Keywords

Introduction

The aim of Barnahus is to provide children who have been victims of violence and abuse with support, protection, and access to justice. In Sweden, those children who have access to Barnahus services (the target group) are defined in national guidelines with reference to the Swedish Penal Code (Brottsbalken); in the guidelines, the target group is linked to what constitutes a criminal act (Swedish National Police Board, 2009). In this chapter, we explore the significance of this situation in relation to the UN Convention on the Rights of the Child (CRC), using Sweden as an example. The question we ask is if the close connection between what the state considers a crime against children and the definition of the Barnahus target group might exclude children who are subjected to violence and abuse from gaining access to Barnahus services. This scenario again might conflict with children’s rights, according to Articles 19 and 39 of the CRC.

In this study, we apply a children’s rights perspective, based on the standpoint that Barnahus is an outflow of children’s rights to protection from all forms of violence and abuse according to the CRC, which also will be discussed. In our analysis, we focus in particular on children who are suspected victims of corporal punishment, children who have witnessed domestic violence, and children who have experienced psychological abuse.

Background and Research Questions

The position of children as holders of rights has been strengthened in recent decades, not least by the UN Convention on the Rights of the Child, from 1989. The view of children as right holders has brought with it a stronger focus on children’s right to protection from physical violence and sexual abuse (Council of Europe, 2007, 2010; CRC/C/GC/12, 2009; Prop. 2017/18:186).Footnote 1 Article 19 of the CRC lists the rights of children to freedom from all forms of violence while in the care of parents, legal guardians, or any others who care for the child, and that no violence against children is justifiable. According to the article, states must take all appropriate legislative measures to protect children from any form of physical or psychological violence and abuse, including sexual abuse and witnessing domestic violence. Such protective measures should, as appropriate, include effective child-friendly and child-inclusive procedures for investigation, treatment, and follow-up of instances of child maltreatment and, as appropriate, for judicial involvement (CRC/C/GC/13, 2014; see also European Union Agency for Fundamental Rights, 2015; UN Economic and Social Resolution, 2005/20).

The establishment of Barnahus in the Nordic countries is arguably among the most important political initiatives in recent years for children who are victims of crime in the Nordic region (Johansson, 2012; Johansson et al., 2017; Table 1.1).Footnote 2 The first Barnahus, established in Iceland, was inspired by the model of the US Children’s Advocacy Center (CAC), a corporation that facilitates multi-professional collaboration for children who have experienced child sexual abuse.Footnote 3 The core purpose of the Nordic Barnahus model may be described as providing children who have been victims or witnesses of crime with support, protection, rehabilitation, and access to justice by multi-disciplinary and inter-agency cooperation in a child-friendly setting. The aim of supporting children as victims of crime and protecting them when necessary is intended to be realised by providing psychological treatment and including child-protection services in Barnahus. Giving children access to justice is intended to be done by interviewing them in child-friendly settings and according to recommended child forensic interview methods (Swedish National Police Board, 2009; Johansson et al., 2017; Kaldal, 2020b; Barnafrid, 2019).

The establishment of Barnahus in the Nordic countries has involved the question of determining which children should have access to the services offered by Barnahus (the target group). The Icelandic target group of the first Barnahus in the Nordic countries originally included only children suspected of being victims of sexual abuse. When Barnahus was established in the other Nordic countries, the target group was expanded to include child victims of sexual abuse and physical violence. In 2014, the Icelandic target group was expanded to also include children who had been subjected to psychical violence (see Johansson et al., 2017, p. 17 and appendix).Footnote 4

Using the CRC as a guideline (especially Articles 19 and 39), in this chapter we discuss and analyse the tension between Barnahus’s aim of providing support and protection to children who experience violence and how Barnahus’s target group is currently determined by what Sweden’s national criminal law considers a crime (Swedish Prosecution Authority, 2016, 2019). We will argue that we may view Barnahus as an outflow of children’s rights to protection from all forms of violence, according to the CRC. But if a child’s access to Barnahus services depends on he or she being a suspected victim of a crime according to the national criminal law, then that right can be challenged. We discuss how the target group of Barnahus is defined and how national criminal law affects the target group; this situation in turn decides which children will have access to Barnahus. To do so, we present three different scenarios on how criminalisation (or a lack of criminalisation) can affect a child’s possibility of gaining access to Barnahus services. Finally, we discuss if the close connection between what the state considers a crime against children may exclude those who have been subject to violence and abuse from gaining access to Barnahus services. We also discuss if this situation might conflict with children’s rights according to Articles 19 and 39 of the CRC.

Barnahus: A Realisation of Children’s Rights According to the CRC?

We may think of Barnahus as an outcome of the increased awareness of children’s rights as victims of violence and abuse. Several international documents and conventions have pointed to the Barnahus model (and similar child-friendly models) as best practices (Council of Europe 2007, 2010). One reason is that the aim of Barnahus in many ways correlates with children’s rights according to the CRC. We therefore argue that we may view Barnahus—which aims to support, protect, and bring access to justice to children as victims of crime—as an outflow of children’s rights according to the CRC, especially Articles 19 and 39.

Article 19 lists children’s rights to protection from all physical and psychological violence while in the care of parents, legal guardians, or any others who care for them; the article provides a wide spectrum of acts. The protection from violence includes any form of physical or psychological violence, injury, or abuse as well as neglect, ill-treatment, exploitation, and sexual abuse (CRC/C/GC/13, 2014; CRC/C/GC/8, 2006; UN Study on Violence Against Children, 2006; World Report on Violence and Health, 2002; Andersson, 2019). According to CRC Article 39, states are obliged to satisfy children’s rights to mental rehabilitation and social reintegration if they have been subjected to neglect, exploitation, or abuse, and to do so in a child-friendly environment (CRC/C/GC/13 and 40; Kaldal, 2020b; Andersson & Kaldal, 2020). Thus, according to the CRC, when children are exposed to violence and/or abuse, they have the right to rehabilitation, and that investigative measures should not retraumatise the child (as in purportedly child-friendly justice) but improve the child’s situation (Kaldal & Svedin, 2015).

According to the Committee on the Rights of the Child, implementation of the CRC places requirements within national laws on criminalisation, when appropriate. Article 19 of the CRC, however, does not state that member states must criminalise all violence against children, but rather that they should implement legislative measures for the protection and rehabilitation of children and for the education of their parents (CRC/C/CG/5, 2013; CRC/C/CG/8, 2006; CRC/C/CG/13, 2014). This state of affairs means that not all acts covered by Article 19 of the CRC must be subject to criminalisation, even if the child is a victim of violence or abuse, according to the convention. The next question that arises from this scenario is how it relates to the Barnahus model.

If the aim of Barnahus is to ensure that child victims of violence and abuse will receive necessary support and protection as well as facilitate their access to justice, then we may view the Barnahus model as a way to meet the rights of the child according to the CRC, as described above (see also Kaldal & Svedin, 2015; Landberg et al., 2020). If we view this objective in the light of Article 19 and 39, then there is a mismatch. This discussion also means that the international differences regarding what exactly falls under a criminal offence are important for children’s access to Barnahus services. In most cases in the Nordic countries, the target group is limited to children who are suspected of being victims and or witnesses of a crime.Footnote 5 In contrast to the Nordic Barnahus model, Article 19 of the CRC does not limit children’s rights to protection from violence and abuse to what is generally considered a crime. This approach means that children who have experienced violence according to Article 19 of the CRC, and where the violence does not meet the prerequisites of a criminal act, will not have the same access to services offered by Barnahus.Footnote 6

In the next section, we will use Sweden as an example to illustrate the importance of the Swedish Penal Code’s definition of a crime and how the definition affects which children are granted access to specific Barnahus services.

Access to Barnahus: The Case of Sweden

Access to Barnahus and the Relation to Criminal Law

To a large extent, Swedish criminal law is influenced by children’s rights according to the CRC. Children are viewed in the Swedish Penal Code as particularly worthy of protection and therefore, to a greater extent than adults, in need of protection by criminalisation. The code includes several crimes that directly extend such protection in comparison with adults when the act is committed against a child (Prop. 2017:18:186; Asp, 2014).Footnote 7

Acts against a child, covered by Article 19 of the CRC, can be illegal according to national law (e.g. corporal punishment, neglect, or maltreatment), even if such behaviours do not meet the prerequisites of a criminal act (Andersson, 2019). As mentioned above, Article 19 of the CRC covers a wide spectrum of acts to protect and support children who are suspected victims of violence and abuse. Children’s rights, according to Article 19 of the CRC, may manifest in different ways within national legislations. Beyond criminalization, in the Nordic countries the child welfare services are responsible for providing the child with protection and support in cases of suspected violence and abuse, regardless of whether the child is a subject of a criminal process.

When deciding which children should have access to Barnahus (the target group), the definition in the Swedish Penal Code has proved to be crucial. From a criminal law perspective, a fine line exists between what is illegal and what constitutes a criminalised act. Given the strict standards of legality and predictability in criminal law, all the elements of a particular crime must be met, regardless of whether the act was committed against a child or an adult (Asp et al., 2013). And given the Swedish Barnahus definition of the target group as children who are victims of crime, the target group consist of children who have been subjected to acts that meet all the prerequisites of a provision in the Swedish Penal Code. The benefit of such a close link between the target group and criminal law is that which children are included in the target group is clear. One risk, however, is that many children who are subjected to violence or abuse that is not covered by a criminal law provision, or that does not meet the requirements for the criminalised area, are not included in the protection system that the Barnahus model is intended to constitute. We will illustrate this situation more closely by describing and analysing three types of abuse against children from a criminal law perspective: (1) children who are suspected victims of corporal punishment, (2) children who have witnessed domestic violence, and (3) children who have experienced psychological abuse.

Child Victims of Corporal Punishment

In Sweden, the corporal punishment of children is banned under the Parental Code (Föräldrabalken) but is not necessarily considered a crime according to the Swedish Penal Code. Criminal liability is somehow delineated for parents’ duty of supervision as defined in the Parental Code. As an example, acts that are not more intrusive than necessary, considering the child’s age and maturity and the consequences of the act in relation to the purpose of the act, may not entail criminal liability Official Reports of the Swedish Government (SOU, 2016: 19), correlating to CRC/C/GC/13, 2014; Andersson, 2019; Kankaanpää Thell, 2023).Footnote 8

While corporal punishment is not necessarily a crime in Sweden, the prohibition in the Parental Code states that violence against a child as a method of discipline or punishment constitutes a crime against the child according to the Swedish Penal Code (Andersson, 2019).Footnote 9 The prohibition also emphasises that no exceptions may be made in terms of criminal liability simply because the victim is a child. Instead, a crime against a child, according to the Swedish Penal Code, may be considered more severe because the victim is a child.Footnote 10 This situation is only true, however, if the act meets the prerequisites of a criminal offence, for example assault (misshandel) or molestation (ofredande). If such is the case, then the police are formally obligated to initiate a criminal investigation (Swedish Code of Judicial Procedure chapter 23, section 1).

These cases, which make up the majority of cases in Barnahus, show how important the differences are between what falls within and outside the criminal area in cases involving corporal punishment (Andersson, 2019; Kankaanpää Thell, 2023). At the same time, children who are subjected to corporal punishment that is not covered by the offence still have the right to protection and follow-up under Article 19 and 39 of the CRC (Andersson & Kaldal, 2020; Swedish National Council for Crime Prevention, 2011; Johansson et al., 2017; Kaldal et al., 2010; Svedin & Landberg, 2013; Kjellgren et al., 2013).

In summary, we may conclude that the fact that corporal punishment of children is prohibited in Sweden only means that such punishment may constitute a crime, which in turn means that children who are subjected to corporal punishment can belong to the Barnahus target group and thus gain access to the Barnahus’s services. But many cases of corporal punishment of children initiated at Barnahus risk not being considered a crime early in the process. The assessment of whether the act constitutes a crime is complex and may even be perceived as random. The clarity that criminal law can provide vis-à-vis the definition of which children should be included in the target group thus does not fully apply to this group. Instead, the close link between the target group and criminal law entails a risk that many children who experience corporal punishment at home will not have access to Barnahus, or, in any case, that these children will not be subject to equal treatment due to the assessment.

Child Witnesses of Violence in the Home

Children who have witnessed domestic violence in the home are included in the target group according to the national guidelines (Swedish National Police Board, 2019). As witnesses of violence, in practice this group of children were rarely seen in Barnahus (Johansson et al., 2017; Svedin & Landberg, 2013). This situation was likely due to the effects of the child’s procedural status as a witness. The right not to testify against a family member (such as a parent) is stipulated in chapter 36, section 6, of the Swedish Code of Judicial Procedure and is an exception from the duty to provide testimony. Children’s involvement as witnesses in criminal investigations therefore depends on their right to waive their right not to testify. The decision to waive the child’s right to not testify and to participate in the investigation as a witness depends on the consent of both guardians if the child was under the age of 15 (Swedish Prosecutor Authority, 2016). As a result, a guardian as an alleged perpetrator could prevent a child from being interviewed by the police (Dir. 2018:48; Svedin & Landberg, 2013).Footnote 11 This scenario may explain why few children who had witnessed violence in the home were not subjects for Barnahus services.

Since 2021, letting a child witness (i.e. see and/or hear) domestic violence is, under certain circumstances, a crime against the child known as a “violation of a child’s integrity” (barnfridsbrott) in Sweden (Prop. 2020/21:170). One reason for implementing this offence was to give the child the status as victim of a crime instead of being a witness to a crime. Further, the child as a victim instead of a witness has the right to act independently in relation to his or her guardians through a specially appointed legal representative (särskild företrädare) in cases where the child’s guardian is suspected of not acting in the best interest of the child.Footnote 12 While children as witnesses of domestic violence were already included in the target group of Barnahus, an increased number of children have been given access to the Barnahus’s services since the law was introduced in the Swedish Penal Code in 2021 (Barnafrid, 2022).

In summary, the example above illustrates that the target group of Barnahus is related to children’s procedural rights and how what constitutes a crime against the child can affect the child’s right to support and protection. This scenario also is an example of how children’s status in terms of being victims of violence can influence whether they are granted access to Barnahus services.

Psychological Abuse (Ongoing Governmental Investigation [DS 2022:18])

The last example relates to psychological abuse. In other Nordic countries, psychological violence is a criminal offence; when children are exposed to such violence, they may be included in the Barnahus target group.Footnote 13 Influenced by the legislation in Norway and Denmark (and other countries), an investigation is currently (2023) underway in Sweden to determine how protection against psychological violence could be strengthened by criminal law (The government’s Action Plan (Skr. 2016/17:10); Local Government act (Ds 2022:18). According to the proposal, the provision applies to both adults and children, but the vulnerability of children is especially to be considered in relation to psychological violence within the family and honour-related violence and oppression (DS 2022:18). This state of affairs is an example of how the criminalisation of an act can be an outflow of (e.g.) children’s rights under Article 19 of the CRC and the legislators’ intent to criminalise psychological violence.

The proposal addresses several circumstances that may constitute psychological violence with reference to the Committee on the Rights of the Child’s general comment no. 13. The proposal also highlights other examples of children’s special vulnerability (Ds 2022:18). Neglect and threats of violence against pets are used as examples of behaviour that may constitute psychological violence. Psychological violence can further consist of verbal abuse, disparaging judgement/mockery, shaming, negative social control, and social isolation and neglect (Ds 2022:18).

The example above shows how violence and abuse against children according to Article 19 of the CRC can affect criminal law. As of September 2023, the proposed criminalisation of psychological violence in Sweden is still just that: a proposal. If this proposal is accepted and results in the criminalisation of psychological violence, then the implication would be that such children would also be included in the target group of Barnahus, and hence given access to Barnahus services. This would mean a similar situation, described above, as in cases of corporal punishment. The assessment of whether the act constitutes a crime is complex due to the complexity in drawing a line between acts that fall within a parent’s rights according to the Swedish Parental Code and acts that constitute a crime. Many cases of psychological violence of children initiated at Barnahus risk not being considered a crime early in the process.

Summary

The examples above illustrate how what constitutes a crime, as well as the child’s procedural status in terms of being the victim of a crime, influence whether the child will be given access to Barnahus services. All three examples above relate to acts already covered by Article 19 of the CRC, however. As the examples of corporal punishment and psychological abuse show, in some situations, children are victims of physical and/or psychological violence or abuse but they risk not being granted access to the services of Barnahus simply because the act is not considered a crime in the individual case (for various reason related to the wide scope of interpretation, such as not severe enough not strong enough evidence) or has yet to be criminalised. The criminalisation of the violation of a child’s integrity (where the child previously was seen as a witness of a crime and not a victim of a crime) clearly shows how having access to Barnahus, in reality, depends on criminalisation, especially in cases of domestic violence.

The Risk When Defining the Target Group in Relation to Criminal Law

One benefit of linking the target group to criminal law, as mentioned above, is that the question of which children fall within the target group of Barnahus becomes more clear. As we have shown above, the group of children with access to Barnahus has expanded in Sweden due to extended criminalisation over the past few years. This expansion is still ongoing, given the proposed criminalisation of psychological violence. In terms of children’s access to the services of Barnahus, this development can be seen as a positive one.

But the question of children’s rights to the services provided at Barnahus depending on whether the act against the child constitutes a crime or not. If a police report of a suspected crime is filed, and the child is interviewed in Barnahus in connection with that suspicion, and if the authorities establish that the act is not criminal, then the child is not considered the victim of a crime. The child’s situation will not be investigated further in Barnahus, since the child is no longer a suspected victim of a crime. This state of affairs is not a question of children’s credibility or evidence in the case, but the legal definition of the act. In these cases, the child’s situation is not compatible with the target group or aims within the Barnahus model. Numerous children who face domestic violence and their families thus could potentially not be getting the help they need due to the Barnahus target group. Drawing a line between acts that fall within a parent’s rights according to the Swedish Parental Code and acts that constitute a crime will still be difficult. The close link between the target group and criminal law, especially acts against children that are on the border to fall within a parent’s rights or constitute a crime, will risk that these children will not be subject to equal treatment due to the assessment.

In summary, a large group of children that are victims of violence and abuse according to the definition of Article 19 of the CRC will not be included in the Barnahus target group. In addition, when access to Barnahus is closely linked to criminal law, such an approach risks strengthening the focus on criminalisation as a tool to realise children’s rights to support and protection from violence and abuse. Having a focus on the investigation and prosecution of crimes against children, risks being seen as the main way to realise children’s rights to protection from violence and abuse. This comes with dilemmas. The high standard of proof in a criminal case will always limit the cases of prosecution and conviction, this risks not only have disheartening effects or in other ways effect professionals working with child protection, but also be interpreted (e.g. by the parent) as the act being legitimate. A focus on criminalisation and the criminal proceeding in turn risk overlooking the value/utilisation of child-protection tools.

Final words

If we consider the Nordic Barnahus model to include access to support and protection as a fulfilment of children’s rights, then we must also consider the Barnahus model to be both ideological and practical in nature. The model is ideological in the sense that its aim is to realise children’s rights according to the CRC, and practical in the sense that Barnahus provides a model for how to realise these rights. In practice, however, a discrepancy exists in how the Barnahus target group is defined and how children’s rights to protection from all forms of violence are defined according to the CRC. Many children are subjected to violence and abuse according to Article 19 of the CRC and are in need of support and protection. If the target group is closely linked to criminal law, then they will not gain access to the resources that Barnahus can provide. One solution would be to criminalise the whole scope of Article 19 of the CRC. But as we have pointed out, doing so would make children’s rights to protection totally dependent on the criminal law system. As the Committee on the Rights of the Child have stated, procedural prosecutions and convictions are not, according to the committee, a goal. Instead, the focus should be on the protection and rehabilitation of children and the education of parents, Article 19 and 39 of the CRC. We believe that Barnahus can play an important role in this approach.

Our conclusion is that the future development and implementation of Barnahus would benefit from a greater awareness of the consequence of the definition of the target group. The close link to national criminal law will always create a dependence on the prerequisite in the provision itself. In contrast, having a wider target group could include situations that were not initially intended to be included within the resources Barnahus provides. Without having an obvious answer to this dilemma ourselves, we wish for policy-makers to look into the challenge of how to determine the target group of Barnahus. How the target group is determined in a national context could thus potentially have other consequences for which children will have access to Barnahus.