The Principle of Proportionality, Article 8 of the ECHR and Swedish Care Orders in Cases of Neglect. A Sketch of a Theoretical Framework

Abstract

This study conducts an analysis of the rights in article 8 of the ECHR and the application of the proportionality principle when Swedish care orders may be regarded as a necessary interference in family life. The study has been based on an interdisciplinary approach. Text documents were studied through socio-legal methods and perspectives, by combining knowledge from legal sources and social sciences research through a content analysis derived from formal and substantive legal certainty. The article concludes that reasoning in Swedish administrative courts should routinely consider proportionality in cases of neglect, and sets out to sketch a theoretical framework for the principle of proportionality in decisions on care orders. The results show that, since decisions in child welfare cases cannot be made completely uniform and predictable, the focus of decisions in social child welfare work must be to satisfy the objectives and values of substantive legal certainty, instead of unrealistically striving for formal legal certainty through equal treatment and predictability. The results also show that, by requiring those who exercise public authority to present their assessments based on proportionality, new demands are made for the quality and efficiency of involuntary out-of-home placements. Child welfare investigations should nowadays include impact assessments that clarify the advantages and disadvantages of the care in relation to the risk of harm from the original home conditions. Abuse and neglect in out-of-home placements will therefore be of growing importance in decisions on care orders in the future.