REPLY BY THE SWEDISH CENTRAL AUTHORITY TO THE HAGUE QUESTIONNAIRE ON PREVENTIVE MEASURES
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.