SCHOOL OF GLOBAL STUDIES Children's rights in Swedish judiciary. A qualitative study of the construction of the child's best interest with a particular focus on the child's participation and exposure to violence in court cases. Dissertation in Human Rights, 30 higher education credits Spring Semester 2024 Author: Stefanija Stojanova Supervisor: Lisbeth Segerlund Abstract The purpose of this study is to investigate the human rights of children in the Swedish judiciary. Specifically, it examines how the child's best interests are constructed and how children's participation and exposure to violence are presented in court cases relating to custody, residence, and contact. The study used a thematic content analysis as its methodological approach, underpinned by the theoretical framework of social constructivist theory. The study identified several themes that influence the construction of the child's best interests, as well as the presentation of children's participation and exposure to violence. However, the findings suggest that this is subject to the court participants' subjective reality, which includes culture and previous experiences, as well as the discourse in which this is determined and whether the language is interpreted. The study concludes that the social constructivist aspect challenges the normative nature of children’s rights, thus suggesting further research that involves this perspective. Keywords: child’s best interests, child’s participation, child’s exposure to violence, child’s rights, Swedish judiciary, social constructivism. Word count: 19 307 Table of Contents 1. Introduction ........................................................................................................................................................ 1 1.1. Research issue ............................................................................................................................................. 2 1.2. Aim and research questions ........................................................................................................................ 3 1.3. Definitions ................................................................................................................................................... 4 1.3.1. The Convention of the Rights of the Child in international and Swedish context ............................ 4 1.3.2. Procedures for custody, residence, and contact in the Swedish Judiciary ......................................... 4 1.3.3. Violence against child ....................................................................................................................... 5 1.4. Disposition .................................................................................................................................................. 5 2. Literature review ................................................................................................................................................ 6 3. Theory ................................................................................................................................................................ 10 3.1. Social constructivism ................................................................................................................................ 10 3.2. The principle of a child’s best interests ..................................................................................................... 15 3.3. The principle of child’s participation ........................................................................................................ 17 3.4. The right of the child to freedom from all forms of violence..................................................................... 18 4. Method ............................................................................................................................................................... 19 4.1. Qualitative method .................................................................................................................................... 19 4.2. Data collection .......................................................................................................................................... 20 4.2.1. Source criticism ........................................................................................................................................ 21 4.2.2. Limitations ................................................................................................................................................ 22 4.3. Data-analysis method ............................................................................................................................... 22 4.4. Validity and reliability ............................................................................................................................... 24 4.5. Ethical considerations .............................................................................................................................. 25 5. Result and analysis ........................................................................................................................................... 26 5.1. Child's participation ................................................................................................................................. 26 5.2. Child’s exposure to violence...................................................................................................................... 33 5.3. Child’s best interests ................................................................................................................................. 37 5.4. Analysis summary ..................................................................................................................................... 42 6. Summary discussion ......................................................................................................................................... 44 7. References.......................................................................................................................................................... 50 Appendix ..................................................................................................................................................................... 53 1. Introduction "Recently, the media has reported on cases where custody disputes have had the worst possible consequences, including the case of 8-year-old Tintin, who was killed by his father. In Sweden, we have for a long time considered ourselves to be a leading country when it comes to children's rights and opportunities, but in custody disputes, a fundamental change is needed to ensure children's rights and participation." (Göteborgs Posten, 2023, translated from Swedish1) The above citation refers to an article in Göteborgs Posten where two lawyers expressed their opinions on the need to strengthen children's rights in court proceedings related to custody disputes (Göteborgs Posten, 2023). The case of Tintin2 was followed by some criticism against Swedish courts that courts are forcing children to have contact with their violent parents despite the child's reluctance, which has sparked a political debate. This issue has led to calls for changes to strengthen children's rights, especially their right to participate in custody disputes, to protect them from their violent parents (Socionomen, 2023; SVT, 2023; Unizon, 2023). The issues surrounding children's human rights are not new in Sweden. Sweden has been fighting to strengthen children's rights for several decades. Historically, Sweden was one of the first countries to ratify The United Nations Convention on the Rights of the Child (from now on referred to as CRC or 'the Convention') in 1990 (OHCHR, 2023) and has incorporated it into Swedish law (SFS 2018:1197). The legal perspective on children's rights was further strengthened in 2021 with the government's proposition for a strengthened child rights perspective in custody disputes. The purpose of this proposition was, among other things, to clarify the principle of children's participation in judgments on custody, residence, and contact and to allow the social services committee to hear the child in proceedings without the consent or presence of the custodian (Prop.2020/21:150). 1 Original text in Swedish: “Den senaste tiden har medierna rapporterat om fall då vårdnadstvister gett värsta tänkbara konsekvenser, bland annat fallet med 8-årige Tintin som dödades av sin pappa. I Sverige har vi länge ansett oss vara ett föregångsland när det kommer till barns rättigheter och möjligheter, men i vårdnadstvister behövs en förändring från grunden för att säkerställa barns rättigheter och delaktighet.” 2 The case of Tintin is one of the latest cases in Sweden about a custody dispute that ended with a child being murdered. Tintin's parents were separated and had a long custody dispute and conflicts. Tintin's mother had alerted the police, the school, and relatives that the boy did not want to spend time with his father, but the court did not take this into account and instead decided that the boy would have the right to spend time with his father (SVT, 2023a). 1 Sweden has been recognized as a child-friendly country since 1979, when it first banned corporal punishment against children (Unicef Sverige, 2023). Additionally, Sweden has an equal and family-friendly policy that ensures children have equal rights to both parents after a separation. However, researcher Linnéa Bruno believes this policy attempts to maintain Sweden's national self-image of equality and may risk children's rights in family law cases involving violence (Bruno, 2018). The policy was highlighted in a public investigation by the state (SOU 2022:71), which found that the law's design on the child's right to good and close contact with both parents (SFS 1949:381, Ch.6, 2a§) is more emphasized in custody, residence, and contact investigations rather than the risk of a child being hurt during the contact with some of the parents. 1.1. Research issue Recently, the courts in Sweden have been criticized in the media for their decision-making in cases related to custody, residence, and contact (Dagens Juridik, 2019; Dagens Arena, 2023; SVT, 2023b). It has been noted that the child's best interests are not always considered as required by Swedish legislation, such as the Parental Code (SFS 1949:381), the Act with special provisions on the Care of Young Persons (SFS 1990:52), the Social Services Act (SFS 2001:453), and the CRC (SFS 2018:1197). To ensure that the child's best interests are protected, it is crucial to consider their participation, which involves considering their views and wishes. Therefore, it is essential to understand how courts interpret the child's right to participate by examining their approach to the child's will and opinions in decision-making processes regarding the child. Studies show how violence against children in custody, residence, and contact judgments is often discussed as difficulties in cooperation or conflicts between parents. This is concerning as exposure to domestic violence can harm a child's well-being and health (Röbäck, 2016). For this reason, following Article 19 in CRC, it is crucial to protect children from such exposure or any potential risks of harm. The Equality Authority in Sweden has reviewed data on violence in custody, residence, and contact judgments and found that violence is often overlooked, downplayed, or made invisible (Jämställdhetsmyndigheten, 2022). This highlights the need to improve the understanding of children's rights so that authorities can act in the children's best interest. 2 Nevertheless, what exactly are children's rights? It is often assumed that the answer to this question would be the CRC (Lindkvist, 2022, p.14). Partly, yes, but why aren’t children’s rights discussed as human rights, as children are also humans? Is a particular document for the children's human rights needed to ensure them? According to Lindkvist (2022, pp.39-44), the basis for the CRC, like other human rights treaties, lies in the Universal Declaration of Human Rights from 1948, as the declaration states that all people are born free and equal in dignity and rights (UDHR, Art.1). However, Lindkvist (2022, p.43) believes this does not apply to children because they are not born independent, sensible, and morally developed, but, when born, children are entirely dependent on adults. On the other hand, human rights were developed during the late Middle Ages. It was used to justify property rights, criticize imperialism, and defend civil and political rights against the absolute power of the government. The historical meaning of the concept is closely related to its contemporary meaning, as it represents the behavior permitted and accepted by individuals and the government. Hence, human rights have a normative nature (Freeman, 2017, pp.90-91). The problem with children's human rights, as prescribed in the CRC, is that they do not indicate children as rights bearers but rather that others (adults) are obliged to act and behave in a way that fulfills their rights. The CRC does not provide specific instructions on how to act in every situation, which allows for interpretation by adults or authorities. This space for interpretation is crucial because it determines the extent to which children's rights will be realized, so new norms and interpretations should be developed to respond to contemporary societal challenges (Lindkvist, 2022, pp.46-48; 216). 1.2. Aim and research questions This study focuses on children's human rights and aims to understand how the child's best interests are constructed in the Swedish judiciary. Specifically, the study will examine how the child's wills and opinions, as well as exposure to violence, are considered by courts when making decisions about custody, residence, and contact. By understanding how the courts interpret the principle of a child's best interests, children can be better protected from harm, and the decisions would be made in their best interests. The study will use a social constructivist approach and thematic content analysis of court cases to answer the following questions: 3 • What is the presentation of a child's participation in court cases? • What is the presentation of a child's exposure to violence in court cases? • How are the child's best interests constructed in court cases? 1.3. Definitions 1.3.1. The Convention of the Rights of the Child in international and Swedish context The Convention on the Rights of the Child is a document adopted by the UN in 1990 and consists of 54 articles that describe what children's rights are. The convention rests on four basic principles, i.e., four convention articles on which the remaining articles in the convention are based. These are Article 2) on non-discrimination, Article 3) on the child's best interests, Article 6) on the right to life and development, and Article 12) on the right to participation. The Convention on the Rights of the Child was ratified by Sweden in 1990 and incorporated into Swedish law in 2020, meaning it received the same status as other laws in Sweden (Barnombudsmannen, 2021). 1.3.2. Procedures for custody, residence, and contact in the Swedish Judiciary The Parental Code regulates the legal relationship between parents and children in Sweden (SFS 1949:381). When parents separate, decisions about the child's custody, residence, and contact with the non-cohabiting parent are regulated in Ch.6 of the same Act. Upon separation, the parents can agree on the child's custody, residence, and contact if this is in the child's best interests. If parents cannot agree, these issues are decided in the family law. A request can be made for the parent unsatisfied with this decision so the district court can review and decide on the case, which is the first legal instance. In case of dissatisfaction with the district court's decision, the case can be reviewed in the court of appeal, i.e., the second legal instance. The third and last instance that can review the Court of Appeal's decision is the Supreme Court (Sveriges Domstolar, 2022a). A custody, residence, and contact dispute in court can involve all three parts or only one or two parts. - Custody can be shared between the parents or solely with one parent. The custodian(s) are responsible for deciding on matters concerning the child, including the child's safety, livelihood, education, and care. If parents cannot make joint decisions about the child or agree on custody, the court will decide how custody should be divided. 4 - In a case of shared custody, the child's residence can be shared with both parents and one of the parents, depending on what the parents agree is in the child's best interest. If the parents cannot agree on the child's residence, the court can decide. In the case of sole custody, all responsibility for the child passes to the parent who has custody, which means that the child's residence automatically passes to this parent. - The child has the right to contact with the non-cohabiting parent. Contact means that the child interacts with the parent in person, by phone, or via video call, and the child's best interest determines how the interaction will look (Sveriges Domstolar, 2022b). 1.3.3. Violence against child The definition of violence against children in the study relies on the definition of violence against children from the UN Committee on Children's Rights in General Comment No. 13 (2011), The right of the child to freedom from all types of violence. This definition of violence includes neglect or negligent treatment, mental violence, physical violence, sexual abuse and exploitation, torture and inhuman or degrading treatment, self-harm, and other harmful practices. The Committee emphasizes that violence against a child can occur from both - adults and children and that the frequency, severity, or intent to harm are not prerequisites for defining violence against children. Furthermore, it underscores that any level of violence against children, regardless of its severity, is unacceptable. The focus is on upholding children's absolute right to human dignity and physical and psychological integrity (UN Committee on the Rights of the Child, 2011). 1.4. Disposition In the following, an overview of previous research in the field related to the actual study is presented in Chapter 2. Chapter 3 follows a presentation of social constructivism as the study's theoretical ground, as well as a discussion of the study's central concepts. In Chapter 4, a detailed presentation of the study's methodological approach is presented, and a discussion of the choices made regarding the conduction of the study is included. The study's findings and the accompanying analysis are presented in Chapter 5 according to the study's three deductive themes, i.e., Child's participation, Child's exposure to violence, and Child's best interests. Lastly, Chapter 6 discusses the study's implications and draws conclusions based on its outcomes, including a proposal for further research. 5 2. Literature review This chapter delves into a comprehensive review of prior research, focusing predominantly on social science studies within various domains in Sweden. These encompass childhood studies, critical children's rights studies, law studies, and family law studies. The principle of child’s participation is central to many of these investigations, deemed crucial for safeguarding the child's best interests and upholding their rights (Gräfe, 2022; McMellon & Tisdall, 2020; Rejmer & Bergman, 2019; Röbäck, 2016). However, McMellon and Tisdall (2020) think that the research on the principle of participation is superficial because researchers have primarily focused on the normative aspect of the content of the CRC and not on the contextual aspect that analyzes the convention's content in depth. I would say that the research field concerning children's rights in custody disputes is relatively broad, with several interesting perspectives being addressed in the research. This chapter aims to establish a foundational understanding of previous scholars' findings. At the outset, I concentrate on research concerning children's rights, conditions for children's participation, and the child's best interests. Then, I proceed with research on children's exposure to violence. The chapter concludes with a summary of the most pertinent aspects for this study. The four main principles of the CRC mentioned above form the basis for ensuring children's rights in custody, residence, and contact, as these cases concern the child himself. According to the Children's Rights Committee's review in 2015, the convention has not received the intended compliance in Sweden despite its incorporation into Swedish law, nor has this strengthened the child's perspective in custody, residence, and contact cases (Rejmer & Bergman, 2019; Röbäck, 2016). On the contrary, there is some criticism that the CRC has applied homogenizing (Gräfe, 2022), where the individual perspective of the child's needs is neglected and generalized (Rejmer & Bergman, 2019). Standardized working routines in child-centered practices lead to stagnation in the implementation of child participation and the achievement of the child's best interests due to the individuality of each case (Koizel et al., 2023). This leads to children's rights often remaining unrealized and unrecognized, and it serves as a consulting tool that manages childhood (McMellon & Tisdall, 2020). 6 Studies show that assessing the child's best interests in custody disputes depends on the discourse in which the assessment is made. Röbäck (2016) studied the evaluation of the child's best interests in judgments before and after the reform of changes in the Parental Code, where the purpose, among others, was to promote children's participation. The study results show that more of the children's wills were considered to apply to judgments after the reform (Röbäck, 2016). The formulations in the legislation affect whether children's wills are taken into account in judgments, which indicates that courts operate based on a discourse of rights. According to Rejmer and Bergman (2019), the child is regarded as a legal subject in the judgments, and its individual needs, which otherwise are taken into account by the discourse in which social workers operate, are neglected. Rejmer and Bergman (2019) mean that the different professional perspectives can be tense. Still, it is not the understanding, knowledge, and willingness of the professional actors that influence the implementation of the CRC but whether the convention is implemented in the legislation. Leviner (2018) believes that implementing the CRC in Swedish legislation enables professional actors to hear the child's will, but it is not always straightforward what to do with this information. Rejmer and Bergman (2019) write that the Parental Code has taken on a child-friendly appearance with the implementation of the CRC, but this does not mean that children's right to participate in custody disputes is self-evident. This strengthens the theoretical basis for children's participation, but in practice, it can also mean that children are legally protected from involvement (Leviner, 2018). The problem with the principle of participation is not only in how it is implemented in Swedish legislation but also in the convention itself, which is the core document for children's rights. The principle of a child's best interests is based on the traditional protective view of the child, where others/adults decide what is in the child's best interests (Gräfe, 2022; Leviner, 2018; McMellon & Tisdall, 2020; Stern, 2007). On the other hand, the participation principle is based on the democratic view that children are citizens with human rights and should be allowed to participate in decisions concerning them (Stern, 2007). This creates a contradiction as the formulations of the principles of the child's best interests (CRC, 1990, Art.3) and the child's participation (CRC, 1990, Art.12) focus on two perspectives with different purposes. For children to be regarded as citizens 7 with equal human rights as adults and to promote children's participation, a change is required in the power structures that prevail as natural in all world cultures, i.e., that adults are superior to children (Stern, 2007). Children's opportunity to participate in and influence decisions that affect them strongly depends on how adults assess their competence and maturity (Gräfe, 2022; Röbäck, 2016; Stern, 2007). In her study, Bruno (2015) points out that professionals' assessment of a child's maturity is often based on whether the child's wish matches the professional's perception of what is best for the child. If the child's wish does not agree with the professional's assessment, the child can be considered immature, and their will can be dismissed (Bruno, 2015; Gräfe, 2022; Kaldal, 2023). Child-centered practices often require collaboration with adult-centered practices (the child's parents or other adult actors), where the adult perspective dominates and overshadows the child's perspective, which makes it even more difficult for the child to be in focus (Koizel et al., 2023). This is particularly interesting for family-law proceedings since these are directly related to the child, and professionals claim to be neutral and place the child's rights in centrum, among other things. However, no parent can be forced into contact with a child. In contrast, the child's wishes, competence, and testimonies can be ignored or questioned by courts, indicating adult privileges in such proceedings (Bruno, 2015). The discussion regarding professionals' influence on assessing a child's maturity and competence, as addressed by Bruno (2015), is also discussed by Röbäck and Höjer (2009). However, their study reveals that children who oppose court decisions are perceived as problematic and ambivalent, while others are considered non-problematic. This research unveils that children's opinions are often disregarded, while the risk of the child being exposed to violence is not taken seriously. This gives rise to a controversy where children are not entrusted with the responsibility to fulfill the right to contact with a parent, and at the same time, they are left alone with the responsibility for their safety (Röbäck & Höjer, 2009). The assessment of what is in the child's best interest in custody disputes, as outlined by Rejmer and Bergman, relies on a general understanding of fostering a healthy and close relationship with both parents (Rejmer & Bergman, 2019). This perspective favors the family as a unit providing 8 security for the child. However, pursuing equal parental rights risks turning children into objects in the strive for a socially desired ideal, resulting in interpretations of the child's best interests that align with this ideal (Röbäck & Höjer, 2009). The Swedish family-friendly policy is essential in custody disputes and ensuring the child's safety. Such policies may, despite their positive intentions, inadvertently have negative consequences for children exposed to parental violence by giving an abusive parent access to the child, thereby perpetuating the cycle of abuse (Bruno, 2018). In a study conducted by Bergman and Eriksson (2018), the social work practice related to the application of supported contact with a parent in cases with existing information about violence was examined. It was found that the court has identified patterns in which family law officers and contact supporters validate or do not validate the violence, which depends on their space for action and interpretation. The study revealed that in cases where district courts have decided on supported contact despite the risks of the children being harmed, the probability that contact will return to normal, i.e., without a social supporter, was low. A similar discrepancy emerged in Bruno's (2015) study, where the author pointed out that parents who are confirmed perpetrators of violence and parents convicted of rape or assault have standardized/regular contact with the child and shared or sole custody of the child, despite the child's reluctance. In Eriksson's (2011) study, the focus is on how domestic violence has become visible in family law and how children who have been abused are recognized as victims. However, this has presented challenges for professionals who struggle to define children's social positions as witnesses, victims, or competent participants. These positions are often conflicting, which makes it difficult to determine the appropriate status for children. Furthermore, the author argues that while Swedish family law recognizes children as competent subjects, the "ideal" victim can overshadow competent and active children, making it hard for professionals to perceive them as victims. This creates a complex situation for professionals to navigate when dealing with these cases. In conclusion, the previous research highlights challenges in applying children's rights principles, particularly in custody and contact disputes. Despite the legal incorporation of the CRC in Sweden, children's participation remains superficial due to standardized procedures and adult-centric 9 practices. Professional biases often dismiss children's wishes, especially if they conflict with adult perceptions. Moreover, equal parental rights initiatives sometimes neglect children's safety in cases of domestic violence. Efforts to recognize children as victims of abuse are hindered by complexities in defining their social positions and navigating legal frameworks. In contrast to what was emphasized by McMellon and Tisdall (2020), as mentioned at the beginning of this chapter, it can be concluded that previous studies focus on both the contextual and the normative part of implementing children's rights in practice. However, of all the research mentioned in this chapter, no research had explored children's rights in the Swedish judiciary through a social constructivist view. This view, explained in more detail in the next chapter, has an essential role in social sciences because it explores the subjective understanding of individuals about a particular phenomenon and its influence in constructing reality and thus influencing society. Hence, this study, using social constructivism theory, will contribute to filling this gap in research, creating knowledge about the phenomenon of children's rights in the Swedish judiciary. 3. Theory This chapter delves into the study's theoretical framework and explains the suitability of social constructivism as a theory for the study. As stated above, the study aimed to understand how courts construct the child's best interests in court cases regarding custody, residence, and contact, with a particular focus on the presentation of children's participation and children's exposure to violence. I begin the chapter by introducing some aspects of social constructivism and specifying which direction of social constructivism this study relies on in terms of the breadth of the theory. Additionally, I connect the theory to human rights and explain the central concepts of the study, which are the child's best interests, the child's participation, the child's exposure to violence, and their interconnectedness. I conclude the chapter with a summary of my theoretical discussion. 3.1. Social constructivism The theory of social constructivism strives to understand reality in relation to social influences on one’s perception of the world. However, the idea of social constructivism has been developed in various directions, resulting in a broad spectrum of approaches regarding the subject studied 10 (Galbin, 2014). Some of the scholars that deal with social constructivism are Berger and Luckmann (1966) and their approach to social constructivism argues that reality is constructed based on knowledge individuals have gained through social interactions; Burr’s (2015) approach to social constructivism emphasizes a relativistic perspective and argues that multiple realities are constructed by different social groups; Elder-Vass (2012) approaches social constructivism through ontological realism and argues that social constructions have material consequences, and at the same time acknowledges the importance of social constructions in understanding one’s reality; and many others. In social sciences, it is assumed that the roots of social constructivism are founded in Berger and Luckmann’s (1966) perception of the construction of reality based on social influences, and these are considered the pioneers of this theory (Jovanović, 2021). However, the directions of development of the social constructivist approach, at least the ones mentioned above, complement each one in some way, allowing for a deeper and broader understanding of social constructions. The approach to human rights, according to social constructivism, is that human rights are artifacts that have been produced through social processes, and for that reason, the sociological view on rights is that these are inventions. To understand the regimes of human rights, one should primarily create an understanding of the actors involved in such processes or inventions. This would contribute to identifying different perceptions of the rights than the dominating perceptions and understanding the development of these perceptions, as well as their potentials and limitations (Goodhart, 2023, p.119). Hence, the approach to human (child’s) rights through the lenses of social constructivism would contribute to understanding the socially constructed reality of these in the courts. Furthermore, to provide an understanding of the courts as institutions where the participants are acting in the interests of justice, including human rights justice, means understanding a social movement, which, according to Goodhart (2023, p.119), is closely related to human rights claims. Although the different approaches to social constructivism complement each other, it was necessary to delineate the theory to the most relevant approach for the questions this study intended to answer. Because the questions were focused on the courts’ construction of the best interests of the child, it was considered that the most relevant social constructivist approach would be the one closest to analyzing societal influences on the construction of reality of an individual or a group, 11 i.e., courts’ or courts participants’ construction of the best interests of the child based on their perception on the concerned concept. Of the above-mentioned scholars, the approach of Berger and Luckmann (1966) focused on the process by which social constructions are created, while Elder-Vass (2012) focused on how social constructions are shaped by material conditions. Burr’s (2015) approach to social constructivism, on the other hand, was grounded in social psychology and focused on understanding social constructions based on the subjective reality of individuals in society. This approach was most closely related to the questions this study aimed to answer, i.e., to understand how Swedish courts resonate and thus construct the child's best interest in a court case. Therefore, it was decided to use Burr’s framework of social constructivism as a guide but also to include other scholars’ reasoning on the related aspect of social constructivism. Social constructivism assumes that the understanding of the world one has is based on taken-for- granted perceptions of various social phenomena. According to Burr (2015, pp.4-5) and Berger and Luckmann (1966, pp.43-49), these perceptions have developed through the social interactions between people and because of the knowledge that people exchange with each other. The new knowledge one absorbs is not independent and perceived as it has been conveyed, but it is perceived on one's previous perceptions of the world. Berger and Luckmann believe that people’s habitualized actions are established as patterns and norms over time, thus becoming taken for granted, i.e., institutionalized (Berger & Luckmann, 1966, pp.73-74). Burr (2015, p.5) has noted that different power structures in society influence our perception of the world, creating different norms about what should be considered normal and what is deviant. This can be exemplified by the perception of what behavior of people is acceptable in our society and what is not, and how one should behave towards others to be able to say that one is treating others legitimately. This tells us that the perceptions of the outside world are subjective rather than objective observations because they depend on social processes and interactions. Thus, Burr’s approach to social constructivism focusing on power dynamics complements Berger and Luckmann’s approach with an expanded understanding of how certain constructions dominate, and others are suppressed. 12 Regarding human rights being institutionalized norms in society, Freeman (2002, cited in Goodhart, 2023) has argued that the institutionalization of human rights has not secured the protection of these but rather has protected them in a “form that is less threatening for the existing system of power” (Goodhart, 2023, p.120). This can be further linked to Leviner’s (2018) discussion regarding the institutionalized argument of the Swedish child-friendly protection system about something being in the best interests of the child, which she interprets as a way to protect the system from changes related to the power structures between parent’s rights and child’s right to participation. Hence, such arguments might question the influence of power structures in shaping institutional norms and the subjective perception of rights and protections within society. Therefore, analyzing these questions from a social constructivist perspective would shed light on the power dynamics within institutions like the courts and the institutionalization of children's rights. Furthermore, Burr (2015, pp.32-34) mentions a particularly interesting example about the personality of a human, which is intangible, but the way a person behaves is attributed to something that is called personality. This is interesting to consider when it comes to a child's right to participate in custody disputes, which, as could be seen in previous research, can often be limited or hindered by attributing characteristics of immaturity, problematic or ambivalence of a child's personality. So, the social construction of the child's personality plays a role in realizing the child's right to participation. Hence, this theory would contribute to identifying other social constructs that influence the child's right to participation and exposure to violence, and thus also to determine the construction of the child's best interest in court cases about custody, residence, and contact. Like personality, violence can be discussed similarly. Still, it is essential to mention that the social construction, that is, our perception of violence, is based on a historically and culturally specific background. So, what was natural and normal behavior for a parent or a child in the past looks different today (Burr, 2015, pp.9-10). For example, in the past, it was customary for a parent in Sweden to use corporal punishment against their child to discipline them, but as corporal punishment was legally prohibited in 1957, the view of this normality has also changed to something abnormal and unacceptable. However, in some countries, corporal punishment is not prohibited (Unicef, 2023). It can still be used to discipline children, so if parents hit their children 13 to discipline them, it will be within that culture where the parents will not be accused of doing anything wrong, deviant, or illegal. So, the perception of a phenomenon or an event is affected by the temporal and cultural context in which it occurs, which affects how individuals understand things. Both Berger and Luckmann (1966, pp.49-64) and Burr (2015, pp.53-55) stand for the essential role language plays in shaping our understanding of the world through social processes. As stated above, humans shape their perception of the world through interaction with others. This interaction involves an exchange of knowledge through language. However, Burr (2015, pp.52-55) places a significant emphasis on the language and argues that it is the primary means through which social realities are created and maintained. The structure of language and its ability to convey meaning is crucial to creating an understanding of reality. Further, Burr mentions Descartes' theory of mind- body dualism, where the mental and the physical are considered separate phenomena; one could assume that thought and language follow this pattern. However, social constructions created in academia have a significant presence in language, and these are essential for understanding people's thoughts, experiences, and societal opportunities (Burr, 2015, pp.55-58). The term discourse is essential for understanding the social-constructivist theory. In this context, discourse is a set of meanings, metaphors, representations, stories, statements, etc., which produce a version of an event or phenomenon. Discourse is closely related to language because, through language, the reality of a phenomenon is constructed, so it can be said that discourse is accessible through language. However, discourse can also be manifested through written material, visually through images, and even non-verbally. Furthermore, the discourse not only shapes our understanding of social phenomena but also influences how ideas are put into practice and used to regulate the behavior of individuals. In this way, discourse plays a central role in constructing and governing our knowledge of the world, influencing both thought and action (Burr, 2015, pp. 74- 79). Furthermore, the theory of social constructivism challenges the traditional notions of "opinion" and "attitude”. What people say or write does not reflect their private experiences or internal attitudes. Rather, it is a manifestation of discourses, which are the product of individuals' cultural 14 and social contexts. Therefore, statements or expressions are not valid descriptions of personal beliefs or opinions. They are understood as instances of discourse influenced by the discursive culture in which individuals are situated. Hence, opinions and attitudes are not intrinsic to individuals but are constructed through social and cultural processes (Burr, 2015, pp. 74-79). The social constructivist theory is valuable for examining child rights within the legal system, particularly in custody, residence, and contact disputes. This theory posits that our comprehension of the world is shaped by social interactions, cultural norms, and language, making it a subjective experience. In a child's rights context, this theory brings to light several vital factors that may impact court decisions and actions toward children. For example, the social constructivist approach recognizes the inherent subjectivity in perceptions of a child's maturity, personality, and ability to participate in legal proceedings. Acknowledging the socially constructed nature of these perceptions can also be identified if societal stereotypes or norms influence the court's evaluation of a child's suitability for decision-making. According to Goodhart (2023, p. 131), the social constructivist perspective of human rights, or children’s rights in the case of this study, will delve deeper into understanding the practice of human rights beyond the dominant legal, philosophical, and political approaches to human rights. This, in turn, will contribute to knowledge that reveals the essence of institutionalized human rights, such as children's rights in the CRC, and will represent an opportunity for a more substantive approach to them in practice. 3.2. The principle of a child’s best interests The central focus of this study is the principle of the best interests of the child, which is found in Article 3 of the Convention and stated as follows: "1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the child's best interests shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. " (UN General Assembly, 1990). 15 This article of the Convention is explained in more detail in General Comment No. 14 of the Child's Rights Committee (the Committee) to clarify the understanding of the concept of the child's best interest. As stated by the Committee, the principle of the child's best interest in the concerned article is central to the Convention since all other Articles in the Convention strive to promote what is best for a child in decisions about them. The concept consists of three directions: a substantive right, a fundamental interpretative legal principle, and a rule of procedure (UN Committee on the Rights of the Children, 2013). Approaching this composition of the child's best interest concept through the social constructivist perspective presented in the previous section might be considered an example of a construction with material consequences (Elder-Vass, 2012) as written law and is open to interpretation of its meaning and approach (Berger & Luckmann, 1966; Burr, 2015). However, the definition of a child's best interests is unclear and does not provide specific guidance for acting in particular situations. This leaves space for interpretation, further complicating the concept. Ponnert and Sonander (2019, pp. 168-174) have discussed the challenges the principle poses for decision-makers in implementing it in practice, as it is dependent not only on the knowledge and perspective these actors have on a child's best interests but also the actors' operating area. From this point, the connection between the concept of the child's best interest and social constructivism becomes apparent, especially with the subjective knowledge of decision-making individuals (Berger & Luckmann, 1966) and the discourses in which the same individuals operate (Burr, 2015). The indeterminacy of this principle has also been highlighted by Eekelaar (2015): on the one hand, the direct and indirect impact decisions have on children, and on the other hand, when the best interests of a child conflict with different interests, such as parents' rights. He believes that outcomes largely consistent with written laws are given more weight than what may genuinely be considered the child's welfare. According to him, this concept can be understood like other legal sources that provide starting points for action and developing a reasoned discussion. Alston (1994) explains the indeterminacy of the concept through cultural relativism, emphasizing that the approach to the concept through culturally accepted understandings mitigates the perception of this concept as unclear. However, Eekelaar (2015) assumes that to achieve more balanced and stable decisions that refer to the child's best interest, especially in cases where there is a conflict 16 of interests, a more balanced structure is needed in which the child's involvement in the decision- making process is necessary. This also underlines the relationship between the child's best interest and the child's participation principle, which is discussed in the following section. 3.3. The principle of child’s participation The principle of child’s participation is found in Article 12 of the convention and provides: “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.“ (UN General Assembly, 1990) Hence, this principle ought to allow children to express their views in decision-making processes. As for the principle of the best interests, the Committee has provided a general comment on this Article from the Convention to clarify its meaning. This principle is heavily reliant on the child’s best interests principle because the child’s view should correlate with what is best for the child for his or her view to be considered (UN Committee on the Rights of the Children, 2009). However, Archard and Skivenes (2009), in their discussion about the problem of reconciling these two commitments, found that in some situations, these principles cannot be balanced because of the opposite view of the child and those interpreting the child’s best interests. Furthermore, they consider it problematic if those interpreting the child's best interests decide whether the child is mature and whether his or her opinion should be given weight. The social constructivist theory, specifically Burr’s (2015) approach to personality that was mentioned above, would contribute to untangling the network of social influences on the assessment of the child's maturity by the courts’ participants. In turn, this will contribute to understanding the assessment of the courts’ participants in implementing the principle of participation, which is interdependent with the child’s best interest. 17 3.4. The right of the child to freedom from all forms of violence Article 19 of the Convention defines the right of the child to be protected from any form of violence and states: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. “2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” (UN General Assembly, 1990) Like all others, this article of the Convention is based on the principle of children’s best interests. Its focal point is ensuring children's absolute right to human dignity and safeguarding their physical and psychological integrity (UN Committee on the Rights of the Child, 2011). According to Ponnert (in Ponnert & Sonander, 2019, Ch.4), this right may be overshadowed by the principle of best interests. Namely, Ponnert has emphasized that different childcare system orientations influence the direction in which this right is approached. Specifically, in family law in Sweden, which has a family-supportive childcare system, the right to protection has often been overlooked, referring to the child’s right to their parents as the child’s best interest (Ponnert & Sonander, 2019). This can be supported by the social constructivist view in terms of cultural dependence in society (Burr, 2015), assuming the family-friendly orientation of the Swedish childcare system as a cultural feature of Swedish society. Furthermore, the definitions of violence among decision- makers might further complicate the construction of the best interests of the child in relation to this right regarding the subjective perspectives of the same that social constructivism perceives (Berger and Luckmann, 1966; Burr, 2015). In summary, this section of the chapter has explored social constructivism as a theoretical framework to understand how courts construct the child's best interests in court cases, particularly concerning the child's participation and exposure to violence. By highlighting the subjective nature of perceptions influenced by social interactions, cultural norms, and language, the study aims to uncover how societal influences impact legal decisions regarding a child’s best interests. The social 18 constructivist approach offers insights into the complexities of child rights within the Swedish judiciary, providing a lens to identify how child's best interests are constructed in court cases, with a particular emphasis on the child's participation principle and the right to protect them from violence in the court’s decision-making. Therefore, the concept of the child's best interest in this study is approached as a social construct created within the Swedish judiciary's practice. This suggests that children's rights, including their best interest, participation, and right to protection, are not approached only as legally recognized practices but rather as abstract constructs that depend on social interactions and other societal factors that shape their meaning. 4. Method In this chapter, the selection of the qualitative method as the approach for the study is discussed, and the suitability of the method for the study's purpose. Additionally, the approach to collecting data and how the selection of materials and sources was considered is explained. The chapter also covers the thematic content analysis method used to analyze the collected data. Furthermore, here I discuss the advantages and disadvantages of the method, the study's validity and reliability, limitations, and ethical considerations. 4.1. Qualitative method The choice of the qualitative method as a methodological approach for this study was based on its purpose and questions and the type of knowledge it aims to deliver. Qualitative and quantitative methods are used in social sciences to investigate phenomena in society, but they differ in the knowledge they provide. Qualitative research aims to deeply examine social phenomena, including their existence, functioning, and occurrence in a specific context. In contrast, quantitative methods deliver statistical knowledge, such as numbers, lengths, sums, and differences (Ahrne & Svensson, 2015, pp.8-15). This study aims to provide knowledge about the social construction of the principle of children's best interests in court cases about custody, residence, and contact related to the principle of participation and exposure to violence. Therefore, the knowledge this study aims to deliver is qualitative, and the qualitative method is best suited to achieve the purpose of the study. 19 Qualitative research can use various types of materials depending on what is best suited to answer the research question with the best quality. In deciding which material to use, it was essential to consider whether other forms of investigation, such as interviews with people involved in custody disputes, judges, prosecutors, or other interesting parties, might be relevant to the study. However, the interview method was considered could include subjective perceptions and emotions, leading to ambivalent answers. On the other hand, court case judgments are written texts created for a different purpose than the current study. This, according to Justensen and Mik-Meyer (2011, pp.104-109), strengthens the objectivity and neutrality of the study. Therefore, the decision to use judgments, which are documents in written form, is based on this reasoning. 4.2. Data collection The empirical material for this study was collected using Norsteds Juridik's digital information service JUNO3. The search for relevant material took place in several steps, and the material was filtered to obtain the relevant material for the study. Initially, the search field was applied with the keywords "violence against children", and various legal sources, such as bills, public investigations, letters, and judgments, were obtained. Since the study required court cases, the search was filtered by selecting practice as the source of data. General Courts were then chosen, as they mainly handle cases relevant to the study, i.e., criminal, civil, and court cases. Furthermore, there was a possibility of choosing an area of law that one was interested in. Since the study aimed to examine court cases about custody, residence, and contact, family law was chosen because it was the relevant area of law for the study. The year 2023 was chosen as the date of the judgment because it was the most suitable for investigating the current situation. Although 2024 might be preferable to study the current situation, it is not yet completed, which may impact the study's generalizability from a temporal perspective. Hence, the year 2023 was considered the most relevant for the study. The initial search yielded 71 legal documents consisting of cases from the District Courts and the Courts of Appeal. Typically, the Courts of Appeal handles appeals of cases from the District Courts. 3 Norstedts Juridik is a publisher and supplier of business-critical information in law, and their digital service JUNO is Sweden's most comprehensive legal database (Norsteds Juridik, 2024). 20 Since the study took a social constructivist approach, it was deemed more significant to concentrate on the court case as a whole rather than individual judgments. The reasoning behind this was that by examining the judgments of the Courts of Appeal, a broader perspective could be obtained on how the child's best interests were being constructed in the Swedish judiciary, as well as constructions on their participation and exposure to violence within the decision-making process. Therefore, the decision was made to exclude cases that had not been appealed to the Courts of Appeal. District Courts were checked off from the General Courts field to exclude these cases. This resulted in a total of 19 documents. Four of these documents were related to rape cases against children and were not relevant to the study, so these were excluded. The remaining 15 documents comprised 11 custody cases, three contact cases, and one residence case, approximately 500 pages. These cases were all relevant to the study and were used in the analysis. 4.2.1. Source criticism The credibility of a study depends on the sources used. In this study, the court cases were analyzed to investigate how children's best interests are constructed related to their participation and exposure to violence. The choice of sources was made deliberately, considering their credibility. As mentioned above, the data was obtained from the legal database JUNO, and the quality assessment of the source was based on the four traditional principles: time, dependence, authenticity, and tendency, as defined by Leth and Thurén (2000). The study used empirical data published in 2023, which coincided with the verdict's date. To ensure that the database is up to date, the website's last update was checked, confirming it was in 2024. Information found on the website4 also confirmed that the database is updated continuously, further validating the source's reliability. As for the dependency principle, the Courts of Appeal and the District Courts are the primary sources because they created the judgment. On the other hand, JUNO is the database that retrieves documents from the Courts of Appeal. However, JUNO did not change the judgments' content but 4 Litteratur i JUNO (Norsteds Juridik, 2024a). 21 added them to the database as a whole document, making the sources independent. This also indicates the authenticity of the source, as it is clear where the documents come from. Moreover, there is no risk of bias regarding the JUNO database since it contains a legal basis for decisions and does not reflect anyone's personal opinions or perceptions, making the source reliable. 4.2.2. Limitations The use of the term "violence against children" in the collection of empirical material for the study can be a limitation of the study as the definitions of violence are separate. This may mean that a different definition of violence may have been used in the judgments to describe a child's exposure to violence, in which case these judgments have been excluded from the study. This may affect the study, missing other aspects of how children's best interests are constructed in court cases in relation to the child's exposure to violence. However, the limitation was necessary due to the scope of the study. 4.3. Data-analysis method Qualitative content analysis was the appropriate method for analyzing the collected material to understand how the child's best interests are defined in the Swedish judiciary. Qualitative content analysis involves coding the material, which means identifying different patterns through codes that the researcher determines (Bergström & Boréus, 2018, p.50). The study was centered around questions about children's- participation, exposure to violence, and best interests, indicating a deductive methodological approach because the codes, that is, the categories for coding, were predetermined. There are various types of qualitative content analysis, including analyzing values, identifying themes, comparing text volumes, studying impartiality, studying changes, etc. (Bergström & Boréus, 2018, pp.51-55). However, this study aimed to identify themes that demonstrate the presentation of children's participation and children's exposure to violence and to understand how children's best interests are constructed in court cases regarding these two aspects. Therefore, a thematic content analysis was deemed the most relevant method for this study. 22 Due to the analysis structure, the research used the analysis guide in Table 1-Analysis guide. As the research had a deductive approach, the analysis guide was based on themes essential for constructing the child's best interests. The analysis guide comprised three themes: presentations of children's participation, presentations of children's exposure to violence, and presentations of the child's best interests. These three themes were considered the foundation for the construction of the child's best interests in the study. Case Subject of Children Children's Child's Child's exposure Child's best number case included age participation to violence interests T 5848-22 Custody etc. 2 C1 8 Court narratives Court narratives Court narratives Svea Hovrätt C2 5 representing child's representing child's representing T 7647-22 Residence 3 C1 15 wills, opinions, exposure to any child's best Svea Hovrätt etc. C2 11 statements, etc. kind of violence or interests. C3 4 abuse or a child's T 6148-22 Custody etc. 2 C1 8 Narratives through risk of being Hovrätten C2 6 direct contact with exposed to för Västra the child. violence or being Sverige hurt. T 154-22 Custody etc. 1 5 Narratives through Göta Hovrätt other participants Narratives through T 220-22 Custody etc. 1 6 (investigators, direct contact with Svea Hovrätt parents, social the child. T 450-23 Custody etc. 4 C 14 workers, witnesses, 1 Göta Hovrätt C medical staff, Narratives through 2 12 C 10 teachers…) other participants: 3 C 9 investigator, 4 T 794-23 Custody etc. 2 C1 6 parents, social Hovrätten C 5 workers, witnesses, 2 över Skåne medical staff, och Blekinge teachers…) T 1028-23 Contact 2 C1 16 Göta Hovrätt C2 6 T 1033-22 Custody etc. 2 C1 12 Hovrätten C2 5 för Övre Norrland T 2845-23 Custody etc. 2 C1 13 Hovrätten C2 10 över Skåne och Blekinge T 3174-22 Custody etc. 3 C1 16 Hovrätten C2 13 för Västra C3 8 Sverige T 3742-22 Custody etc. 2 C1 8 Hovrätten C2 6 över Skåne och Blekinge T 4431-22 Custody etc. 3 C1 12 Svea Hovrätt C2 10 C3 8 23 T 4719-22 Contact 1 14 Göta Hovrätt T 11924-22 Contact 2 C1 6 Svea Hovrätt C2 4 Table 1. Analysis guide Every case was read at least a few times: first, to understand the case, then to highlight the crucial parts of the text that were essential for the study and ensure that no vital information was missed. The highlighted parts were added to the analysis guide for each case and every theme separately. After analyzing the content of each predetermined/deductive theme, several inductive themes emerged, presented in Chapter 5. Result and analysis. The material was analyzed focusing on the grounds for the decisions in the court cases, with less focus on other content, such as claims and preferences expressed by participants. This was because the study focused on the Swedish judiciary rather than other participants in decision-making. However, reading all the cases' content was necessary for better understanding. 4.4. Validity and reliability The court cases were assessed as relevant material for the study because these are public proceedings concerning children. In such cases, the child's best interests must come first, according to the CRC (SFS 2018:1197). The study examines two variables, namely the participation principle and children's exposure to violence, that were considered to contribute to the construction of the child's best interests in court cases. However, the analysis guide also included the theme of the child's best interests. The analysis guide allowed the first two questions of the study to be answered through the themes of presentation of children's participation and presentation of children's exposure to violence. By adding the theme of presentation of the child's best interests to the previous two themes, the third question of the study concerning the construction of the child's best interests in the Swedish judiciary could be answered. The method used was thematic content analysis, which identified different inductive themes in each deductive theme. This helped answer the third question and showed how the court constructed the children's best interests concerning the themes. Hence, the method can be considered valid because it measures what it was supposed to measure. However, the study's validity can still be discussed as different interpretations and 24 perceptions can affect it since this qualitative social science study is based on a phenomenon prone to societal changes. The study's reliability refers to the study's precision, which means that the study of a phenomenon will give the same results if carried out in the same way by another researcher. It is also called intersubjectivity and is considered not a relevant research ideal in social science studies because such studies use the interpretation of people's activities. Thus, transparency is essential for this study to approach the ideal of intersubjectivity as best as possible. Therefore, the analysis guide and scheme allow other researchers to reconstruct the study into different stages and conduct a similar study to test its reliability (Bergström & Boréus, 2018, pp.38-43). The role of the researcher is also essential to consider, as researchers can influence the study's results. This study is a thesis in the framework of a master's education and is not a funded project, which means that the study is independent of external influences. Therefore, as the study's author, I am not professionally involved in the areas that the study touches on, which ensures researcher neutrality. However, it cannot be excluded entirely that a person's preconceived notions or biases may affect how they understand and interpret the data. So, my understanding and knowledge of subjects related to the study may have had some influence on the study’s outcome. The study solely examined court cases in Swedish, which required me to translate the quotations for analysis purposes. It is important to note that the translation process from Swedish to English may have influenced the study's accuracy. Hence, my proficiency in the English language may have influenced the translation of the quotes. 4.5. Ethical considerations This study involves legal cases that are public documents and, therefore, accessible to the public. However, explaining the choices made regarding their presentation and use in the study was necessary. My reflection on ethics is based on Bryman's (2016) recommendations for maintaining legal cases that were publicly available. The study did not use personal names and details to maintain confidentiality due to the sensitive nature of the cases. Instead, only case numbers were used to identify which case was discussed. The children's names and pronouns indicating the child’s gender were marked with [the child], and, in some cases, the age of the children was 25 indicated if that was relevant for understanding the context. When citing content that contains the names of adult participants, i.e., children's parents, these were replaced with [the mother] and [the father], respectively. 5. Result and analysis In this chapter, the results that have emerged from the analysis of the collected material are presented and analyzed using social constructivist theory. The material that the study processed consisted of 15 court cases, and the purpose was to investigate what the presentation of the child's participation and exposure to violence is in these cases and how the child's best interests are constructed in the Swedish judiciary. 5.1. Child's participation In most of the analyzed material, the judgments' grounds for the decision begin with explaining the laws the court considers significant in their decision-making. This legal reasoning in judgments was generally more detailed in the district court's judgments than in the court of appeal's judgments. In 13 out of 15 court cases, the children had the right to express their opinions and wishes, and these were given due weight depending on the age and maturity of the children. In two court cases, no legal reasoning appeared regarding the principle of the children's participation. The cases analyzed in the study included 32 children between the ages of 4 and 16. The analysis found that 15 children were allowed to express their opinions and wills, while three were not. For 14 children, it was unclear whether they had any opportunity to participate in the decision-making process. Regarding whether children's opinions have been considered, the analysis revealed that the court has considered the opinions of six children, six children's views have not been considered, three children's opinions have been partially considered, three children's nonverbal expressions have been taken into account, and this information regarding 14 children was missing. According to the statistical data mentioned above, the inclusion of the principle of participation in the legal reasoning of the case indicates that space is given to the power of law, meaning that the 26 right of the child to be heard becomes, according to Berger and Luckmann’s (1966) definition, institutionalized. This can be further interpreted through Burr’s (2015) perspective on power structures, meaning that the law is given a specific power as a legitimate institution in the society, which in fact poses rules and obliges society to respect and act according to it. However, according to the statistics stated above, this law has confirmed its legitimacy partially, that is, for less than half of the children who were included in the cases analyzed in this study. Hence, the fact that the principle of child participation is included in cases can, through the lenses of social constructivism (Burr, 2015), be interpreted as a principle that is taken for granted by the courts, that is, the child's right to participation being present in decision-making processes that concern the child. Representing the principle of child participation through the law as a structure that represents power leaves an impression of the power of the child's right to participate in the judicial process. However, the power of this principle is partial and is influenced by other factors discussed below. As mentioned above, some of the children in the cases analyzed in the study were allowed to express their opinions and wishes and thus exercise the right of participation, while others did not, or this data was missing. In the material analysis, several codes related to the children's involvement in the process emerged and were categorized into several themes. The emerging themes were cruciality, clarity, non-verbal, unknown, and obstacles/advantages, presented in the following section according to the scheme in Table 2. Child's participation. Theme (deductive) Theme (inductive) Categories Cruciality Clarity Non-verbal Child's participation Unknown Children's age Obstacles/advantages Parental influence Table 2. Child's participation The first theme is cruciality, consisting of codes indicating whether children's participation, that is, their wishes and opinions, have decisive significance in the court's decision-making. There were statements like "Even if [the child's] will, since [the child] is ten years old, could not alone decide where [the child] should live…" from case T 7647-22 and “… [the children's] opinions cannot be assigned any decisive importance…“ from case T 5848-22 which indicate that the expressed 27 wishes and views of the children are not of decisive importance. On the other hand, there were statements like in case T 1028-23, where the wishes of the child were "given great importance" due to reaching a certain age, and case T 4791-22, where according to the court, "…the absolute decisive information regarding who should have custody of and permanent residence with [the child] is the 14-year-old [child's] information…" and these were interpreted as the child's participation has decisive importance. According to these statements, the opinions and wishes of the children can be decisive in making a decision, but not always. The court's action in this aspect depends on other factors influencing the court's decision. The deciding power of the child's opinion and wishes is based on the court's assessment of whether or not the child's presentation can be decisive. As discussed by Archard and Skievens (2009), the decision-makers, which in this case are the courts’ participants, have the power to interpret the child's presentation and, in doing so, determine how much weight should be given to the child's opinion. From here, another structure of decision-making power becomes apparent: the power of the courts as a legitimate legal authority against the child's power to influence decisions about them. This links back to Eekelaar (2015) in that the decisions are grounded consistently with the written law rather than the child’s best interests, which in turn include the view of the child. Thus, the child has no power to influence the power of the court, unlike the court, which has the power to influence the child, i.e., to influence the power of the cruciality of the child's opinion and wishes. However, other factors might influence the court's assessment from the social-constructivist view presented by Burr (2015). One of those factors is the temporal aspect of the court's assessment, which is based on facts that are current at the given moment and are considered essential. If a particular case is placed in a different period, for example, before incorporating the CRC into Swedish law, the child's right to participation might not be considered to the same extent as is the case with the actual court cases. This indicates that the crucial aspect of the child's opinion is subject to social constructions such as power structure and temporal aspect. The second theme is clarity, which includes statements about the children's clarity in court expressing their wishes and opinions. For example, in case T 2845-23, the court considers that 28 "based on the behavior of both children, it is very unclear what their genuine will and opinion is and whether they know it themselves," indicating the court's consideration of the child's expressions as unclear. On the contrary, in case T 5848-22, it is stated that the child, who is eight years old, "has been clear that..." indicates the court's assessment of the child's expression as evident. This theme states that the opinions and wishes of the children are subject to interpretation by the court. Social constructivism points out that interpreting certain phenomena depends on the interpreter's prior understanding of the same phenomenon (Berger & Luckmann, 1966; Burr, 2015). The same could be seen in Ponnert and Sonander’s (2019) discussion regarding the influence of decision-makers' knowledge on the interpretation of what decision would be in a child's best interest. Hence, we cannot exclude that the interpreting judiciary consists of people with different views and understandings of certain phenomena. Furthermore, this makes the manifestation of the discourse become apparent, which according to Burr (2015), is central to social constructivism for understanding social constructions. Therefore, despite their individual understandings, court participants have certain understandings based on the legal discourse in which they operate. So, from the statements included in this theme, we can see that the discourse in which the phenomenon, i.e., the child’s view, is interpreted also plays a role in realizing the right of children to participate. In the context of clarity, language can also be taken into account, which, according to Burr’s (2015) perspective on social constructivism, has a significant role in creating an understanding of a phenomenon. However, giving meaning to thoughts through language depends on the understanding and subjective reality of the information and the one receiving it (Berger & Luckmann, 1966; Burr, 2015). In this case, the child conveys his thoughts through speech that is familiar to the child, and the meaning of the words that the child uses depends on the child's understanding of those words. This depends on the knowledge the child has acquired through interaction with society, which is the starting point of the social constructivist theory (Berger & Luckmann, 1966; Elder-Vass, 2012; Burr, 2015). On the other hand, the recipients of the information, who in this case are the court participants, interpret the information depending on the understanding they have acquired during their lives. Hence, whether the child's thoughts are clearly 29 expressed or not, they are interpreted in accordance with the subjective reality of the court participants, which can, through social constructivism (Berger & Luckmann, 1966; Burr, 1015), be interpreted as social constructions created through social interaction and individual experiences. The third theme was non-verbal, which included codes denoting non-verbal participation that were considered in court. This was expressed in case T 1028-23 regarding the child who is six years old through the following: "The investigation shows that, based on these feelings, the child completely rejects the idea of meeting the father and that the child has been clear about this over time." This indicates a participation in decision-making that was not expressed through verbal communication but through feelings that the child has shown, and the court has taken these into account. This also occurs in case T 794-23, where the child's attitude towards the parents is considered in the decision: "On the contrary, the children show joy in being with the father both to the mother, to preschool staff and the investigator" and "that the children thrive in the presence of both parents..." indicating the presence of non-verbal participation. Like the clarity theme, the non-verbal theme refers to communication that acquires a specific meaning in the interaction. However, feelings can be more complex as a means of communication because, unlike speech, which can take shape through words and become tangible, feelings are abstract. Of course, feelings can be described through speech and somehow become tangible. However, in this case, meaning is given to someone else's feelings, i.e., someone else's behavior. How one behaves in a given situation and how observers interpret that behavior, i.e., personality, can, according to Burr (2015), have a wide range of influences. Further, Burr (2015) has argued that the interpretation of behavior is dependent on the previous understandings and experiences of the observer, but also the cultural background of the interpreter can also influence it. According to the example in case T 794-23, how would a happy child be described? From Berger and Luckmann’s (1966) and Burr’s (2015) social constructivist point of view, this can be interpreted as taken for granted, as the understanding of what happiness is depends on the observer's subjective reality and, thus, is relative. Therefore, the child's non-verbal participation in the cases can be considered socially constructed. 30 The fourth theme is unknown, indicating participation is not evident in the court case. This theme consisted of cases where legal argumentation about a child's participation was present in the grounds for the decision. However, there was no evidence of children being allowed to express their wishes and views or participate in the decision-making in any other way. For example, in case T 1033-22, besides the 12-year-old child whose opinion is taken into consideration in the decision-making process, there is no information on whether the 5-year-old child has in any way had the opportunity to participate in the process. The same applies to case T 3174-22 regarding children aged 13 and 8, case T 154-22 involving a 5-year-old child, case T 220-22 involving a 6- year-old child, and case T 11924-22 involving children aged 6 and 4. The fifth theme, obstacles/advantages, consisted of two categories. The first category was children's age, where the codes consisted of statements indicating the court's valuation of children's views and wishes based on their age. For example, in case T 5848-22, it appears that "the children's age and maturity mean that their opinions cannot be given any decisive importance..." which means that the children's opinions are valued concerning their age - eight and five years old. This means that the age of the children in the case is an obstacle to the children's participation. However, there were cases where the children's opinion was given importance because of their age, as in the case, T 1028-23, where "[The child] has reached such an age that [the child's] wishes should be given great importance." This means that the child's age was decisive in whether the child's opinions were to be valued in court and if the child was to have the right to participate fulfilled. In case T 1033-22, it is argued that the wishes and opinions of the 12-year-old child should be considered because "12 years can, however, be considered a benchmark" for an achieved maturity. The study concluded that the children allowed to express their opinions and wishes in court were between eight and 16 years old, and the children whose opinions were considered valuable in each court case were aged between 12 and 16 years. Regarding the first category of this theme, the age of the children could be an obstacle or an advantage depending on the child's maturity. As mentioned in the theoretical description regarding Burr’s (2015) discussion of personality, it is interesting to consider that the child's personality is given some meaning, i.e., maturity. It could be seen that the opinion of children between the ages of 12 and 16 was valued, meaning that these children were ascribed maturity to their personality. 31 This also leads to the interpretation that children of ages different than between 12 and 16 are considered less mature or even immature. Here, the question about how concrete the child's maturity is and whether it depends on age can be addressed. Does this mean that all people of a certain age, like the children in the study between 12 and 16, are mature enough to have their thoughts and wishes considered by the judiciary? After all, what is maturity? According to the Committee on the Rights of the Children, in the Convention, maturity is considered together with the child’s age, which allows decision-makers to give due weight to the child’s views in decisions affecting the child (UN Committee on the Rights of the Children, 2009). Archard and Skievens’ (2009) argument on this issue was that the space decision-makers have for interpreting the child's maturity might be problematic as the Convention does not provide specific criteria for maturity, so decision-makers can interpret the child’s maturity based on their perspectives. Hence, the social constructivist theory, according to Burr’s (2015) approach, might consider maturity as a taken-for-granted concept, which, in the judgments, should indicate the reliability of the child's personality - for his thoughts and wishes to be considered and valued. In one of the cases, the age of 12 was considered the reference age when deciding the child's maturity in the legal discourse. The aspect on discourses in social constructivism by Burr (2015), the given benchmark would be only one aspect of the concept of maturity because, according to this aspect of social constructivism, the understanding of maturity depends on the understanding of maturity that exists in the legal discourse, the understanding of court participants, behavior, and statement by the child. So, the concept of maturity might be considered not as an independent tangible concept but an abstract one; its subjective reality depends on social interactions and is a construction created in society. The second category of this theme was parental influence, which consisted of codes indicating the influence some/both parents had on the child's participation in decision-making. Such a case was T 7647-22, where the mother had controlled the 11-year-old child through a demand that the child record the conversation or by the presence of the mother's friend during the conversation with the child. Therefore, the court has stated that the child's right to express views and participation was not realized because the mother had prevented a free conversation between the child and the 32 investigators. On the other hand, regarding the 15-year-old child in the same case, it appears that the parents "would be responsive to [the child's] wishes", and this kind of parental influence is apparent even in case T 1028-23 regarding the 16-year-old child. In this category, the dynamic in power structures can be discussed, that is, how the child's participation in the decision-making process depends on the parents. As mentioned earlier, according to Burr (2015), power structures influence the construction of social phenomena, as in the case of the child's participation in decision-making processes. The fact that parents have the power to influence participation expresses the vulnerability of children, who, unlike their parents, do not possess such power - to influence parental participation. However, this does not apply only to the case where the parents were an obstacle to participation but also to the case where the parents are responsive to the child's wishes. The sentence indicates that "parents are responsive" and have the power to be responsive to their child's wishes, not the other way around, i.e., that children are responsive to their parent's wishes. From here, it can be considered that the construction of the child's right to participation can be influenced by a factor that does not have as much legitimate power as a legal authority but still has more legitimate power than the child himself and his legitimate right to participation. 5.2. Child’s exposure to violence The principle of protection from violence is emphasized in the introductions of the court's judgments, similar to the principle of participation. This means that the courts place great importance on the risk that a child or someone else in the family is exposed to abuse, unlawfully taken away, detained, or harmed in any other way. This reasoning is present in all cases. The study found that in 13 out of 15 cases, there was some information about the children's exposure to violence. It involved physical violence, sexual harassment, and the children witnessing violence. The data on violence had come from the children, reporting or admission by one of the parents, or reports of concern to social services. These data did not constitute a theme in themselves because they were not considered relevant to the purpose of the study. What was necessary for this study was the presentation of the children's exposure to violence in court and the themes that originated in the court's consideration of these data. Thus, three themes were identified: Low risk, 33 High risk, and Not-recognized risk, constructing the scheme in Table 3. Child’s exposure to violence. Theme (deductive) Theme (inductive) Categories High risk Child’s exposure to violence Low risk Not-recognized risk Table 3. Child's exposure to violence The first theme is high risk, and this was based on the court's assessment where the risk for the children to be harmed or exposed to violence was high, and the risk assessment was based on confirmed information about violence against the children. One such case is case T 5848-22, where the risk of the children being exposed to the father's violence is assessed as high, considering that the father has admitted the violence, threats, and shouting and the children's stories about the father's violence. Another case where there is an assessment of high risk is case T 4431-22, where the district court has made a consideration between the mother's lack of care and information about the father's violence. The information about violence is judged by the district court to be vague because it only came from one of the three children in the case and their mother, as well as the risk investigation, which is otherwise assessed to be deficient. However, the Court of Appeal considers that the risks have been "confirmed and reinforced in that the children have now continued to talk about physical and psychological abuse by the father". Here, the example of violence in case T 5848-22 is based on evidence that the violence had occurred, i.e., the parent had admitted it. So, risk is not a tangible concept and, at the same time, refers to actions in the future; its meaning is based on past actions. Here, according to social constructivism (Berger and Luckmann, 1966; and Burr, 2015), it can be considered that the risk of violence and the assessment of the degree of risk of violence are socially constructed concepts because they depend on the prior knowledge and understanding of the one who prescribes the meaning of violence. The second theme is low risk, and the assessment of low risk in the cases was often based on existing information about violence that is considered but does not constitute a tangible risk that the father will harm the children. For example, in case T 6148-22, the risk assessment is made 34 concerning the father's criminal record: "The information about violence and extensive alcohol abuse on the part of [the father] that has emerged must be taken into account. However, he has not been convicted of any such crime recently. The family court has assessed the risk of the children being exposed to violence as low." In another case, T 1028-23, it emerged that the father had admitted violence against the older child, who has autism and ADHD, and this has occurred in connection with low-affective behavior. The risk of the younger child being exposed to violence has been assessed as low because the child has not been exposed to the father's violence. The child has also not talked about any violence from the father as follows: "In the case, it has not emerged that [the child] was subjected to any physical violence. It is somewhat worrying that [the father] started thinking about sex when he put up [the child's] hair. He has clearly described how it happened," and "the child has not talked about being subjected to violence - let alone that [the child] feels afraid of [the father] because what [the child] experienced has been violent and aggressive". In a third case T 11924-22, it appears that the risk assessment is low because the reports of violence have not been confirmed, but it cannot be ruled out that the violent events have occurred: "Overall, the district court assesses that the investigation obtained by the district court and the parties' evidence support that there is a risk that [the father] exposes [the mother] and the children to violence and threats, but that the risk is low". Case T 5848-22 also fell under this category, where the risk was high concerning the issue of custody, but not in the matter of contact. Namely, in this case, it was judged "that there is no more tangible risk" for the children to be harmed when interacting with the father. The third theme is not-recognized risk, and this is based on information about violence that is assessed not to entail a risk of the child being exposed to violence or harm and information about violence that has not or could not be confirmed. In cases T 7647-22 and T 794-23, it is assessed that there is no risk of the children being harmed because the reports of violence could not be confirmed, either due to deficiencies in the evidence or due to the children's young age at the time of the alleged violence has occurred. In case T 1033-22, there is information about the father's mental breakdown in the presence of the children, but there is judged to be no risk of the children being exposed to violence or harm in any way. In case T 154-22, the court refers to the Tunisian court that acquitted the father, who was in custody on suspicion of crimes against the child. After that, the assessment is made that there is no risk for the child to be harmed or exposed to violence 35 by the father. The risk assessment that the children will be harmed or exposed to violence by the mother in case T 2845-23 is based on the lack of reports of concern about the children's exposure to violence from social services and the school, after which the violence is assessed as unconfirmed. The fact that reports of violence cannot be confirmed leads to the assessment that there is no risk, even in case T 3174-22. Reports of violence that have been assessed as not posing any risk to the children's exposure to violence are reports which, according to the court, can be "perceived as the father exposing the child to abuse, but they can also be interpreted as part of customary child-rearing". Here, structures of power could be recognized, i.e., the consideration of information about violence in the judgments depends on the legitimacy and authority of the information provider. Thus, in case T 154-22, the court bases its assessment of the risk of violence on the decision of the Tunisian court, which indicates that the Tunisian court is considered a legitimate body whose decision has reason to be taken into account. On the other hand, accusations of violence by the other parent, for which there is no evidence that it happened, are not considered. This indicates that in deciding the risk of violence, the power structures that refer to the confidentiality of the information and the legitimacy of the provider of the information have a specific role. Violence is, among other things, a concept that is abstract and intangible, but violence gains meaning through the attributes that are ascribed to it by people. For example, physical violence in a particular context can be a slap. In another context, that same slap would not have the meaning of violence, but perhaps a disciplinary measure, or as in the case T 3174-22 where the court considered that the action of the parent, which the child addressed as violence, could be understood as "customary child-rearing". So, the term violence gains meaning depending on the observer's understanding, which in this case are the courts’ participants, allowing the concept of a child’s exposure to violence to be interpreted as a socially constructed concept dependent on subjective reality (Burr, 2015). Hence, the child's right to protection from violence is managed by the court depending on the court's assessment of whether it is violence, what kind of violence, and whether there is a risk for the child to get hurt or be exposed to violence in the future. 36 5.3. Child’s best interests The themes of the construction of the child's best interests consisted partly of what emerged in the analysis of how the child's best interests have been presented in the judgments and partly of themes that emerged in the reading of the cases. The themes identified in the reading were parents, siblings, well-being, expertise, and contradictions. The themes of the child’s participation and the child’s exposure to violence as part of the construction of the child's best interests were also identified here. However, since these themes were analyzed in detail in points 1 and 2 of this chapter, they are merely listed here as existing themes without analyzing them in detail. Thus, the construction of the children's best interests in the court cases consists of these seven themes as presented in Table. 4 Child’s best interests. Theme (deductive) Theme (inductive) Categories Capability Cooperation Parents Suitability Contact Agreement Child’s best interests Siblings Well-being Expertise Contradictions Child’s participation Child’s exposure to violence Table 4. Child's best interests The first and most comprehensive theme is parents. The theme included the categories of capability, cooperation, suitability, contact, and agreement. The first category, capability, consisted of statements indicating the parents' (in)ability to put the child's interests first. The category also included providing the child with adequate care and protection and keeping the child away from the conflict, if any, between the parents. For example, in the case of T 154-22, the court assessed that the mother had falsely accused the father of violence against their child, and the court, therefore, considered that the mother could not put the child's interests before her own, which was apparently to win the conflict with the father. The category cooperation consisted of statements about the parents' (in)ability to cooperate with the other parent in matters concerning the child. The ability to cooperate with the other parent was 37 very prevalent in the judgments. The court considered the possibility of shared custody as the best option for the child if circumstances permitted. In cases where the parents could not cooperate, shared custody was excluded as there was a risk that the children would become involved in the conflict between the parents and thus be harmed. The suitability category consisted of statements about the parents' (un)suitability as a custodian, co-habiting parent, or contact parent, depending on the issue being decided in the case. It emerged that the assessment may be based on what/who is least harmful to the child, as in the case of T 4431-22. In this case, custody is awarded to the parent who poses the least risk of harm to the children since there is a high risk for both parents of causing damage to the children. Maintaining good and close contact with both parents was also considered in the assessment of the best interests of the child. Contact and interaction with the non-cohabiting parent were excluded if the court had assessed whether there was a high risk that the child would be harmed by contact with the parent. However, as could be seen in point 2, the risk of being hurt when living with the parent could have a lesser value in terms of contact with the same parent, which indicates that the importance of good and close contact with both parents was highly considered. In the case of T 4719-22, however, the child's best interests were considered based on the risk of disclosing the mother's protected identity, which is why contact with the father was not established. In some cases, and mainly in the Court of Appeal's judgment, it emerged that the parents have reached an agreement regarding custody, residence, or contact and that it is following the children's best interests. For example, in the case of T 2845-23, it is stated that "What the parties have agreed upon may be compatible with the children's best interests". Similarly, such an agreement was presented in other cases where the parents had an agreement. However, there was no further explanation for how this was in the child's best interests. The theme of parents refers to a notion that is not abstract; parents are tangible; they exist physically in reality. From a social constructivist perspective, this can be linked to the material consequences that shape constructions, as Elder-Vass (2012) discussed. That is, it is not the parents as physical beings that influence the child’s best interests, but abstract attributes ascribed to the 38 concept of a parent. Thus, the parents are subjects that correlate with the child's best interests. For example, the Swedish judiciary considers the parent's ability to put the child's best interests first and cooperate with the other parent to be an attribute that influences the child's best interest. The same applies to the category of suitability, which is one factor that is decisive in the child's best interest. However, here, the attribute that correlates with a child’s best interests is a parent's personality, which, as discussed previously in relation to Burr’s (2015) approach to social constructivism, is prone to subjective knowledge. So, the court participants’ subjective reality of the meaning of a parent’s behavior constructs the reality of whether a parent is suitable for what is assumed to be the child’s best interest. These factors are considered in the study as part of the legal discourse in the family law field; here, they have a role in deciding the child's best interest. Further, this means that whether parents can cooperate or how a parent behaves might not be decisive for the child’s best interests in another discourse. Also, as Burr (2015) has discussed, the geographical and cultural background of the discourse plays a role in deciding the child's best interests. In this case, the discourse refers to Swedish culture and the Swedish judiciary. Alston’s (1994) discussion of the concept of a child’s best interests through cultural relativism further explains this aspect. Thus, in another country with a culture and judiciary different from Sweden's, parents might have a distinct role in the discourse and a different influence on deciding the child's best interests. The contact category can also be discussed in the same line, where the Swedish judiciary's aspiration to preserve family values could be observed, placing the value of contact with both parents in correlation with the child's best interest. Here, the family-support orientation of the Swedish judiciary can be noticed, and this relates strongly to Ponnerts’ (in Ponnert & Sonander, 2019) discussion regarding the complexity of the principle of a child’s best interests. Furthermore, placing this in a cultural context of social constructivism (Burr, 2015), the concept of a child's best interest can be interpreted as prone to social influences. The agreement category referred to consent between the parents, which the court assessed as following the child's best interests. According to Burr’s (2015) perspective on social constructivism, this can be interpreted as a feature of the power structure between parents and 39 children. According to the result, there was no explanation as to whether the consent between the parents was somehow influenced by the children to whom the consent itself applied. Evaluating the child's best interest in terms of parental consent indicates that parents are ascribed power that allows them to influence the construction of the child's best interest. In assessing the child's best interests, the court considered the relationship between the children in the cases and their siblings, making the theme of siblings. There was an aspiration for equality between the siblings in the cases, which was considered to promote the siblings' relationship. However, the assessment of the child's best interests in the case of T 7647-22 was that one of three children should live with the father and the other two with the mother. However, the contact with the non-cohabiting parent was supposed to be coordinated so the children live with one parent simultaneously, thus promoting the siblings' relationship. In the case of T 3174-22, it was in the children's best interests to live with the parent that the eldest child had expressed a wish to live, and thus, there was no reason to make a difference between them and separate them from each other. This category can be interpreted through the cultural family discourse in Sweden, that is, the power structure in Swedish family values. The discussion here would be easily linked to the earlier discussion on the category of contact from the theme of parents, with regard to Ponnert’s (in Ponnert & Sonander, 2019) discussion view on the concept of a child’s best interests in a Swedish context, and Burr’s (2015) social constructivist view, where the child's best interest is correlated with the importance of preserving family values, that is, the relationship between siblings. Hence, another social aspect of the construction of the child's best interest can be considered. The court's reasoning about the child's well-being could be identified by assessing the child's best interests by presenting arguments that indicate that the evaluation should be based on indicators of the child's well-being. This is evident in the case of T 450-23, where the court notes that if the children continue to live with their father, their safety, stability, and familiarity will be more likely to be maintained, as well as the children's need for continuity will also be met if they remain in their current environment. 40 This theme was in the court's findings on the child's welfare. However, findings about the child's well-being are abstract concepts or attributes that the court participants have attributed to well- being, such as safety, stability, familiarity, and continuity. Thus, the concept of well-being is abstract, as are the attributes assigned to it. According to the social constructivist understanding (Berger & Luckmann, 1966; Burr, 2015), well-being can be perceived as a taken-for-granted concept that something is good and that it is, in fact, in the best interest of the child. However, in another discourse (Burr, 2015), the term well-being may have a different explanation. Here, it is noteworthy to mention Eekelaar’s (2015) argument that the child’s welfare in decisions about the child is consistent with the laws, and what is the child’s actual best interest might be overshadowed by the weight given to the law. Other factors, such as a temporal or historical aspect, geographical aspect, or individual and cultural understanding of the term, may also influence the meaning of child’s welfare (Burr, 2015), as well as how it is approached in relation to the law. Hence, it can be considered that the concept of well-being is part of the construction of the best interests of the child, but it is also prone to social influence and changes. It was found in the assessment of the child's best interests that the court considered the opinions of the experts, i.e., the opinion and evaluation of the child's best interests considered by professionals. For example, in the case of T 220-22, the basis for the assessment of the best interests of the child is based on experts' opinions. In another case, T 2845-23, regarding violence against the children, it appears that in the case, there is no reporting of concern about the child from the school or social services. Therefore, it cannot be established that the mother has exercised violence against the children. This illustrates the importance of experts' opinions in the assessment process. It highlights their power to influence decisions related to a child's best interests, alongside the power of the court participants and parents, and can also be related to the subjective knowledge of these actors (Berger & Luckmann, 1966; Burr, 2015). Some contradictions in assessing the child's best interests could be detected in the court cases, either a contradiction concerning the subject decided in the case or between the district courts and the court of appeal's assessment. In the case of T 5848-22, it was considered that there is a risk that the children may be subjected to violence by the father or be harmed. At the same time, in the question of contact, the following is stated: "Overall, the district court assesses, in contrast to the 41 custody investigation, that the investigation provides support for the fact that there is no more tangible risk that [the children] would be harmed in a relatively extensive contact with [the father]". When it comes to contradictions in the assessment between the district court and the court of appeal, this is evident in case T 4431-22, where the district court considers the child's information about violence to be uncertain. However, the court of appeal considers the information about violence credible and thus changes the district court's decision. As discussed earlier, the approach to social constructivism by Berger and Luckmann (1966) and Burr (2015) suggests that reality is due to individual understandings and interpretations of phenomena. According to the theme of contradictions, the subjective reality created in the district court and the court of appeal can be perceived. What is considered reality in the district court, i.e., the child's best interest, may not necessarily be the same for the court of appeal. From this point of view, the question of the subjective reality of the courts becomes even more significant when it comes to a different matter in the court case, but also for the best interest of the same child. It points to the fact that the subjective reality of the courts changes when the discourse is altered (Burr, 2015). So, if in the matter of custody, it is in the best interest of the child to have contact with both parents. In the matter of contact, the child's best interest was contact with only one parent due to the discourse in which reality is constructed. The child's participation could also be identified as a theme in assessing the child's best interests. As is evident from the presentation of children's participation in point 1 of this chapter, children's views were not always decisive, but it cannot be ruled out that they were considered to some extent. The child's exposure to violence could also be identified in the assessment of the best interests of the child. However, whether this is considered depends on the severity of the risk of violence. While violence may be a deciding factor in some cases, it may not be in others. 5.4. Analysis summary The analysis indicates that the principle of the child's participation in judgments about custody, residence, and contact is present in the Swedish judiciary. However, it is influenced by factors determining how it is implemented in practice. The themes identified in the analysis were based 42 on expressions/narratives used by the court to argue and interpret the grounds on which children's views and wishes are given importance, and the themes gained meaning through the social constructivist theory approached by Burr (2015) and Berger and Luckmann (1966). Through the themes of cruciality and clarity, power structures were expressed where the court as a legal authority had greater power over whether the clarity of the child's views and wishes should be assessed and whether these should be decisive in the case. Power structures were also expressed in the obstacles/advantages theme under the category of parents, where the child's participation was dependent on the parents' responsiveness, i.e., whether the parents would be responsive to the child's wishes and whether the parent allowed the child to participate in the decision-making process. The aspect of language was identified in the themes of clarity and non-verbal, where, alongside the power structure, the assessment of the child's expression depended on the subjective reality of the court participants. In the age category of the theme obstacles/advantages, the child's participation depended on the court's assessment of the child's maturity, which was identified as a social construction influenced by the discourse in which it is observed and the subjective reality of the observers, i.e., the court participants. After analyzing the themes of children's exposure to violence, three themes emerged regarding how the courts determine the level of risk involved in information related to violence. Additionally, the risk assessment was found to be abstract due to the unpredictability of the future that the concept of risk implies, according to the social constructivist approach by Burr (2015) and Berger and Luckmann (1966). The subjective reality was also identified due to the subjective understanding of violence that court participants have. According to the analysis, the construction of children's best interests consists of seven themes identified in the analysis. The most extensive theme was related to the parents, which indicated that the child's best interests are influenced by socially constructed personalities assigned to the parents, the cultural and geographical orientation of the discourse, and power structures. The theme of siblings could be related to the child’s best interests through the cultural context of the discourse, i.e., a culture that recognizes family values. The theme of the child's well-being is considered a taken-for-granted concept related to the child's best interests, and, like other abstract concepts discussed in the analysis, it is prone to be influenced by subjective reality as well as historical and 43 geographical aspects. Power structures could be identified in the themes of experts and contradictions, where the experts' opinion was valued in assessing the child's best interests, and the court's assessment was decisive on how the child's best interests should be constructed. This was mainly expressed in the contradictions theme, where the child’s best interests were constructed in different ways depending on what the child’s best interests were according to the courts’ assessment, which was influenced by the subjective reality of the court participants. Children's participation and children's exposure to violence have also been influential in the courts’ construction of the child's best interests. 6. Summary discussion The study aimed to explore how the Swedish judiciary understands and implements children's human rights, particularly in custody, residence, and contact cases. The study specifically aimed to investigate how the courts present the child's will and opinions, as well as their exposure to violence, and to comprehend how the child's best interests are constructed in the Swedish judiciary. Using a social constructivist approach and thematic content analysis of 15 court cases, the study sought to answer three questions: 1) what is the presentation of a child's participation, 2) what is the presentation of a child's exposure to violence in court cases, and 3) how is the child's best interest constructed in the court cases? According to the study's results, the construction of the child's best interest depends on various factors, and it has been included in the legal reasoning in all analyzed cases. Parents and siblings were identified as separate themes that influenced the construction of a child's best interests in the court. However, the parents had a considerably more extensive influence given the five categories that constructed the theme, i.e., capability, cooperation, suitability, contact, and agreement. The child's well-being, as well as the child's participation and exposure to violence, were also identified as themes that influence the construction of the best interests of the child. Experts' opinions gave particular importance to deciding what was in the child's best interest, creating a separate theme. Finally, the theme of contradictions referred to the court's differentiated assessment of the child's best interest depending on the matter being decided, i.e., custody, residence, or contact, and depending on the court that decides, i.e., the district or the court of appeal. 44 The presentation of the child's participation in court cases is, according to the results of the study, that the child's right to participation is acknowledged in the decision-making process through the court's legal reasoning, as it could be noted in most of the cases. However, the results also indicated that in some cases, no information was provided on whether the children were allowed to participate in the decision-making process. In cases where the child had the opportunity to participate in decision-making in some way, the study, through the identified themes, showed that participation is dependent on the court's interpretation of whether the child's opinion and wishes are clear, the interpretation of non-verbal communication with the child and whether the child's opinion and wishes will be decisive in the process. The age and maturity of a child, together with parental influence, created the theme of obstacles/advantages as these were presented as hindering or facilitating the child's participation in court cases. The presentation of the child's exposure to violence is, according to the results of the study, supported by the legal reasoning that the court's decision is based on the risk for the child to be exposed to violence or to be harmed. In most cases, there was some information about the child's exposure to violence. Still, the presentation of the child's exposure to violence could be analyzed through the court's assessment of the risk of exposure to violence. Hence, the analysis identified three themes as predominant in how the court presents the child's exposure to violence, and they related to the degree of risk of exposure to violence, i.e., high, low, and non-recognized risk. According to the social constructivist theory that was presented by Burr’s (2015), Berger and Luckmann’s (1966), and Elder-Vass’s (2012) approaches, the study's results suggested power dynamics that affected the court's construction of the child's best interests, making it appear as a social construction in the Swedish judiciary. Hence, in all three questions the study was built on, structures of power that influenced the court's decision-making were apparent. One of these power structures was the courts' socially recognized and legitimately assigned power. However, the courts operate within the scope of the legal discourse, which may affect the decision regarding the child's best interests, as suggested by Röbäck (2016) and Rejmer and Bergman (2019). 45 The construction of the child's best interests in all aspects that the study investigated, participation, exposure to violence, and best interests, was based on the court's legal reasoning. Legal reasoning can be considered an indicator of how the court operates and decides from a legal perspective; that is, it belongs to the legal discourse. According to Röbäck (2016), the direction of court decisions is guided by the legal discourse, which means that the court decides according to the law. This was apparent from Eekelaar’s (2015) discussion, as the approach to the child’s best interests was guided by the legal framework. This could also be concluded from the current study because the rights of children under the CRC (UN General Assembly, 1990) or the Swedish Parental Act (SFS 1949:381) primarily influenced the legal reasoning of the courts. In addition to the discoursive aspect of this power structure, the cultural aspect was also apparent in the results of the study as an aspect of Burr’s (2015) approach to social constructivism. In the study, it was possible to observe the Swedish judiciary's efforts to preserve family values through the themes of parents and siblings that were part of the construction of the child's best interests. Basing the child's best interest on a good relationship with both parents was also recognized in Rejmer and Bergman’s (2019) study and Ponnert‘s (in Ponnert & Sonander, 2019, Ch.4) discussion, but this, according to Bruno (2018), can be interpreted as an attempt to preserve Sweden's national identity as a family-friendly country. On the one hand, this would mean that national interests are put before the child's best interest, which contradicts the law; that is, the child's best interest should come first in decisions concerning the child (SFS 1949:381, Ch.6 2a§; SFS 2018:1197, Art.3). On the other hand, the same would represent a risk that other factors, such as the risk of violence against the child, would be neglected. Regarding structures of power that Burr (2015) had presented as another aspect of the social constructivist theory, parents can also be interpreted as influencing factors because, as seen from the analysis, parents influence the child's participation and the construction of the child's best interest. This power structure can be discussed within the framework of adult domination, which, unlike the Swedish judiciary, which can be interpreted within the framework of Swedish cultural values, this structure is, as Stern (2007) says, prevalent throughout the world, i.e., adults are superior to children. However, it is essential to note that the judiciary is also led by adults, strengthening its power dynamic. 46 Furthermore, the experts' opinions were also included in constructing the child's best interests, which, from the discoursive aspect, can be considered positive due to the professional knowledge these actors have during their professional practice. However, Rejmer and Bergman (2019) say this can be tense because different discourses require professional actors to act differently. This means that they may make these unharmonized decisions according to what is correct in accordance with the discourse in which they operate. However, this issue leaves additional room for discussion due to the contradictory decisions of the Swedish courts, which, although operating in the same discourse, had some inconsistent decisions depending on the subject being decided in the case or depending on the jurisdiction of the court. In this analysis, a particular focus was given to the subjective reality of the court's decision-makers, which, as per the social constructivism approach by Burr (2015) and Berger and Luckmann (1966), is shaped by an individual's prior knowledge and experiences. In this context, the child's well- being was highlighted as a subjective reality that influences the decision-making process in the court. While the decision regarding the child's well-being can also be linked to the discoursive aspect of decision-making, it is essential to acknowledge that this concept is generally accepted and interpreted positively. The child's right to participation was also one of the themes of the construction of the child's best interests. However, due to the attention that this aspect of children's rights had received in large part of existing research, such as Gräfe (2022), McMellon and Tisdall (2020), Rejmer and Bergman (2019), Ponnert (in Ponnert & Sonander, 2019, Ch.4), Röbäck (2016), Eekelaar (2015), and Archard and Skrievens (2009) in this study, the theme was also analyzed separately. As mentioned, most cases contained legal reasoning regarding the child's participation in decision-making. Still, as seen from the result, it was not evident in all the cases how and whether the child participated in the decision-making. This indicates that the homogenized and generalized implementation of the CRC, which Gräfe (2022) and Rejmer and Bergman (2019) discussed, does not guarantee the child’s participation in the decision-making process. However, as Leviner (2018) stated, the presence of CRC in Swedish legislation enables children to be heard, but their right to participation 47 is not guaranteed to be realized, making them institutionalized norms in society, according to Freeman (2002, cited in Goodhart, 2023). In cases where a child's participation was evident, the court decided whether and how much weight would be given to the child's thoughts and wishes and whether they would be decisive. This means that the power structure of the court could be seen in this respect. Age and maturity were also recognized as influential factors for child participation by Gräfe (2022), Röbäck (2016), and Stern (2007). This study also found that, like previous research (Bruno, 2015; Gräfe, 2022; Kaldal, 2023), the power of professional actors in deciding whether to consider a child mature enough for their thoughts and wishes to be considered in decision-making could be seen. Relating to the social constructivism by Burr (2015) and Berger and Luckmann (1966), this is based on the decision- making participants' subjective reality, the courts' participants in the study. The subjective reality of the participants in the court was also recognized in the theme that referred to the exposure of children to violence due to the subjective view of the term violence. This theme was also a constructive part of the child’s best interest, but it was separately analyzed, such as the theme of participation. According to the study by Bergman and Eriksson (2018), the validation of violence depended on the space of interpretation the actors concerned had. The complexity of this aspect was supplemented by Eriksson's findings (2011), which suggest that to establish that the child was exposed to violence, there must also be an "ideal" victim, which, according to the social constructivist view by Berger and Luckmann (1966) and Burr (2015), would be prone to, among other things, the subjective understandings of the interpreters. Hence, the assessment of the risk of violence against the child is based on the subjective reality of the participants in the court, which in turn is created through the cultural understandings and previous experiences of the individual. The study's results suggest that the Swedish judiciary provides solid legal support for children's rights. Sweden's efforts to strengthen the child's rights perspective are evident in the court's decision-making process, which recognizes children's right to be heard and protected from violence and to have decisions made following their best interests. However, the study also indicates that factors beyond legal support influence the construction of the child's best interest in the Swedish judiciary. Family values were identified as an influencing factor that sometimes 48 overshadowed the importance of children's rights. However, the social constructivist approach presented in the study enabled a different view of children's rights in the Swedish judiciary than those existing in previous research. The study found that the construction of the best interest of the child and the presentations of the child's participation and exposure to violence were based on the subjective reality of the decision-makers in the court. This subjective reality includes a cultural and historical influence on understanding and a discursive aspect that includes language that influences the interpretation of information and concepts during social interaction. The study also suggests that social constructivism challenges the traditional understanding of children's human rights norms, thus contributing to understanding different perceptions of children's rights than the dominating ones, as Goodhart recognized as a need (2023) to understand human rights regimes and improve their approach. Although the CRC sets specific standards for how adults should behave in conformity with children's rights, it is impossible to reject this understanding entirely. However, this study, by applying a social constructivist perspective, has revealed that adults, such as the court participants, operate under these norms based on their subjective reality, which includes their understanding of what is in the best interest of the child, their beliefs on whether children should be allowed to participate in decision-making, and how to assess a child's exposure to violence. As could be seen from this study, the social constructivist approach was shown to be significant in making visible the aspects that are often overlooked due to their abstractness. This study contributed to the field of children’s rights by identifying some aspects of the issue concerning children's rights in the Swedish judiciary. However, due to the limited time interval and the complexity of the social constructivist theory, the study was also limited in that aspect. Therefore, the proposal for further research in the field of children's rights should include the social constructivist perspective to identify obstacles and opportunities to promote children's rights in practice. Within the legal discourse, this study has touched upon, future research should examine changes in the constructions of children's rights before and after the incorporation of the CRC into Swedish law. 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Stoppa barns tvångsumgänge med förövare. https://www.unizonjourer.se/stoppatvangsumgange/stoppa-barns-tvangsumgange-med- forovare/ 52 Appendix List of court cases used in the study: Göta Hovrätt T 1028-23 Göta Hovrätt T 154-22 Göta Hovrätt T 450-23 Göta Hovrätt T 4719-22 Hovrätten för Västra Sverige T 3174-22 Hovrätten för Västra Sverige T 6148-22 Hovrätten för Övre Norrland T 1033-22 Hovrätten över Skåne och Blekinge T 2845-23 Hovrätten över Skåne och Blekinge T 3742-22 Hovrätten över Skåne och Blekinge T 794-23 Svea Hovrätt T 11924-22 Svea Hovrätt T 220-22 Svea Hovrätt T 4431-22 Svea Hovrätt T 5848-22 Svea Hovrätt T 7647-22 53