Sweden

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.

D. Habitual Residence

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  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: 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.” 

From the Swedish Central Authority:

·                     The designated Swedish Central Authority to discharge the duties that are imposed by the convention is the Department for Consular Affairs and Civil Law at the Ministry for Foreign Affairs.

·                     Child abduction cases demand special knowledge of the substance of the Convention, and in foreign legislation. To make sure that the interpretation of the Convention is similar, there is much to suggest that the trial of cases regarding child abduction takes place in one designated court. Since first of July 2006, the Stockholm City Court is the only authorized Court to hear return applications. The appellate Court will be the court of Appeal (also in Stockholm), whose judgment can be appealed to the Supreme Court, if the Supreme Court gives leave to appeal.

·                     It is only family judges that hear cases regarding child abduction, but there is no limited numbers of family judges who have been appointed in hearing these cases.

·                     The court is obliged to handle the case with expedience. Cases should be dealt with within six weeks and in the event that the process lasts for a longer time the court is obliged to inform the applicant, upon his/her request, about the reasons causing the delay. The City Court can decide whether the decision should be enforced immediately upon announcement of the verdict or once the decision has gained legal force.

·                     In most Hague Convention Cases, the Court orders that the decision shall be enforced immediately, unless any of the parties has requested a stay of execution and that request is granted by the Court. A judgment gains legal force when the time- limit for appeal, three weeks, has expired. The appellate Court is the Court of Appeal whose judgment can be appealed to the Supreme Court, provided that the latter gives leave to appeal, which is done only in cases of precedential value. The Courts are obliged by law to give Hague Convention cases regarding wrongful detention or abductions priority. The applicant should receive a judgment within six weeks upon the Court’s receipt of the application.

·                     The Swedish Children and Parents Code and the 1989 Act (section 17) recognizes, the child’s right to have an opportunity to express his or her views during the procedure. This shall be done unless the court decides that it would be improper in respect to the child’s age and maturity. This exception shall be interpreted strictly. As a general rule, the child shall be asked in a way that takes into consideration the child’s age and maturity. The assessment of younger children’s statements shall be made by people with certain knowledge in this area and it shall be dealt with in another way than when it concerns adults.

·                     In most cases the hearing of the child is conducted by social welfare board’s social workers. There are no special rules how the hearing should be organized, and it varies depending on the age of the child, child’s parent’s mutual co-operation and other circumstances. Parents of the child are not normally present in the hearing. The social welfare board writes a report of the hearing, which will be sent to the judge.

Reply by the Swedish Central Authority to the Hague Conference Questionnaire on preventive measures in the context of the 1980 Hague Convention on the Civil Aspects of International Child Abduction

A.      Legislation and Court Orders

1.      Civil legislative provisions which may act as a deterrent to a potential abductor, or may have a preventive effect.

Chapter six of the 1949 Swedish Parental Code deals with issues concerning custody, residence and contact. Already in the travaux preparatoires for the 1983 rewriting of the 6th chapter of the 1949 Swedish Parental Code, it was stated that attempts to sabotage one parent's contact with a child, could lead to reconsideration of a residence decision.

When the Swedish Parental Code was revised a second time in 1998, a prominent section was introduced in chapter six, stating the paramount importance of the principle of the best interests of the child. This section, section 2a, prescribes that the best interests of the child should be of paramount consideration in any orders and decisions regarding custody, residence and contact. The section also states that when deciding what constitutes best interests, special consideration should be given to the child's need of close contact with both parents. Consideration should also be given to a potential risk of abuse, illegal abduction, illegal retention or any other form of harm to the child.

In 1998, the Swedish courts were also given the power to order joint custody even in cases where one of the parents objects to this.

A government committee has been designated to analyse the practice of these rules and investigate means of revision.

Section 15 decrees both parents' common responsibility to satisfy the child's need of contact with the non-resident parent. The resident parent also has a special responsibility to look after the child's interest in contact with any other person who might be close to the child and to provide sufficient information to the non-resident parent in order to promote contact. From the above, the conclusion can be drawn that parents abducting, retaining or in any other way attempting to oppose a child's contact with the other parent, face difficulties when it comes to all forms of decisions regarding custody, residence and contact.

If there is a severe risk that the health or development of the child will be harmed if the child remains with his or her parents, the court can, on the claim of the social services, put the child in care under the Care of Young Persons Act.

2.      Criminal legislative provisions which may act as a deterrent to a potential abductor, or may have a preventive effect.

The paramount statute regarding this issue is chapter 7, section 4 of the Swedish Penal Code from 1962.

This section states that any person who illegitimately separates a child under the age of 15 from her/his parents will be sentenced to a fine or imprisonment for a set period of one year at most. It is also stated that the same rule applies when somebody with shared custody of a child under the age of 15 without good reason high-handedly abducts the child or in any other way gives her/himself the right to the child. If the action is considered serious, the perpetrator should be sentenced to imprisonment, for a set term of six months at least and four years at most. International child abductions are usually considered as serious by the criminal courts.

3.      Court orders which can be obtained during , for example, divorce or custody proceedings which prohibit, restrict or criminalise removal or retention

Swedish courts do not have the powers of courts in Common Law countries to make decisions regarding specific problems that may arise during proceedings. The Swedish courts cannot order the submission of passports except as a condition for access. The Swedish Passport Authority, on the other hand, has the power to withdraw children's passports on the request of either custodian. Passports can also be voluntarily left with the police authorities or with a legal advisor.

The court can also make a provisional residence order, access order or sole custody order under chapter six, section 20 of the Parental Code. This can be done ex officio. In an access order, the court can decide that contact should only take place in the presence of a third party. The court can also reject an access claim so that the parent who is the potential abductor will have no contact at all with the child. A decision under section 20 can be enforced in the same ways as an order. The court cannot make a decision like this unless the claims of both parties have been heard. The decision is valid until an order, a new decision or an agreement between the parties is made, but can be reconsidered at any time at the request of either party.

4.a.      Court orders which can be obtained in emergency situations

In the Swedish law implementing the 1980 Hague Convention, there are two sections which grant the local police authorities and the administrative courts specific powers in dealing with a Hague case. Section 19 states that the court handling the case may order that the child be immediately taken into care by the authorities in any way the court finds suitable. This presupposes that there is a risk that the child will be taken out of the country or that the enforcement of an order will be obstructed. In addition to this, the court can make contact orders.

Under section 20, if there is no time to await an order under section 19, the police can immediately bring the child under care or take any other urgent measures that can be made without harming the child. In these situations, the police must be assisted by a physician and a social worker. The action should be instantly reported to the administrative court, who without delay will decide whether or not it shall stand.

4.b.      Can these orders be obtained out-of-hours and ex parte?

Orders under section 19 and section 20 of the 1989 implementation act can be made ex officio and ex parte. There are no possibilities of obtaining an order under section 19 out of hours, but the need for an immediate reaction is satisfied by the power of the police to act under section 20.

5.      Relocation orders

There is no institution in Swedish family law that is comparable to relocation orders in Common Law countries. The question of which country the child is to live in is considered to be of such importance that it has to be the custodians joint decision. Joint custody is also one of the main features of Swedish family law. Only if a parent has sole custody can he or she move abroad with the child against the other parent's wishes. A residence order in Sweden does not refer to a place, but to a person. This means that a residence order in favour of a person already living abroad, or who is openly intending to move abroad, entails a decision in favour of the child's living abroad.