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Children in Legal Research, International Family Law, Policy and Practice, Volume 1, Number 1, Winter 2013

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Children in Legal Research, International Family Law, Policy and Practice, Volume 1, Number 1, Winter 2013
  –International Family Law, Policy and Practice • Vol. 1.1 •Winter 2013 •page 14– 1. Introduction In this article I will reflect on three contemporary discourses prevalent in the Nordic context withimportance for the question of defining andunderstanding children in legal research. The first is thediscourse on children’s rights based on children as competent agents  and the second is the discourse on individual freedom of choice  . The third discourse is aboutthe role of the state and its relation to individuals insociety. The three discourses are strengthened andconsolidated over time in the Nordic context and havehad impacts on contemporary family policy. My explicitexample will be the Swedish context. My argument is that the three discourses takentogether go hand in hand with and, what is more,facilitates a process which increases the differences in economic situation and well-being between children  . Save the Childrenand other organisations have highlighted and criticisedthe negative development in Sweden. With help from atheoretical framework borrowed from feminist legalstudies and relational theory I will highlight theproblems explicitly notable in the Swedish economicfamily policy. Moreover, I will try to point out analternative way to avoid the negative consequences withfocusing individuality  in a neo-liberal frame  . With the help of feminist legal theory and relational theory I reflect onreplacing the norm of the autonomous capable legalsubject to a norm of a relational legal subject  . 1 2. The theoretical and methodologicalframework  The analytical tool is a theoretical andmethodological framework in which three levels areseen as related to each other, the individual, thestructural or societal and the epistemological /ontological. The understanding of the human being asprimarily an autonomous individual on theepistemological and ontological level is consolidated inlaw and in legal scholarship on the structural or societallevel, and has effects for the self-understanding of theindividual and his or her understanding of others on theindividual level. Joan Wallach Scott introduced thismethodological framework in 1986 2 for tracing,describing and understanding gender formations andthe processes which constitute and maintain them. Theorganizing principle of the formations of gender isbased on sex differences and it is used to mark relationsof power. Yvonne Hirdman has developed theframework in a Swedish context. She has identified twoorganizing principles for the gender system, thesegregation between the sexes and the male norm. 3  Themethodological framework can be transferred to therelation between adults and children, with adults assuperior and children as the subordinated. Children arein a greater extent subordinated adults then women areto men, but the principles are similar. Children aresegregated from adults in legislation, even formally, andthe norm for regulation is the adult. The theoretical andmethodological framework with the three levels and theorganizing principles are useful also when thinking of how “children” is defined and understood in law andlegal scholarship.  The theoretical perspective which I use, borrowedfrom feminist legal studies 4 , has some basicpresumptions. 1.Knowledge is perceived as something socialand contextual, which means that the abstractrationalism and objectivism in themainstream Nordic perspective in legalscholarship, legal dogmatics, is questioned. 2.Law is seen in and out of its context. Forinstance (state)  policies  are considered as muchimportant to study for a legal scholar, as thelaw is. 3.The legal subject is perceived as concrete andnot abstract and has characteristics like sex, Children in Legal Research Eva-Maria Svensson* * Professor, LLD, LLM, Faculty of Law, University of Tromsø and Department of Law, University of Gothenburg  1 Svensson, Eva-Maria (1997). Genus och rätt. En problematisering av föreställningen om rätten  . Uppsala: Iustus förlag, p. 106. Nedelsky, Jennifer (2011). Law’s relations: A Relational Theory of Self, Autonomy, and Law  . Oxford University Press, p. 86. 2 Scott, Joan Wallach (1986). Gender: A Useful Category of Historical Analysis. In: T he American Historical Review  , Vol. 91, No. 5 (Dec., 1986), pp.1053-1075. 3 For a presentation in English, see Hirdman, Yvonne (2002). State Policy and Gender Contracts. The Swedish Experience. In: Women, Work and the Family in Europe  . Drew, Emerek & Mahon (eds.). Routledge. 4 Gunnarsson, Åsa & Svensson, Eva-Maria (2009). Genusrättsvetenskap . Lund: Studentlitteratur.  –International Family Law, Policy and Practice • Vol. 1.1 •Winter 2013 •page 15– gender, ethnicity, age and so on. The subjectas an abstract and autonomous individual iscriticised because the notion hides that it isactually permeated by some norm, the malenorm or, as what is in focus here, the adultnorm. The alternative is to think of the legalsubject as something having differentcharacteristics.4.A concept which captures law’s partiality andreproduction of power patterns is the ‘malenorm’. When we want to highlight the childperspective we can instead talk about the‘norm of the autonomous and competentsubject’. With help of this theoretical framework, I willreflect on the broader context of family policy. Family policy has, at least in the Swedish context, undergoneideological changes during recent years, ideologicalchanges that are in accordance with a shift in legislationtowards more emphasis on individual rights, on freedomof choice and on equality in possibilities rather thanequality in results. 5 3. What is a child – needing or competent? Every known society has perceptions of childrenand what it means to be a child. Also, every grown upperson has his or her own experiences of being a child.However, the perceptions and the experiences vary.“Childhood” is a social institution and this institution isnot universal, in contrast to the factual period of biological immaturity. 6  Through legal instruments such as the UNConvention on the Rights of the Child (UNCRC) andother international and national legislation, a boundary is construed between childhood and adulthood. Thedefinition of a child is a person under the age of 18years. This distinction has become almost universal, but what it means to be a person under 18 years old variesdepending on where in the world and where in thesocial, cultural and religious context a person actually lives.  The distinction between the adult and the child ismade out of a norm, the norm of the autonomous andcompetent subject, possible only for the adult to fit in to. The adult person is a person with full capacity and abearer of rights, protected in legislation. The child is notfully a person of that kind; it is understood as arestricted subject, as someone lacking something. 7  This means two things. First, the child cannot fully claim his or her rights because the western world’snotion of what rights are and who can be thecompetent subject of a right is based on the theory of the  free will  . The child cannot fully exercise its rights, IFownership of rights presupposes a competent subject with a free will. With the theory of interests  the problemcan be solved, however as an exception, children’s rightshave to be provided by someone else. Secondly, the child needs  protection because itcannot protect itself, at least not fully. The legalresponsibility is shared between the parents and thesociety, with a subsidiary role for the society.  This perspective is called the need-oriented  perspectiveand it is more present in law and in Nordic legalscholarship on children, than the contradictory competence-oriented perspective, according to AnnaHollander and to Anna Singer. 8 Both perspectives are prevalent in the UNCRC, andthe balance between children’s needs and their capability are to be considered and captured in the concept of thebest interest of the child. The child is understood as alacking subject which increasingly conquers capacity andfinally ends up as an autonomous subject, with anindividual free will. My impression is, that the competence-orientedperspective seems to be more prevalent in publicrhetoric and in other scholarship than legal, but that itis gaining space also in legal scholarship. The child’sability to have a free will, or free opinion, is morefocused today than earlier. The need-orientedperspective, framed as a ‘paternalistic view on children’,is understood as contradictory towards a view onchildren as competent (  the competent child   ) and as agents with power. 9  The need for the theory on rights based 5 See e.g. Trägårdh, Lars (ed.) (2007). State and Civil Society in Northern Europe. The Swedish Model Reconsidered  . Berghahn Books. 6 Schiratzki, Johanna (2005). Barnets bästa i ett mångkulturellt Sverige: en rättsvetenskaplig undersökning  . Uppsala: Iustus förlag, p. 35; Norman, Karin (1996). Kulturella föreställningar om barn, Ett socialantropologiskt perspektiv. Rädda Barnen, p. 24. 7 See Eva Nilsson (2007). Barn i rättens gränsland  . Uppsala: Iustus förlag, p. 22 with references to Bridgeman and Monk, 2000, 5. 8 See Eva Nilsson (2007). Barn i rättens gränsland  . Uppsala: Iustus förlag, p 22 with references to Hollander 1998, 194 and Barn i kläm – hur uppmärksammas barn i mål om verkställighet av umgänge  , Stiftelsen Allmänna Barnhuset, skriftserier 2007:1 with references to Singer 2001 (2000?). 9 Olsen, Lena (ed.) (2004). Barns makt. Barn som aktörer  . Uppsala: Iustus förlag.  –International Family Law, Policy and Practice • Vol. 1.1 •Winter 2013 •page 16– on interest instead of  free will  10 , as a means forrecognizing children’s (full) capacity as legal subjects, isperhaps not as important as earlier. 11 Promotion of children´s rights is a hallmark incontemporary modern democratic states. Children’srights are increasingly focused in the Nordic context as well as in a European and international context. Ratifiedin 1989 in Sweden it took some years before theConvention became well known. Even if the principleof the best interest of the child has been a recognizedprinciple since the beginning of the 20th century, theUNCRC became used as a legal source for argumentsquite late. UNCRC has perhaps been more of apedagogical and political than legal tool. The principlethe best interest of the child has gradually beenconsolidated in different acts. The same situation is visible also in Norway, the references to UNCRC in alegal context have increased gradually since 1995. 12  The UNCRC is ratified by most states in the world. The obligations for States Parties are far-reaching; therights set forth in the convention shall be respected andensured to each child without discrimination of any kind. States Parties shall also take all appropriatemeasures to ensure that the child is protected against allforms of discrimination. The best interests of the childshall be a primary consideration in all actionsconcerning children undertaken by public or privateinstitutions, and each child shall be ensured suchprotection as is necessary for his or her well-being.  The Council of Europe has recently adopted aStrategy for the Rights of the Child 2012-2015. Theobjective for the programme is to promote children’srights and to protect children from violence. 13 4. Law in context Of course the promotion of children’s rights mustbe understood as something positive for children.However it must at the same time be reflected in abroader context. It is not self-evident that thepromotion of children’s rights in any form or framing in practice will promote the situation of children. Thegoal should not be mixed up with the means. Thepromotion of children’s rights in the contemporary Nordic context, most obvious in Sweden, is framed within an ideological context in which rights areunderstood as individual rights, freedom of choiceovershadows different social and economic living conditions and the role of the state has changed fromone of an ally to one of an antagonist.  The discourse on rights can in this broader contextbe problematic because the ideology presupposesstrong individuals able to act for themselves. Childrenare not always able to do so, but often in the hands of the parents. The discourse on rights is anchored in aliberal tradition which emphasises the autonomousindividual and the principle of state non-interference.Individuals are seen as subjects who should be protectedagainst state intervention. The liberal tradition focuseson the individual level and perceives inequalities asresults of people’s choices. The tradition iscontradictory to the tradition of the Nordic welfarestate model which during many years has focused onstructural inequalities, sometimes called communal. 14 In the international context of human rights a notionof individual autonomy and freedom of choice has beenconstructed as a way to obtain equal opportunities. Eventhough the Nordic welfare state also recognises individualautonomy as important for achieving equal opportunities,the Nordic tradition of egalitarian social citizenship hasfocused more on social institutions and structures than onindividual rights. The Nordic welfare state model has fora long time demanded equality of outcome  or real  opportunities rather than equality of formalopportunities. However, it is also true that the Convention on Rightsfor Children promotes some substantive equality, (asCEDAW does for women) which opens the way for pro-active positive measures, sanctions and for monitoring. 15 10 See e.g. Eva Nilsson (2007). Barn i rättens gränsland  . Uppsala: Iustus förlag. 11 See for a discussion e.g. Sandberg, Kirsten (2008). Barns rett til omsorg. In: Socialretlige udviklinger og utfordringer  . Jørgensen, Stine & Kristiansen, Jens(eds.). København. 12  The information about the increasing references to UNCRC comes from the presentations of Johanna Schiratzki and Karl Harald Søvig at theconference in Tromsø 21-25 of January 2013. 1313 http://www.coe.int/t/dg3/children/ 14 Pylkkänen, Anu (2009). Trapped in Equality. Women as Legal Persons in the Modernisation of Finnish Law  . Suomalaisen Kirjallisuuden Seura/FinnishLiterature Society. Helsinki. See also Svensson, Eva-Maria (2006). Contemporary challenges in Nordic gender equality policy and law  , Equality and Diversity inEurope, International Interdisciplinary Conference, Helsinki 12 – 13 January 2006,http://www.helsinki.fi/oik/tdk/rpol/naisoikeus/tulevat%20tapahtumat/Programme.htm 15 Pylkkänen, Anu (2009). Trapped in Equality. Women as Legal Persons in the Modernisation of Finnish Law  . Suomalaisen Kirjallisuuden Seura/FinnishLiterature Society. Helsinki, pp. 201-212.  –International Family Law, Policy and Practice • Vol. 1.1 •Winter 2013 •page 17– Even if the tensions between the two ideologies, theliberal and the communal, are more obvious in theinternational and the EU law framework, designed for welfare economies influenced by neo-liberalism,changes on the Nordic arena are prevalent. Theunderstanding of the state is also changing, from anotion of a  friendly  state to an intervening  state. The closeconnection between the civil society and the state is inincreasing degree replaced with a boundary betweenthem.  And how is the situation for children in the Nordiccountries today? Has the increased focus on the bestinterest of the child made the situation better?Every five years Sweden has to report to the UNMonitoring Body The Committee on the Conventionon the Rights of the Child. The fifth report was sent in August 2012. The Committee has not responded to thatreport yet. 16 However, in the comment to the fourthreport (CRC/C/SWE/4) in June 2009 about thestandard of living, the Committee “expresses itsconcern at the large disparities in the level of childpoverty within and between municipalities, and urbanboroughs. It also notes with concern the very highproportion of immigrant children living in households with a persistently low income and the continuing deterioration in the economic situation of children fromnon-Swedish backgrounds and children living in single-parent households” (CRC/C/SWE/CO/4, section 52).  According to the Child Development Indexlaunched in 2008 by Save the Children 17 and theUNDP’s Human Development Index, Sweden,together with the other Nordic countries, occupy theposition ‘very high’ in the index ranking. However, theorganization Save the Children has criticised Sweden forits family policy during the last twelve years, andespecially the economic family policy. The relativepoverty (i.e. 60 % of median income in the country) hasincreased from the years 2003/2004 to 2009, from 10 tojust over 15 percentages. The economic family policy has diminished its equalizing and its poverty reductioneffect, according to Save the Children. The differencesbetween the poorest and the richest children haveincreased, so have also the differences between childrenliving in municipalities and districts respectively. What ismore, the discrimination has increased especially forthree groups of children, children with foreignbackground, children in the suburbs of the big cities,and children with single parents. The latter is somewhatsimilar to views the Committee of CRC has expressed. I think, one explanation is the ideological shift infamily policy which tends towards increasing inequality among children in Sweden today. I will now turn to thefamily policy. 5. Family policy In 2008, the main objective for the economic family policy in Sweden was replaced with a new one. 18  Theformer objective focused on reduction of differencesin economic standard between households with and without children. And moreover, for a long period thegeneral policy was to reduce inequality in society.  The new objective became “The economic family policy shall contribute to improved prerequisites for agood economic living standard for all families withchildren”. Instead of comparing and focussing on therelation between the two groups - households withchildren and households without children - as before,the focus from 2008 is the substantial economicsituation for families with children. According to thepolicy, the most important income source is paid work,and unemployment is seen as the main reason for low income. Hence, differences in income between differentgroups seem not to be considered a problem.  What is more, a modern family policy, it is stated,must take as a starting-point that families are different,have different wishes and needs and have the same value. Therefore, it is said, it is important to havefreedom of choice and flexibility. The family policy must be respectful in relation to each family’s choicesand be supportive  , not  governing  . This rejection or lack of governing ambitions must be seen in the perspective of the last statement, which is that the result  of the policy is not important to manage even if it brings with itdifferences between different groups.  The objective for the economic family policy isbased on a view that focuses on ”the preconditionsrather than the outcome, which means an acceptance of different outcomes for different families. Different outcomes can be the result of different preconditions, but it can also be the result of varying priorities and choices made by the families with economic  16  The Committee will consider the report in their 68th session in the beginning of 2015. http://www2.ohchr.org/english/bodies/crc/crcs68.htm 17 http://www.savethechildren.org.uk/sites/default/files/docs/Child_Development_Index_2012_UK_low_res.pdf  18 Budgetpropositionen (Budget bill) Prop. 2011/12:1.  –International Family Law, Policy and Practice • Vol. 1.1 •Winter 2013 •page 18– consequences  ” (p. 12, my translation). The formerambition, a hallmark for the Nordic welfare state, i.e. tostrive for economic equality through a distributionpolicy, seems to be abolished.  This shift can be described as a paradigmatic shift in(Swedish) welfare state policy. The quotation shows thatone of the main aspects of the welfare state in itsNordic shape, (namely equality in result  , throughredistribution, the tax system and a general public welfare sector) is thrown out and replaced by anideology of equality in prerequisites (a formal equality),of freedom of choice and an acceptance of differences.But what is more, one other aspect of the Swedish(welfare) state, the ambition to ‘put-life-in-order’ 19 through politics and legislation, is abandoned. Politicsshould not, according to this policy, interfere withpeople’s choices.  This is perhaps acceptable when it comes toindividuals with full capacity to choose, but what aboutthe consequences for children? What if parents ‘choose’to be unemployed, to be low-paid, to be uneducated, tobe uninterested in the school for their children and soon? 20 Different priorities and choices among parents with economic consequences must be accepted,according to the economic family policy. But could notthis policy lead to discriminatory consequences forchildren, children who are not in the position to choose,but must accept the choices and priorities of theirparents? 6. The ideological base  The ideological base for this Swedish contemporary economic family policy is in accordance with libertarian,neo-liberal or ultra-liberal philosophy. The quotation isalmost exactly the same as a statement the AmericanRepublican Paul Ryan made when he presented therepublican budget resolution The Path to Prosperity: ABlueprint for American Renewal. 21 Ryan is in his turninfluenced by the American philosopher Ayn Rand. 22 Rand had an extreme preference for laissez-faire politicsand a minimal state. Rights for Rand are basically rightsto action, not to things or outcomes, and can be violatedonly through the initiation of force or fraud. All naturalrights are negative, that is, claim on others' non-interference, and not claim on them to provide one withcertain goods or outcomes. 23  This view on rightscorresponds to the view expressed by Nozick and otherlibertarian philosophers. Rand is a popular inspirationfor neoliberal politicians in Sweden today and thepublishing house Timbro, a think-tank and an opinion-former in Sweden publish her. Timbro has a special webpage on Ayn Rand.  This shift in ideology for family policy, seen incombination with changes in society such as the ones Imentioned above, puts the focus on children ascompetent and individual agents in a paradoxicalsituation. How does this shift in direction relate to theincreasing focus on children’s rights? How can it beexplained? And how can the acceptance of the shift beunderstood as it so obvious opens for discriminatory practices and processes of not well being for children, well-being based on economic exposedness andincreasing relative poverty. Save the Children highlights the correlation betweeneconomic exposure and ill being in a report in 2004. 24 Itis also shown that children in households exposed toeconomic vulnerability are also to a greater extentexposed to violence in the home, to harassment inschool, and have a lower degree of access to sports andother activities outside school. 25 7. Freedom of choice  The increasing focus on the promotion of children’srights and children as individual agents goes welltogether with a general paradigmatic shift in policy andlegislation from a structural way of dealing withproblems to an individual way. Structural problems aretransformed into  people’s choices, preferences and individual actions  . The presumption of the child as a competentand active autonomous individual, in a context of ageneral ideological change towards individualisation andacceptance of differences and the tribute to freedom of  19 Hirdman, Yvonne (1989).  Att lägga livet till rätta; studier i svensk folkhemspolitik . Stockholm: Carlsson. 20 Cf. Schiratzki, Johanna (2012). Barnets bästa, utsatthet och ekonomi. In: Alexius, Katarina & Ryberg-Welander, Lotti (eds.). Festskrift till Anna Hollander  .Stockholm: Norstedts Juridik. 21 http://budget.house.gov/fy2013prosperity/ 22 Gary Weiss, “Is Paul Ryan for or against Ayn Rand?” CNN August 14, 2012 23 Rand, Ayn (1964/1967). Man’s rights, in The Virtue of Selfishness  . New York: New American Library; and in Capitalism: The Unknown Ideal. New York:New American Library. 24 Rädda Barnen (2004). Barns hälsa i Sverige  . 25 Svensson, Birgitta, Långberg, Bodil & Janson, Staffan (2007). Våld mot barn 2006-2007. En nationell kartläggning. Stiftelsen Allmänna Barnhusetoch Karlstads universitet, skriftserie 2007:4.
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