serious limitations on parents' freedom to raise their children. Since the permissive parenting movement which began in the 60s, disciplining ones children through the use of mild or moderate spanking has become increasingly "politically incorrect." People have begun to equate "discipline" which comes from the Latin meaning, "to teach," with child abuse. These activists have successfully banned spanking from 8 European nations and are pushing their agenda in the United States.

Yet spanking remains popular with parents. By official estimates, over ninety percent of American parents use some corporal punishment to discipline their children.[20]

Reasonable parental corporal punishment for the purpose of correcting behaviour is a far cry from child abuse. Despite what the media would have the public believe, physical abuse is not widespread as publicized.  Spanking is distinct from genuine abuse, which despite all the publicity only affects about ½ of 1% of American children each year."

 

 

The Swedish Anti-smacking law[21]

The Swedish law abolishing physical punishment of children - called the Anti-smacking law[22] - was passed in 1979 to commemorate the UN Year of the Child. The law reads: "Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to physical punishment or any other humiliating treatment". It was promulgated in the Parent and guardianship code, Chapter 6, section 1, and not in the Penal Code.

 

The law ranks all physical punishment of children i.e. a slap on the hand, on the cheek or on the bottom, as assault and battery. Room-arrest is regarded as "other humiliating treatment".

 

At a first glance, the law gives the feeling of altruism, care for the younger generation and humanity. The law has resulted in serious interference in people's family and private lives, and has damaged the relationship between parents and children - to the detriment of the Family Institution. The social institutions have, in many cases, unnecessarily taken over the parents' responsibility for their children and thus broken up their families.

 

The law was said to be "primarily a valuable pedagogical support in the efforts to convince parents and others that no forms of violence are allowed to be tools in the raising of children."

 

Instead, the law has resulted in hundreds of normal parents being harassed by the police and the social authorities. Some parents have been prosecuted in the Courts, and sentenced and thus been criminalised, because they have smacked - or have allegedly smacked - their misbehaving children.

 

Swedish cultural patterns do not support the Family as an institution. In Sweden, family as an element of socialising and for the passing on of values is not taken seriously. The status of the Family has been usurped and instead the school system and the social institutions have been given monopoly over the children.

 

 

The preparatory works

Before the Bill abolishing physical punishment of children in Sweden was presented in Parliament it was sent to various bodies in the society for their comments. Religious bodies were not consulted. However, some of the instances, which were consulted for their opinion, were quite negative to the Law. Among these were the State Prosecutor and the Regional Prosecutor in Östergötland.

 

The State prosecutor (Riksåklagaren) commented: "One can wonder if the law, even in future, ought not to leave space for a difference between children and adults when it is a question of judging physical punishment or other humiliating treatment. This could be achieved by adjusting the contents of the proposed law so that the child should not be subjected to physical punishment or other humiliating treatment such as those, which are punishable in the penal code. Thereby we would point out that such treatment that is not deemed criminal or worth to be criminalised would be clearly exempted. In the first place I am not at all referring to cases of abuse, but rather to the fact that many cases of treatment, which would be humiliating for an adult, and thus punishable under the law, must be accepted by children.... As far as I have understood the proposed Bill it is not primarily aimed at increasing the rate of criminalisation but rather as a codification of the views which are prevalent in the society. It would be most unfortunate for the law upholding authorities if the proposed Bill should open a pipeline of police reports which lead no where."[23]

 

The Regional Prosecutor in Östergötland's remarks were: "For my part I do not think that this law will have the effect of reducing the number of cases of child ill-treatment, I do not think this law is going to have any effect at all. (...) I could imagine as a possible negative effect that, in the future, people are going to run to the police with reports about child abuse both in urgent and in non-urgent cases, now that there is a law which says, that children must not be physically punished in any way. This will cause the police and prosecutors to make investigations in a greater number of cases than before and even in many cases where there is no reason for an indictment.  Such an effect of an extended possibility of accusation is undesirable and many unjustified police investigations will certainly have very negative consequences for the children in many cases."[24]

 

Cabinet minister Sven Romanus had quite a few considerations. He wrote: "What we in everyday language call child abuse is a serious evil which the society should use all its efforts to combat... However the gap between real child ill treatment and the slight bodily corrections which can arise in child rearing is wide. Some of these acts can not even be classified as minor assault such as appear in the penal code." He continued "From what has been brought forward during the period of consultative opinions, it would certainly be most unfortunate if the State could intervene and prosecute and punish every, let be so tiny, breach of the prohibition of physical punishment."[25]

 

 

Extension of the penal sphere

The apprehensions of the State Prosecutor and the Regional Prosecutor in Östergötland have materialised. The Swedish law on the abolition of physical punishment of children has given rise to a series of court cases where normal Swedish and immigrant parents have been, and still are being prosecuted because they have taken their parental responsibility, and corrected their children - physically if so was necessary. The "Anti-smacking Law", which regards all physical punishment of children as assault and battery, has in fact extended the domain of the Penal Code.

 

It should be noted that the law targets immigrant parents and parents belonging to religious minorities. The National Board of Welfare (Socialstyrelsen) pointed out that the information to the immigrants must be clear and unequivocal, that no immigrant will be able to avoid prosecution by referring to the child-rearing practices in his home country, where parents spank their children.  The Board also spoke warmly for information for the religious groups who systematically use "loving smacking" as a part of child-rearing.

 

The Standing Law Committee declared: "The Law (prohibition of smacking) therefore removed the uncertainty that has prevailed after the legislation reform of 1966 as to whether or not lighter hands-on corrections of children is punishable, when it is performed by the custodian, and which has been expressed inter alia in the (..) verdict from 1975."[26]

The Standing Law Committee continued: "Physical punishment means foremost an action which entails that the child is inflicted bodily damage or pain, even if the disturbance is very slight or hastily forgotten. The focus is on the use of violence as a means of punishment, i.e. measures which are directed at the child afterwards, for something that he did or did not do."[27]

 

On November 17, 1978, the Christian newspaper "The Day" (DAGEN) published an editorial urging the minister of Justice, Sven Romanus, to withdraw the Bill. The editorial read: "From now on a good part of the Swedish people will be transformed into criminals."

 

By 344 votes against 6, the Swedish Parliament banned smacking. Hereafter parents and children have had their families torn apart by an over-zealous law, passed by a minority government.

 

 

International presentation of the Anti-smacking Law

The English summary of the presentation of the Government Bill contains the following information:

"This provision does not represent an extension of the punishable area. It is still the provisions of the Criminal Code which will decide whether an action shall be subject to penalty or not."[28]

 

The information in English does however not correspond to reality. It should be noted that in 1996 the Standing Law Committee stated that the law meant a tangible extension of the penal sphere or in any event, it would clarify that such an extension has taken place.[29]

 

The Anti-smacking Law was presented at Centre Pompidou in Paris in September 1979. The presentation of the law prompted Jean-Francis Held, the special correspondent at the weekly magazine "L'Express" to write his article: "Smacking: those Swedes must be crazy!"[30] (Fessée: Ils sont fous, ces Suédois), where he described Swedish children's complete lack of respect for adults.



PUBLIC OPINION

In September 1991 a SIFO-poll showed that 35 % of the Swedish mothers who were interviewed, deemed it right and proper to smack their children. Just about as many i.e.. 35 % were thought to hide their opinions on the subject.

 

The social workers and the courts however, enforce the law concerning the child's rights not to be subjected to physical punishment despite what the child might have done. The law has thus given rise to absurd situations. Many Swedish parents are afraid of their children and dare not chastise them because they know that they can be reported to the police, indicted and fined or sentenced to prison.

 

Swedish youths born during the 1970's and afterwards have been given what is called "free upbringing", which instead has revealed itself to be "freedom from upbringing". Parents have great difficulty controlling their children, and school teachers have to spend a great deal of class time to bring the pupils to order. The children are often provocative, loud and rowdy, uncontrolled and uncontrollable. The Swedish Embassy in Austria and other European countries have sent letters to the headmasters at the secondary schools every year in February, urging them either to discourage the youngsters from travelling to the ski-resorts, or to encourage them to act like human beings while they are there. In fact, Swedish youths have been banned in Austria and in the French Alps and not even the Danes, our nearest neighbours, appreciate their company.[31]

 

 

Accusations against parents

As far as my knowledge goes, judging from the number of indictments and judgements I have in my possession, there have been hundreds of cases, where normal, loving and caring parents have been prosecuted, fined or sentenced to prison for child abuse or have been very close to being prosecuted, for trying to curb their children. Some of these cases have been focused on in the media.

 

In these so called child-abuse cases, the children are almost invariably taken into public care and separated from their "abusive" parents. And, to ensure the protection of the children the social workers restrict the visiting rights of the parents with their children. At this point, the parents have to fight two legal battles: one in the criminal court and the other in the administrative court. During the process, the children are often abused, both mentally and physically. Mentally, because they suffer from a guilty conscience that it is their fault that their parents are being processed in the courts, and physically, because they are deprived of everyday contact with their parents and forced to live with complete strangers. The child that has been physically punished by its parent for a deed or omission, who subsequently is taken into care is in fact doubly punished. Normally, the child does not want to see his parents and his family destroyed, but no one informs the child of the consequences that a complaint to the authorities can bring. It has also occurred that the children in foster care have been physically, mentally and sexually abused by their paid carers - but the social workers very seldom listen to the children's complaints. The forced separation from parents, brothers and sisters, other relatives and friends and being placed in new surroundings has been described by former foster children as being tantamount to torture.[32]

 

Sweden has laws that punish parents who punish their children. Sweden, however, has no laws, which punish parents who let their children grow up completely devoid of all upbringing, so they become anti-social and even criminal. There should therefore be no laws to punish parents who love their children and wish them well and to that end give them boundaries in which to operate.

 

 

The inquisition

The prosecution of parents in Sweden has taken the form of an Inquisition where children accuse their parents of ill treatment. The only proofs submitted are all too often, the statements made by the children. In some cases, e.g. The Priest Case, the children aged 12 years and over, tried to withdraw the accusations they had made against their parents. "Child abuse" however is the special prerogative of the public prosecutor, who takes over the case. The parents have then been prosecuted and sentenced against their own denial and against the will of the children who chose to withdraw their accusations against their parents.

 

The Swedish scenario is this: The children have been informed of their rights, so they use their rights to demand more freedom to do as they please. They report their parents in the aim of obtaining freedom, unaware of the consequences of their report to the social authorities or the police. Their aim is not at all to see their parents charged and sentenced - perhaps to prison. When the children realise the seriousness of their accusations they try to withdraw them, but they are held to their stories - without any consideration of the damages that the children themselves incur. The social authorities, police and prosecutors are obliged by law to assist the children, which inevitably risks ruining their relationship with their families and their future lives. By proceeding to the prosecution of the parents, the authorities expose the children to unnecessary mental torture.

 

The resentment that the parents feel towards their children, whose unacceptable behaviour was the direct cause of the cases against the parents, has resulted in the loss of normal, loving parental guidance for these children. The guilt felt by the children has in many cases also seriously damaged the parent/child relationship.

 

The stress and strain that the prosecution of the parents and the taking of their children into public care have caused the breaking up of many of the families involved. Most of the parents involved in these cases divorced during the time they were being prosecuted for having physically punished their children. Several have no contacts at all with their children due to the damage that the actions against the parents have caused.

 

The questions that inevitably must be asked are the following:

1 - Why is it deemed as such a pressing need to 'free' children from responsible parental guidance?

2 - Why is the ideal parental role - that of the laissez-faire parent - so different from that which existed only a few decades ago?

3 - Who stands to gain from the new cultural norms and to which end has this been implemented?

 

The answer to these questions may lead to other questions of extreme importance for our views on children and the process of socialisation: How can we be able to change the cultural norms that work in disharmony with other norms and which put people into conflict with each other or contribute to the rise of problems in society?

 

 

CASE LAW

The following 10 cases will serve as examples of The Inquisition against Swedish parents:

 

1 - The priest in Sölvesborg.[33]

Summary judgement

On December 20, 1978, i.e. before the passing of the anti-smacking law, the priest was given a summary judgement and fined 20 day-fines à 45 SEK.

 

The priest's crime was entitled: Assault, minor crime. (Misshandel, ringa brott). The description of the crime, which was signed by public prosecutor Magnus Eneroth read: "You have, in your home at Gammaltorp, inflicted your 13-year old daughter E a slap in her face with the palm of your hand and caused her pain, tenderness and a blue mark. Time: 22-10-1978. Law: Chapter 3 section 5 Penal Code."

 

2 - Danish journalist in Linköping 1980[34]

Towards the end of August 1980, two Danish parents were threatened with prosecution and public care of their five-year-old son, who had made a careless remark at his day-care centre. The boy had told of having been smacked on his buttocks and that "my mother tramples on my back."

 

The boy's story was reported to the social authorities in Linköping by the staff at the day-care centre. The mother, being a journalist, sent the story to Berlingske Tidende which published two very sarcastic articles under the heading "From great new Sweden" and "Husband and wife prosecuted. Smacked their son's bottom". The parents also challenged the social workers before Ombudsman of Justice and the case against them was closed.

 

3 - The Turkish father in Södertälje [35]

On April 27, 1982, a Turkish citizen was sentenced and fined for having assaulted his two-year-old daughter while they were shopping at the supermarket Obs! in Södertälje. The father was shopping with his daughter and his mother-in-law. The child did not want to sit in the shopping-cart, so her father let her walk beside him. Then the child started taking things from the shelves and her father told her to leave the things alone or else she would have to sit in the shopping-cart. When the little girl continued to take things from the shelves her father picked her up and put her to sit on the cart. The little girl started to cry and kicked off her boots. Her father picked up the boots and put them back on her feet. The father was accosted by a Swedish woman, who informed him that Swedish law forbids parents to slap their children. She reported the incident to the police. The father denied slapping the child and his version of the events was corroborated by the child's grandmother. However, the court found the father guilty on the basis of the story presented by the Swedish woman.

 

4 - Teacher Case [36]

The first smacking case that received media attention world-wide dates from 1984. A father in Gällivare, in the north of Sweden, teacher to profession, was prosecuted for, and found guilty of assault of his 12-year-old son. Both the lower court and the Court of Appeals found the father guilty as charged, and he was convicted, fined and sentenced (suspended sentence), because he had spanked his son. The Supreme Court refused to try the case so the decision of the Court of Appeals "acquired force of law". The Court of Appeals admitted that the father had all reason to be furious at his son because the boy had openly disregarded and disobeyed his parents' orders NEVER to toe his little brother on his bicycle. However, the Court of Appeals maintained that, no matter what a child does, the law guarantees that he should never be spanked by his parents.

 

Facts of the case: The boy had mounted his little brother on the back of his bicycle several times that day and cycled away on the streets. The father had warned the boy about the danger of taking his little brother on the bicycle and cycling in the Saturday morning traffic with him. He also warned that the spokes could damage the small boy's foot. The boy would not heed his father's warnings. After a while the boy returned home with his little brother, who was crying because his foot had got caught in the spokes. The father confiscated the boy's bicycle and locked it in, then he took the boy into the house and gave him three smacks on his bottom with some twigs. Several similar cases were brought to justice in 1984 and 1985.

 

5 -  The Hälsingborg Case[37]

Hälsingborgs District Attorney issued an order of summary punishment on May 23, 1984 against a Swedish father for having slapped his 12-year-old son's face.

 

The boy's friends used to call the family's telephone so often that the parents decided to get a secret number. The boy was told not to give the number to his friends. On April 27, 1984, when a call came for the boy, his father accused him of having given the new telephone number to his friends. The boy denied this and the father accused him of lying and slapped his face. His mother saw what had happened and instructed the boy to report his father to the police. The family then sat down and ate dinner and one hour later the boy went to the police and reported his father.

 

The mother was interrogated by the police on May 14, 1984. The police asked her: "May I ask this, were you aware of the consequences of a report to the police?" She replied: "I wasn't, but I thought that the police would talk to Dad, they should give him a warning so that he wouldn't do that and if we had known that it would go so far as to .. then we would never have reported the incident, instead it would have remained within the family so to speak."

 

6 - The Hungarian Case [38]
Kristianstad District Court issued a suspended sentence against a Hungarian man for having spanked his seven-year-old son. The child was removed from their home and placed in social custody. The child had been fighting with the other children at school and had even bitten a teacher.

 

The District Administrative Court in Kristianstad upheld the decision of the social district council to take the child into public care. Psychiatric care was recommended both for the boy and the chastising father.

 

7 - The American Case[39]

Solna District Court sentenced an American residing in Sweden for maltreatment of his 15-year-old daughter and the girl was taken into social custody. The father had smacked her on her bottom with the palm of his hand one morning when she had locked herself in the bathroom and prevented the other members of the family from getting ready to leave home for their daily routines.

 

The girl was raped while at the institution. Her parents reported the matter to the police, but the matter was not investigated.

 

8 - The Yavari case[40]

The Yavari case took place in 1988 and was for several weeks recurring front-page news in the evening newspaper Göteborgs Tidningen (GT) and the Christian newspaper DAGEN "The Day".

 

A simple question from the little four-year-old Yavari girl to her day-carer gave rise to a nightmare experience for the Yavari family. The little girl asked her day-carer if her son would get a spanking because he had done something pretty nasty. The day-carer, employed by the community, came to the conclusion that the Yavari children must have been accustomed to being beaten i.e. "maltreated in their home" so she made a report to her employer, and the employer in her turn made a formal report to the Social authorities in Götene. All three children in the Yavari family were immediately taken into social custody and taken to hospital for examination. A series of doctor's certificates stated that the children showed no signs of bruises or beating. The chairman of the Social authorities refused to drop the case so the Yavaris' took their children and fled to England.

 

9 - The Father of seven in Skåne[41]

On October 16, 2003, the father was arrested and detained for "gross disturbance of peace" (grov fridskränkning) of six of his children. He was detained until November 18, 2003. He was fully acquitted from the charges by Lund's County Court on November 27, 2003. The prosecutor did not appeal against the verdict.

 

The Social District Council in Svalöv decided to take the family's seven children into public care on October 16, 2003. The mother was not accused of any misdemeanours towards her children. Yet, five of the children were immediately taken into public care and removed from their home. The social workers left the youngest child and the fourth child who was handicapped and confined to a wheel-chair.

Despite the fact that the father had been acquitted, on December 18, 2003, the District Administrative Court[42] confirmed the decision to take the seven children into public care. The family is still fighting to regain custody of their children.

 

10 - UN refugee Case in Örebro[43]

The father, a refugee from an African country, together with his new wife, was relocated to Sweden by the United Nations in 2001. Shortly after his arrival to Sweden, the father sent for his son, born in 1993. The boy started school in 2002. There he saw the high standard of living of his class mates. He too wanted a bicycle and a cell phone. Problems arose in the family. The boy accused his father of smacking him. He was taken into public care on November 12, 2004. The District Court in Örebro confirmed the decision of the Social District Council on February 2, 2005. One lay judge dissented[44]

 

 

Conformity with the UN Child Convention

The 1990 Act contains the words "the best interest of the child" (Article 3), and it stipulates placing the child in foster care (Article 20) if it is temporarily or permanently deprived of its family. However, when implementing the interferences in a child's private and family life, as stipulated in the 1990 Act, the social services and the administrative courts seldom turn to the extended family, (Article 5), never ask the child's opinion and no consideration is taken to the child's age and maturity (Article 12). The interferences in the child's private and family life appear therefore to be arbitrary (Article 16). Huge sums are being paid to foster parents, whereas natural parents only receive a fraction of such subsidies (Article 32).

 

The phrasing in the 1990 Act "some other condition in the home" is not in accordance with the UN Convention on the Rights of the Child. It opens the door for arbitrary decisions, which have proven to be devastation for Swedish children and their families. 

 

 

Conformity with the European Convention

The European Court of Human Rights in Strasbourg has, in several cases that have been reported and brought under their scrutiny, found Sweden guilty of violating parents' and children's basic Human Rights to respect for private and Family life[45] (Article 8 of the European Convention).

 

In the Case of Olsson v. Sweden, a case that sent a wave of shock through the Swedish bureaucracy, the European Commission observed that nothing indicated that the child would be better off if placed in care.  The European Court verdicts against Sweden have examined the parents' access to their children after the care order was made. In its verdict in the Case of Olsson v. Sweden, the European Court stated: The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life; furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care.[46]  In a dissenting opinion the judges Pettiti, Russo and Matscher[47] stated: At no time did the social welfare authorities take the least account of the love for their children that the parents sought to express, a love that was demonstrated by the years of struggle in proceedings to seek to obtain the return of the children and the respect of their most sacred rights.

 

In the case of K & T v. Finland[48] the European Court found the responding State, by taking the children into public care, guilty of violation of the children's and their parents' basic Human Rights to respect for private and Family life. A verdict in the European Court of Human Rights applies to all European States that have accepted the jurisdiction of the Court.

 

 

Critics of the system

Professor emeritus Jacob W. F. Sundberg at the Stockholm Institute of Public and International Law has focused on the subject of the forcible taking of children into public care in Sweden in many of his books. In his booklet, The Trip to Nowhere[49], Professor Sundberg analyzed Family Policy in the Swedish Welfare State by Means of the Comparative Law Method Immanent in the European Convention on Human Rights.

 

One of the first cases to attract international attention was the Alexander Aminoff Case. With direct reference to the Aminoff Case, Professor Sundberg wrote:

"The first cases to attract attention concerned the very decision to take into public care and it appeared that in those cases the social bureaucracy in fact had been a bit too enthusiastic about its political role. Even if the way the parents defended themselves by legal proceedings bred ill will in the bureaucracy, in Strasbourg the cases seemed to evidence relatively clear transgressions and the Swedish Government settled the cases with substantial indemnities being paid to the victims."[50]


In her preface to the book "The Alexander Case - A confiscated child"[51] (Fallet Alexander Ett beslagtaget barn)[52], the case that prompted the German Newspaper "Der Speigl" to call Sweden "Children Gulag", Brita Sundberg-Weitman, former Chief Justice at Solna District Court wrote the following:

"It is easy to describe the Swedish laws governing the taking of children into care, in a way that makes them seem to guarantee security before the law. It is the courts that decide if a child should be taken into the care of the state. The politically composed social councils only need to make a simple application to obtain such a court order. And the civil servants, the social workers, only have to make such a recommendation to the social councils. Besides, there is a series of three courts that can try these cases, namely, the District Administrative Court, the Administrative Court of Appeal and the Supreme Administrative Court. During the proceedings, certificates and statements are almost always obtained from experts, namely: child psychologists or child psychiatrists. The parents can count on receiving legal aid and thereby the assistance of a lawyer who they themselves may chose. Nowadays even the child has its own lawyer."

Chief Justice Brita Sundberg-Weitman's analysis of the system is most relevant and appropriate. Since her article is published on the Internet at the URLs stated below, I shall not burden this presentation with further quotations from the same.

Another critic of the Swedish system for taking children into public care is Sven Hessle, professor in Social Sciences at the University of Stockholm, who also wrote an article on the Alexander Case. He wrote:

"The greatest interference that a state can exercise against individual citizens is to deprive an adult of his parenthood. To take away a mother's possibility to exercise her parental responsibility over her child does not only mean that the society cuts off her rights to build a bridge between the past and future generations through her child. It also means that the society is giving the child the message that he/she should deny his/her mother, and instead accept another person, a stranger, as his/her new parent. Taking away parenthood from an adult is therefore a kind of death declaration over living persons, which risks affecting the children most of all. That is why such measures are so uncommon. At least in other countries.
A number of cases in the Swedish public-care-debate have received international attention. Some people claim that these cases are the exceptions in an otherwise well functioning welfare state. Others, indignant over the publicised cases, claim that they are distorted and insufficiently presented by tabloid journalists to suit the parents' terms and conditions.
As far as I am concerned, these cases are the top of an iceberg, and below the surface there is an on-going ideological change creating despise for and indifference towards the most delicate relationship upon which a society uttermost is built, the relationship parent-child."

 

Professor Robert Larzelere[53], Nebraska, has recently published a dissertation about the Swedish smacking ban. In his dissertation he polemizes against Professor Joan Durrant, Canada, who together with the children's charity Save the Children published the report "A Generation Without Smacking".  Professor Larzelere wrote:

Joan Durrant draws conclusions about four major trends since Sweden's 1979 ban on smacking. On the first three trends, the very sources she cites strongly suggest conclusions opposite to hers. Attitudes and practices about corporal punishment have changed very little since 1979. In fact such changes were far more dramatic before 1979.

Secondly, the best indicators of physical child abuse showed a 489% increase in physical child abuse cases classified as criminal assaults in Sweden from 1981-1994. Child abuse fatalities have been infrequent in Sweden both before and after the 1979 legislation, though not as low as Durrant claims.

Thirdly, the best evidence suggests that perpetration of criminal assaults against 7-14 year-olds is increasing most rapidly in age groups raised after the law against smacking was passed. This directly contradicts Durrant's conclusion based on selected evidence from the same data source.

On the fourth issue, it is difficult to evaluate the extent to which the Swedish social services have achieved an optimal balance between a preventive approach to protecting children on the one hand, and becoming overly intrusive on the other. Most of the evidence suggests that the large increase in assaults by minors and in physical child abuse is not entirely explained by changes in reporting mechanisms. Critics of the law do not think the increase has been caused entirely by the ban on smacking. Rather, the critics say that the influence of parents has been inadvertently compromised by the entire set of overly intrusive Swedish policies. Because parents have been disempowered, the police must intervene in many more incidents than was previously the case.

Sweden has historically been a very non-violent country, especially compared to the United States. Perhaps Sweden can afford a sixfold increase in criminal assaults by minors against minors. Other countries cannot. Accordingly, we need to get a much more convincing explanation of this increase in Sweden before other countries regard Sweden as an example to emulate. We also need objective, unbiased evidence that their policies have reduced physical child abuse. Such evidence does not currently exist.

To repeat the main conclusion of my 1999 article with Dr Byron Johnson of PrincetonUniversity, we need timely, rigorous and unbiased evaluations of these kinds of policy changes in the future. The degree of bias in Durrant's evaluations increases my suspicions that the success of Sweden's ban on smacking is uneven at best and counterproductive at worst. Successful policy changes do not need their evaluations to be biased to document their success.

 

 

Conclusion

The Swedish system for taking children into public care - the 1990 Act - does not conform with the provisions of the UN Convention on the Rights of the Child, neither does it conform with the European Convention on Human Rights and Fundamental Freedoms, judging from the fact that the European Court in Strasbourg, on several occasions, has found Sweden guilty of violating children's and their families' rights to private and family life.

The case law in the smacking cases above shows that the "abuses" of the children for which the parents have been harshly punished have been rather harmless compared to the stories about birching, and school discipline upon which several books have been written.
The gripping stories of the families that have been torn apart unnecessarily because of over-zealous bureaucrats in an over-zealous system of child protection should be a warning against the anti-smacking lobby the aim of which is the proliferation of the Swedish laws.

 

The international bodies for the prevention of torture need to examine the Swedish system for child protection, before unwitting nations adopt these dangerous laws that bring no good results - neither in the homes, nor the schools nor in the society at large.

 

Olofstorp, Sweden, February 11, 2005

 

 

 

The lawyer, Mrs Siv Westerberg's lecture to The Family Education Trust, 19 June 1999

 

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[1] Lag (1990:52) med särskilda bestämmelser om vård av unga http://www.notisum.se/rnp/SLS/LAG/19900052.HTM

[2] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984

 

[3] The Oxford Reference Dictionary

[4] Wallin, Kerstin, Kidnapping: a torture that creates insecurity, Göteborgs Posten 2002-08-19

[5] Ibid, Harrold-Claesson, Ruby, "Kidnapping. Torture that creates insecurity" (Kidnapping. En tortyr som skapar otrygghet). http://www.nkmr.org/kidnappning_en_tortyr_som_skapar_otrygghet.htm

[6] Personuppgiftslagen (PUL) SFS nr: 1998:204

[7] Bringing them home: The 'Stolen Children' report, http://www.humanrights.gov.au/social_justice/stolen_children/

[8] Cf Dissenting opinion in public care case, Verdict delivered on February 1, 2005, http://www.nkmr.org/english/dissenting_opinion_in_public_care_case.htm

[9] Ärlig, Linda, The Rhetoric Case, Persecutory strategies in a public care case, Örebro University, 1996. The Dissertation is a study of the Edner Case. (Retorikfallet. Förföljande strategier i ett LVU-ärende). See also The Edner Case  http://www.nkmr.org/english/case_study_the_edner_case_by_ruby_harrold_claesson.htm

[10] Larsson, Gudrun, Torture without instruments (Tortyr utan redskap) http://www.nkmr.org/tortyr_utan_redskap.htm. See also Sections 2A and 2B of the Nordic Committee's Article Archives http://www.nkmr.org/arkiv_2_a_liv_och_forhallanden_i_fosterhem_etc.htm, http://www.nkmr.org/arkiv_2_b_liv_och_forhallanden_i_fosterhem_etc.htm. Section 2 of the English Article Archives contains several gripping accounts of children's living conditions in foster homes http://www.nkmr.org/english/archives_2_life_and_conditions_in_foster_homes_and_institutions.htm.  Web sites where foster children have described their suffering can be accessed at http://www.nkmr.org/english/links.htm

[11] Aminoff, Alexander, My childhood, (Redogörelse för min barndom) http://www.nkmr.org/alexander_aminoffs_historia.htm. For more information about the Alexander Aminoff Case se, Hongisto, Martin, Alexandergate. The Child abuse case that shook Sweden, and the links at the bottom of the article http://www.nkmr.org/english/alexandergate.htm

[13] In February 2002, during a raid in a drug-addicts home, the police in Jönköping found a mentally handicapped youngster who had been placed in foster care in Sävsjö by the Municipality of Nybro at a cost of 10 000 SEK per day, i.e. 3 650 000 SEK per year. NB at the time the rate of exchange to the US Dollar was 10 to 1. Articles about the case can be found (in Swedish) at http://www.nkmr.org/behandlingshemmet_solhem_i_savsjo.htm

[15] Cf note 9 above

[16] SOU 1986:20

[17] The Karlskoga Case. Wanted help with the rent. Lost her son. (Karlskogafallet - Ville ha hjälp med hyran. Blev av med sonen) http://www.nkmr.org/karlskogafallet_av_torbjorn_karlgren.htm

 

[19] Deborah v. Rochow, J.D. Candidate, Chapman University School of Law.

[20] Rodney Stark & James McEvoy III, Middle-Class Violence, Psychol. Today, Nov. 1970, at 54.

[21] Law 1979:122, Parents and Guardianship Code, Chap. 6, section 1 (Föräldrabalken 6:1)

[22] Harrold-Claesson, Ruby "The Swedish Anti-smacking Law. Studies of Swedish criminal court cases on child spanking", Gothenburg, 1994 (Antiagalagen. Studier i svensk rättspraxis beträffande barnaga)

[24] Govt. Bill 1978/79:67 p 11

[25] Govt. Bill 1978/79:67 p 5

[26] Standing Law Commission Report 1978/79:11 p 5

[27] Standing Law Commission Report 1978/79:11 p 5. See also Govt. Bill 1978/79:67 p 7

[28] Official Investigations 1978:10 p 11

[29] Standing Law Commission Report 1966:32 s 15 f; Official Investigations 1978:10 s 17

[30] Held, Jean-Francis, "Smacking: those Swedes must be crazy! http://www.nkmr.org/english/smacking_those_swedes_must_be_crazy.htm  

[31] Information from the Foreign Ministry

[32] See above notes 10 and 11

[33] Summary judgement, Prosecutor's Office no. 1051-403-78

[34] Berlingske Tidende August w8, 1980, Fra fagre ny Sverige; (Ægtepar står til straf, gav son klask bagi) 30/8 1980.

[35] Södertälje District Court Case no. B 63/82 verdict DB 462 27 April 1982

[36] Gällivare District Court, Case no. B 247/84, Judgement DB 294; Court of Appeal, Case no. B 245/84 Judgement no. DB 2029

[37] Hälsingborgs District Attorney, Order of summary punishment (Strafföreläggande) 1252-882-84

[38] Kristianstad District Court Case no. B 169/85 Verdict DB 247; District Administrative Court in Kristianstad Case no. Ö 291-84 & Ö 136-85)

[39] Solna District Court B 340/85 verdict DB 372, District Administrative Court in Stockholm case no. Ö 2123-84

[40] Göteborgs Tidningen 6, 7, 9, 14, 22 och 26 April 1988, Dagen 14, 27, 29 April 1988

[41] Lund's County Court, Case no. B 4084-03;

[42] District Court in Skåne, Case no. 11363-03.

[43] District Court in Örebro, Case no. 2763-04

[44] District Court in Örebro, Case no. 2763-04, Dissenting opinion http://www.nkmr.org/english/dissenting_opinion_in_public_care_case.htm

[45] A series of European Court verdicts can be accessed at: http://www.nkmr.org/english/european_court_judgements_decisions_nordic_countries.htm

[46] Case of Olsson v. Sweden, Application number 10465/83 Date 24/03/1988, para 59. http://www.nkmr.org/olsson_v_sweden.htm

[47] Case of Olsson v. Sweden (no. 2), Application number 13441/87, Date 27/11/1992 http://www.nkmr.org/olsson2_v_sweden.htm

[48] K & T v. Finland Application no. 25702/94, Judgement 27 April 2000. http://www.nkmr.org/k_and_t_against_finland.htm

[49] Sundberg, 'The trip to Nowhere' Family Policy in the Swedish Welfare State analyzed by Means of the Comparative Law Method Immanent in the European Convention on Human Rights, Stockholm 1995, http://www.nkmr.org/english/the_trip_to_nowhere.htm  

[50] Sundberg, p. 20. Eva Aminoff v. Sweden. Appl. 10 554/83, reported in Jacob W.F. Sundberg, Human Rights in Sweden, The Annual Report 1986 pp 49-53, 66-69, 8 EHRR 71.

[51] THE ALEXANDER CASE - A Confiscated Child, By Birgitta Wolf, Preface by Brita Sundberg-Weitman http://www.nkmr.org/english/alexander_a_confiscated_child.htm

[52] Fallet Alexander - Ett beslagtaget barn, Av Birgitta Wolf. http://www.nkmr.org/fallet_alexander_ett_beslagtaget_barn.htm  

[53]Larzelere, Robert, PhD. Sweden's smacking ban: more harm than good . http://www.christian.org.uk/pdfpublications/sweden_smacking.pdf

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