Keywords

Introduction

Sweden, together with the other Nordic countries, stands out as a land where the protection of children and children’s rights has been significant both in developing the welfare state and in building a national identity (Holzscheiter, 2010; Lindkvist, 2018). It was the first country in the world, in 1979, to forbid parents to use corporal punishment on their children. The prohibition of physical punishment of children in families in 1979 is an important symbol of a larger commitment to children’s rights in welfare societies during the late twentieth century. The history of this matter also reflects power relations and the governance of society in conjunction with the formation of the welfare state (Holzscheiter et al., 2019). There is therefore good reason to consider more closely when and how this view of the responsibility of the state to protect children against abuse was established. These are questions with many historical, political, and legal dimensions. They relate to how definitions of children’s rights evolved in the interaction between different spheres of public authority in the expanding welfare state. They also concern the right of the state and its representatives to use violence in the form of corporal punishment against children and young people.

This chapter takes as a methodological starting point that the definition of improper care and of children’s rights is not something that exists but something that is done in political and social processes, in order to solve specific social and political problems (Bacchi, 2009). The analysis here will be based on the fact that corporal punishment and abusive treatment of children were brought to the fore by developments in the school system from the start of the twentieth century, in connection with the emergence of public child welfare and family law from the 1920s to the 1960s, and in relation to criminal law. This meant that these themes were recurrent throughout the twentieth century but in different spheres of politics and with different perspectives in different periods. In methodological terms, this means that I relate different definitions in legislation and parliamentary debates to each other in order to identify key changes in meaning and how a change in one area affected another. As a basis for the analysis, I have used laws and statutes, regulations and legislative history in family and criminal law, as well as school law and social law including the earlier poor relief. This means that this survey relates the analysis of corporal punishment of children in the family to the changes that took place in several different areas of legislation.

An explicit ban on parents’ corporal punishment of their children in the home did not come until 1979 when Sweden banned corporal punishment in the Parental Code as a result of a process lasting more than a hundred years. During this period, the right of adults to beat their children and the right of children to be protected from corporal punishment and other abusive treatment had been renegotiated time and time again (Bahr, 2019; Sandin, 2018). By following the legislation on corporal punishment, one can obtain a picture of the change in children’s rights in relation to the outlook on children, family, and the state in Sweden.

The overarching questions for this chapter are: What social and institutional changes drove these political processes? How was the role of the state in representing and protecting children redefined? And how did the resolution to limit and finally abolish the right of parents to discipline children physically influence the definitions of the nature of children’s rights and the representation of children? My analysis of the advent of a legal ban on corporal punishment in Sweden demonstrates how the evolution of children’s rights discourses has been impacted by being a developed welfare society with a large offer of institutional childcare arrangements outside the family. In addition, immigration policies and the ambition to influence supposedly violent or backward child-rearing practices amongst the immigrant population played an important role when the corporal punishment ban was passed in 1979. The ban hence appears partly as a reaction to the transformation of a relatively homogeneous society to a multicultural society and an increased sensitivity about the quality of family caring for smaller children. What can these shifting conceptions of children’s rights teach us about children’s representation as autonomous individuals rather than as family members or part of collectives of children in institutions?

To address these questions, I will examine in the first section how the age limits for who could suffer corporal punishment, and who could punish whom, were shifted during the first part of the period, from 1900 to 1930. In the following sections, I trace the changes in how the state’s role in the protection and representation of children was redefined and lead to a clearer position on the meaning of children’s rights.

Corporal Punishment and Abusive Treatment: Age, Class, and Gender—Regulations and Norms 1900–1930

The dramatic transformation of society in the late nineteenth century had a profound impact on the conditions in which children were brought up. This was the case with the schooling and education of both girls and boys in the upper and middle classes, and the elementary school that existed for the majority of the population. However, it was not only a matter of the organization and content of education for the younger generation. The conditions in which urban children grew up attracted critical attention among the ruling social classes and authorities, who doubted the ability of working-class families to care for their children and were concerned about what they perceived as increasing juvenile delinquency. Children and young people were at the centre of a broad discussion of how children could be rescued from deplorable conditions (Lundström, 1993; Sundkvist, 1994; Weiner, 1995).

It was a broad international phenomenon which had a global impact, but in different ways depending on the social structure and historical experiences. In Sweden, Ellen Key has become a symbol of this commitment, and its foundation in various philanthropic movements and government initiatives (Platt & Chávez-García, 2009; Sandin, 2017). There was also a counterpart in the increasing interest in studying children. The child studies movement drew attention to diverse aspects of children’s upbringing and development. Sciences such as pedagogy and psychology began to shape their epistemological traditions concerning matters of normality, parent-child relations, and juvenile delinquency (Hall, 1904, 1911; Donzelot, 1980; Turmel, 2008).

It was also in the years after 1900 that states in Western Europe began to introduce various forms of legislation to improve children’s social conditions. This included not only education and health care, but also poor relief, foster care, adoption, and other issues. Other legislation sought in various ways to improve the conditions in which children grew up, for example, by separating children from families, while legislation on foster care and adoption was a way for the state to create families on new legal grounds (Lindgren, 2006; Fass, 2013; Sköld et al., 2014).

The legislative process delimited and defined parenthood and the role of men and women, but also, to a large extent, children’s rights. A characteristic of this period was that it witnessed a clarification in some sense of what can be considered children’s social rights against the background of a definition of their needs and view of the family as an institution.

During this process, ideas were shaped on the role of the state in relation to the family, to school, and to institutions of other types. It is clear that institutions intended to support children also involved the control of children and parents alike. The normative regulation of the meanings of childhood under the responsibility of the state included demands on families. This applied to the laws on child welfare as well as to other laws on adoption and foster children, reformatory institutions, etc. Children’s rights also entailed standards for the exercise of parenthood (Gordon, 2002; Sundkvist, 1994; Lundström, 1993). At the same time, this protection of children meant that they were given special rights as children to for example an amount of education and a family. Such rights came with obligations or normative regulation of families.

This illustrates the relational meanings of children’s rights, which is an import facet of this chapter, and also the consequences of systems designed to control the population. Rights are the basis of the system of governance. This also means that children’s rights can conflict with parental rights and family autonomy and have implications for how the government controls the family (Holzscheiter et al., 2019; Sandin, 2012, 2018). The right to bring up children, including the use of corporal punishment, was fundamentally perceived to belong to the family—the parents. When children went to school or were taken into institutional care for one reason or another, these authorities also acquired a share of this parental right. The right of parents to punish their children physically was so much taken for granted in the late nineteenth century that it was not regulated in penal law. The right to corporal punishment could also be transferred to others, voluntarily or forcibly, through what was known as “derivative parental rights” (Alfredsson, 2014; Larsson, 2018; Schiratzki, 2019).

At the same time, this raised questions about how these “derivative parental rights” should be exercised and by whom. This question was at the heart of discussions during and after the turn of the century 1900, and led to restrictions on who could be physically punished under this parental right taken over by the state, and what forms such punishment could take. The right to administer corporal punishment was increasingly regulated through legislation and was placed under public control. Previous research has shown that corporal punishment of children was already being questioned in the early twentieth century, and as a means of upbringing it was regulated according to gender, age, and institutional context. It mainly concerned older boys, over the age of about 12–14, being excluded from corporal punishment in schools and child welfare institutions, along with girls and children from the higher social classes. In practice, the right to administer corporal punishment appears not to have been exercised at institutions to any great extent (Sundkvist, 1994; Norburg, 2015; Sandin et al., 2021). The public debate in the following years, with criticism of the state child welfare institutions, drew attention to shortcomings and also continued to criticize the state’s takeover of parental rights. Could the state both represent and protect children from abuse (physical and mental) while it simultaneously used disciplinary force and risked violating the integrity of children? This criticism led to a broader discussion about parental rights in child rearing.

State Responsibility: Punishment or Upbringing, Regulation and Prohibition 1930–1950

The Swedish Poor Law and Child Welfare Association (a civil society organization) campaigned in the 1930s against corporal punishment of children and tried to influence the discussion about corporal punishment in schools, and also when improper care impaired children’s mental health. This campaign stressed that the public elementary schools (folkskola) should have the same educational models as grammar schools and secondary schools which had children of the same age and where corporal punishment was prohibited. It also underlined the importance of public education setting a standard for how people should raise their children. The question was also relevant for children placed in foster homes, an issue that was discussed internationally. The leading experts opposed corporal punishment as an educational instrument (Stéenhoff, 1932a, 1932b, 1933, 1936; Löw, 2020).

During the 1942 review of the 1924 Child Welfare Act, both the national Medical Board, the Social Welfare Board and local child welfare boards in Swedish big cities questioned the use of corporal punishment and argued that it could have negative mental health consequences. In the view of the Social Welfare Board, it was an inappropriate instrument to use for a public authority. Furthermore, corporal punishment, which was in fact seldom used, would have the opposite effect to the intention behind social welfare (Proposition 1942: 20, 12). On the other hand, in cases where children were taken into care by the board, acting in loco parentis, no change to the legislation was suggested (Proposition 1942: 20, 12–13).

The bill was approved by parliament and the right of child welfare boards to administer or order corporal punishment was revoked, but children in institutional care, government acting “in loci parentis” could still be beaten until the end of the 1940s. During the 1930s, however, the skyddshem (literally, “protection homes”, for children who were delinquent but had not committed any crimes) were heavily criticized for their perceived abuses (Lindgren, 2001), and in this connection the various forms of punishment were also discussed. Since corporal punishment was allowed in elementary schools, it was considered impossible to abolish corporal punishment in homes for delinquent children where the disciplinary problems were supposed to be more serious. In 1937, however, it was ruled that corporal punishment should be prohibited from the age of 18 for boys and 15 for girls. For younger children, corporal punishment could only be used if a children was guilty of serious brutality, that is, excessive force against officials, mistreatment of peers and animals, or gross disobedience, and only if other measures could not have the same effect. Any measures taken must be carefully recorded (Kungl. Maj:ts stadga för skyddshemmen, 1937: 860). As part of the discussion, other disciplinary measures such as solitary confinement were also called into question (Norburg, 2015).

The restriction of corporal punishment in these institutions was followed in 1946 by the complete removal of corporal punishment from the statutes of approved schools (the ungdomsvårdsskola which had replaced the skyddshem). Other punishments were also forbidden if they could damage the physical and mental health of the children (Kungl. Maj:ts stadga, 1946: 582). Two years later, in 1948, the National Board of Social Welfare decided to ban the use of corporal punishment and other degrading punishment in children’s homes under their supervision. With these decisions, the criticism of corporal punishment was explicitly broadened to include the psychological consequences and to extend public responsibility for children’s moral, physical, and mental upbringing. The National Board of Social Welfare’s publication “Råd och anvisningar i socialvårdsfrågor” (“Advice and Instructions on Matters of Social Welfare”, Socialstyrelsen 1948: 49) contains very clear directives on what it was forbidden to do to children. The following forms of punishment were prohibited in this publication, which was distributed to all child welfare institutions and boards in the country:

  • Physical punishment of children in the form of slaps, beatings and the like

  • Locking children up or isolating them in a room or wardrobe

  • Cold showers or forced showers

  • Refusing meals to children

  • Force-feeding if children refuse to eat

  • Forcing children to do things that they should do voluntarily on a daily basis, such as making a child go to bed as punishment

Corporal punishment was thus strictly forbidden, and instead the importance of “natural” punishments was emphasized, so that children would learn to understand the consequences of their actions in almost Rousseauan terms.

The unsuitability of corporal punishment was thus specified for institutions under state responsibility, including elementary schools, although the ban there did not come until 1958. In 1936, the Elementary School Statute was revised to introduce seven years of compulsory schooling. The statutes emphasized that corporal punishment could only be used in the event of very serious offences and if other corrections were ineffective. Children with mental retardation or physical defects were not allowed to be exposed to corporal punishment. Nor was it permitted to subject children to hurtful and insulting treatment. The Swedish Poor Relief and Child Welfare Association would have preferred a total ban but declared that the legislation should in reality be interpreted as a ban (Stéenhoff, 1936; Alfredsson, 2014). A few years later, the issue was integrated into a larger political project to reform the school system (Betänkande med förslag angående folkskolans disciplinmedel m. m., 1950; Qvarsebo, 2006; Alfredsson, 2014).

Alongside this, there was a discussion about the right of parents to use corporal punishment on their children. The secretary of state in the Department of Justice stated in the bill for a new Parental Code that the suitability of corporal punishment as means of upbringing had generally begun to be questioned and it could not be transferred without restriction to anyone else, such as school staff. This view was broadly shared by the bodies to which the matter was referred for comment. The experts in the inquiry into a new Parental Code suggested replacing the right to tukta (chastise, punish) with the term tillrättavisa (reprove, reprimand) (Proposition, 1949:93: 7). The bill was tabled and passed, including the term tillrättavisa “reprimand”:

In the discussion in the chamber and in several motions, however, it was questioned whether this could be perceived as removing the right of parents to use corporal punishment. It was clearly still possible for parents to use corporal punishment on occasion. The Swedish parliament nevertheless approved the proposal. (Riksdagstrycket Proposition Nytt juridiskt arkiv, Avd. II 1950: 65)

The proposed wording in the completely new Parental Code appears to have been interpreted as a restriction on parents’ right to use corporal punishment as a means of upbringing, but without an explicit ban being imposed. One of the members of parliament pointed out that it was undoubtedly inappropriate for parents to hit their children but that an outright ban would mean too much interference in the sanctity of the family (Protokoll Första kammaren protokoll 1949: 19, p. 82).

State Responsibility for Children in Institutional Care Versus Parental Rights 1950–1960

In 1953, the Criminal Justice Committee presented the revision of the 1864 Penal Code. The committee referred to the Parental Code and concluded that the Penal Code should not permit corporal punishment in the family in the provisions on assault and that even minor assaults on children could be prosecuted (SOU 1953: 14: 135–137). However, the committee’s report stressed that the extended possibility to prosecute for assault should not lead to “uncalled-for interference in private circumstances” (SOU 1953: 14: 137). The ability to use criminal justice to intervene in the family’s internal circumstances was limited in these particular cases, but this did not mean that the authorities should waive their responsibility for children’s living conditions in the family. The municipal social welfare boards must play a central role here to oversee the upbring of children.

The bill to amend the penal law stressed that legislation on criminal justice made it difficult to intervene against child abuse because of the parental right to use corporal punishment. The bill referred to the change in the view of the suitability of corporal punishment in the 1949 Parental Code and in the bill for a new child welfare act. On 1 July 1957, impunity for the use of corporal punishment was revoked and prosecutors were thus able to intervene against corporal punishment/assault (Alfredsson, 2014; Riksdagstrycket Proposition, 1957:170). But the implications of the decision were not as far-reaching as they may sound. The provision in the new criminal code followed older law which meant that “assaults that were not serious and not perpetrated in a public place could not be prosecuted unless the plaintiff reported the crime or prosecution was justified from the public point of view” (Alfredsson, 2014). This meant that the possibility of prosecuting was in fact limited to aggravated assault or assault in a public place. This restriction was aimed at avoiding interference in private circumstances. It also presupposed that the question of prosecution was pursued by someone of legal age (Alfredsson, 2014). Because children were under age, they could not be plaintiffs themselves, that is to say, they could not bring a suit against a parent or guardian. The limit to the protection in criminal law that the state was prepared to give to children in the family was drawn at assault (corporal punishment) in a public place. The family was still a closed area and the ability of the state to represent children in cases of neglect and abuse was limited.

The decision did however lead to changes in the School Act and the Child Welfare Act. In the following year, 1958, corporal punishment was prohibited in the Elementary School Statute. Because corporal punishment was equated in criminal law with assault, it could no longer be considered an educational tool in school, as a public space. It was therefore not primarily considerations of school policy that led to the decision, but a shift in the arguments about criminal policy (Qvarsebo, 2006; Alfredsson, 2014). But there were considerations of school policy in the background. The creation of a basic comprehensive school for all social classes (grundskola) was the result of the decision on nine years of compulsory schooling and experiments with unitary school (enhetsskola) in 1952, although the final decision was not taken until 1962. The parallel school system organized by class and gender was abolished.

This meant that school forms in which corporal punishment had long since been prohibited would be merged with elementary schools with a broader social recruitment where corporal punishment had been permitted, albeit restricted since the 1930s (Sandin, 2012). At the same time, it is interesting to note that the Elementary School Statute went beyond simply prohibiting pupils from being subjected to corporal punishment or abusive treatment, but also stressed that: “The teacher shall promote well-being in school and ensure that pupils take pleasure in their work, try to gain the trust of the pupils and respect them as independent individuals” (Kungl. Maj:ts Stadga, 1958 års folkskolestadga 1959:399, 6 kap., 54 §). Here the children are held up as independent individuals with the right to be respected.

The 1960 Child Welfare Act also emphasized that children in public care should be offered good care and upbringing. It was stressed that it was not appropriate for the powers of the child welfare board to be the same as those conferred on parents, partly because the responsibility of the child welfare board comprised not only children but also young adults up to the age of 24. The child welfare board or its representatives (foster parents or children’s home staff) no longer had the right to chastise children in care but instead had to safeguard the child’s individual character and development, which could not be reconciled with corporal punishment (Barnavårdslagen 1960: 97). The new statutes made it clear that children should not be subjected to corporal punishment or other abusive treatment (Kungl. Maj:ts Stadga 1960: 728; 1960: 595; Proposition 1960: 10).

The ability of the state to represent and protect children thus meant that it no longer had the right to administer corporal punishment in loco parentis. At this stage, then, there was an explicit ban on corporal punishment in approved schools and reformatories. Children taken into institutional care were protected by criminal law from all forms of corporal punishment. Only if prosecution was called for in the public interest or if parents abused their children in public could prosecution be brought. Generally speaking, those who were tasked under social law or school law were deprived of the right to beat children before parents were. In other words, children in institutions and at school were protected from physical and psychological violence earlier than when they were at home with their parents.

This meant that when the expansion of the welfare state began in earnest in the 1960s and the early 1970s, with a common school system for children of all social classes, and with a far-reaching family policy and childcare, the family was the only social environment with responsibility for children where children could receive corporal punishment. Corporal punishment of older children was evidently not very prevalent in families, according to the few surveys carried out (Stattin et al., 1995; SOU, 2009: 99: 104–106), but attention was drawn to the fact that younger children suffered particularly from being exposed to physical and psychological abuse.

The Family Is Not Outside the Law: Parents’ Right to Corporal Punishment Is Increasingly Questioned

In the early 1960s, the issue of corporal punishment of children was raised again both in the public debate and in parliament. The “battered child syndrome” had attracted the attention of doctors in the United States, and was discussed among paediatricians in Sweden, for instance in the medical journal Läkartidningen (Frisk, 1964). Against this background, the ambiguities of the legislation were criticized in a couple of parliamentary questions in 1964. The members raising the questions demanded action against child abuse. The responsible minister said that the problem mainly concerned the possibility of obtaining information that the child welfare boards could follow up. Abuse of the right to corporal punishment should be prosecuted. The minister argued that there was a national consensus on common values when it came to protecting the integrity of the individual, and this also applied to very young people. She also noted that the right to administer corporal punishment had been gradually restricted in public institutions, and that only parents now had the right to punish their children this way (Protokoll Andra kammaren 1964: 36: 93–104).

The Ministry of Justice returned with a proposal to amend the Parental Code. The basic stance was that corporal punishment should be avoided in principle. It was proposed that the Child Welfare Act be supplemented to report child abuse to the child welfare board (Promemoria, 1966:1). It was clear from the statement by the Ministry of Justice that they were not convinced that the prevalence of child abuse could be affected by legislation. However, the law should better correspond to the intentions of parliament by imposing a duty on the public to report child abuse to the child welfare board (Promemoria 1966: 1: 7–9).

The ambition of the ministry was thus limited to a statutory requirement to report abuse, but the parents’ right to reprimand their children was not reformulated. In this context, “reprimand” must be seen as synonymous with mild corporal punishment. It was still possible according to the bill for parents to reprimand their children, but they were not allowed to use means of upbringing that were inappropriate in relation to the child’s age and circumstances (Promemoria, 1966:1). This was a defensive formulation. It was a matter of public responsibility, but it was clearly not forbidden to punish children physically. The proposal to introduce a responsibility to report offences suggests a willingness to gain insight into internal family conditions. Seventeen years earlier, when parents’ responsibility for corporal punishment was replaced by a right to reprimand, the opposite was underlined, namely, that this should not entail or be perceived as an interference with internal family matters. But that was what happened now.

The comments from the organizations to which the proposal was referred were generally in favour of it, but many were also critical of the lack of binding commitments and explicit prohibitions. In a comment which, as it turned out, influenced the further treatment of the matter, the Court of Appeal of Skåne and Blekinge argued that the state should take a clearer position, firmly repudiating all forms of violence against children. It was essential to intervene against the widespread habit of corporal punishment. They also questioned the parents’ private power sphere in the family and control over the children:

Parents cannot have any claim to rule over their children in this regard without transparency and control. In the case of far less important matters, such as the possession and use of property of various kinds, modern society has rejected any claim by the individual to maintain a private power sphere vis-à-vis public measures in the common and general interest. In the case of children in particular, the individual citizen must be subject to general rules and act with accountability. (Regeringsakter, 1966:2)

Child rearing should not be about obedience and submission, but about creating healthy, independent, and mature young people. This stance was based on the declaration in the Elementary School Statute that children should be respected as human beings. According to the Court of Appeal, the problem with the Parental Code was its conflictual and outdated conception of the relation between parents and children (Regeringsakter, 1966:2).

The Standing Committee on Law noted that parents were not outside the rule of law and decided to make an important amendment to the text; parents’ right to reprimand their children was removed. This was a crucial change (Första lagutskottet, 1966:32, Proposition, 1966:69). The right of parents to administer corporal punishment was replaced with “the duty to supervise the children appropriate to the child’s age and other circumstances” (SFS 1966: 308 ändring av föräldrabalken 6 kap. 3§).

The justification for the proposal is interesting. The committee noted, first of all, that the children who had been abused were very young and lacked the ability to communicate which made it difficult to prevent this type of crime in the homes, “hidden from view” (Första lagutskottet, 1966:32). The crimes were not discovered until it was too late. Preventive measures and information were needed in order to achieve a sustainable long-term change in the perception of corporal punishment of children. On this point, the committee took the same view as the secretary of state at the ministry. But in the matter of whether corporal punishment of children was in accordance with the law, they took a different view. It was unsatisfactory that unlawful abuse was permitted if it was carried out by parents or guardians against children. The Parental Code must therefore be designed in such a way that the grounds for impunity for corporal punishment are completely removed (Första lagutskottet, 1966:32). The Parliament followed the proposal and as of 1 July 1966, parents did not have the statutory right to beat their children, but the provision was not entirely clear, it was later claimed in the debate on the Corporal Punishment Act in the 1970s (Sandin, 2018).

The discussion of the design of the laws did not say anything specific about the child’s age or gender. But it is implicit that the problem discussed only concerns small children since corporal punishment was banned in the school system and in the expanding childcare system. The public discussion was also about “the battered child syndrome”, which obviously concerned small children. The issue of corporal punishment thus took on a more limited and new age-related meaning compared to the discussions up until the late 1950s.

Corporal punishment of children had previously been within the family’s autonomous remit and authority. It was precisely this right that was called into question both in the discussion of the duty to report abuse in the Child Welfare Act, and by the challenge to the integrity of the family as a sphere outside criminal law. At the same time, it is clear that these positions on the family’s right to administer corporal punishment were already questioned in the 1940s when the National Board of Social Welfare clearly stated that corporal punishment and abusive treatment were unacceptable in the institutions under the authority of the state acting in “loci parentis”. This meant taking a distinct step away from the “transfer” of parental rights, even though parents were still entitled to use mild physical punishments. The new Elementary School Statute from 1958, as we have seen, emphasized that children should be respected as independent individuals.

The debate on child abuse was made into a burning political issue by Save the Children as well as by the newly formed organization BRIS (that stands for “Barnens rätt i samhället” which means “Children’s rights in society”). Important to notice is that it took place within the broader political context of the 1970s that also stressed the extension of childcare, women’s gainful employment and gender equality. The expansion of the welfare state put the focus not only on gender equality, but also on the ability of parents to manage their duty as parents. The question of parental education had been raised in the 1960s and it became an important topic in the debates during the 1970s. Arguments about children’s physical, mental, and emotional integrity were also heard in the public debate in the 1970s. An inquiry into children’s rights was then set up. The need to clarify what the parliamentary decision of 1966 actually meant was occasioned by a couple of cases of child abuse, by the foundation of BRIS, by the general debate about the welfare state and family policy, and also by immigration politics (Littmarck, 2017; Sandin, 2018; Sköld & Osvaldsson, 2019).

A parliamentary inquiry on children’s rights that was set up and began by discussing the conditions for a ban on corporal punishment. The members of the committee noted that it is difficult to determine what constitutes corporal punishment, and it is unclear whether it is possible to solve the problem through a legal regulation. But, still, children with disabilities could not be subjected to corporal punishment, they noted, and why would such limitations not apply to all children? The representative of BRIS argued that the law was needed when it comes to providing information on Swedish law, especially to immigrants, who perhaps have learned in their homeland that children should be brought up with corporal punishment. (Protokoll och minnesanteckningar, 6 June 1977, 5)

Another inquiry member concurred and added that one could differentiate between different groups among which maltreatment of children occurred. The first group considered it correct to use corporal punishment for the purpose of bringing up children; they were most often immigrants. The second and third group of parents acted under emotional stress or struck their children in the interest of protecting them from harm.

The children’s ombudsman for Save the Children highlighted the question of immigration:

In many cases they come from countries which allow parents and guardians to use the means of upbringing that they find suitable, even physical punishment. The question may then be posed as to whether they must change their methods of discipline. In most regards they should, of course, retain their culture and traditions as they wish. However, when the question is whether traditions and values are in conflict with the principles that are fundamental for Swedish democracy, those immigrants who come must accept that they cannot retain their traditions. One such regulation fundamental to Swedish democracy is that children should not be exposed to abuse or other treatment that could cause injury. (Protokoll och minnesanteckningar, 10 June 1977, 2–3)

Against the background of a discussion of children’s rights, legal capacity and the implications of the concept of the best interests of the child, it was established early on that immigrants were a central problem when it came to child abuse. The discussion reflected the difficulties of defining abusive corporal punishment and understanding the relationship between the Penal Code and the regulations in the Parental Code which appear in the public debate.

The discussion also dealt with which term, punishment or correction, could best describe the ambitions of the legal ban. The chairman thought that the term “punishment rather than correction clarified that one did not smack one’s child in the face”, while others emphasized that the ban had to express a rejection of both physically and psychologically abusive treatment and that the same rules must apply to all families, immigrant and Swedish alike, which would be beneficial to the integration of the children in Swedish society (Protokoll och minnesanteckningar, 17 November 1977, 1–2)

The committee members from Save the Children and the Red Cross were the ones who took up the question of immigrants in the committee, but no other members disagreed, which implied that their views were generally shared. At this time, Save the Children also conducted a poster campaign against child abuse in areas where immigrants were concentrated (Dagens Nyheter 15 September 1977).

The committee argued that the legislation was urgent, judging from the notes from the meetings. In the introductory, tentative and broad discussions about the rights capacity and the meaning of the child’s best interests, it was clearly suggested that there were no easy and immediate answers. But the committee quickly concluded that children had the same rights to physical and psychological integrity as adults. One should also listen to children, as is evident from the introductory discussion of principles (Protokoll och minnesanteckningar, 6 June 1977).

It was apparent that the acute situation was associated with the question of the immigrant population. In the discussion that was jotted down in the notes of the meeting it was not only a question of how to reach immigrants with information, but also how they themselves caused the problem.

The Human Rights of Children: The Official Government Report

The discussion of the parliamentary inquiry resulted in an official government report on corporal punishment in the family. It is a short report of 29 pages, in which the emphasis on the reasons for the decision is on children as individuals with their own rights. The demand to concentrate on information campaigns is a logical consequence of the investigations that demonstrated the general public’s lack of knowledge concerning the fact that corporal punishment of children was not allowed. At the same time, the official report’s brief format, including the proposals, raised questions concerning how the need for changes in the Parental Code could really be justified. In the report it was stated that society had changed and that:

The idea that the child is an independent individual with its own rights has appeared all the more clearly. This places demands on raising the child which build on cooperation, care, and mutual respect. (SOU 1978: 10, 23)

Therefore the goals of, for example, preschool have changed toward developing children into open, considerate people with power of insight and the ability to cooperate with one another, but also to reach their own judgements and to solve problems (ibid.). It is thus the child’s rights as individuals that require that the state become involved in order to represent and protect children (see also Sandin, 2012).

According to the official report, research had also shown how the use of physical punishment was unsuitable and exposed children to psychologically debilitating treatment. Increasing violence in society, even in the form of violent entertainment, was also an unsettling sign with possible implications for the future. The actual justification for the law, it was stressed, was the need to nurture independent democratic individuals and the consequences of subjecting children to corporal punishment that would underwrite society’s general orientation towards violence. At this point, the official commission report did not mention child rearing in immigrant communities as a problem.

The report, however, also sketches the need for parental education and information activities for parents. It was especially emphasized that information should reach immigrants to Sweden. The respect for other cultures could not “accept deviations from the Swedish view” in this regard. It was a cultural conflict. On this point it was clearly necessary, one can conclude, to depart from the guiding principle in Swedish immigrant policy that was built on respect for cultural values in the immigrant communities. It also pointed out that Swedish society would not benefit from accepting an authoritarian way of upbringing which, the report conceded, could be logical in an authoritarian and patriarchal society, like the ones immigrants supposedly came from (SOU, 1978: 10, 27). It was imperative that immigrant groups should not be excluded from these efforts to expand parent education. The focus on parental education was aimed at all children and included immigrants without targeting them specifically. The cooperation and reciprocal exchange between different cultures could have positive repercussions for the individuals involved, the report concludes in a positive vein. A favourable outcome was obviously dependent on the Swedish way of child rearing being accepted (ibid., 28–29).

The official government report was published as described above and was sent to various organizations for comments. The parliamentary bill roughly followed the outline of the official report. In the presentation of the need for legislation, emphasis was placed on the idea that this report represented something new which was not included in the 1966 law. Child abuse was now actually to be forbidden. Corporal punishment was abuse, as was psychological maltreatment. The bill was introduced as the end of a long conceptual development which now made clear that “the child is an independent individual who can demand complete respect for his/her person”. Both the child’s integrity and inherent value had to be respected (Proposition, 1978/1979: 67, 3–8, quotation p. 6). The contrast to the changes in 1966 is clear. Those changes did not emphasize children as independent individuals but rather the object of parents’ responsibility to do what was best for the child (Promemoria, 1966:1). The design in 1966 was more paternalistic, while that of 1977 was more emancipatory. Even if the conceptual journey from paternalism to emancipatory rights was mainly grounded in an increasing critical discussion of the general ability of families, given the challenges of modern society, to provide for their children, shifting immigration patterns and attitudes towards immigrants too have played an important role.

The comments by the referral bodies were generally positive to the proposal and supported the need for a sharper legal position. Arguments embraced the notion that children are individuals who have the same demands for protection and good psychological conditions as adults, and that the increasing immigrant population implied a challenge to these values. The argumentation about immigration concerned the fact that child rearing among immigrants was characterized by other norms and values, and also the need to convey information to immigrant parents.

In contrast to many others, neither Save the Children nor BRIS underlined the problem of immigration; BRIS even emphasized that Swedish cultural traditions also enshrined authoritarian fostering ideologies (BRISBRIS skrivelse 30 March 1978) This is a little surprising as it was the children’s rights organizations that brought up the question of immigration in the commission and actually in other public contexts too. On the other hand, the notes from the commission were taken during meetings and had no official status, while the referral comment was an official statement from the organization, which may have resulted in a more nuanced argument.

A closer look at the final inquiry report reveals a similar downplaying of the problem of immigrant culture. The discussion of immigration was placed in its entirety in the section on the need for information campaigns. There is reason to believe that the inquiry decided that singling out immigrants would be too antagonistic a position to take given the political consensual traditions and the current legislation on immigration. The conclusions reached in the inquiry meetings ran contrary to the ambitions of the government that was in the process of laying the foundation for a new immigration policy. Labour immigration to Sweden of foreign citizens had begun on a small scale during the 1960s and increased markedly about 1970. The immigration policy taken by the parliament had established a position contrary to that of the child rights enquiry. Sweden should be open to allowing foreign citizens to retain their cultural identity and their values (Proposition, 1975: 26, 60; Dahlström, 2004). It was in this light that the urgency of the report could be understood. The acute media interest and public campaigns, along with the general debates about the role of the family, created a new focus on the need to reach the population with a foreign background, and change their culture. Children should be treated in the same (Swedish) way regardless of the parents’ cultural background. As regards the question of corporal punishment and psychological abuse, there was no room for tolerance of the values of other cultures; this was the conclusion of the report, which ran contrary to the general policy on immigration. All children in Sweden had the right to the same respect for their physical and psychological integrity.

In Conclusion, Particular or Universal Rights

The regulation of corporal punishment during the early twentieth century related as explained not only to the child’s age, gender, and class, but also to the offences for which a child could be beaten and the manner in which the punishment was administered, which had to conform to the rule of law. Institutional contexts such as school, child welfare authorities, and the family played a role in this. The picture is complex because the norm system has varied with age (corporal punishment was regulated first for older children and later for the younger ones), gender (for girls, the age limits for when corporal punishment could be used as a means of upbringing were set at a lower age than for boys), and social class (in schools attended by middle- and upper-class children, corporal punishment was banned earlier than in the public elementary schools).The state was responsible for the protection of children there, but government agencies also assumed the right to punish and discipline children. Corporal punishment of children meant that the public authority acted in loco parentis to correct the child’s perceived moral deficiencies. At the same time, corporal punishment was not to involve public shaming; this was emphasized by the rule that punishment had to be administered in private and in regulated forms. It was therefore, from the beginning, not only about the physical effects but also the psychological consequences of the punishment. Throughout, the legislative regulations testify of a desire to create transparent procedures that can be evaluated and to establish clear accountability mechanisms for deciding on and implementing corporal punishment when administered under state responsibility; similarly, the regulations also reveal the existence of great hesitations about the practice. At this particular point in history, public child welfare was changing from being aimed at controlling children and protecting society towards being defined as protecting social rights, which could also mean increased control of families. Here the state began to waive its own right to chastise or beat children under its responsibility.

The right and obligation of parents to chastise was replaced by the term reprimanding at the end of the 1940s, while the National Board of Social Welfare also banned corporal punishment and abusive treatment in the institutions over which it exerted authority. The next step was to abolish the right of the authorities—that is, the school system as a whole, child welfare institutions, and child welfare boards—to punish children physically and with humiliating treatment. When corporal punishment was banned in the whole of institutionally organized childcare/educational structure outside the family, it became possible to ban it within the family as well. This took place in parallel to a shift of focus towards an interest in the upbringing and care of small children. It was at the same time that the state asserted its right to intervene to protect the rights of children within the family. In this process, children’s rights were also redefined to emphasize their rights as individuals.

The broader political context, driven by the expansion of childcare, women’s employment outside the home, and gender equality, formed the political background to the newly organized associations BRIS and Save the Children which were able to focus on the rights of children. Legal scholars also began arguing for the recognition of children’s legal capacity, their rights to independent representation and the right to separation from their parents. The building of the welfare state transformed from focusing not merely on equality, but also on the parents’ capability or inability to carry out the task of being parents (Jacobsson, 1978; Klinth, 1999, 2002; Littmarck, 2017).

The argumentation about the individual rights of children, which were considered equal to those of adults, and their physical, psychological and emotional integrity, including a right to an independent voice, was clearly encouraged the stand taken by the inquiry (Jacobsson, 1978; Sandin, 2012).

In connection with the revision of the law in 1966, reference was made in some of the replies to reviews to problems in socially vulnerable environments. In 1977, such comments recurred mainly with reference to the immigrant population’s cultural values. In the notes from the 1977 committee immigrants’ views on child rearing are presented as a problem that required the state to put its foot down. But that took the discussion several steps further. It helped to transform the discussion about what children’s rights might be a with a; children were not only to be protected by the state but also to be regarded as having human rights. In that way, the discussion also anticipated the criticism against multicultural tolerance of cultural traditions of family violence which was brought to the fore during the 1980s and 1990s (Dahlström, 2004; Schiratzki, 2005).

In this process, it became evident that the human rights of children in families ought to be under the surveillance of government, irrespective of ethnic background. The focus on parental education was broad and included immigrants but without targeting them specifically and exclusively. This happened as a consequence of the general and increasing interest in developing welfare policies in support of all families in Sweden, though with divergent focus depending on the different political visions carried by the political left and the centrist and liberal parties (Littmarck, 2017).

The proposal for the new law meant that the values concerning raising children and the rights of children in Sweden appear fundamental as human rights in a democratic society. Swedish values concerning child rearing were placed in parity with universal democratic human rights. In the process studied here, children’s rights in Sweden were transformed from emphasizing children’s rights as a separate sphere of rights, to emphasizing children as possessing the same fundamental individual rights as adults—human rights protected by the state. This process includes elements of continuity of protection of social rights, but also of fundamental transformations of the nature of children’s voices and participatory rights (Sandin, 2012).Footnote 1 As a consequence, it was now expected from government agencies to listen to children and account for children’s perspectives in their work. The child ombudsman (BO) and the child and pupil ombudsman are institutions that were created later to protect against violations of children’s rights by others, but also by the institutions and government agencies in Sweden and to represent the voices of children in interaction with the government.Footnote 2 The legislation on children’s rights that banned corporal punishment indicated two avenues for the development of children’s representation. The first avenue entails that children were represented by government agencies that were sensitive to children’s voices and demands, such as the child ombudsperson. The second avenue implied that children could represent themselves as individuals. In Sweden, the emphasis remains on the representations of children through institutional paternalistic arrangements and less so on young people’s representation as individual political agents (Sandin & Josefsson, 2022).

The consequences of the processes described in this chapter are not linear. The link between the analysis of the legal ban on corporal punishment and children’s representations demonstrate a historical conflict over what government and civil society agencies and institutions that best represented the younger generation but also the complex relationship between different branches of government and the family. Those conflicts also entailed different understandings of how children were best represented and what rights of children should be protected. In this process, the right of government to corporal punish children in its care and the exclusive right of families to corporal punish, represent and protect children was questioned. Corporal punishment and humiliating treatment was simply not seen as consistent with the role to protect and represent and led to an emphases on children’s rights to represent themselves. These conflicts consequently influenced the very transformation not only of different modes of representation but also the definitions of children’s social and participatory rights.

The outcome is also not linear. It is clear that children’s rights can obviously be a means to control immigrant families’ child-rearing practices, and in other cases contribute to the emancipation of children from minority backgrounds. Children’s rights can be used to protect children against group pressure and cultural norms but also to confirm and reinforce a child’s belonging to a particular cultural group. The notion of the best interests of the child has had different consequences according to the social, cultural and temporal context, and has historically proven to be used in many different ways (Petterson, 2003; Sandin & Halldén, 2003; Schiratzki, 2003, 2005; Lindgren, 2006; Leviner, 2018; Ponnert & Sonander, 2019).