SWEDEN AND INTERNATIONAL CHILD ABDUCTION

By Jeremy D. Morley

A. Domestic Laws and Regulations Implementing the Hague Convention

Sweden has implemented the provisions of the Convention through a domestic Act, “On Recognition and Enforcement of Foreign Decisions Concerning Custody, etc. and on the Return of Children” (hereinafter “the Implementation Act”). This Act addresses Sweden’s obligations to both the Hague Convention and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children.

B. The Swedish Central Authority

The designated Central Authority for the purposes of the Convention is Sweden’s State Department for Foreign Affairs.

C. Wrongful Taking or Retention

Paragraph 11 of the Implementation Act provides that a child who has been brought illegally to Sweden, or who is illegally retained in Sweden, will be returned, upon request, to the person from whom the child was abducted, if the child was a habitual resident, immediately before the abduction or the retention, in a state that is party to the Hague Convention. Paragraph 12 provides that an abduction or retention is wrongful if it was carried out in defiance of the guardian’s right to care for the child, according to the laws of the state where the child was a habitual resident.

In order to determine habitual residency, a Swedish court will examine the objective and the subjective circumstances surrounding the case Objective circumstances include the time spent in Sweden, as well as social and other personal or professional relations to Sweden, as compared to other countries. Due consideration is given to the intent to stay in the country, and for a child, the habitual residence of his guardian is given significant consideration. The habitual residence of a parent who only is entitled to parental visitation is, however, of less significance. The fact that the child may have been abducted and forced to change habitual residence does not necessarily impede the court from finding that the child has acquired a new habitual residence.

In one case, the court held that a small child must be considered to have the same habitual residence as his guardian. However, if the guardian acquires a new habitual residence, the habitual residence of the child does not automatically change if the move was carried out against the will of the other parent, not later ratified by the opposing parent, unless considerable time has passed since the abduction.

E. Defenses

There are four possible defenses.

First, a petition for can be refused if more than one year has passed since the time of the illegal abduction or retention and the child has settled in his new environment. (This corresponds with article 12, section 2 of the Hague Convention).

A second defense is that there is a grave risk that the child would be physically harmed or psychologically damaged, or if the child otherwise would be placed in an intolerable situation. (Corresponding to article 13 b, section 1 of the Convention).

Third, a petition can be refused if the child opposes the return and the child has reached such an age and maturity that his views should be taken into consideration. In case law this age has been set at 12, but even when the child has reached the age of 12, the court will, with the assistance of the social authorities, make an independent evaluation of the child’s level of maturity. (Corresponding to article 13 b, section 2 of the Convention). But in one case a 12 year old boy stated that he did not want to return to his mother in Great Britain, and preferred to stay in Sweden with his father, with whom he previously had not lived for any great length. The court asked the social authorities to evaluate the sincerity and seriousness of the boy’s will. The social authorities determined that the child was mature enough to make a considered expression of will. Nonetheless, the Supreme Administrative Court found that the child did not possess the insights necessary to make a deliberated decision and ordered that he be returned to his mother in Great Britain. The Court felt that he had not considered all the difficulties connected with leaving his habitual residence in England or adjusting to a new life in Sweden.  (Supreme Administrative Court (Regeringsrätten) (Sweden), decision of 21 January 2002, Case number 7373-2001).

A fourth possible defense is that an order for the return of a child would be incompatible with domestic fundamental principles for the protection of human rights and fundamental freedoms. In Sweden, the pertinent rights and freedoms are primarily found in chapter 2 of the Constitutional Act. (Corresponding to article 20 of the Hague Convention).

F. Return Requested by Sweden

If a parent has abducted a child who was permanently residing in Sweden to a foreign country, a civil district court can issue a declaration that the child has been illegally abducted or retained. If both parents have custody of the child, and if one of the parents has abducted the child or is retaining the child abroad, the court may also declare that this act is illegal.

G. Domestic Custody Laws in Sweden

Central provisions regarding children are found in the Parents and Children Code.

Joint custody is the most common form of custody in Sweden. In 2002, the parents of almost ninety percent of all children between the ages of one and seventeen had joint custody of their children.

Children of married parents are automatically in the custody of both parents. If the parents later divorce, in most situations, joint custody simply remains with both parents.

An unmarried mother is given sole custody of the child. If the parents marry later, both of them obtain custody of the child from that point in time, unless a court previously entrusted custody to one or two specially appointed custodians. If only one of the parents has custody of the child and the parents wish to have joint custody, the court will, on their application, make an order in accordance with their request, unless joint custody is manifestly incompatible with the best interest of the child. Alternatively, the parents may obtain joint custody by filing a request with the tax authority.

The legal custodians have both a right and an obligation to decide questions that concern the personal matters of a child.

The opinion of the child must also be taken into account in this decision-making in relation to the increasing age and maturity of the child. (The Children and Parents Code, ch. 6, Sec. 2b).

If a child has reached twelve years of age, or if prior to reaching age twelve, a child has reached such a level of maturity that the child’s preference ought to be given corresponding weight, a decision normally cannot be executed against the child’s will.

Parents who have separated typically take turns taking care of the child and the child’s actual daily care is only managed by one of them at a time.

Swedish law assumes that parents who have joint custody will make joint decisions concerning the child that are within the competence of parental custody. It is only decisions regarding the form of custody itself, i.e. if it is to be sole or joint, where the child is to live, and matters concerning access, that a court will resolve.

Whether a child’s residence may be changed without a mutual decision of joint custodians is unclear. Professor Johanna Schiratzki is of the opinion that mutual consent is not required.  Johanna Schiratzki, Barnets Basta I Ett Mangkulturellt Sverige at 141 (2000).

The attitude of the courts towards decisions made by agreement of the parents is that they normally correspond with what is best for the child. Thus, no cause of action exists to challenge a decision reached by agreement of the parents on the ground that it is not in the best interests of the child.

If the parents cannot reach an agreement the only option is for one of them to file for sole custody.

H. Swedish Non-Compliance with Hague Convention

U.S. State Department Report on Compliance with the Hague Convention, 2005

“Sweden’s significantly improved record on enforcing return orders has been noted in previous Compliance Reports.  Enforcement problems, however, remain a barrier to access.  Arrest or physical removal of the child from the violator's care is rarely used, and Sweden does not have the equivalent of a “contempt of court” mechanism.   In the Department of State’s experience, Swedish courts have enforced very few of the access rulings favorable to American fathers."

U.S. State Department Report on Compliance with the Hague Convention, 2000

"Sweden was cited in the previous Compliance Report as noncompliant. Progress has been made in resolving cases and returning children and the Central Authority has been increasingly cooperative. However, the Department of State remains concerned about the commitment of Swedish authorities to act promptly to locate children and enforce return and access orders issued under the Convention. The U.S. Ambassador to Sweden met with Swedish justice officials and appeared on Swedish television to press the U.S. interest in prompt action on Hague cases. In one case, a child was located in Sweden and returned to the United States, but only after a lengthy delay and despite initial assurances by Swedish authorities that the child was not in Sweden. In another case, after a lengthy period with no progress, Swedish authorities assisted the U.S. Embassy and U.S. law enforcement in a multi-country search that resulted in a child’s return to the U.S. from a third country.

One older case continues, nevertheless, to illustrate the potential for disputes over interpretation of the Hague Convention and enforcement of custody orders, which the convention does not address. The Regeringsratten, the Supreme Administrative Court in Sweden, denied a petition by an American parent for the return of a child to the United States. Return would have been required under an existing U.S. joint custody order that included a consensual agreement that the United States would remain the child’s habitual residence and that a U.S. court would maintain continuing and exclusive jurisdiction to resolve all future custody issues, but that allowed the Swedish parent to take the child to Sweden for a two-year period. The Swedish parent filed a petition in a Swedish court seeking to establish sole custody of the child and refused to return the child to the parent in the United States in August 1995, as agreed to in the U.S. custody order. The U.S. parent filed a petition under the Convention with the Swedish Central Authority. Although the lower courts in Sweden ordered the child’s return to the United States, the Regeringsratten found that Sweden had become the child’s place of habitual residence, stating that a determination of habitual residence is a finding of fact that cannot be legally agreed upon in advance. The Department protested to the Swedish Ministry of Foreign Affairs that the failure to recognize the United States as the habitual residence was inconsistent with the goals of the Convention and with the fact that the United States was, in fact, the habitual residence when the custody dispute arose. The child has never been returned to the United States. The applicant in this case subsequently obtained a Swedish court order for unsupervised access, but enforcement of the order depends on the acquiescence of the abducting parent who as of the time of this report has not permitted access.

The lack of effective measures in the Swedish judicial system to grant and enforce access rights compounds the negative consequences for the left-behind parent of a judicial decision not to return a child under the Convention. Swedish courts appear reluctant even to consider permitting access in the United States, in spite of the fact that judicial arrangements could be made in the United States to help ensure the return of a child to Sweden. In the absence of contempt of court sanctions, the abducting parent can, in any case, effectively disregard court ordered access.

Senior officials of the Swedish foreign ministry have visited the United States to meet with the U.S. Central Authority and members of Congress to discuss U.S. concerns on Sweden’s implementation of the Convention. Despite the resolution of several long-outstanding cases, the failure to grant and enforce access rights, and the lack of effective contempt-of-court sanctions in access cases, and instances where Swedish courts refuse to honor U.S. court orders even when both parents have agreed to a U.S. venue for custody determinations, are areas for continuing concern.”