sou · H5B36 · 2017-02-08 00:00:00 — Som ett första steg i en sådan satsning föreslår vi att MFoF ska få ett uppdrag av regeringen att göra en kartläggning av hur behovet av utbildningsinsatser för familje- rättssekreterare närmare ser ut. En sådan kartläggning bör innefatta en bedömning av inom vilka områden som behovet av utbildning är störst. Färre konflikter om barn avgörs i domstol Vi bedömer att förslaget om informationssamtal med föräldrar i konflikt om barn kommer att bidra till att konflikter mellan för- äldrar minskar och att färre tvister avgörs i domstol, vilket får kon- sekvenser för barn. Förutsättningarna för att på ett tidigare stadium hitta den bästa lösningen för barnet kommer att öka. Enligt vår bedömning kan förslaget på så sätt bidra till bättre förutsättningar för psykiskt och fysiskt välmående för de barn vars föräldrar är eller har varit oense i frågor som rör vårdnad, boende eller umgänge. Ökat fokus på barn Genom våra förslag tydliggörs barns rättigheter i flera avseenden i frågor om vårdnad, boende eller umgänge. Fokus flyttas från för- äldrar till barn. Våra förslag om barns rätt till information och rätt att komma till tals stärker barns rätt till delaktighet i frågor som rör vårdnad, boende eller umgänge. Ökad trygghet för barn Genom vårt förslag till kompletterande forumregler blir det i många fall möjligt med en prövning i domstol på annan ort än den där ett barn med skyddade personuppgifter har sin hemvist. På så sätt be- höver valet av domstol inte avslöja var barnet befinner sig. Förslaget om att föra över vårdnaden till en tillfällig vårdnads- havare är primärt avsedd att tillämpas när en vårdnadshavare upp- såtligen har dödat den andra vårdnadshavaren. Genom förslaget ökar förutsättningarna att snabbt ge barnet en ny vårdnadshavare när det finns behov av det och när en sådan lösning är förenlig med barnets bästa. Förslaget om informationssamtal med föräldrar i konflikt om barn kommer sannolikt att leda till färre tvister i domstol om vårdnad, boende eller umgänge, och i vart fall , till minskade kost- nader för domstolarna. Eftersom antalet familjemål blir färre kom- mer även socialnämndernas arbete med olika moment i tvister som handläggs i domstolarna att minska. Vi räknar med att den kostnad som kommer att uppstå för kommunerna att hålla samtalen kom- mer att motsvara de besparingar som görs på snabbupplysningar och utredningar för det fall antalet mål i domstolarna minskar . Vid informationssamtalen ska föräldrar bl.a. erbjudas samarbets- samtal och få information om stöd och hjälp i annan form. Genom förslaget kommer därmed fler föräldrar än att få kännedom om de möjligheter till stöd som finns och sådana insatser kommer sannolikt att bli vanligare, vilket också är avsikten. Utöver informa- tionssamtalen föreslår vi dock inga nya insatser utan det rör sig om att erbjuda föräldrarna redan tillgängliga insatser. Det är rimligt att förutsätta att kommunernas kostnader för sådana insatser kommer att öka. Enligt vår bedömning bör dock dessa kostnader inte ses som en beräkningsbar konsekvens av vårt förslag. Kostnaderna för de utbildnings- och informationsinsatser vi före- slår bedöms kunna finansieras inom befintliga ekonomiska ramar. Även kostnaderna för uppdragen till bl.a. MFoF bör kunna finan- sieras inom befintliga ekonomiska ramar. Förslaget om att en tillfällig vårdnadshavare ska kunna utses för ett barn kan leda till marginellt ökade kostnader för enskilda kom- muner. Våra förslag föreslås träda i kraft . Förslagen som rör informationssamtal föreslås dock träda i kraft som regeringen bestämmer. One of our main tasks was to evaluate the 2006 custody reform and investigate how the regulations have worked in practice, and whether the aim of the reform – strengthening the child rights perspective – has been achieved. Another main task was to survey and analyse the reasons behind the increase in the number of custody cases. The remit also included considering: •whether the regulations on joint custody need to be amended; •how parents’ chances of reaching an out-of-court settlement in cases concerning custody, and contact can be developed and improved; •how the child’s right to be heard can be strengthened; •what measures may be needed to ensure that risk assessments are carried out sufficiently, and that they are of high quality; •what measures may be needed to improve and streamline the handling of issues concerning transfer of custody in cases where serious violence has been committed in the family; •whether special forum rules need to be introduced for situations in which children and their parents have protected personal data; and •whether measures are needed to strengthen expertise in the pro- cessing of matters concerning custody, and contact. Our evaluation of the 2006 custody reform Our examination and survey To shed light on the results of the 2006 custody reform, we examined child custody judgments from district courts throughout the country, and held hearings with judges, family law secretaries and lawyers. We obtained opinions from child rights organisations, other stake- holder organisations and various associations. We also interviewed nine children who have experienced a custody dispute. To some extent, we were able to compare our results with the results of the 2002 Custody Inquiry presented in Vårdnad – Boende – Umgänge, Barnets bästa, föräldrars ansvar (‘Custody – – Contact; the best interests of the child, parents’ responsibilities’, Swedish Government Official Reports 2005:43). The overall results of the evaluation The primary aim of the 2006 custody reform was to strengthen the child rights perspective. In our assessment, the 2006 custody re- form has been successful in many respects. The child rights per- spective has been strengthened. Children’s views are now heard to a greater extent than before, risk assessments are carried out to a greater extent than prior to the reform, and social welfare com- mittees submit proposed decisions on custody in more than 90 per cent of cases. The best interests of the child play a prominent role in assessments concerning custody, and contact. Although the reform has helped to strengthen the child rights perspective, areas for improvement remain. For example, we have noted that the opinions of younger children, in particular – and how these opinions have been considered – are commonly not included in custody investigations and judgments. The quality of risk assess- ments also needs to be improved. One aim of the 2006 custody reform was to give courts greater scope to award sole custody. We have noted that it has become more common for one of the parents in custody disputes to be awarded sole custody. In 2014, the district courts awarded joint custody in 33 per cent of cases, sole custody for the mother in 46 per cent of cases, and sole custody for the father in 21 per cent In 2002, the district courts awarded joint custody in 55 per cent of cases, sole custody for the mother in 36 per cent of cases, and sole custody for the father in 9 per cent of cases. The courts also make more nuanced assessments of the issue of custody, in the sense that more circumstances are taken into account in the deliberations. Another aim of the 2006 custody reform was to make it easier for parents to reach an agreement on matters concerning custody, and contact. Our survey shows that it is common for the parties to reach a consensus agreement during court proceedings. This happens in around 65 per cent of cases in which there has at some point been a petition for sole custody. Courts work in various ways to help the parties reach an agreement, e.g. by ordering family mediation, by repeatedly drafting agreements that gradually bring the parties closer together, and by using the conflict and conciliation method. However, the possibility for courts to order mediation that was introduced through the reform is used in few cases. The reason for this appears to be that many judges have negative ex- periences of the mediation process. In cases where mediators have expertise and are suitable for the assignment, however, mediation can be an effective method for helping parents to reach an agree- ment. The 2006 custody reform highlighted parents’ ability to cooperate on matters concerning the child as a particularly important factor to be taken into account when adjudicating on custody (Chapter 6, Section 5, second paragraph of the Children and Parents Code). The intention was to make it clear that joint custody should not be considered where the level of parental conflict is so high that it has an adverse effect on the child. The reform may have contributed to more parents petitioning for sole custody. Difficulties cooperating are raised in the court case in an attempt to obtain custody. It is our impression that parents focus to a large degree on their diffi- culties cooperating rather than on possible solutions to resolve the conflict. In this sense, the regulation may have exacerbated con- flict. The part of the 2006 custody reform whereby the examination of enforcement was transferred from the general administrative courts to the general courts has been positive. The practicalities of enforcement cases have been facilitated, and the number of enforce- ment cases submitted to the district courts since 2006 has increased only slightly. We found that Chapter 21 of the Children and Parents Code, which regulates enforcement cases, needs to be reviewed with regard to content and language. We were not able to undertake such a review under the terms of our remit. Nonetheless, we pro- pose that an additional provision be introduced into Chapter 21 of the Children and Parents Code concerning the division of legal costs and special forum rules for those with protected personal data. The increase in the number of custody cases In 2006, 3 108 custody cases were submitted to the district courts; the corresponding figure in 2015 was 6 185. This represents an increase of 99 per cent. However, these cases are not only cases concerning disputes between parents, but rather also cases and matters in which a social welfare committee is the claimant or appli- cant. When those cases and matters are discounted from the figures, 2 822 custody cases were submitted to the district courts in 2006, and 4 166 cases in 2015. This represents an increase of 48 per cent, which is a more relevant figure on which to base our considerations. Why has the number of custody cases increased? The increase in the number of custody cases submitted following the 2006 custody reform is considerable. In our assessment, the increase is due to several factors. One possible explanation is the greater possibilities for sole custody entailed in the reform, which has probably led to more parents seeing an opportunity to success- fully petition for sole custody. equal parenting and an increased tendency towards conflict are other factors that have probably influenced this trend. The fact that leave to appeal is now required from the court of appeal may have led to repeat proceedings becoming more common. In our investigation, we found that 40 per cent of parties had previously been involved in a dispute concerning children. The corresponding figure in 2002 was 29 per cent. An increased incidence of cases with a foreign connection in which only one of the parents is in is yet another example of a likely reason for the increase in cases. There are also short- comings in efforts to prevent parental conflict. This has probably also influenced the trend. Starting points for the Inquiry’s proposals Protracted conflicts between parents have an adverse effect on children. Parental conflict can constitute a risk factor for a child’s emotional and social development. A court dispute often entails long-term emotional strain for children and parents. For the sake of the child, it is therefore important that conflicts are handled well, as far as possible – or ideally avoided altogether. It is also important that both children and parents can be offered support and assistance at an early stage on issues that may affect the child’s circumstances and daily life. Action is needed to help prevent parental conflict, which in turn may lead to a reduction in custody disputes. Furthermore, we take the view that the focus in this process needs to be shifted from the parents and their areas of conflict to the child and the child’s rights and needs. The child’s right to be heard and to receive information should be clarified further. There is also a need for greater protection for children at risk. While court proceedings are ongoing, the parties live in uncertainty as to the outcome of future rulings in the dispute. This is stressful for everyone concerned, particularly the children. Court proceedings should therefore be as efficient and proper as possible. It is vital that the courts’ possibilities to plan cases and pursue them to swift decisions are harnessed, while at the same time courts work to help parents reach lasting consensus agreements. Our proposals and assessments Obligatory information meetings to precede court proceedings There is a need to reach out to parents who are considering initia- ting a court dispute concerning children with information at an earlier stage than at present. A requirement will therefore be intro- duced whereby parents must, as a general rule, have taken part in information meetings before presenting any petition in a dispute concerning custody, or contact. At the meetings, all parents who are considering initiating a court dispute concerning children will receive relevant information about the legal regulations, the various forms of conflict resolution available, etc. before proceedings are initiated. If it is appropriate to do so, the parents will be offered family mediation. At the meetings – which should have a clear focus on the child – the parents will also receive information and guidance, according to their needs, on the assistance and support available to them. The municipalities will be responsible for the information meetings, within the framework of their social services provision. Information meetings should be held at the earliest oppor- tunity, and within four weeks of them being requested. The social welfare committee will issue a certificate to parents who have attended information meetings. The certificate will be valid for one year. A parent who initiates proceedings and presents a petition in a dispute concerning custody, or contact must present a valid certificate showing that they have attended an information meeting. If no certificate is submitted – despite a subsequent court injunction to do so – the action will be dismissed. A specific law will be introduced – the act on information meetings with parents involved in disputes over children – to regulate the procedures for these meetings. A provision will be introduced into Chapter 6 of the Children and Parents Code, making information meetings a prerequisite in many cases for legal actions concerning custody, or contact. The provisions in Chapter 14, Section 5 of the Marriage Code will be supplemented to stipulate that in some cases, the courts cannot examine a parent’s claim concerning custody, resi- dence or contact. A competency and suitability requirement for mediators to be introduced in law Our survey shows that the frequency with which mediators are appointed varies from one court to another. In general, mediation is used in few cases. One somewhat uncertain finding from our survey is that the courts appoint mediators in 1–3 per cent of cases. Sometimes, judges refrain from appointing mediators due to nega- Nonetheless, there are examples of mediators who do succeed in helping parents to reach an agreement. To ensure that mediators meet the high standards that must be imposed in terms of qualifications and experience, we propose the introduc- tion in law of a competency and suitability requirement. Under our proposal, mediators should be required to have relevant training and professional experience, and be suitable for the task. It is up to the judge concerned to ensure that the person appointed as mediator meets the requirements. For mediation to be successful, it is important that it is con- ducted in confidence. We propose that secrecy apply in court to in- formation provided by a party to a mediator in the context of medi- ation in a case in which the mediator has been appointed under Chapter 6, Section 18a of the Children and Parents Code, if the party has entered a reservation to that effect. However, we do not propose any restrictions on mediators’ obligation to give evidence. Nothing should prevent information of significance to the assess- ment of the best interests of a child, of which a mediator may be aware, being presented in court. In determining custody, particular importance should be attached to the parents’ ability to take joint responsibility in matters concerning the child Under the current regulations, when assessing whether the parents should have joint custody or one of the parents should have sole custody, the court is to pay particular attention to the parents’ ability to cooperate in matters concerning the child. We have con- cluded that the focus on parents’ inability to cooperate – which has resulted from the regulation – can exacerbate conflict. An elevated conflict level has negative consequences for children. Custody should be influenced by how the parents’ behaviour towards each other affects the child, rather than the precise details of how they choose to resolve matters concerning the child. If the parents’ behaviour has an excessively adverse effect on the child, it may mean that sole custody is in the best interests of the child. Under our proposal, therefore, when assessing custody the courts should take particular account of the parents’ ability to take joint responsi- bility for matters concerning the child, rather than of their ability to cooperate. Parents taking joint responsibility means that together they can resolve matters concerning the child in such a way that the child is not affected by the parents’ conflict. This can be achieved through extensive contact or very contact, and contact can be verbal or written. The aim is to reduce the focus on the parents’ ability to cooperate and instead focus on the child’s situation and the consequences for the child. In our view, this will allow con- siderably less scope for parents to contrive conflicts with a view to obtaining sole custody than is possible at present. This proposal also corresponds better to how the courts in practice assess the ability to cooperate. Courts should be able to award joint custody even if both parents oppose it At present, the courts can award joint custody if one parent opposes it, but not if both oppose it. We propose that the courts should be able to award joint custody even if both parents oppose it. The aim of this amendment is to make it clear that the best interests of the child, not the parents’ positions, should be the crucial factor in the court’s assessment. The best interests of the child and the child's right to be heard The best interests of the child will be clarified We propose an addition to Chapter 6, Section 2a of the Children and Parents Code, clarifying that the principle of the best interests of the child is the deciding factor not only for court orders, but for all matters concerning custody, and contact. We also propose that the same section stipulate that the parents’ ability to place the child’s needs before their own conflict is to be one of the circumstances that is taken into particular account when assessing what is best for the child. An addition of this kind sends an important signal to parents involved in a dispute concerning children, or con- sidering such a dispute. Children must receive relevant information and the child’s right to freely express their views and have them taken into account will be clarified A child is never obliged to express their views, but they should be given the opportunity to do so. The child’s right to be heard pre- supposes that the child receives information. We have found that the child’s right to information and to freely express their views needs to be clarified. Under Chapter 6, Section 2a of the Children and Parents Code, the wishes of the child must be taken into account, and under Chapter 6, Section 19 of the Code, the person conducting an investigation must seek to establish the position of the child and present it to the court. It is unfortunate that the legislative text is based on wordings that may imply that the child must have expressed a decided opinion for it to be taken into account. This approach does not reflect the United Nations Con- vention on the Rights of the Child, or our perception of the child’s right to be heard. We therefore propose a new provision in the introduction to Chapter 6 of the Children and Parents Code, stipu- lating that the child must receive relevant information and be given the opportunity to express their views or position on matters con- cerning custody, and contact. If the child does not express an opinion, their views or position must – in as far as it is possible – be established in some other way. The provision will apply regard- less of whether a matter is processed by family law services, the courts or a mediator appointed under Chapter 6, Section 18a of the Children and Parents Code. We also propose that the child’s views and position, rather than their wishes, should be given due weight in accordance with the age and maturity of the child. By introducing the word ‘views’ into the legislative text it is made clear that even views that cannot be considered an expression of a decided opinion should be taken into account. These proposals would strengthen the right of younger children, in particular, to be heard. Social welfare committees will be able to hear children without custodial parents’ consent We propose that when an investigation or measure is ordered by a court under Chapter 6 of the Children and Parents Code, social welfare committees should be able to hear a child without the con- sent of their custodial parents and without a custodial parent being present. This will make it clear that children have an unconditional right to be heard, regardless of the views of their custodial parents on the matter. We welcome the assignment recently given to the Family and Parental Support Authority If information emerges that a child is at risk, the social welfare committee and the court must always conduct a risk assessment. Our investigation shows that both social welfare committees and district courts conduct risk assessments to a greater extent than previously. Nonetheless, the quality of risk assessments needs to be improved. The issue primarily concerns the difficulty of identifying and assessing different circumstances that may constitute a risk to the child and how those circumstances should be considered in the case in question. This issue is difficult to remedy through legislation. There is a demand – and a clear need – for support for handling risk assessments in investigations concerning custody, and contact. In its appropriation directions for the fiscal year 2017, the Government has tasked the Family and Parental Support Authority with producing support materials for risk assessments by social welfare committees in cases concerning custody, resi- dence and contact. We welcome this assignment and thus note that there is no reason for us to propose any measures with regard to risk assessments. This assignment can help improve the quality of risk assessments by providing tools to identify and assess the risk of a child being, for example, subjected to abuse or neglect.