LVU – lång väg ut? Om stigbundenhet vid upphörande av tvångsvård (del I av II)

Publicerad i Nordisk socialrättslig tidskrift nr 25–26.2020, oktober 2020 s. 37–70

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The present article deals with one of the most difficult dilemmas pertaining to child protective custody: balancing long-term stability for children in care against family reunification as ultimate goal. In the first part of this article series, the balance is traced through the formal requirements applicable to, on the one hand, the initiation of child custody and on the other hand, its termination. The first article concludes that – at least with respect to foster home assignments – the longer children stay in protective care, the more difficult it becomes for families to reunite. Path dependency – a theoretical model from the social sciences – is suggested towards, if not explaining, then at least understanding some elements of the legal proceedings conducive towards lock-in effects.

These conducive mechanisms are next, in the second article of this series, placed in three legal contexts: First, the procedural framework presenting the base rules. It is argued that administrative courts’ ex officio mandate, the loose ambit of “therapeutic” proceedings in combination with the allocation of the burden of proof slant the playing field against individual litigants (albeit in order to “help” them). The playing field itself – referred to as a second institutional context, is then approached from the vantage point of legal theory, taking account of Swedish and international empirical data on different litigants’ litigation odds. In a third, normative context, prevailing notions of familial normality and deviation are explored in order to trace additional factors making it difficult to break the cycle of protective measures.