On January 1, 2025, new rules in the Parental Code came into force in Sweden. The Parental Code, which has been undergoing reforms in recent years, regulates matters concerning custody, visitation, and residence for children. The legal framework has undergone significant changes over the years, and the latest amendment is found in Chapter 6, Section 2a, which aims to strengthen the protection of children against violence and other violations, as well as enhance security and stability for children placed in foster homes.
In practice, this latest change means that a child should be given greater protection and that this protection should take precedence over the child’s right to visitation with the other parent (the one the child does not live with) in situations where it is suspected that the child has been exposed to or is at risk of being exposed to violence. It is important to emphasize one thing in this context: namely, that it does not need to be proven that violence has occurred. A mere suspicion of this, regardless of whether it has been reported to the police or not, is in practice sufficient to invoke the protection. This is, at least, how it has played out in practice.
For active lawyers working with family-related cases and who often refer to Article 9 of the Convention on the Rights of the Child regarding the child’s right to both parents, this provision will now be put to the test. Article 9 is also incorporated into the Parental Code but is often referred to as “the best interests of the child.” In custody disputes, allegations of violence are not uncommon—rather, they are so frequent that they appear in every other case. Therefore, it is understandable that lawyers representing accused parents will use this legal provision to support their arguments and to counteract unjustified restrictions.
If that turns out to be the case, the new provision will lead to a weakening of the fundamental protection in the Convention on the Rights of the Child, which so often must be invoked in this type of case. Since the burden of proof in civil cases is often lower than in criminal cases, it is likely to become easier for a party seeking to justify continued restriction of visitation to invoke this provision.
In an attempt to address the issue of baseless accusations in custody disputes, the legislator has previously established that the primary focus of the court’s assessment should be on what is in the child’s best interests and that “cooperation,” which has often been decisive in assessing the child’s best interests, should not carry the same weight as before. To address the previous problem and social services’ excessive focus on “cooperation,” the requirement was lowered so that it is now sufficient if “there is cooperation that covers the child’s most basic needs.” Given that this relatively recent change softened the regulations, it is surprising that the latest amendment now tightens them.
Considering how many children are kept from a parent solely based on allegations of violence, questions naturally arise about how this provision should be interpreted in relation to Article 9 of the Convention on the Rights of the Child.
It should also be noted that Swedish courts often adopt exceptionally broad interpretations of the concept of visitation, where video calls, phone calls, and in some cases even written correspondence have been approved as substitutes for physical visitation, even when there were good opportunities to allow the latter.
The question is how beneficial it really is to replace physical visitation with alternatives that eliminate the child’s right to alone time with the visiting parent. The alternatives rarely fulfill the child’s need for physical closeness.
For children at high risk of being exposed to further violence, the new provision obviously provides increased protection, but for the innocent parent who has been falsely accused of violence, the provision simultaneously creates an obstacle that was not there before. The question is whether it will now be easier for an accusing parent, with weak grounds for restricting visitation, to justify a restriction that otherwise would not have been upheld and thereby get away with visitation sabotage.
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