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Questions and answers on incorporating the UN Convention on the Rights of the Child into Swedish law
The Swedish Government has decided to submit a proposal to the Council on Legislation to incorporate the Convention on the Rights of the Child (CRC) into Swedish law. The Government considers that the CRC’s strong position must be made clearer and that a child rights-based approach must have a major impact on how the law is applied.
Why does the Government want to incorporate the CRC into Swedish law?
Despite strategic measures and the fact that the rights of the child are regularly transformed into applicable law and have been reflected in new legislation, these rights have not had a sufficient impact on decision-making processes concerning children. Nor has the fact that, in relation to children, the CRC involves obligations for central and local government activities had a sufficient impact.
The Government considers that the CRC’s strong position must be made clearer and that a child rights-based approach must have a major impact in on how the law is applied.
In what way do the rights of the child have insufficient impact?
The Inquiry on the rights of the child found in its surveys that the impact of children’s rights and of a child rights-based approach has been insufficient in many ways. This is most obvious with regard to the principle of the best interests of the child and a child’s right to express their views.
How can the rights of the child be expected to have a greater impact on the application of the law in Sweden if the CRC is incorporated into Swedish law?
Incorporation of the CRC means that officials and decision-makers will have to take a different approach to the CRC than at present. Incorporation entails a clearer obligation on legal practitioners to consider the rights that follow from the CRC in deliberations and assessments in decision-making processes in cases and matters concerning children.
Incorporation of the CRC makes clear that the principle of the best interests of the child must be the approach used in decision-making processes in cases and matters concerning children, and be based on the rights a child has under the CRC. Incorporation means that a child’s role as a legal entity with specific rights of their own is made clearer.
What will the difference be between the CRC as a legal act and as a ratified convention?
Incorporation of the CRC will gather the human rights that children are entitled to in a single act. The CRC as a whole will have greater visibility, and it will be clear that the rights in the CRC are connected and must be interpreted in relation to one another.
Incorporation of the CRC makes clear that other legislation concerning children, such as the provisions of the Parents Code, the Aliens Act, the Education Act, the Act concerning Support and Service for Persons with Certain Functional Impairments and the Social Services Act, must be interpreted on the basis of the CRC in its entirety and not only on the basis of the provisions transformed into each act.
Are other measures needed to strengthen implementation of the rights of the child?
For the rights of the child to have the desired impact, the CRC must continue to be transformed in addition to being incorporated.
In the proposal referred to the Council on Legislation, the Government also presents the measures taken to increase knowledge about the CRC among children and young people, in local government and government agencies. In the proposal, the Government states that an inquiry will be appointed to conduct a broad study of how the CRC is dealt with in Swedish legislation and in the application of the law, and that the significance of the CRC’s provisions will be systematically analysed based on Swedish conditions. In addition, the Government states that a guidance document will be produced on how to interpret and implement the CRC, based on rules of interpretation of international law, and that a new Swedish translation of the CRC should be published in connection with the incorporation.
How will children in Sweden notice that the CRC is part of Swedish law?
Incorporation of the CRC entails a clearer obligation on legal practitioners to consider the rights that follow from the CRC in deliberations and assessments in decision-making processes in cases and matters concerning children. In addition, incorporation means that the child’s role as a legal entity with specific rights of their own is made clearer and can therefore be expected to contribute to greater focus on the child in situations concerning the child.
How do other acts relate to the CRC?
In principle, the proposed incorporation does not entail any new tasks for practitioners, since legislation is already to be interpreted in accordance with the CRC. However, incorporation entails a clearer obligation on legal practitioners to consider the rights that follow from the CRC in deliberations and assessments in decision-making processes in cases and matters concerning children, and interpret Swedish provisions in relation to the CRC based on principles of interpretation in international law.
Incorporation will make the provisions of the CRC applicable as law and may – with the reservation that all the provisions are not directly applicable in each individual case – form the basis of decisions by public authorities in cases and matters and so fill any gaps in the legislation. Incorporation of the CRC does not mean that it takes precedence over other legislation. How any incompatibility between the incorporated CRC and other legislation is to be settled must be determined by means of general legal principles of interpretation.
Why will entry into force of the act be delayed until 2020?
It is proposed that the act enter into force on 1 January 2020. The Government considers that more time than the inquiry thought necessary is needed before the act enters into force. This is so law enforcement authorities have time to prepare.
The Government has concluded from earlier studies that Swedish law overall is well in line with the CRC, but it is of great importance that transformation continues both before and after incorporation to facilitate matters for legal practitioners and to increase predictability. Entry into force at a later date provides greater scope for transformation ahead of incorporation. The Government is also aware that there may be a lack of experience and knowledge of interpreting and implementing international conventions, and therefore considers that, prior to incorporation of the CRC, additional knowledge-enhancing measures are needed alongside the work already under way and the measures being taken, including by the Ombudsman for Children and within the framework of the Government’s strategic human rights efforts. Entry into force at a later date also provides scope for additional analyses and studies, including of the significance of the CRC ’s provisions.