1.Introduction

The basic principles of preventive work, voluntariness, and coercion in social child care are similar in many European countries, but there are also differences.Rami Benbenishty and others, ‘Decision Making in Child Protection: An International Comparative Study on Maltreatment Substantiation, Risk Assessment and Interventions Recommendations, and the Role of Professionals’ Child Welfare Attitudes’ (2015) 49 Child Abuse & Neglect 63-75. One of the things that distinguish Sweden from many other European countries is the lack of specific demands of proportionality in care order decision-making. In Sweden, for a long time, there has been a requirement that the care should be in the child’s best interests and that there should be a protection plan. However, there are no explicit requirements for assessment of the negative consequences of a care order, i.e. involuntary out-of-home placement, under the social laws, even though proportionality was enshrined in the Administrative Procedure Act of 2017. This article sets out to examine the interface between the principle of proportionality and article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) in relation to Swedish care orders and to sketch a theoretical framework for decisions on care orders concerning neglected children. The following questions were formulated.

• What problems must be considered when the principle of proportionality is to be applied in Swedish care orders concerning neglect?
• How should proportionality, as guaranteed by article 8 of the ECHR, be applied in these cases?

Methods and perspectives are presented first, followed by the legal premises through a short presentation of proportionality, article 8 of the ECHR, and the Swedish legal context of proportionality in relation to involuntary out-of-home care. Then, the premises of the study from a social science perspective are presentment. Next comes an analysis of what problems must be considered when proportionality is to be applied in Swedish care orders concerning neglect and an examination of how proportionality should be applied in these cases. These sections are followed by comments, discussion, and implications.

2.Methods and materials

Assessments in child welfare cases take place in both a legal and a social science context. Therefore, material from different disciplinary backgrounds has been required. The article has been based on an interdisciplinary approach within a framework of law as well as of social sciences. Hence, it’s not a legal study, but a socio-legal study combining knowledge from legal sources and social sciences research.David Cowan and Daniel Wincott (eds) Exploring the’legal’in Socio-Legal Studies (Palgrave Macmillan 2019). Since this kind of interdisciplinary research challenges differences in scientific cultures, a framework was developed to help cross the disciplinary borders between legal and social science. This framework includes the following three steps. First, doctrinal legal sources were studied. Second, social sciences, mainly material from social work knowledge on out-of-home placements, were studied. Then, all the materials collected were analysed both judicially, as a basis for interpretations of law, and in terms of social science.

Legal interpretation involves scrutinising legal texts of the sources of Swedish law such as the texts of statutes, preparatory material, precedents from the Supreme Administrative Court, decisions by the Parliamentary Ombudsmen (JO), and legal doctrine. The content of legal texts, which concerns proportionality in the assessment of child welfare, has been examined by interpretations of the dogmatic doctrine.Håkan Gustafsson, Rättens Polyvalens: En Rättsvetenskaplig Studie Av Sociala Rättigheter Och Rättssäkerhet, vol 14 (Lunds universitet: Sociologiska institutionen 2002). In the social science context, social work material on care orders and out-of-home placements in Sweden has been reviewed and were studied through a qualitative content analysis derived from the interplay between observations in the texts and the research questions.Victoria Clarke and Virginia Braun, ‘Thematic Analysis’, in Encyclopedia of critical psychology (Springer 2014) 147-152. Finally, all the materials have been analysed using socio-legal studies, i.e. both judicially, as a basis for interpretations of law, and in terms of social science, as a basis for highlighting socio-legal problems when the principle of proportionality is to be applied in cases of out-of-home placements.

Credibility and reliability are achieved through a clear presentation of the material, the relevance and usefulness of which are based on the fact that the perspective of the study contributes to the explanatory models for the issues examined here.Alan Bryman, ‘Qualitative Research on Leadership: A Critical but Appreciative Review’ (2004) 15 The leadership quarterly 729-769. Because the studied texts were selected based on the research questions, which are in turn elucidated from the theoretical perspectives, the conclusions are based on pragmatic validity.Nicolay Am Worren, Karl Moore and Richard Elliott, ‘When Theories Become Tools: Toward a Framework for Pragmatic Validity’ (2002) 55 Human Relations 1227-1250. The conclusions thus provide guidance in situations similar to those studied here, thereby admitting analytic generalisation.Rolf Johansson, ‘Types of Generalisation from a Single Case’ (2004) 6 Journal of applied psychology 215-221. All texts were handled according to the regulations of The Ethical Review Board.

3.Perspectives

By tradition, the exercise of public authority should take place in a way that ensures legal certainty, with equality and predictability as central factors. The rules governing the exercise of power are often designed as clearly as possible in order to avoid arbitrariness. In today’s welfare state, however, formal as well as substantive rule of law is aimed for.Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, in Richard Bellamy (ed), The Rule of Law and the Separation of Powers (Routledge 2017); Richard Bellamy, ‘The Rule of Law’ in Richard Bellamy and Andrew Mason (eds), Political concepts (Manchester University Press 2018). When striving for substantive legal certainty, there is an emphasis on the ethical legitimacy of the exercise of power in the sense that its effects cause more benefit than harm to society.Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’ in Carroll Seron (ed), The Law and Society Canon (Routledge 2018); Håkan Gustafsson, ‘Taking Social Rights Seriously (I): Om Sociala Rättigheters Status’ (2005) 118 Tidsskrift for Rettsvitenskap 439-490. In Sweden’s health and care sectors, it is well established that the aim is substantive legal certainty, ensured by handling the needs and interests of individuals objectively and based on facts that are validated as well as possible.Lotta Vahlne Westerhäll, Legitimitetsfrågor Inom Socialrätten (Norstedts juridik 2007).

Care orders are a strongly interventional form of coercion. The traditional ideal of a state with the rule of law, therefore, speaks in favour of the desirability of equal treatment and predictability. The preparatory work for the Swedish legislation emphasises that the text of the law should avoid wordings that might give rise to problems of interpretation and subjective assessments.Gov. Bill 1989/90:28 – Swedish Govermental Bill no 28 of 1989/90. However, the difficulty in assessing the consequences of neglect means that care orders on this basis bring particular challenges for those who have to assess children’s needs for protection.Pernilla Leviner, ‘Child Protection under Swedish Law—Legal Duality and Uncertainty’ (2014) 17 European Journal of Social Work 206-220. Since proportionality, as guaranteed by article 8 of the ECHR as well as the Swedish Administrative Procedure Act, must be required in all public decision-making in Sweden, compulsory care due to neglect is investigated in this article through an analysis based on formal and substantive legal certainty. The view of proportionality as an essential part of formal, as well as substantive rule of law, is operationalised by a socio-legal analysis of the legal and the social sciences context.

4.Legal premises - The Principle of Proportionality and Article 8 of the ECHR

For decades, the principle of proportionality has been an important part of constitutional rights law, in Europe and around the world. Even though there are different formulations of the principle, most legal theorists take proportionality to imply the following.Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Brill 2009). First, the law interfering with the right must pursue a legitimate goal. Second, there must be a rational connection between the law and the achievement of the goal; the law must be a suitable means of achieving the goal, at least to some extent. Third, the law must be necessary for that there is no less intrusive but equally effective alternative; the necessity stage. Fourth, the law must not impose a disproportionate burden on individuals. This final stage is the balancing stage and the application of proportionality in the strict sense.

Since the balancing stage requires a right or interest to be balanced against a competing right or interest, proportionality often is seen as a tool for the resolution of conflicts between competing rights or interests. Proportionality means the authorities’ interference must be no more than is absolutely necessary to achieve aims legitimate in a democratic society.Kai Möller, ‘Proportionality: Challenging the Critics’ (2012) 10 International Journal of Constitutional Law 709-731. The impact of the restriction on the individual must not be excessive in relation to the interests pursued. The more severe the interference with an individual’s rights, the more is required to justify it.David Duarte and Jorge Silva Sampaio, Proportionality in Law: An Analytical Perspective (Springer 2018).

The European Court of Human Rights (ECtHR) is routinely balancing rights against conflicting public interests and has elevated proportionality to the status of a basic principle of interpretation of the ECHR when trying to strike a fair balance between the competing interests of the individual and the community as a whole. Application of the principle of proportionality, as one of the keystones of the general principles of ECHR, can nonetheless be complex since the competing rights or interests often can be seen as incommensurable.Laura Clérico, ‘Proportionality in Social Rights Adjudication: Making It Workable’in David Duarte and Jorge Silva Sampaio, Proportionality in Law: An Analytical Perspective (Springer 2018). It can be argued that unless there is a common scale on which the two conflicting rights or interests can be compared, it is a case of incommensurable rights or interests. It would then follow that there is no basis to say that one or the other should be preferred, and all a court can do is simply make a choice. However, balancing refers not only to quantification and cost-benefit analysis but also to reasoning about the values in question. Balancing by the ECtHR can, therefore, be understood in the sense of balancing all the relevant considerations and deciding which interest or right ought to take precedence in the case at hand.Möller (n 15).

The ECtHR recognises that states may have different views regarding what is an appropriate measure to restrict a right and has thus put into practice a doctrine known as the margin of appreciation.Yutaka Arai-Takahashi The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia nv 2002). Through the margin of appreciation, the court allows for a degree of divergence between the states and recognises that the individual states sometimes are better placed to make decisions concerning, for example, public morals. The ECtHR gives the states some discretion when making the initial decision as to whether restricting a right is necessary to pursue a legitimate aim. The margin of appreciation creates the flexibility required to ensure states can comply with the ECHR and still maintain sovereignty.Arai-Takahashi (n 19).

The principle of proportionality is important to understand how family law and child protection operates. This comes from article 8 of ECHR, as interpreted by the ECtHR. Article 8, concerning the right to respect for private and family life, is one of the most frequently encountered articles of the ECHR. The article provides:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

The concept of family life is broad since the application of article 8 is led by social, emotional, and biological factors rather than legal considerations.Helen Stalford, ‘Concepts of Family under EU Law–Lessons from the ECHR’ (2002) 16 International Journal of Law, Policy and the Family 410-434. However, the right to respect for private and family life is not absolute but can be overruled when it is lawful as well as necessary to protect health or morals, for example. Rights can be set aside only if they propose to do so is well in excess of what is needed to prevent harmful consequences.Arai-Takahashi (n 19). When it comes to decision-making, the principle of proportionality, therefore, becomes a part of the interpretation of the right to family life.

Proportionality requires the domestic authorities and courts, as well as the ECtHR, to strike a balance between the rights and interests of children and parents while discussing whether the measure taken is the least restrictive measure available to satisfy the public objectives. A measure of confinement must be proportionate to the aim pursued by the authorities.Clarie Breen and others, ‘Family Life for Children in State Care: An Analysis of the European Court of Human Rights’ Reasoning on Adoption Without Consent’ (2020) The International Journal of Children’s Rights 28(4), 715-747. The principle of proportionality does not only apply to legislative decisions but to any public, judicial, and administrative measure interfering with fundamental rights.

When assessing proportionality, the authorities must also have taken account of the child’s best interests of the United Nations Convention on the Rights of the Child (CRC). Articles 9 and 19 of the CRC states that children should be protected from abuse while in the care of their parents and that it may be necessary to separate a child from its parents.Carol Djeddah and others, ‘Child Abuse: Current Problems and Key Public Health Challenges’ (2000) 51 Social science & medicine 905-915; Kimberly A Svevo-Cianci and others, ‘The New UN CRC General Comment 13:“The Right of the Child to Freedom from All Forms of Violence”—Changing How the World Conceptualizes Child Protection’ (2011) 35 Child Abuse & Neglect 979-989. It has been established in the ECHR that children’s protection, in harmony with the CRC, takes priority over the right of parents to private and family life under article 8.Anette Faye Jacobsen, ‘Children’s Rights in the European Court of Human Rights–An Emerging Power Structure’ (2016) 24 The International Journal of Children’s Rights 548-574. However, it has also been emphasised that, according to the ECHR, the authorities are obliged primarily to support parents’ ability to take care of their children themselves and, when children are in out-of-home placement, to further the possibility that children and parents may be reunited as soon as possible.

5.The Swedish legal context of the principle of proportionality and care orders

Demands of proportionality, as guaranteed by article 8 of the ECHR, in care order decision-making is clearly established in many European countries.Trevor Spratt and others, ‘Child Protection in Europe: Development of an International Cross-Comparison Model to Inform National Policies and Practices’ (2014) 45 The British Journal of Social Work 1508–1525. In the United Kingdom, for example, the British Children’s Act of 1989, supplemented by the Children’sAct of 2004 and the Children and Social Work Act of 2017, states that the court may issue a full care order if a child is suffering, or is likely to suffer, significant harm and that the level of harm is due to the care the child is receiving or likely to receive.Bridget McKeigue and Chris Beckett, ‘Care Proceedings under the 1989 Children Act: Rhetoric and Reality’ (2004) 34 British Journal of Social Work 831-849; Montserrat Fargas‐Malet and others, ‘Home on a Care Order: Who the Children Are and What the Care Order Is For’ (2017) 22 Child & Family Social Work 813-821. It also states that a court considering whether or not to make a care order must consider whether doing so would be better for the child than making no order at all.Miriam Maclean and others, ‘Out‐of‐home Care versus In‐home Care for Children Who Have Been Maltreated: A Systematic Review of Health and Wellbeing Outcomes’ (2016) 25 Child abuse review 251-272. The no-order principle in the Children’s Act of 1989, which is also implemented in the child protection acts of Scotland as well as of Northern Ireland, gives a clear incentive to discuss and make demands of the effects of the exercise of public power.Jill Duerr Berrick and others, ‘The Formalized Framework for Decision-Making in Child Protection Care Orders: A Cross-Country Analysis’ (2015) 25 Journal of European Social Policy 366-378. Requirements for convincing and coherent care plans are cited as examples of the practical effects of the no-order principleJill Duerr Berrick and others, ‘The Formalized Framework for Decision-Making in Child Protection Care Orders: A Cross-Country Analysis’ (2015) 25 Journal of European Social Policy 366-378..

There has been an apparent influence of the ECHR on the definition and application of the principle of proportionality in Swedish private and public law.Xavier Groussot, ‘Proportionality in Sweden: The Influence of European Law’ (2006). Nordic Journal of International Law, 75(3-4), 451-472. Sweden signed the ECHR in 1951 and was an original member of the Council of Europe. Nevertheless, the doctrine of dualism meant the ECHR commitments had no direct legal domestic effect until the convention was incorporated into Swedish law in 1995. To underline the special role of this Convention, in 2010 a provision was added in chapter 2 article 19 the Instrument of Government of 1974, to the effect that no legal provision may contravene Sweden’s commitments under the Convention.Johan Karlsson Schaffer, ‘The Self-Exempting Activist: Sweden and the International Human Rights Regime’ (2020) 38 Nordic Journal of Human Rights 40-60. The CRC was incorporated into Swedish law in 2020.

Even though article 8 of the ECHR and proportionality as one of the main principles for scrutinising actions by authorities is clearly required, balancing of interests have not been explicitly applied in Swedish cases concerning care orders, i.e. involuntary out-of-home placements. In Sweden, social child welfare, oriented towards family support, is pursued with a focus on voluntary and preventive measures.Leviner (n 13). If a child’s care needs cannot be met through cooperation with the parents, the child shall nonetheless be forcibly supported under the Care of Young Persons (Special Provisions) Act 1990:52 (CYPA).The legal concept in section 2 and 3 of the CYPA is actually forcibly supported by involuntary out-of-home care without a formal removal of the custody. To facilitate the presentation, the term care order is nonetheless used in this article to describe the concept of forcibly support by involuntary out-of-home care, even though the Swedish birth-parents normally remain legal guardians of the child.

Section 2 of the CYPA states that children should be taken into care through a care order if there is a palpable risk that their health or development will be harmed due to ‘physical or psychological abuse, sexual abuse, lack of care, or some other circumstance in the home’. The preparatory material for the law and several precedents by the Supreme Administrative Court emphasise that problems among the parents should not in themselves be grounds for a care order and the consequences for the child that these problems entail must be clarified.Gov. Bill 1989/90:28 – Swedish Govermental Bill no 28 of 1989/90: RÅ 1992 ref 6 – The Swedish Supreme Administrative Court annual reference no 6 of 1992; RÅ 1995 ref 39 – The Swedish Supreme Administrative Court annual reference no 39 of 1995; RÅ 1995 ref 46 – The Swedish Supreme Administrative Court annual reference no 46 of 1995; RÅ 2009 ref 64 – The Swedish Supreme Administrative Court annual reference no 64 of 2009. However, since this study concerns care orders in relation to proportionality, the well-documented issues of evidentiary difficulties and the interpretation of the child’s wishes as well as of palpable risk of harm are omitted.RÅ 2009 ref 64 – The Swedish Supreme Administrative Court annual reference no 64 of 2009; HFD 2011 ref 6 – The Swedish Supreme Administrative Court annual reference no 6 of 2011; HFD 2014 ref 46 – The Swedish Supreme Administrative Court annual reference no 46 of 2014; HFD 2017 ref 42 – The Swedish Supreme Administrative Court annual reference no 42 of 2017; HFD 2018 ref 6 – The Swedish Supreme Administrative Court annual reference no 6 of 2018.

In Sweden, a decision to issue a care order is made by an administrative court after an application by the social services committee, which bases its plea on a child welfare investigation. The administrative courts, the administrative courts of appeal, and the Supreme Administrative Court try substantive law and can pass judgements based on discretionary assessments, as well as matters of formal procedure. Leave to appeal to the Supreme administrative court is granted only if the court’s determination may be of importance as a precedent.

No formal assessment of the negative consequences of an out-of-home placement needs to be made under either the Swedish Social Services Act (2001:453) or the CYPA. Because care is supposed to be in the best interests of the child and provided in accordance with a protection plan, there has been an indirect requirement that public care should function reasonably well. Moreover, since July 1, 2018, Swedish authorities are supposed to work on the basis of proportionality according to section 5 of the Administrative Procedure Act (2017:900), which states:

‘An authority may intervene in an individual interest only if the measure can be presumed to lead to the intended result. The measure may never go beyond what is necessary and may be taken only if the intended result is in reasonable proportion to the inconveniences that may be presumed to occur for the person against whom the measure is directed.’

According to the preparatory work for the Administrative Procedure Act, there must be considerable scope for intervention even at the expense of individual interests, for example when it is necessary to avert acute threats to human health.Gov. Bill 2016/17:180 – Swedish Govermental Bill no 180 of 2016/17. In accordance with the interpretations of article 8 ECHR by the ECtHR, certain margins of error must be tolerated when trade-offs are made. However, even if the authorities have considerable room for manoeuvre, the rights guaranteed by article 8 of the ECHR ensure that there cannot be an obvious imbalance between the interest in a particular intervention and the burden that this entails for the individuals concerned.Christoffersen (n 14).

6.Premises of the study from a social science perspective on care orders in Sweden

When neglect is invoked as a basis for a care order, there is often a multitude of complex facts and circumstances that must be analysed and balanced when making a decision. At the same time, neglect is the most frequently invoked of the different grounds for care orders in Sweden.Katarina Alexius and Anna Hollander, ‘Kan rättssäkerhet upprätthållas när barn skyddas mot omsorgsbrister enligt 2 § LVU? ’ in Pernilla Leviner and Tommy Lundström (eds), Tvångsvård av barn och unga: rättigheter, utmaningar och gränzoner (Wolters Kluwer 2017). In interviews with Swedish child welfare investigators, these assessments in child welfare investigations are described as sometimes being based on intuition, tacit knowledge, and sometimes a touch of magic.Pernilla Leviner. Rättsliga Dilemman i Socialtjänstens Barnskyddsarbete. (Jure förlag AB 2011) pp. 314-324. The difficulties in predicting psychosocial needs mean that Swedish social workers sometimes find these cases too complex for clear risk assessments to be carried out in the way required by the legislation.Lina Ponnert. Mellan klient och rättssystem-Tvångsvård av barn och unga ur socialsekreterares perspektiv - Between the Client and the Legal System-Compulsory Care of Children and Young Persons from a Social Worker Perspective (Lund University 2007).

Swedish child welfare investigations are regularly following the Children’s Needs in Focus (Barns Behov i Centrum; BBiC) model, which is based on the British ICS (Integrated Children’s System) model.Mikael Skillmark and Lars Oscarsson, ‘Applying Standardisation Tools in Social Work Practice from the Perspectives of Social Workers, Managers, and Politicians’ (2020) 23 European Journal of Social Work 265-276; National Board of Health and Welfare - Socialstyrelsen. Grundbok i BBiC. (The National Board of Health and Welfare – Socialstyrelsen 2018). Neither the BBiC model nor other Swedish assessment tools or models demand weighing the possibility of negative consequences of a care order in the decision making. Hence, Swedish administrative courts normally don’t have this kind of information, unless the possibilities of negative consequences are specifically brought up. There are neither precedents from the Supreme Administrative Court nor decisions by the Parliamentary Ombudsmen where the possibilities of negative consequences of an out-of-home placement are stated to be required in care order decisions concerning neglect.

It is well-known that children in Swedish out-of-home placements, in many cases, have incurred harm, sometimes serious harm.Antti Kääriälä and Heikki Hiilamo, ‘Children in Out-of-Home Care as Young Adults: A Systematic Review of Outcomes in the Nordic Countries’ (2017) 79 Children and Youth services review 107-114; Lars Brännström, Bo Vinnerljung and Anders Hjern, ‘Outcomes in Adulthood After Long-Term Foster Care: A Sibling Approach’ (2020) Child Maltreatment 25(4), 383-392; Johanna Sköld, Bengt Sandin and Johanna Schiratzki, ‘Historical Justice through Redress Schemes? The Practice of Interpreting the Law and Physical Child Abuse in Sweden’ (2020) 45 Scandinavian Journal of History 178-201; Johanna Schiratzki, Johanna Sköld and Bengt Sandin, ‘Redress in Context: The Swedish Redress Scheme for Historical Abuse of Children in Care–Re-Introducing Inquisitorial Procedure?’ (2019) 10 Nordisk socialrättslig tidskrift 97-118. The question of what is required in assessments of the risks of harm in the parental home compared to the risks of harm resulting from, or in, out-of-home placements are therefore important for the practice of social work.Tommie Forslund and others, ‘Attachment Goes to Court: Child Protection and Custody Issues’ (2021) Attachment & Human Development 1-52. In Sweden, all forms of corporal punishment of children have been prohibited since 1979 and it is considered self-evident that physical abuse harms children’s psychosocial development. This article has therefore been confined to the more complex problem that is assessed when the principle of proportionality is to be applied in neglect cases.

Since there are no clear rules in neither the Swedish Social Services Act (2001:453) nor the CYPA stating that the risks of a child being harmed by neglect must be balanced against the risk of problems arising from or in public care, there is also a lack of a systematic framework for how such trade-offs are to be made. How decisions on care orders will include the requirements of proportionality, as guaranteed by article 8 of the ECHR, is unclear and is a topic that has not previously been studied. This article, therefore, considers rights in the ECHR to discuss the application of the proportionality principle when care orders based on neglect may be regarded as a necessary interference in family life.

7.Socio-legal analysis of the principle of proportionality and involuntary out-of-home care in Sweden

7.1.What problems must be considered when the principle of proportionality is to be applied in Swedish care orders concerning neglect?

Neglect as a basis for care orders can in Sweden be applied for mismanagement of both medical and socio-psychological threats to the child’s health and development. Children in similar life situations may have different needs that require different measures depending on the specific characteristics of the individual child. Thus, the maintenance of formal legal certainty sometimes clashes with the need for flexibility to meet children’s protection needs. The clash of interests is reinforced by the fact that in many cases, it is difficult to clarify the effects on a particular child resulting from, on the one hand, the existing home situation and, on the other hand, the planned public care.Anna Kaldal, Parallella Processer: En Rättsvetenskaplig Studie Av Riskbedömningar i Vårdnads- Och LVU-Mål, (Stockholm University 2010); Leviner (n 13).

In 1996, the Swedish Supreme Administrative Court ruled that the likelihood of positive effects of care orders can be assessed in relation to the palpable risk of harm.RÅ 1996 ref. 61– The Swedish Supreme Administrative Court annual reference no 61 of 1996. However, the situation assessed in the 1996 case was unusual. It was claimed that the guardian had failed to provide care by not ensuring that a child was given a sufficiently thorough medical examination. After a care order had been issued by the court of first instance, the Swedish Supreme Administrative Court later found that seven months of professional investigation and treatment through involuntary out-of-home care had not significantly succeeded in treating the child more successfully than the guardian had done. Since the out-of-home care had not had a clearly more favourable effect than the care that the child could receive at home, the conditions for a care order were no longer fulfilled, according to the Supreme Administrative Court.

The outcome of the 1996 ruling follows from the fact that the purpose of care orders, according to the ECHR and the CRC, is to ensure that children are better off in involuntary out-of-home care than with their parents. There is also a precedent, HFD 2012 ref 35, where the possibilities of negative consequences are discussed due to attachment issues when ending an out-of-home placement was decided, and in the precedent HFD 2015 ref 36, the pros and cons of two different foster homes were balanced.HFD 2012 ref 35 – The Swedish Supreme Administrative Court annual reference no 35 of 2012; HFD 2015 ref 36 – The Swedish Supreme Administrative Court annual reference no 36 of 2015.

Even though there are no precedents where negative consequences of an out-of-home placement are balanced in the decision-making, there are many well-documented examples of unsatisfactory conditions in out-of-home placements, resulting in suicide, sexual abuse, physical and mental abuse, and grossly neglected schooling.Kääriälä and Hiilamo (n 44); Sköld (n 44) and Malin Arvidsson, ‘Contextualizing Reparations Politics’, Apologies and the Legacy of Abuse of Children in ‘Care’ (Springer 2015). Thus, there is no realistic basis for a general assumption that out-of-home placements have positive effects in every case.Brännström, Vinnerljung, and Hjern (n 44). Instead, the requirements of proportionality, as guaranteed by the ECHR and the Swedish Administrative Procedure Act, means that those who exercise public authority are obliged to demonstrate, in each case, that the care is proportionately relevant to the intended purpose. Hence, in applications for care orders, as well as in assessments of ongoing out-of-home placements, there should be two different projections that are assessed in relation to each other. However, no rules state which premises should be used or how different interests should be weighed against each other. This means that it is currently the individual decision-maker who, consciously or unconsciously, sets the norms for the balance in each case, often without giving an account of how the options have been weighed against each other.

7.2.How should the principle of proportionality, as guaranteed by article 8 of the ECHR, be applied in Swedish cases of neglect?

One way to reduce the assessors’ discretion when applying proportionality is to create norms of balancing; this can make different circumstances comparable to some extent. It is entirely possible to create mathematically defined norms for balancing different interests, but that would have both advantages and disadvantages.Karen Budd, ‘Assessing Parenting Capacity in a Child Welfare Context’ (2005) 27 Children and Youth Services Review 429-444; Philip Gillingham and others, ‘Decision Making in Child and Family Welfare: The Role of Tools and Practice Frameworks’ (2017) 42 Children Australia 49-56. A well-known disadvantage of complex assessment instruments is that they can give a false sense of reliability, while simultaneously requiring extensive bureaucracy to manage checklists.Eileen Munro, ‘Risk Assessment and Decision Making’ in Mel Gray, James Midgley, and Stephen A. Webb (eds.), The Sage handbook of social work (Sage 2012) pp. 224-235. Although such instruments do not provide results that can be used as a basis for firm conclusions, they have been assumed to work better than wholly intuitive assessments and are usually regarded as good support in decision-making.Trevor Spratt, ‘Decision Making by Senior Social Workers at Point of First Referral’ (2000) 30 British Journal of Social Work 597-618; Amy D’andrade, Michael Austin and Amy Benton, ‘Risk and Safety Assessment in Child Welfare: Instrument Comparisons’ (2008) 5 Journal of evidence-based social work 31-56; Benbenishty and others (n 1); Jan Horwat and Dendy Platt (eds), The Child’s World: The Essential Guide to Assessing Vulnerable Children, Young People and Their Families (Jessica Kingsley Publishers 2018). Since balancing refers not only to quantification and cost-benefit analysis but also to reasoning about the values in question, balancing the different circumstances in a case of neglect should be understood in the sense of balancing all the relevant considerations and deciding which interest ought to take precedence in the case at hand.Möller (n 15). A theoretical framework for proportionality in Swedish child welfare cases should therefore mean that the following three assessments are always specified:

• Firstly, it must be shown that the need for coercion is relevant in that the care that is, or will be provided, is apt to satisfy the intended purpose.
• Secondly, it must be made clear that care is necessary for that is the least interventional option.
• Thirdly, reasons must be stated as to how the coercion entails advantages that are in reasonable proportion to the harm that may arise so that there is a balance between the objective and the means. Child welfare investigations must therefore include impact assessments that clarify the advantages and disadvantages of the care in relation to the risk of harm from the original home conditions.

It already follows from the rules of CYPA that decisions on care orders, as well as decisions on continued ongoing out-of-home placements, require the decision to be in the child’s best interests and that the child’s needs cannot be met with the support of voluntary efforts. Furthermore, a care plan is required, showing what is to be achieved and how the care is to be provided; there must at least be a claim that the public care measures function well. The first two factors ensuring proportionality are therefore already in place in Swedish law. However, it has not yet been demonstrated that there are assessments of whether there is a balance between the objective and the means in the sense that the coercion confers advantages that are in reasonable proportion to the harm that may arise.

To weigh up positive and negative effects, the future advantages and disadvantages of the care must be determined in relation to the palpable risk of harm in the original home situation. The two different projections must therefore be weighed up in relation to each other. Although Swedish social workers lack experience in presenting the norms of balancing that ensure proportionality, it is not difficult to establish procedures for such assessments. Knowledge of attachment theory, of the importance of maintaining social ties, and of the difficulties in achieving positive effects in out-of-home placements, actually seems to have had the result that this way of balancing projections is often already practised, but without being made explicit.Leviner (n 41); Forslund and others (n 45). It therefore seems highly necessary to establish a framework showing how risk assessments and projections have been balanced against each other.

8.Comments

Decisions in child welfare cases cannot be made completely uniform and predictable, since children in similar life situations may have different needs or require different measures depending on the specific characteristics of the individual child. The focus of social child welfare work must therefore be to satisfy the objectives and values of welfare law through substantive legal certainty, ensuring a correct factual basis, instead of unrealistically striving for formal legal certainty through equal treatment and predictability. Maintaining legal certainty parallel to child protection thus presupposes that the concept of formal rule of law is replaced with substantive equivalence as a part of the substantive rule of law.

The reasons for the absence of proportionality through weighting the possibilities of negative consequences of out-of-home placements in Swedish child welfare cases have never been clarified. Likely, this absence is tied to the self-image of Sweden as a moral superpower, where actions by social authorities are presumed to be constructive as long the intentions are good, no matter what the real consequences might be.Katarina Alexius, JO och tjänstemännen: en laghistorisk studie (Iustus 2003) p. 403; Karlsson Schaffer (n 33); Bo Rothstein, ‘Myndigheter Att Lita På. Den Svenska Demokratins Grundbult’ in Katarina Barrling and Sören Holmberg (red.) Demokratins framtid (Sveriges riksdag 2018) pp. 211-236. The demand for proportionality, as guaranteed by article 8 of the ECHR, is a vital part of formal as well as substantive rule of law. Proportionality as a part of substantive rule of law, when applied in child welfare cases, means that future advantages and disadvantages of coercion are presented.

In the light of the many examples of abuses in out-of-home placements in Sweden and many other European countries,Johanna Sköld, ‘Historical Abuse—A Contemporary Issue: Compiling Inquiries into Abuse and Neglect of Children in out-of-Home Care Worldwide’ (2013) 14 Journal of Scandinavian Studies in Criminology and Crime Prevention 5-23. the authorities’ claims about the content of care cannot be seen as a part of the margin of appreciation and can therefore not be accepted without close scrutiny.Forslund and others (n 45). Instead, those who exercise public power must argue convincingly for the quality of public care. Weighing up the positive and negative effects of compulsory care means that new requirements for Swedish social law are imposed on the content and effectiveness of public care. In the future, abuses in out-of-home placements will, therefore, become increasingly important in argumentation about child welfare case decisions.

9.Discussion and Implications

As mentioned above, the credibility and reliability of the conclusions presented here are grounded in an analysis of texts concerning the principle of proportionality, as guaranteed by article 8 of the ECHR, in Swedish care orders in neglect cases. In abuse cases, the balance between care needs and the negative effects of coercion are often less complicated, as the consequences of abuse are easier to predict. However, the requirement that both the consequences of unsatisfactory conditions and the effects of different social interventions should be assessed in terms of proportionality applies to all types of care orders in Sweden.

Since the occurrence of negative consequences of involuntary out-of-home placements are well known across Europe,Sköld (n 57). I also argue that infusing the legal perspective, with knowledge from social sciences research, is necessary to further improve the effectiveness of the ECHR and adherence to the discussion of substantive and formal legal security. The idea that decisions on care orders in many cases cannot be completely covered by the traditional idea of the formal rule of law is controversial. In both social work and health care, it is nonetheless well established in Sweden that the ideal for application of legitimacy is not formal legal certainty but substantive rule of law through objectivity, clarity and validated facts.Westerhäll (n 11); Teubner (n 10). It is therefore reasonable that decisions in child welfare cases are based on substantive equivalence in the same way as other assessments in the health and care sectors.

A significant problem with substantive legal certainty is that it is often difficult to judge equivalence. Therefore, if court rulings in child welfare cases are to function as a guarantee of equivalence through decision-making based on objectivity and facts, the ambition of courts to critically review both projections and protection plans must be significantly increased. In addition, the supervision of social child welfare must include a continuous review of the quality of public care in relation to the shortcomings of a child’s original home environment.

As a consequence of the conclusions of this study, the following implications for practice emerge:

• Child welfare investigations that form the basis for decisions on care orders must include impact assessments that clarify the advantages and disadvantages of the care in relation to the risk of harm from the original home conditions. The expected quality and efficiency of out-of-home care must therefore always be clearly presented in the documentation on which the decision is based.
• Since Swedish social workers lack a tradition of arguing about the quality of out-of-home care in relation to deficiencies in a child’s home environment, a framework for proportionality, as guaranteed by article 8 of the ECHR, must be implemented in child welfare investigations. Only by making norms of balancing transparent can legitimacy in decision-making arise, despite the complexity of the assessments.