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Föräldrars vårdnadsansvar för barn

Lejdström, Göran (2008)
Department of Law
Abstract
The purpose of this paper is to try to clarify what responsibility parents have for their children and what the duty of supervision to prevent the child from causing damages for third party means. I will further try to find explanations why the duty of supervision has not achieved the intended preventive effect. Internationally the denomination parental responsibility is used often. Schiratzki has argued that the international development and the split of the responsibility of parents in custody and guardianship adds to the confusion about the extent of the custody. In Sweden it has on several occasions been suggested that the expression custody should be replaced with parental responsibility. However most of the bodies to which the... (More)
The purpose of this paper is to try to clarify what responsibility parents have for their children and what the duty of supervision to prevent the child from causing damages for third party means. I will further try to find explanations why the duty of supervision has not achieved the intended preventive effect. Internationally the denomination parental responsibility is used often. Schiratzki has argued that the international development and the split of the responsibility of parents in custody and guardianship adds to the confusion about the extent of the custody. In Sweden it has on several occasions been suggested that the expression custody should be replaced with parental responsibility. However most of the bodies to which the proposals were referred for consideration were unified in the decision to keep the denomination custody. The child has the right to get its basic needs provided for by the parent and the best of the child shall be the conclusive argument for all decisions regarding custody, residence and contact. The interpretation of what is the best of the child is rather difficult and it changes all the time in pace with the progress of the society. According to the United Nations Conventions on the Rights of the Child from 1989, there should be a balance between the best of the child and other interests. The Swedish committee of the children has proposed that the best of the child should as a starting-point be interpreted in partly an objective and partly in a subjective perspective. Joint legal custody is common today. If the parents are married when the child is born the custody will automatically be joint. If the parents marry after the child has been born the custody will be joint in connection with the matrimony. At a possible divorce the custody will continue to be joint unless it is not dissolved. If the parents are not married to each other when the child is born the mother will get the sole custody. The parents have a responsibility for the personal conditions of the child and should see to it that its need and right for care, security and a good upbringing should be met and that the child will be treated with due respect to its person. The duty of supervision gives the parent a right and responsibility to decide in matters regarding the personal conditions of the child. The parent is also responsible for that the child will receive the supervision which is needed with due consideration to its age, maturity and other circumstances and also to see to it that the child will get satisfactory support and education. To prevent the child from causing damages to someone else the parent should be responsible for that the child is kept under supervision or that other suitable measures are taken. The duty of supervision remains till the child is 18 years or if it before that marries. Also the society has a big responsibility to see to it that the child will get a good adolescence. In the summer 2007 new rules for joint custody have been proposed. It is a. o. proposed that one of the parents should be given the right to take own decisions within certain areas. Because of that it has been more common that minors will cause damage and commit crimes, there were great demands at the end of the1980s and the beginning of the1990s that the liability of parents for possible damage caused by their children should be increased. The duty of supervision is part of the obligations of the parents and is both an obligation to protect the child as well as to see to it that the child is not causing damage to a third party. The increased liability in relation to third party was introduced 1994 by a supplement in Family law code 6:2, 2 part ( föräldrabalken). It means that the parent shall prevent possible damage which may be caused by the child. The parent may be liable if the child has caused a damage and if he/she by intent or negligence has neglected the duty of supervision. The Council on Legislation was, however, doubtful if the proposal would be as preventive as it was intended to. The rights and obligations of parents may be in conflict with the rights of the child and the child has no legal duty to obey its parents. If the parents do not meet their responsibility to give their children a good childhood there are no sanctions. Unfortunately it is most probably so that shortcomings in the up-bringing many times will lead to the child not being able to grow into a mature and responsible person. As a consequence there may be a big risk that the child may cause damage to a third party. It does not look like that the increased duty of supervision has resulted in the preventive effect that was intended. The issue today is more political than legal and to a great deal related to attitudes, values, norms and the changes of the society. Today the child is an individual, actor and subject with a right to express itself and take part in decisions. Maybe one should ask if the rights of the child have prevailed. Normally rights are linked with obligations. It does not bseem that possible duties of the child are discussed at all. It is easy to agree with the Danish family therapeutist Jesper Juul who in his book-The art of saying no with a good conscience- says that in a healthy relation to children it is all about the ability to take the grown-up responsibility. In a family one should be there for the best of each other and it is not an issue of hierarchical control. Even if one believe in the freedom of children it is not a question of disclaiming the responsibility which would lead to disharmony Laws and decrees must be more distinct and greater demands should be made upon both the society and maybe particularly more on the parents to take its responsibility to raise children to responsible persons. This responsibility must be given a more concrete form and be made aware of. (Less)
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author
Lejdström, Göran
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Familjerätt
language
Swedish
id
1559519
date added to LUP
2010-03-08 15:55:24
date last changed
2010-03-08 15:55:24
@misc{1559519,
  abstract     = {The purpose of this paper is to try to clarify what responsibility parents have for their children and what the duty of supervision to prevent the child from causing damages for third party means. I will further try to find explanations why the duty of supervision has not achieved the intended preventive effect. Internationally the denomination parental responsibility is used often. Schiratzki has argued that the international development and the split of the responsibility of parents in custody and guardianship adds to the confusion about the extent of the custody. In Sweden it has on several occasions been suggested that the expression custody should be replaced with parental responsibility. However most of the bodies to which the proposals were referred for consideration were unified in the decision to keep the denomination custody. The child has the right to get its basic needs provided for by the parent and the best of the child shall be the conclusive argument for all decisions regarding custody, residence and contact. The interpretation of what is the best of the child is rather difficult and it changes all the time in pace with the progress of the society. According to the United Nations Conventions on the Rights of the Child from 1989, there should be a balance between the best of the child and other interests. The Swedish committee of the children has proposed that the best of the child should as a starting-point be interpreted in partly an objective and partly in a subjective perspective. Joint legal custody is common today. If the parents are married when the child is born the custody will automatically be joint. If the parents marry after the child has been born the custody will be joint in connection with the matrimony. At a possible divorce the custody will continue to be joint unless it is not dissolved. If the parents are not married to each other when the child is born the mother will get the sole custody. The parents have a responsibility for the personal conditions of the child and should see to it that its need and right for care, security and a good upbringing should be met and that the child will be treated with due respect to its person. The duty of supervision gives the parent a right and responsibility to decide in matters regarding the personal conditions of the child. The parent is also responsible for that the child will receive the supervision which is needed with due consideration to its age, maturity and other circumstances and also to see to it that the child will get satisfactory support and education. To prevent the child from causing damages to someone else the parent should be responsible for that the child is kept under supervision or that other suitable measures are taken. The duty of supervision remains till the child is 18 years or if it before that marries. Also the society has a big responsibility to see to it that the child will get a good adolescence. In the summer 2007 new rules for joint custody have been proposed. It is a. o. proposed that one of the parents should be given the right to take own decisions within certain areas. Because of that it has been more common that minors will cause damage and commit crimes, there were great demands at the end of the1980s and the beginning of the1990s that the liability of parents for possible damage caused by their children should be increased. The duty of supervision is part of the obligations of the parents and is both an obligation to protect the child as well as to see to it that the child is not causing damage to a third party. The increased liability in relation to third party was introduced 1994 by a supplement in Family law code 6:2, 2 part ( föräldrabalken). It means that the parent shall prevent possible damage which may be caused by the child. The parent may be liable if the child has caused a damage and if he/she by intent or negligence has neglected the duty of supervision. The Council on Legislation was, however, doubtful if the proposal would be as preventive as it was intended to. The rights and obligations of parents may be in conflict with the rights of the child and the child has no legal duty to obey its parents. If the parents do not meet their responsibility to give their children a good childhood there are no sanctions. Unfortunately it is most probably so that shortcomings in the up-bringing many times will lead to the child not being able to grow into a mature and responsible person. As a consequence there may be a big risk that the child may cause damage to a third party. It does not look like that the increased duty of supervision has resulted in the preventive effect that was intended. The issue today is more political than legal and to a great deal related to attitudes, values, norms and the changes of the society. Today the child is an individual, actor and subject with a right to express itself and take part in decisions. Maybe one should ask if the rights of the child have prevailed. Normally rights are linked with obligations. It does not bseem that possible duties of the child are discussed at all. It is easy to agree with the Danish family therapeutist Jesper Juul who in his book-The art of saying no with a good conscience- says that in a healthy relation to children it is all about the ability to take the grown-up responsibility. In a family one should be there for the best of each other and it is not an issue of hierarchical control. Even if one believe in the freedom of children it is not a question of disclaiming the responsibility which would lead to disharmony Laws and decrees must be more distinct and greater demands should be made upon both the society and maybe particularly more on the parents to take its responsibility to raise children to responsible persons. This responsibility must be given a more concrete form and be made aware of.},
  author       = {Lejdström, Göran},
  keyword      = {Familjerätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Föräldrars vårdnadsansvar för barn},
  year         = {2008},
}