Children’s Right to Information in Barnahus

The child’s right to information is part of the child’s fundamental human right of participation and access to justice according to the CRC. The child’s right to information is also stated in the Swedish national guidelines for Barnahus and in Swedish national law. The child´s right to information is, however, connected to both legal dilemmas and dilemmas in practice. In this chapter, we discuss children’s right to participation from a child rights perspective in a criminal investigation in Barnahus.

The main aim of Swedish Barnahus is to adapt criminal proceedings to the child and let the best interest of the child be the primary consideration when a child victim or witness is the subject of a police investigation. This is stated in the Swedish national guidelines for Barnahus (RPS 2009). The guidelines also state the child's right to participation and the right to information: The child should be informed of measures concerning to him or her, and be given the opportunity to express his or hers views and opinions to the extent and the way his or her maturity allows.
As shown by the national guidelines, the child's right to information is interwoven with the child's right to participation. A corresponding view is presented by the UN Committee on the Rights of the Child, who describe the child's right to information as part of the child's right to participation according to art. 12 in the UN Convention on the Rights of the Child (CRC) 1 .
In order to explore children's right to information in a criminal investigation in Swedish Barnahus, we will (i) describe and analyse the legal and normative basis for the child's right to participation and information; (ii) describe the Barnahus activities in the light of the right to information, with a focus on the criminal investigation; and (iii) analyse how the child's right to information in Barnahus is met in relation to the rights of the child.

Children's Right to Participation and Information: A Complex and Challenging Task The Right to Participation and Access to Justice
The right of all children to be heard and taken seriously, CRC art. 12, is one of the fundamental values of the CRC.
The right to be heard is not a duty, but the fundamental right of every child to express their views without pressure. The right to participation requires that the child is informed concerning the matters, options and possible decisions to be taken, as well as the consequences of the arrangements and decisions (CRC/C/GC/12). The right to information is the precondition of the child's clarified decisions and ensures that the child receives all necessary information and advice in order to make a decision according to the child's best interests (CRC/C/GC/12; CRC/C/GC/14). Accordingly, participation is described as an ongoing process and an active dialogue between the child and the decisionmaker, including information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes (CRC/C/GC/12).
Under Swedish law, a child lacks procedural capacity until the age of 18, and therefore, the child's right of access to justice in Barnahus is exercised by the child's legal representative, normally the child's custodian. However, the custodian's right and responsibility to decide in the name of the child has limitations. One limitation is the child's right of self-and co-determination. 2 According to this principle, the child has a right to influence a decision concerning their own personal affairs according to age and maturity, and therefore in some cases make a decision independent of their custodian. Another limitation of the right of the custodian is when the child's right to participation is exercised through a specially appointed legal representative.
In the UN 'Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime' (UN Economic andSocial Council Resolution 2005/2020), it is pointed out that the participation of child victims and witnesses in a criminal proceeding is necessary for effective prosecutions. According to the Committee of Child's Rights, every effort has to be made to ensure that the child is consulted on relevant matters with regard to involvement in a case and be enabled to freely express views and concerns regarding the judicial proceedings. This is linked to the right to be informed about several issues, such as the availability of health, psychological and social services, the role of a child victim and/or witness in the criminal proceeding, the ways in which the 'questioning' is conducted, existing support mechanisms for children when submitting complaints and participating in investigations and court proceedings, the specific places and times of hearings, the availability of protective measures, the possibility of receiving reparation and the provisions for appeal (CRC/C/GC/12, 63-64).
In Swedish legal doctrine, it has been argued that the child's right to participation in legal proceedings is an ambivalent principle. The law emphasises, on the one hand, the child's right to express her or his view in legal proceedings and the importance of the child's perspective. On the other hand, the importance of the child to be spared from the burden it means to participate in a lawsuit is also emphasised, especially in family lawsuits (Eriksson 2012;Kaldal 2014). This ambivalence has been described as a tension between the vision of the child as a competent actor, the competence-oriented perspective, and the perception of the child as dependent on adults, needs-oriented or protection perspective (Singer 2000;Svensson 2005Svensson -2006Ryrstedt and Mattsson 2007;Schiratzki 2014).

The Principle of Self-and Co-Determination According to Age and Maturity
The child's right to participation is expressed as a limitation to the custodian's right and responsibility to make decisions in the child's name in the Swedish Parents Act (Chapter 6 Section 11). The right and responsibility of the custodian to exercise the child's right is a part of the custodian's responsibility for the child's care, security and good upbringing (Chapter 6 Section 2). In exercising the right and duty to decide in the name of the child, the custodian shall take the child's views and wishes increasingly into account, keeping in mind the increasing age and maturity of the child. If the child has two custodians, both custodians share the right and the duty to make decisions (Chapter 6 Section 13).
The limitation of the parents' right to make decisions in the child's name also applies to decisions made by authorities concerning the child's affairs. An action concerning the child made by any agency can, and in some situations shall, when the child has reached a certain age and maturity, be made without the consent or even the knowledge of the child's custodian. The agency at hand (police, child welfare, school, etc.) therefore has the responsibility to assess the extent to which the child has reached the age and the maturity to make a decision independently. Information should therefore be provided to the child's custodian or to the child with the consent of the custodian, as long as the child has not reached the age and maturity to decide independently.
When interpreting the right to participation and information according to CRC art. 12, the reasoning will be similar to the Swedish principle of the child's right to self-and co-determination. One difference, however, is that the right to participation is highlighted and put forward as one of the fundamental principles of the convention, whereas the regulation of the child's right to self-and co-determination in Swedish law is regulated by indirectly expressing the child's right to participation by a limitation of the rights of the custodian. Similar to Swedish law, the convention states that the child's parents have the right and responsibility to provide appropriate direction and guidance in the exercise of responsibility to lead the child, as long as this is performed in a manner consistent with the evolving capacities of the child, (CRC art. 5). The parents' right and responsibility to lead the child must, however, always be in compliance with the rights of the child according to the convention as a whole and can only be limited if it is compatible with the (CRC/C/GC/12). Knowledge about the individual child, the child's maturity, special needs, experience of violence and situation concerning the child's family, safety and protection is therefore necessary. It is, however, clear that according to both the CRC and Swedish law, the rights of the custodian to determine what is in the best interest of child must be balanced/weighted in relation to the child's right to participation and in a wider sense, the child's right to integrity (Kaldal and Kankaanpää 2016).

The Right to Participation Through Representation
When a special legal representative is appointed, the right and responsibility of the custodian to decide in the name of the child is limited. This is the case when the child is a victim of crime and there is a reason to believe that an offence has been committed against the child by a family member. No such representation exists when the child is a witness of crime. Since the special legal representative enters into the role of the custodian, they are given the same responsibility as a custodian to exercise the child's right to participation and information. This means taking the child's views and wishes into account, bearing in mind the age and maturity of the child (the role of the special legal representative in criminal investigation in Barnahus is discussed in Chap. 11).

Needs-or Competence-Oriented Perspectives
Researchers in social studies have pointed out an ambiguity in current perspectives on children by constructing them, on the one hand, as subjects and, on the other hand, as objects (Qvortrup et al. 1994;Lee 1999;Qvortrup et al. 2009). Another way of framing the tension in the perspective of the child is to make a distinction between a care principle shaped by a needs-oriented perspective of children, constructing them as objects for adult care and control, and a principle of participation based on a view of children as citizens and social actors (Lee 1999;Neale 2002;Eriksson and Näsman 2008). This tension corresponds with the ambivalence in Swedish law and the tension between the needs-and competent-oriented perspectives discussed above. This tension and ambivalence create challenges for practise.
The perspective influences the degree of participation and the different dimensions of participation that become possible, for example, that the child is given information, is consulted or is allowed to take part in the decision-making (Hart 1992;Eriksson and Näsman 2008;Eriksson 2012). In a study of custody disputes, the overall tendency of professionals was to approach the child as a 'protected child' (approached in a child-oriented way but with a low level of participation) or a 'disqualified adult' (approached in an adult-oriented way and with a low level of participation). As a contrast, Swedish policy makers envision an approach that positions a child as a 'participating child' by encountering them in a child-oriented way while granting them a high level of participation (Eriksson 2009).
Not only attitudes can influence and limit children's participation but also organisation and resources. In a study about children in foster care suggests that even when the professionals are aware of the child's right to participation, the practical work situation contains a number of barriers to participation, for example, a full workload with responsibility for many children, limited opening hours and the disorganisation of work (Bakketeig and Bergan 2013). Jernbro et al. (2015) found that adolescents with experiences of child physical abuse often felt that professionals, especially social workers, showed a lack of a child perspective. Some adolescents reported that the police or child protection services were not available when needed, did not take action or that action was delayed.
Also, the ability to assess the maturity, and thereby to what degree the children can understand and able to influence their situation, can be especially challenging in cases where the child is potentially a victim or witness of crime. Maturity is a complex concept with many different elements. Some children may be early developers in one area, while late in another. Children with special needs may need extra support and specially trained adults to make their voices heard. Abused and traumatised children are less able to access and develop their potential. Van der Kolk (2005) introduced 'developmental trauma disorder', describing the multiple and severe effects of childhood trauma in a developing child, causing a wide array of symptoms.

Children's Right to Information in a Criminal Investigation in Barnahus: In Theory and Practise Introduction
In this section, we will look closer into children's right to information in a criminal investigation in Barnahus. There are a number of questions that can arise when a child is subjected to a police investigation. For example: Do I have to testify? Do I have to take part in a medical examination? Why am I picked up from school? Who am I going to meet? What do they want to know? Why do they record my story and who will take part of the recording? What will happen to me if I tell? What happens next? Who is going to help me? Who is going to help my parents?
One way to describe a Barnahus is that it has four rooms, each of which contains a particular activity: criminal investigation, protection, physical health and mental health. In Sweden, different authorities have the primary responsibility for different 'rooms'; however, the lines of demarcation are not always clear, either legally or in practice (Landberg and Svedin 2013). The focus in this chapter is the room of the criminal investigation. We will therefore mainly discuss the child's right to information in this room, even if part of the situation is adjacent to the other rooms, child welfare protection, physical health and mental health.
In the room of the criminal investigation, the right to information will be analysed in three situations: when the child is brought to Barnahus, when the child visits Barnahus for the child investigative interview and medical examination and when the child leaves Barnahus after the child investigative interview. The general descriptions of the routines surrounding a criminal investigation in Barnahus are taken from Landberg and Svedin (2013), Kaldal et al. (2010)

and the National Guidelines (RPS 2009).
There is no explicit regulation in the code of criminal proceedings that addresses children's right to participation in a criminal investigation, nor is the principle of the best interest of the child implemented in the Act of criminal procedure; however, the right of any witness or victim of crime also applies to children. These general regulations, however, must be interpreted in the light of the limited legal capacity of the child.

Information When the Child Is Brought to and Arrives at Barnahus
The right to know why you are summoned to the police is a right of any witness. This is the responsibility of the police. When the witness is a child, the summons with the information will be directed to the child's custodian or special representative. Legally, the decision to obey a summon and bring the child to Barnahus is made by either the child's custodian or the special representative; 3 however, the transportation of the child to Barnahus can be delegated and performed by someone else, such as the child welfare agency. The responsibility of the special representatives in this aspect is highlighted in the prosecutor manual (Åklagarmyndigheten 2016).
Even if the responsibility of informing the child of about why they are summoned to the police primarily lies with the police, and making sure this information is given to the child primarily lies with the custodian or the special representative, the responsibility of safeguarding the child's right to information would be a joint and overlapping responsibility according to the principle of the best interest of the child and depends on the individual child and the situation. Landberg and Svedin (2013) explain that the routines surrounding how a child is brought to Barnahus differ among the Swedish Barnahus, especially when a special representative is appointed. In some Barnahus, it was always the child welfare agency that picked the child up from preschool or school and the special legal representative would then meet them at the Barnahus. Sometimes, they had a short meeting with the child before the police interview. In other Barnahus, the special representative picked the child up and therefore also spent time with the child before the child investigative interview. The way that the special representative handled their task differed. There were cases when the special representative had no direct contact with the child at all.
When a child is brought to Barnahus by their custodian, the custodian can tell the child where they are going and why in good time. Kaldal et al. (2010) asked children in a survey whether they had been informed about whom they would meet at Barnahus before coming to Barnahus. Answers were provided by 111 children aged 3-17 from five Barnahus. The majority of children (78%) had received information beforehand about who they were going to meet at Barnahus. The children had usually received the information through a custodian. Some of them (19%) would have liked more information beforehand. The children who described not having received information beforehand (22%) said that they would have liked to be informed. Information that some children described as important to them included, for example, who would be listening to the interview, how many children had been to Barnahus, if there would be any food served and if there were guards.
The results from 2010 show that many children are given information in Barnahus. In the majority of cases, this is given to the child by the custodian, however, and not the special representative or agency. This suggests that children are in more vulnerable situations, where the custodian, perhaps for investigative reasons, is not informed about the police investigation. The lack of consistency in routines described by Landberg and Svedin indicates that there is a risk that the child's right to information may not be met. The studies imply that the responsibility of informing the child in practice firstly is placed on the custodian and secondly on the special representative. Since a custodian normally lacks in-depth information about what is going to happen in Barnahus, children are at risk of not getting enough information.

Information Concerning the Child Investigative Interview
The responsibility for giving a witness or victim of crime information concerning the investigative interview falls on the police and prosecutor. This responsibility concerns basic information such as how the interview will be conducted, the reason for the interview, whether the person suspected of crime is likely to take part of the statement and who is observing the interview. It also includes information concerning the right not to testify. Landberg and Svedin (2013) explain that procedures for general information about the interview were similar across the country. The police officer conducting the interview meets the child at the door and shows the child around. The interview is run according to a manual, and the child is typically informed about how the interview is conducted, about the video-recording and the people in the observation room; however, there were differences in whether the child was informed about how the recording was going to be used, and whether the person suspected of the crime was likely to have access to the child's statement.
Some Barnahus staff expressed a fear that giving the child more detailed information concerning the purpose and the background of the interview could compromise the child's testimony. They explained a marked difference compared to the information given to adult crime victims and witnesses, in terms of how the person subjected to the interview was informed of its purpose. In order not to risk compromising the child's testimony, the child would not get information about the reason for being brought to Barnahus (Landberg and Svedin 2013).
There can be a number of people following the interview from the observation room, such as the prosecutor, defence lawyer, the special appointed legal representative and the child welfare caseworker, who is responsible for assessing the child's need of protection.
According to Kaldal et al. (2010), the information children received about the adults observing the interview varied between different Barnahus. Some Barnahus answered that it depended on the child's age and on how they thought the child would react to the information. It could not be excluded that some children did not receive any information at all, because they were perceived as too young or that they would react negatively because of the information. Usually, the child was informed about the people in the observation room and they were shown the video equipment and the observation room. The amount of information given about the people in the observation room varied. Some younger children could, for example, be told that it was 'people working with children', other children were told the names of the people observing and one Barnahus explained that everyone in the observation room was introduced to the child. According to the study, the fact that people are observing the interview did not disturb the children.
According to Swedish law, a witness has the right not to testify against a relative. This information is normally given at the main hearing, but since the child's testimony from the criminal investigation is used as evidence in the main hearing, the child needs to be informed during the criminal investigation in order to exercise this right. This information should be given to the child's custodian if the child has not reached the age and maturity to make an independent decision. According to the Swedish prosecutor guidelines, the consent of both of the child's legal custodians is needed in order to interview a child below the age of 15. A consequence of this is that if the child is a witness of crime, custodians can prevent a child below 15 from giving testimony, even when they have committed the crime themselves. Landberg and Svedin (2013) found that children as witnesses of domestic violence were rarely interviewed in Barnahus, which means that the question of how this dilemma is handled could not be studied empirically. On the other hand, the finding could also be a result of the fact that the consent of the custodian could not be obtained.
The studies show that general information concerning the interview is in many ways similar among the Swedish Barnahus. This concerns information about how the interview will be conducted and who is following the interview. When it comes to more complex questions that, for example, could affect the child's motivation for testifying, a more complex picture emerges. This involves, for example, more detailed information about the purpose of the interview and the fact that the suspect in most cases will see the child's testimony.
The dilemma that the consent of both of the child's legal custodians is needed in order to interview a child below the age of 15 seems to result in children who are witnesses not being heard in Barnahus. Child-friendliness must be questioned in this context, since it is a breach of the child's right to participation and access to justice; however, this is a question of how the law is interpreted by the Prosecutor Authority and may be an example of how a needs-oriented or protection perspective in practice can result in a breach of a child's right to participation according to art. 12 CRC.

Information About the Medical Examination
As a part of the criminal investigation, the child can be subjected to a medical examination. There are no coercive measures allowed in order to medically investigate a suspected victim of crime in a criminal investigation. The examination must therefore be undertaken with the consent of the victim. Medical law and ethics require that a patient must give informed consent for medical care and treatment. There is no fixed age limit for children's autonomy in this respect, but normally the right and responsibility applies to the child's custodian if the child is under the age of 15 (Kindström-Dahlin 2016). In the preparatory works, a fixed age limit was considered a risk, since some children would bear too much responsibility in relation to their capacity, while others could be denied self-determination in situations where they would be able to decide themselves. There would also be less scope to take into account the nature and urgency of the current healthcare measure. Instead, the importance of guidelines for healthcare professionals regarding how to make a maturity assessment was emphasised (proposition 2013SOU 2013:2, 184 and 189 ff.). It has been argued that the Swedish health services legislation reflects a competence-oriented approach to children and their participation, unlike a needs-or dependency-oriented approach, which previously was the starting point in the law (Kindström-Dahlin 2016;Svensson 2007).
In a Barnahus context, this means that there is a wider scope for the child to consent to a medical examination than a police interview, which in this case includes the right to information in order to give informed consent.

Information After the Interview
After the police interview and possible medical examination, the child leaves Barnahus. At this point, if not earlier, the child welfare agency has the responsibility to assess whether it is safe for the child to go home. In severe cases, children are placed outside the home, but the most common scenario is that the child will go home to one or both parents, even though the parent may be suspected of crime against the child (Landberg and Svedin 2013;Kaldal et al. 2010).
According to the Social Services Act, the child has a right to participation and a right to information concerning a decision made by the child welfare agency (Chapter 11 Section 10). Child welfare agencies can neither send the child home nor take the child into care without informing the child about the measures taken and the reasons for this. Primarily, it is the responsibility of the police and prosecutor to inform the child's custodian that the child has been interviewed; however, it is the child welfare agency's responsibility to safeguard the child's need of protection and support, which means that the ultimate responsibility when it comes to the child's situation arriving at home lies with child welfare services.
There are no explicit regulations about to how to handle this situation, and research shows that in practice, the situation is handled differently in different Barnahus. According to Landberg and Svedin (2013), some Barnahus have a clear structure for collaboration after the interview. This included a follow-up case conference. Duties with regard to who is responsible for informing parents and children were allocated among the professionals. In other Barnahus, the routines for determining who informs the child after the interview were non-existent. Eight Barnahus (35%) had clear and consistent procedures for the return of the child and how the collaboration between the authorities worked after the police interview. Twelve (52%) had clear procedures that were not always followed. Three Barnahus could not describe any clear procedure. This means several professionals could inform the child or its parent, or none at all, with the consequence that a child could come home to the suspected parents without any support for either of them.
The lack of routines described above compromises the right of the child to be informed. This can have severe consequences since the child can be sent home to a potentially dangerous environment, and shows the need for a national standard of routines, including the need to ensure that the routines are followed.

Discussion and Final Comments
As the Committee on the Rights of the Child has stated, the right to participation requires that the child is informed about measures and the consequences of arrangements and decisions. The right to participation must therefore be looked upon as inseparable from the right to participation. The right to information must furthermore be assessed in accordance with the principle of the best interest of the child, seen in the light of the CRC as a whole.
The convention thus emphasises participation as a fundamental human right of the child, whereas participation according to Swedish law is described as an exception from the custodian right to represent the child. In other words, the scope of the extent to which a child can participate and be given information independently in relation to a custodian is likely to be wider according to the convention than to Swedish law.
Two core issues concerning the child's right to information have been put forward in this chapter. We have discussed how the child's right to information is interwoven with the custodian's right to make decisions in the child's name and how this principle is challenged when the interest of the custodian does not coincide with the interest of the child. In Swedish law, this dilemma has been addressed for a criminal proceeding when the child is a victim of crime and a conflict of interest is responded to by appointing a special representative for the child, who has the responsibility to assess how and when the child should be informed. When the child is a witness of crime, and no special representative can be appointed, the responsibility to handle a potential conflict of interest between the child and the custodian falls utterly on the agency at hand. According to Swedish law, the child's interest can be given precedence if the child has reached adequate age and maturity to make the decision independently. The guidance given in this aspect is the prosecutor's authority, which gives 15 years as the adequate age of self-determination as a witness in a criminal proceeding. According to the CRC, this guidance can be seen as a breach of the child's right to participation.
The child's maturity, background and earlier experiences of violence play an important part in assessing the child's best interest and need for information, and at the same time, the special legal representative and the authorities involved often have limited knowledge about it; especially in an urgent situation when a child is brought to the police for interviewing, there is not much time to get the information needed to make a thorough assessment. Despite this, there is no time to wait and the assessment must be made with the limited information that is at hand. The assessment is in reality often made from knowledge of what is best for most children, instead of what is the individual child's best interest. This leads to a potential risk that the personal values and opinions of the professionals influence their decisions more than they would have done if they had adequate information to work with.
The child's right to participation and information has a number of inherent complexities and challenges that do not seem to be of a mere legal character, and studies show that professionals fail to involve children even when the law is clear. This ambiguity seems to have several explanations that are closely linked to the complexity of the question of what is in the best interest of the child and how professionals view children and their capacity for participating. It is likely that such ambivalence and lack of clarity in the law contribute to a practice that is influenced or even dominated by personal attitudes.
So, how is the child's right to information in Barnahus met in relation to the rights of the child? Put in a Barnahus context, the child's right to participation and information must be seen as a strong right and a leading light, partly because the aim of Barnahus is adjusting the criminal proceeding to the best interest of the child and the child's right to information is emphasised in the national guidelines for the Swedish Barnahus. The multi-professional collaboration at the core of the Barnahus also speaks for the right of participation and information as a joint and overlapping inter-agency responsibility.
Some careful conclusions from the empirical findings include that children's right to information is firstly safeguarded by the child's custodian, especially information about what is going to happen at Barnahus and who the child is going to meet. The consequence of this is that a great number of children who are victims or witnesses of crime risk are not getting adequate information. Another result is that even when the child's right to information is clearly stated and therefore puts a direct demand on the agency at hand, there is a risk that the child's right to participation and access to justice is not respected. This seems to be a risk when the child is a witness: instead of involving the child and fully meeting the child's right to information the child is not heard. Another situation involves the child welfare agency responsibility to inform the child about measures taken by the agency. Empirical findings show that children are not informed about the child welfare assessment. This is not only a breach of the child's right to information and the law, but can have severe consequences for the child and lead to more severe abuse and a worse situation.

Conclusions
The challenges in practice show the complexity of a child rights perspective. There is not one solution for the issues we have raised concerning how children's rights to participation and their right to information are, or should be, met in Barnahus.
In Barnahus, as an inter-agency collaboration, different legal fields and organisational cultures come together and different notions and professional perspectives can therefore affect the child's ability to participate. The common notion of Barnahus as child friendly and child centred could work to promote children's rights to participation. On the other hand, without coordination, the inter-agency collaboration and the notion of a joint responsibility could lead to a lack of clarity as to what information, and by whom, should be given to the child. Since research has shown difficulties in involving the child even in child-oriented practices, the aim of Barnahus to safeguard the child's right to information is probably not enough in order to truly realise the child's rights in this respect.
We therefore believe that clearer regulation stating the child's right to participation and information in a criminal proceeding would make the scope of subjective approaches to children's participation less. We also believe that the lack of routines must be met by national guidelines. Otherwise, the child's right to participation and information will depend on either the custodian, the qualification and engagement of the special representative, or local engagement from professionals. The lack of clarity today must be questioned and is not compatible with the principle of non-discrimination (art. 2 CRC).
The aim of Swedish Barnahus to adapt the criminal proceedings to the child means that there must be room for individual adaptations, and at the same time, this allows individual interpretations by professionals. The risk of personal and subjective approaches to children's participation can be balanced by clear guidelines on how to inform and involve children of different ages, highly qualified personnel and the opportunity to consult experts regarding the assessment of maturity and special needs. Examples of how to formulate information for children of different ages and levels of maturity should be included. The guidelines also need to explain situations and the grounds on