sou · GTB343 · 2006-01-01 00:00:00 — Risk of the child coming to harm It has been pointed out that both courts and social welfare committees often apply the provision in Chap. 6, Sect. 2a of the Parental Code as meaning that the childs need for close and good contact with both parents outweighs the risk of the child coming to harm. Our investigations also suggest this is true. Even if, in the great majority of cases, it is best for the child to be able to meet both parents, this must not mean that a child has to live or spend time with a parent whatever the circumstances. In our opinion, one basic point must be that all children under all circumstances have an absolute right never to have to be subjected to violence, abuse or other degrading treatment from a parent. In order to clarify the point that the risk of a child coming to harm must always be the foremost consideration in assessing what is in the best interests of the child, we propose a reformulation of the provision in Chap. 6, Sect. 2a, second paragraph of the Parental Code. If information about abuse or other degrading treatment emerges, the court and the social welfare committee must always assess and respond to the claims. Often two questions arise: whether abuse has occurred and what risk there may be that the child may come to harm. As we see it, the court and the social welfare committee must make a risk assessment of the childs situation in each individual case. The child's right to be heard and to have an influence In all matters concerning custody, and access, the child is the principal person. It therefore goes without saying that great weight must be attached to the childs own ideas about how he or she wants things to be. At present it is said that the court must take account of the will of the child. The word will may lead people to think that the child must have expressed a definite opinion, for example, concerning which parent the child wants to live with. However, this does not agree with the thinking in the Convention on the Rights of the Child nor with how we for our part consider that the childs attitude should be taken into account. that if the child has a definite opinion this must be taken into account, depending on the childs age, etc. But even if the child has no such definite opinion, the child may have views on what her or his life should be like. Not infrequently the child is unwilling to take an explicit position for or against a parent, but can express which school he or she wants to attend, which leisure time activities he or she wants to engage in, and so on. From this it can follow in- directly, for example, which parent the child should live with or what arrangements should be made for access so as to meet the childs wishes. In our opinion it is not compatible with the best interests of the child to disregard these types of more generally expressed thoughts on the part of the child. We therefore propose that the legislative text be amended to state that it is the childs attitude that the court must take into account. We also propose that relatively young children should also have a chance to be heard and to influence their situation. Our investigations show that it is now usual to talk with children about their attitude from the age of 6 at least. We therefore propose as a general principle that the child must always have an opportunity to be heard and that her or his attitude must be taken into account. Children vary in their degree of maturity and abilities and in each individual case it must be assessed, first, whether it is inappropriate to talk with the child and, secondly, how much weight should be accorded to any attitude of the child. It is evident from our investigations that it is unusual for the moderator to talk with the child in connection with cooperation talks between the parents. Often, however, the child has already been drawn into the parents conflict and it can even be insulting for the child that no one talks to her or him about how he or she wants things to be before a decision is made over her or his head. Children often have a clear idea about how they want their future life to be and should be given an opportunity to express this. We therefore propose that talks should be held with the child on one or more occasions while the parents are in the course of cooperation talks. Only if it is inappropriate to have talks with the child should the possibility of not doing so be considered. Our investigations show that it is not particularly common for the social welfare committee to talk with the child before an agree- ment is approved. Society has an absolute responsibility to look after the best interests of the child objectively. Decisions that are not in the best interests of the child must not be sanctioned by society. This implies that the child must have an opportunity to be heard and to give her or his view of the matter in cases where the parents agreement must be approved by the social welfare committee. We therefore propose that talks be held with the child before the social welfare committee approves an agreement. Only if it is inappropriate to have talks with the child should the possibility of not doing so be considered. If there are no talks with the child in connection with approval of the parents agreement by the social welfare committee, the parents must be asked about the childs attitude. Our investigations reveal that the information contained in rapid reports varies a great deal, depending on the municipality dealing with the case. We consider that the social welfare committees must handle matters more consistently. In this connection we propose that as long as this is not inappropriate, the official handling the case should talk with the child before rapid reports are delivered to the court. In the situation present when rapid reports come into play, the child has already been drawn into the parents conflict. As we have already mentioned, it can even be insulting for the child that no one talks with her or him about what he or she wants before a decision is taken over her or his head. The child must have an opportunity to give her or his views concerning wishes for future arrangements. Our studies show that the quality of custody investigations has improved in recent years. Children are being heard to a considerably greater extent now than was the case just a few years ago. But this does not mean there is no room for further improvement. Among the improvements that can be made, the investigator could meet and talk with children to a greater extent than happens today. In order to meet the best interests of the child, it is necessary that the officials receive training in talking with children on their own terms, interpre- ting the ways in which children express themselves and other investigative methods. We believe the social services must take an part to make it easier for parents to reach amicable solutions in matters that concern the child. Parents must be offered cooperation talks as soon as possible. After completing cooperation talks, the parents and the child must always be offered follow-up talks unless this is in- appropriate or unnecessary. The parents attention must be drawn to the possibility of making agreements on and access that apply for a limited time, and the social services must always follow up such agreements. Our remit has included reviewing current practice concerning childrens registration in population registers. As far as our studies show, the criticisms that have been made regarding childrens registration in population registers mainly focus not on the rules for registration as such but on their practical application. As it is important that the information in the population register is neutral and factual, we cannot find that the rules for population registration should be changed in any way. The existing guidelines for assessing where a child is to be registered also reflect this situation. Decision-making data for courts and social welfare committees The remit has included assessing whether the courts and social wel- fare committees have access to all the data they may need to make their decisions and, if the situation is not considered satisfactory, proposing ways of giving them access to better data. Where rapid reports are concerned, our investigations reveal that the information they contain varies a great deal, depending on the municipality dealing with the case. Generally the rapid reports consist only of an excerpt from the social services records, if these contain information about one or both of the parents and the child. In our view, the rapid reports should contain as much information as possible, as an interim decision will in many cases have a great in- fluence on later final decisions. Already having talks with the parents in connection with the rapid reports is one way of picking up the parents for whom cooperation talks can be a means of making pro- gress in their discussions about the child. We propose that before issuing rapid reports to the court the social welfare committee should always have a talk with the parents and, as mentioned in the precious section, with the child, unless this is inappropriate. Where custody investigations are concerned, our examination shows that the quality of the investigations has improved in recent years. The person conducting a custody investigation is not obliged to provide a recommended decision in the report, but our examination of custody investigations shows that in general the investigator does The conclusions and recommendations of the custody investigator are of great importance. The investigator is generally – alongside the parents – the person who knows the childs situation best and the one who can see objectively what is best for the individual child. We therefore propose that the investigator present proposed decisions in the report, unless this is inappropriate or unnecessary. In our view, the investigator should further have the opportunity to access the same information as is available to the social welfare committee before it determines whether the agreement between the parents should be approved. We therefore propose that a secrecy-override rule be introduced to allow information to be obtained from another social welfare committee in these cases. We consider that the court should act with a firm hand and constantly be so as to move the case forward. From many points of view there is reason to try to limit the number of proceedings concerning custody, and access. Such proceedings can often be detri- mental to the child and it is important that the court attempts to the utmost possible extent to apply a childs perspective, not only as regards the material decision but also with regard to court pro- ceedings. And from such a perspective it is often important that proceedings are carried through without delay and that a conclusion to which the child can adapt her or his life is reached as soon as possible. One important element here is to attempt to see to it that the underlying district court decision on custody, and access is already made on as solid a basis as possible. To this end we propose that the court, as a general rule, should take up the issue of an amicable solution and actively encourage the parents to reach an amicable solution. However, the court must not encourage the parents to enter into an amicable solution at all costs: the focus must always be on the child and the best interests of the child. According to current rules, a general court has no possibility of ordering the parents to attend a meeting with a mediator. However, this can be ordered in enforcement proceedings. It seems unsatis- factory that efforts to get parents to come to an agreement are not made until the enforcement stage. As stated above, we consider that the court itself, as a general rule, should attempt to get the parents We also propose that in cases where it is appropriate, the court should be allowed to commission a mediator to try to get the parents to reach an amicable solution that is compatible with the best interests of the child. The mediators role must be to actively encourage an amicable agreement while always maintaining a focus on the best interests of the child in the mediation process. We also propose that a court should be able to prescribe interim trial periods, which gives parents and children an opportunity to test a certain solution for a set time period so as to see if it does meet the best interests of the child in practice. During this period the case will be stayed in other respects. If the tested solution turns out to work, this can be reflected in a final decision. If it proves not to work, another solution will have to be considered. With regard to the more traditional interim orders that the court can make while the case is being processed, it is important to restrict the possibility of issuing such orders. Not infrequently these decisions are taken on thin evidence yet they quite commonly have a decisive influence on the final decision. Sometimes of course it is necessary for the court to make a temporary decision on arrangements but in practice there are also cases where decisions on a disputed issue can perfectly well wait until the data on which to base a decision has become fuller and more reliable. We therefore propose that the possibility of issuing interim decisions be limited so as to allow the court to issue an interim decision in a matter only if there are positive reasons for doing so. We also propose making leave to appeal mandatory for bringing an appeal in the court of appeal against the decision of a district court. In order to ensure the quality of the courts decision, we also propose measures aimed at enhancing judges skills. One problem that has been brought to our attention concerns the processing of cases and business where the child and the parent with whom the child is living have protected personal data. Problems can arise, for example, if the court considers that it is necessary to obtain a custody, or access report, since it is impossible for a court or a social welfare committee to keep information about which social welfare committee has been requested to appoint someone to carry out the investigation secret from one party. In order to deal with this problem, we propose that the court – in cases where a parent or the child has protected personal data – should pass the commission to appoint someone to carry out a custody, or access investigation to a social welfare committee specially nominated by the Government. A similar arrangement should apply when the court is to obtain information from the social welfare committee concerning custody, and access. No real review has been made of the regulations in Chap. 21 of the Parental Code concerning enforcement and return since these rules were introduced in the Parental Code at the end of the 1960s. The amendments made in recent decades to the regulations in Chap. 6 of the Parental Code concerning custody, and access have partly broken the connection between these rules and the regula- tions concerning enforcement and return. We have been instructed to review the enforcement rules and consider whether enforcement should be transferred from an administrative court to a general court or to some central government administrative agency. We propose a completely new system. A fundamental idea behind this is to separate the enforcement proceedings so as to make them truly enforcement proceedings and nothing else. As things stand at present, in most cases enforcement proceedings in fact deal with issues relating to the fundamental decision itself, such as whether it is really appropriate for the child to live with a particular parent or whether the child may risk coming to harm through contact with a particular parent. There is a tendency to talk about parallel proceedings and even if this is not formally speaking the way things are, in practice what often happens is that the same matters are examined in different forms of proceedings. This is a system that cannot be considered appropriate from any point of view. On the contrary, as we have gone into before, it must be desirable from the childs perspective for there to be as few proceedings as possible and for a well- grounded decision to be reached as soon as possible to which he or she can adapt her or his life. In our opinion, a fundamental prerequisite if enforcement pro- ceedings are to become precisely enforcement proceedings and nothing else is to only take into account objections to enforcement that relate to the actual implementation of enforcement, not objections that relate to the decision to which the enforcement refers. If an objection is presented that gives cause to change the fundamental decision, it should be this decision that is attacked, not its enforcement. Enforcement proceedings should accordingly in principle only relate to circumstances and facts that are of a temporary nature and that have occurred after the decision underlying the application for enforcement. In practice, however, this is often not the case in the present system. Often it is the same circumstances that were examined in, for example, the access case that sub- sequently come up again in the enforcement case. If, for example, in a case concerning access, one parent has raised as an objection to the other parents claim for access that that parent has behaved in a degrading towards the child but the district court has not considered that the circumstances preclude access, the same objection will often be made in the enforcement case, not infrequently in combination with assertions of new degrading treatment. Not in- frequently, it is then claimed that the instances of degrading treat- ment together should be reason enough for there to be no access, and enforcement should consequently be denied. As a result, the enforcement case often involves an extensive examination that largely covers the same circumstances that have already been examined in the access case and that deals with the question of whether the child should have an access meeting with the parent. Our examination of enforcement judgments shows that things turn out this way relatively often. To be sure, our examination also shows that it is rare for an administrative court to agree to a partys claim in cases such as those discussed here. However, the fact that extensive enforcement proceedings nonetheless result – which in practice tend to become new custody, and access cases – cannot be regarded as a desirable system for the child. Not only are repeated proceedings typically bad for the child. It must also typically be assumed to be bad for the child that the decision made by the district court cannot be enforced. As stated above, we have recommended rules for dealing with these cases that we think should lead to the district court reaching a decision that is most compatible with the best interests of the child, on the basis of as good and as detailed data as possible and within a reasonable time. Consideration for the best interests of the child will then also require that the decision becomes a reality for the child, i.e. it can be enforced. Bearing in mind the best interests of the child, enforcement pro- ceedings must therefore be designed so as to allow a decision by a court on custody, or access to be enforced, in principle, without any very great examination. Naturally, matters that need to be taken into account may occur after the district court has made its decision. The child may become ill or want to go on a school trip that coincides with the date set for an access visit. However, facts may also have arisen that have a more lasting effect. Evidence may have emerged that there has been abuse or a parent may commit degrading actions towards the child or some other family member after the district court has made its judgment. On the basis of what we have just said, it is clear that a distinction must be made between impediments of a more temporary nature, e.g. that the child wants to attend a sports camp on a certain week- end, and impediments that are not of a temporary nature, e.g. that a parent fails in her or his care of the child by subjecting her or him to degrading treatment. Circumstances of the former kind have a natural place in enforcement proceedings. They do not concern the funda- mental decision but refer to its enforcement on one or more specific occasions. When, on the other hand, circumstances of the second type are concerned, they have no place in enforcement proceedings, as they can give reason to change the fundamental decision and mean that this decision should no longer be followed. This leads us to the conclusion that enforcement proceedings should only encompass impediments of a temporary nature. We therefore propose separating enforcement proceedings. Only impediments to enforcement that relate to the implementation of enforcement should be considered. Objections that might give reason to change the fundamental decision must be examined by bringing an action for varying this decision, not within the frame- work of enforcement proceedings. These proceedings should there- fore only encompass impediments of a temporary nature. Now of course it is not enough to have two separate systems derived from theoretical principles; they must be coordinated so that the system guarantees that every decision is compatible with the best interests of the child in each specific instance. In order to achieve this we propose that if an objection is made in the enforcement proceedings claiming that enforcement should not occur in view of an impediment that is not of a temporary nature, the court should be able to offer the parties the possibility of bringing an action for variation of the fundamental decision before a resolution is made on enforcement of the decision that has been questioned. This should be possible if a party invokes evidence or circumstances that were not examined in the earlier decision and the court considers that, with regard for the best interests of the child, there is reason to re- examine the matter that the application for enforcement refers to. If no such action is brought, the existing decision will apply. Now it can of course happen that a party does not bring an action for variation of the fundamental decision even though this would have been warranted. To ensure that the child does not risk coming to harm in such cases, we propose that not only the parents but also the social welfare committee should be given the chance to bring an action subject to a certain time limit. In our opinion, there are also strong arguments for integrating enforcement proceedings into the custody proceedings, as far as is possible. We therefore propose that the question of enforcement of an interim decision should be examined by the court within the framework of the ongoing custody, or access case. As a further step in this we also propose that an application concerning enforcement will not be taken up for examination at all if the parties are currently engaged in a custody, or access case and the application for enforcement refers to the same matter. This arrange- ment will make it possible for the court dealing with a custody, or access case to devote itself fully and at all times to the endeavour to ensure that the child obtains the solution that benefits the child most. As an additional element in this, we propose that the processing of matters relating to the enforcement of judgments and agreements concerning custody, and access should be transferred from administrative courts to general courts.