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Introduction
In 1989, the UN Convention on the Rights of the Child (CRC) placed children's rights on the agenda. The CRC is commonly summarized through the three P's: provision, protection and participation, and takes a multi-dimensional approach to the living conditions of children. From a democratic perspective it is interesting to observe that one of the principles (article 12) of the convention is about children's right to be heard and their right to participate in decisions that directly concern them. The CRC moreover embodies a view of children as competent actors who are carriers of their own rights. This is a tall order. Not only for social scientists, who need to re-conceptualize their way of studying child related policies and child welfare, but also for policymakers who need to change their view concerning policy design beyond what is done for families. Since the CRC does not really sort out how the three P's are interrelated, this is an additional task on the agenda.
The easy part for social policy researchers is that CRC fits very well with Marshall's (Reference Marshall1950) social citizenship approach, which has been working as an underlying and powerful template in so many discourses around social policy and welfare. Social policy provisions are here seen as an integrated part of the ability of the citizenry to exercise their rights also in the political sphere. Marshall saw children as citizens in potentia (James, Reference James2011), which we see as an invitation to view children in broader terms than as ‘becomings’. But then policy interventions, in terms of protection and provision as well as investments in the future of children, have to recognise children as agents (‘beings’) (Lister, Reference Lister2007a).
The difficult part is that studies on children's welfare have been pursued in a surprisingly separate strand from welfare state research literature in general. According to Olk and Wintersberger (Reference Olk, Wintersberger, Wintersberger, Alanen, Olk and Qvortrup2007: 59), the consequence has been a two-fold neglect: welfare state theory has been blind to children as actors and research on children's living conditions and their participation in society has neglected welfare state theories. In welfare research and in welfare state typologies, children are found to be ‘absent’ (Alanen, Reference Alanen, Wintersberger, Alanen, Olk and Qvortrup2007) and ‘invisible’ (Bartley, Reference Bartley1998). While children are being familialized in welfare research, works on children's participation in formal decision-making, within a children's rights framework, have not engaged in the broader welfare debate (Sinclair, Reference Sinclair2004; Tisdall and Davis, Reference Tisdall and Davis2004; Thomas, Reference Thomas2007). How can these different perspectives be bridged in order to respond to the CRC?
When it comes to studying the rights of children envisioned in the CRC, Sweden is an interesting case. Sweden has been described as a forerunner in children's rights: being, for example, the first nation in the world to prohibit all forms of corporal punishment of children by their caretakers (Durrant and Olsen, Reference Durrant and Olsen1997). Sweden was also one of the first countries to sign the CRC. The government commission of inquiry that produced the corporal punishment ban also discussed children's right to voice and made far-reaching recommendations with regard to children's participatory rights in both family disputes and in child protection, which indicates a special national discourse in this area. In spite of Sweden being a likely case where children's right to voice should have been consciously strengthened, studies on children's participation in Sweden present a puzzle: CRC has apparently had very little impact on the rights of children to participate in proceedings that directly concern them (Höjer and Röbäck, Reference Höjer and Röbäck2007; Östberg, Reference Östberg2010; Mattsson, Reference Mattsson2002; Eriksson and Näsman, Reference Eriksson and Näsman2011; Fernqvist, Reference Fernqvist2011). The CRC's lack of impact indicates that the implementation of children's right to voice encounters important obstacles. The Ombudsman for Children (BO) in Sweden claims, among others, that Swedish legislation is not in line with the intentions of the CRC (BO, Reference Esping-Andersen2012). What has hampered the influence on legal reform work and implementation of the CRC in Sweden?
Purpose and delimitations
The purpose of the study is to identify what has prevented a fuller realisation of the CRC in the contemporary Swedish policy context. Given the current fragmentation into different perspectives and the importance of policy frames for policy making, we argue that understanding the lack of CRC's impact requires a new and synthesizing conceptual framework for analysing child welfare and child policy, which we first elaborate in an attempt to bridge different perspectives. This involves an elaboration of how the three P's are interconnected. Normatively, we can anchor the understanding of the CRC's components in democratic theory and also strengthen this understanding empirically by making reference to previous studies. By then examining the legal reform work in Sweden over the past three decades up until 2013, with regard to how children's right to voice in proceedings that directly concern them is treated, the study traces the arguments of the lawmaker with the aim of solving the puzzle of poor CRC implementation. Legal reform works in three areas are identified as strategic research sites concerning vulnerable children's right to voice: children in family disputes, child protection and child poverty. A focus on vulnerable children is adopted because a children's rights perspective has been more vigorously discussed with regard to vulnerable children. National legislation in Sweden was first adjusted to be in line with the CRC in the area of family disputes and in child protection.
Welfare research and children's right to participation
Rethinking child welfare would benefit from the integrating of mainstream welfare state research with the children's rights approach. While the ‘social investment approach’ (Giddens, Reference Giddens1998; Esping-Andersen, Reference Esping-Andersen2002; Morel et al., Reference Morel, Palier and Palme2012) differs from earlier welfare state research in its placing of children at the centre, children's agency is underemphasised in the approach. The social investment approach has been criticised for regarding children as ‘becomings’ rather than as ‘beings’ in its focus on children as future citizens (Lister, Reference Lister2006). Children as competent actors are still missing in the welfare state research literature at large with its orientation towards provision. In the children's rights approach, different rights are often seen as conflicting where the right to protection dominates over the right to participation (Eekelar, Reference Eekelar and Alston1994; Franklin, Reference Franklin2002; Sanders and Mace, Reference Sanders and Mace2006; Percy-Smith and Thomas, Reference Percy-Smith and Thomas2010). In social practice, child welfare has become almost synonymous with child protection, trumping children's participation (Hansson, Reference Hansson and Liebel2012). What is in the best interest of the child (i.e., welfare) is determined by others, as children themselves are viewed as vulnerable, and it becomes the duty of adults to protect children against harm (Arneil, Reference Arneil, Archard and Macleod2002). Children's participation is, in this way, regarded as disruptive to children's well-being, despite growing evidence that participation protects children from harm, improves services and enhances their well-being (Vis et al., Reference Vis, Strandbu, Holtan and Thomas2011). Thus, children are also viewed as ‘becomings’ rather than as ‘beings’ in this strand of thought. Instead, we should investigate how provision, protection and participation are interrelated in welfare services, recognising children as ‘beings’ to make it possible for them to eventually become full citizens.
Here the concept of participatory rights opens up an interesting debate about how to elaborate on the concept of child welfare from a democratic perspective that is grounded in different types of rights. Hernes (Reference Hernes1988: 203) discussed how participatory rights are related to the welfare state in her work on the activist welfare state. She describes the idea of strengthening the influence of welfare service receivers and enabling those directly affected to participate in the decisions. Participatory rights refers to the right to information and the right to be heard rather than absolute decision-making rights, which is in line with children's right to voice and to participation analysed here. According to Hernes (Reference Hernes1988: 203), the special interplay between participatory rights and material rights is one of the hallmarks of the Scandinavian welfare state, where participation rights have ‘developed parallel to and sometimes in connection with the increase in material rights, and are designed to give citizens the right to help determine the content and supervise the implementation of their various rights’ (Hernes, Reference Hernes1987: 151). Democratisation reforms have, in part, shifted focus from participation, through unions and political parties directed at parliaments, to strengthening the participatory rights of welfare service receivers. This is similar to Williams’ (Reference Williams1999: 683) discussion of the new contesting discourses of welfare where the welfare subject is redefined as an active citizen, rather than a passive receiver of welfare services. In contrast to the neo-liberal focus on choice and exercising power through exit, the citizenship view has focused on voice and the democratisation of the relation between welfare provider and welfare receiver.
The participatory rights perspective can be integrated with the Swedish welfare/level of living research which, following Titmuss (Reference Titmuss1958), defined welfare in multi-dimensional terms as: ‘the individual's command over resources with which he or she can govern his/her own living conditions’ (Johansson, Reference Johansson1970: 25). Political resources were one type of resource among others. Our rethinking of child welfare, as a development of children's participatory rights in decisions that directly concern them, is an example of how a resource perspective can accommodate an agency perspective, which stands in contrast to a life satisfaction approach. As is often pointed out (e.g., Korpi, Reference Korpi2000), the level of living approach has many similarities with Sen's (Reference Sen1985) capability approach, both when it comes to the multidimensionality of welfare and the emphasis on agency.
Exactly how the political resource dimension, at an individual level, is related to the other welfare dimensions has been given less attention (but see Erikson and Tåhlin, Reference Erikson, Tåhlin, Erikson and Åberg1987; Palme et al., Reference Palme, Bergmark, Bäckman, Estrada, Fritzell, Lundberg, Sjöberg, Sommestad and Szebehely2003). Here there are a number of empirical studies that indicate that agency is of critical importance for health, education, poverty reduction and other traditional dimensions of welfare (see, for example, Alderson, Reference Alderson2007; O'Brien and Salonen, Reference O'Brien and Salonen2011; Tregeagle and Mason, Reference Tregeagle and Mason2008). Others have elaborated on the relationship between participatory rights and social rights on a theoretical level. Participatory rights, according to Secker (Reference Secker2009: 709), enable the strengthening of other rights. Lister (Reference Lister2007b: 440) formulates this insight as follows: ‘The right of participation is a crucial human and citizenship right because it underpins the effective realisation of other rights’. Also Phillips (Reference Phillips and Hobson2003: 268) argues that vulnerable groups need first to be recognised as actors in order to gain voice, a political voice which then can be raised to address a variety of claims. This applies not least to children's rights in welfare provision. Participation has been described as the keystone of the arch that is the CRC and as that which holds the framework together (Badham, Reference Badham2004).
Thus, a reconceptualisation of child welfare, in line with the CRC, suggests that children's right to participation makes up an integrated and a constitutive part of the concept of child welfare, in the sense that traditional dimensions of welfare are partially conditioned on the right to voice. This is also the case in the process of welfare delivery and is valid for both protection and provision. In contrast to family policy, we delimit child policy to be about policies which not only protect children but also provide children with a variety of resources (directly or indirectly via the family) as well as strengthen children's room for manoeuvre. A new conception of child welfare and child policy should, in addition to indicators of traditional welfare dimensions, encompass indicators of political rights to voice and participation in (administrative) processes closer to the individual. A rethinking of child welfare moreover suggests that we need to study in what ways children's participatory rights and social rights are interrelated, and how different kinds of social support may be conditional on children having access to their participatory rights. These are the core elements of our conceptual framework for analysing and evaluating child policy, where children's participatory rights are seen as a constitutive part of child welfare.
Yet it is also evident that the right to participation for one group might come into conflict with the interests and rights of other groups, and here ‘rights of parents’ versus ‘the rights of children’ is a case in point. In Sweden, parents’ rights are traditionally viewed to be strong, and they are moreover believed to have been strengthened with the introduction of the new Social Services Act in 1982, a point of time which Cocozza and Hort (Reference Cocozza, Hort, Gilbert, Parton and Skivenes2011: 102) describe as ‘when child protection was reframed as a family welfare service’. In a comparison of different systems, child protection in Sweden has been classified as a ‘family service system’ in which partnership with parents is aimed for (Gilbert, Reference Gilbert1997). This stands in contrast to a policy orientation where the rights of the child are put above parents’ rights, a priority which Gilbert et al. (Reference Gilbert, Parton and Skivenes2011) label as ‘child focus’ and see as being more in line with the CRC's intentions.
We suggest that our conceptual framework elaborated above provides a useful tool for analysing child policy and, under the assumption that policy frames shape reform alternatives, it is also helpful in terms of identifying the obstacles that have been blocking change in the Swedish reform work concerning the rights of children. More specifically, our hypothesis is that the lawmaker is recognising parents’ rather than children's participatory rights and that this explains the puzzle of why the CRC has not had a stronger imprint on Swedish legislation (i.e. child policy) and why CRC implementation has been lagging (in terms of child welfare) in Sweden.
Children's participatory rights in proceedings that directly concern them
How to strengthen children's participatory rights is a question which has been officially discussed and investigated in a large number of Swedish government commissions of inquiry and government bills since the 1970s. The empirical focus of this study is on the legal reform work, concerning policies to do with vulnerable children and their participatory rights in proceedings that directly concern them, in three main areas of the social services.
Under study here is the reasoning of the Swedish lawmaker in relation to reform proposals that have been put forward in commissions of inquiry to strengthen children's right to voice and children's participation more broadly, as well as reform proposals to provide assistance to children and protection in so far as these are discussed in relation to children's participation. We have analysed all commissions and bills discussing children's participation in the three areas over the past three decades up until 2013. The preparatory work affects how the legislation is interpreted and implemented and, thus, the reasoning of the Swedish lawmaker becomes part of the policy instruments of the government. We are, in this study, concerned with whose right to voice has been in focus. We also examine the extent to which the Swedish lawmaker sees participation as interrelated with the protection and provision of services. The citations we have selected from the commissions and the bills capture the consistent reasoning of the Swedish lawmaker over the past 30 years as well as the reasoning in each commission and bill.
Children in family disputes
The children's rights commission, appointed by the government in 1977, pointed out that the field of family law was dominated by a parents’ rights perspective and lacked a children's rights perspective. Their first report (Commission of Inquiry, 1978) led to the widely acclaimed corporal punishment ban in 1979, and the commission published two more reports whose recommendations were equally radical. The centre piece of their recommendations concerned children's formal or legal right to voice. In a Ministry publication in 1989, children's formal right to voice was promptly rejected as it was seen to interfere with the emphasis placed on voluntary agreements by parents on custody and contact issues (Ministry of Justice report, 1989). The main aim of family law legislation was stated to be to facilitate voluntary agreements by parents; including a third party to the process – the children concerned – was seen to make it more difficult for parents to reach an agreement. The government followed the recommendation (Government Bill, 1990), and the question of children's formal right to voice disappeared from the political agenda at the time when Sweden made preparations to sign the CRC. Since Sweden signed the CRC in 1990, children's right to voice has continuously been debated. Since 1990 and up until today, various methods of improving children's informal opportunities to be heard have been the main focus of attention, as we will see below.
In the second report by the children's rights commission published in 1979, it was found to be unsatisfactory that children were represented by their parents in legal disputes when the interest of the child may be in conflict with the interests of one or both of the parents. As a way of strengthening children's procedural position, it was proposed that the formal right to voice was given to children whose parents were in legal disputes about custody and contact (Commission of Inquiry, 1979: 137). The commission saw it as necessary that the child was represented by another legal person in place of his or her parents – a children's representative – who would stand outside the conflict and focus on the best interests of the child. In addition, the commission also proposed that a contact person always be appointed for the child and also that both could be appointed without the permission of parents (Commission of Inquiry, 1979: 141, 149–151). The report's recommendation ran into opposition and its proposal, with regard to children's formal right to voice, was not acted upon.
In 1987, the children's right commission had, according to its directives, developed this proposal in more detail in its third report where the commission maintained its recommendation to introduce a formal right to voice for children. The commission saw this move as a guarantee that children be heard in the process (Commission of Inquiry, 1987: 85).
It appears surprising that with regard to custody and contact questions, which shall be resolved in accordance with the best interests of the child, a children's rights perspective is generally not applied. If that would be the case, the child would regularly be a formal part to the process and consequently have the right to voice. (Commission of Inquiry, 1987: 63)
The reasoning by the children's rights commission echoes Eekelar's (Reference Eekelar and Alston1994) argument that the best interest principle cannot be upheld without a framework of children's rights. The main problem with providing an informal opportunity to be heard by the social services was, as the commission saw it, that children will not automatically be heard by the social worker: for example, because it is not seen to promote their welfare or because parents can withhold their permission. The commission's recommendation was that the formal right to voice should be introduced for all children, since it can be assumed that children and parents may have conflicting interests in family disputes as well as in child protection.
In a 1989 Ministry publication, it was pointed out that a formal right to voice for children collided with the Swedish lawmaker's attempt to pave the way for parental voluntary agreements on custody and contact issues (Ministry of Justice report, 1989: 38). We identify this to have been a crucial moment for the question of ‘children's right to be heard’ and observe that the road taken at this point has determined vulnerable children's legal right to voice in Sweden up until today. This is true not only in family law but also in the area of child protection. In the words of the Swedish lawmaker: ‘I therefore see it as urgent that legislation is designed so that it paves the way for parental voluntary agreement to the largest extent possible’ (Government Bill, 1990: 26). In the government bill discussing children's right to be heard, priorities are made clear:
The legislative changes which have been carried out in past years have centred on facilitating voluntary agreement by parents. From that point of view it appears to be a step in the wrong direction to now introduce a formal right to voice for children. (Government Bill, 1995: 31)
Children in family disputes are familialized in the process and this area of dispute is characterised by a family service approach. The government was in favour of indirectly investigating the opinion of the child. The Swedish lawmaker did not see, in contrast to the children's right commission, any real conflict of interests between children and parents in custody disputes (Government Bill, 1995: 30). It is reasoned in the government bill that ‘children's viewpoint can change from one day to another’ (Government Bill, 1995: 27) and the child can be influenced to hold an opinion. A central concern for the lawmaker was that children should not have to take a position in the conflict between parents: ‘It has been stated many times that a child shall never be put under pressure to express an opinion or to be forced to choose between one parent and the other. The government fully agrees with this.’ (Government Bill, 1995: 27–28). To adjust Swedish legislation to become more in line with article 12 of the CRC, the legal provision incorporated into the parental code read: ‘The person conducting the investigation shall, if it is not inappropriate, seek to ascertain the viewpoints of the child and report them to the court’ (Government Bill, 1995: 7).
A government commission proposed in its report in 2007 that the social services should be given the opportunity to speak with children without the permission of their parents (Commission of Inquiry, 2007: 142, 152). Their recommendation included all investigations concerning children. The 2007 commission makes references to children's rights but argues foremost in terms of the usefulness of speaking with the child in order to increase the quality of investigation. The Swedish lawmaker is of the opinion that the possibility of a social worker speaking with the child ought to be strengthened, and the reform is based on this requirement (Government Bill, 2010: 17). The reform proposal was passed, with regard to child protection investigations, but children in family disputes (as well as children whose families are seeking economic assistance) are excluded (Government Bill, 2010: 17–18). In these two areas, the need was not considered to be sufficiently strong to justify a limitation of parents’ rights. It appears as if parents’ rights can only be restricted in the area of child protection by appealing to the welfare of the child.
Almost three decades after the proposal of the children's rights commission, similar recommendations were put forward and consequently rejected by the Swedish lawmaker for the same reasons (Ministry of Justice report, 2002 and Government Bill, 2011). In the area of family disputes, no progress to strengthen children's participatory rights can be reported and children's agency continues to be underemphasised.
Child protection
In the Social Services Act, promulgated in 1982 to replace the old Child Welfare Act, client participation and self-determination forms the basis of law. Only when a child's development is at serious risk and the parents do not voluntarily consent to the child receiving assistance can the social services take children into compulsory care under the Care of Young Persons Act. The Swedish family service approach to child protection (Gilbert, Reference Gilbert1997) is clearly visible in the early commission report ‘Children's needs and parents’ rights’ from 1986 and, more than two decades later, a family service perspective can still be described as the dominant perspective (Commission of Inquiry, 2009: 143). After the signing of the CRC, the new view of children as actors with their own rights is gradually emerging in the lawmaker's reasoning, but without leaving a substantive imprint on legislation. Adjusting Swedish legislation in child protection, in line with the CRC, has been discussed in several commissions since 1990 and up until today. Many government commissions made far-reaching recommendations for legislative changes that would strengthen the children's voice. However, not many of the commissions’ proposals have made it to legislation. In 2012, a few of the reform proposals discussed over the years became law, although wrapped in reservations that, in all likelihood, restrict their implementation.
In the first commission of inquiry after the Social Services Act was passed, client participation is stressed: ‘Above all it is important to emphasise that the client's own viewpoints and perceptions need to be taken into account.’ (Commission of Inquiry, 1986: 120) Whose voice is the 1986 commission referring to?
A concrete example is that the social investigation on the situation of the whole family can, and ought to, be carried out together with the parents, who then gain a better opportunity to “penetrate through” with their version of the problem in the documentation to the social services and the court (Commission of Inquiry, 1986: 24, quotation mark in original).
Here, it is apparently the parents who are seen as the clients in child protection. This commission emphasises the joint interests of children and parents, stating that they see any perceived conflict between the interest of the child and the interests of their parents as a false contradiction, in strong contrast to the children's rights commission (Commission of Inquiry, 1986: 20–21). The 1986 commission's focus is exclusively on parents’ rights, not the least on how to guarantee parents’ legal rights. The old Child Welfare Act is criticised by the commission as having focused too strongly on children and it is emphasised that assistance to children is synonymous with assistance to their parents (Commission of Inquiry, 1986: 319). The positive effect of client participation, in effect meaning the participation of parents, is acknowledged: ‘The individual's voluntary participation has a fundamental impact on the outcome of care and treatment’ (Commission of Inquiry, 1986: 284). From this family orientation, children are neither seen as independent units from their families nor as competent, or relevant, actors. To bring Swedish legislation more in line with article 12 in the CRC, the child's informal opportunity to be heard is spelled out: ‘When a proceeding concerns a child, the viewpoints of the child shall be sought out to the extent possible’ (Government Bill, 1997: 5). However this stops short of providing a legal right to voice.
A commission of inquiry was appointed to strengthen the rights of the child in the Care of Young Persons Act, and its report was published in 2000. It states that the Act has not always fulfilled its aim as a protective law for children and also that, while it aims to protect the most vulnerable children, it has been interpreted from a parents’ perspective (Commission of Inquiry, 2000: 94). It is argued to be of the greatest importance that the rights of the most vulnerable children are strengthened. The 2000 commission refers to the CRC:
The UN convention does not give room for authorities to decide for themselves if the child shall be heard or not. To be heard and to express his or her viewpoints is the child's absolute right (Commission of Inquiry, 2000: 73).
One of its recommendations is that the social worker shall have the right to speak with the child even when this is against the will of the parents. Although it is stated in the government bill that: ‘it is a well-known problem that children and young people who are the object of investigation and application for assistance disappear in the documentation’ (Government Bill, 2003: 79), none of the far-reaching recommendations has been acted upon. To bring the Care of Young Persons Act more into line with the CRC, the informal opportunity to be heard has been clarified along the same lines as in the Social Service Act (Government Bill, 2003: 7).
For children placed into care outside the home, a 2005 commission proposes that a concrete treatment plan always has to be drawn up and the child's participation is here seen as important so that provision meets the child's perceived need (Commission of Inquiry, 2005a: 314). The lawmaker states that: ‘to have the opportunity to be involved in the planning is an important point of departure for the implementation of the plan’ (Government Bill, 2007: 49). Although the lawmaker acknowledges that participation is important for provision and protection, the child's right to voice in the planning of treatment is not stipulated in the legal provision (Government Bill, 2007: 48). This bill also discusses the importance of receiving information in order for children to be able to form a viewpoint. A Ministry report (Ministry of Health and Social Affairs report, 2006) had underlined the importance of access to information so that children are able to form a viewpoint. The Ministry also proposed that children shall have the right to receive relevant information, which is acted upon. Legislative reform gives children the right to receive relevant information in both the Social Services Act and the Care of Young Persons Act, but not for children in family disputes under the Parental Code (Government Bill, 2007: 16, 19). On the one hand, it is acknowledged that ‘boys and girls in child protection are especially vulnerable which makes it particularly important to support a development which guarantees these children the right to influence and to information’ (Government Bill, 2007: 34). On the other hand:
As long as the custodian's right to decide over the child in this matter is absolute, the social services are in these cases in practice prevented from giving information to the child (Government Bill, 2007: 40).
The reservations made by the Swedish lawmaker stipulate that children's right to even receive relevant information is conditional upon parents’ permission, even if the child's development is at serious risk. Here, parents’ rights dominate over children's right to information.
A 2007 commission again discusses how protection, provision and participation are interrelated: ‘Consequently, speaking with the child can, in some cases, have a decisive impact on how a certain intervention shall be designed or if it shall be offered in the first place’ (Commission of Inquiry, 2007: 154–55). The Swedish lawmaker is also concerned that necessary protection and assistance to the child is dependent on the child's opportunity to be heard (Government Bill, 2010: 16). This is wholly in line with our argument that participation is a constituent part of other dimensions of welfare and participation and protection should not be viewed as incompatible when the welfare of the child is being wholly determined by others (see Arneil, Reference Arneil, Archard and Macleod2002). Yet, even though the interrelatedness of the three P's is acknowledged by the lawmaker in the preparatory work, it is not clarified in any legal provision.
The difficulties of speaking with the child when parents do not consent, predicted by the children's rights commission, has been discussed by consecutive government commissions. The 2007 commission established that ‘the social services have in fact an indisputable responsibility to form a picture of the child and the child's needs, at the same time as the child has a right to express his or her opinion in matters that personally concern the child’ (Commission of Inquiry, 2007: 145). To give the child the informal opportunity to be heard, regardless of parents’ consent, is looked upon as fulfilling the intention of the CRC even though it involves no legal right to be heard (Commission of Inquiry, 2007: 141). In spite of a growing children's rights perspective, the needs of the social services are given stronger emphasis than the child's right to voice:
Speaking with the child should of course not be undertaken from the start, if it is of no existing value for the social worker's investigation and the child's own viewpoint does not need to, or cannot, be sought out (Commission of Inquiry, 2007: 145).
In the area of child protection, the Swedish lawmaker is of the opinion that ‘the need appears so strong in this case that it gets priority over the custodian's right to decide over the child’ (Government Bill, 2010: 17, our emphasis). At times, children's needs and the protection of the child can justify a limitation of parents’ rights, while at the same time it is also made clear that children's participatory rights per se have to give way to parents’ rights. This is particularly evident in that children in family disputes, as well as children whose families are seeking economic assistance, are excluded from voice since their need is not considered to be sufficiently strong. In child protection, the proposal became legislation (Government Bill, 2010: 5). There are, however, many reservations concerning when social services can contact the child: ‘it is not acceptable that the social services make contact with the youth in the family home when the custodian is not at home, or that the social worker picks up the child on his or her way to school or when the child is out playing after school.’ (Government Bill, 2010: 19). It therefore remains unclear how the reform will be implemented.
Children's limited opportunity to be heard is problematised yet again by a 2009 commission:
Swedish legislation does not give the younger child the right to be heard in the instances where the social worker deems it to be of little value to the investigation or judges it to be inappropriate for the child to be heard (Commission of Inquiry, 2009: 210).
The commission proposed that ‘the stipulation, which states that speaking with the child has to be of value to the social worker's investigation, be omitted from the legislation’. This time, the Swedish lawmaker shares the commission's opinion, abandoning its previous position (Government Bill, 2012: 38). The proposal is leading towards reform and the legal provision in the Social Service Act; this corresponds to article 12 in the CRC and has been publicly discussed since 1978, and currently reads as follows: ‘A child shall be given the opportunity to put forward his or her opinions in matters that concern the child.’
Reforms in the area of child protection have been slow and gradual but, in the last few years, there has been some progress in strengthening children's right to voice mainly through reducing hindrances, such as conditionalities regarding social worker needs or parental consent, for children to be heard by the social services. An analysis of the Swedish situation, however, shows that parents’ rights can only be restricted, in order to secure children's right to protection, by appealing to the welfare of the child and not to children's participatory rights. The lawmaker's stated awareness that children's participatory rights affect their right to protection has not led to further reform.
Child poverty
Children's right to voice has not received sufficient attention in the area of child poverty policy and research. Children's rights have simply not been invoked in official discourse in this field – the focus has exclusively been on the family as a unit. Children should instead be viewed as separate entities, not simply as indirect recipients of income or services through the family unit. When children are viewed as direct receivers of welfare provision, children's participatory rights make up a constitutive part of child welfare. The child-centred perspective was first introduced in economic assistance when the Swedish lawmaker made a case in point that ‘the children's situation shall be paid attention to when adults turn to the social services with an application for economic or other assistance to the family’ (Government Bill, 1997: 100). Since the introduction of this perspective, the National Board of Health and Welfare and different supervisory agencies have, in their evaluations, consistently found that children are virtually invisible in the administration of economic assistance (National Board of Health and Social Affairs report, 2003). The focus on the family unit is persistent: ‘In the great majority of cases the documentation was entirely concentrated on the adults and their needs . . . the children's needs were rarely described in the documentation, which resulted in the conclusion that children were hardly present as separate individuals’ (Ministry of Health and Social Affairs report, 2004: 42–43). Children are only able to receive benefits through being part of the family unit and they are not seen as relevant actors in their own right. Social workers do not meet and speak with children:
it hardly takes place anywhere that social workers speak with children in matters regarding economic assistance or in cases when families are threatened by eviction (Commission of Inquiry, 2005b: 22).
This remains the case up until today (Ministry of Health and Social Affairs report, 2011: 8). A 2005 public inquiry commission, however, notes that a child's specific needs (such as leisure activities) have to be factored in so as to be covered by economic assistance above the set norm and that provision is thereby conditional upon the child's right to participation (Commission of Inquiry, 2005: 59; see also Ministry of Health and Social Affairs report, 2004: 43, 375). To be able to determine which form of provision is in the best interests of the child under threat of eviction, or in need of economic assistance, the child's subjective situation has to be clarified by giving children the possibility to express their views (Ministry of Health and Social Affairs report, 2011: 215). No recommendations to this effect have yet led to legislative reform, however, and it is only in reports from public inquiry commissions that we find awareness that participation and provision are interrelated, and that provision in some instances is conditional upon the child's participation.
Advancing children's right to voice has thus not been successful in the area of child poverty research and policy, where the focus is still on the family as a unit and children continue to be invisible in the process of welfare delivery.
Conclusion and discussion
Our empirical analysis of the Swedish lawmaker's position indicates some progress in the reasoning concerning the rights of children, at least in the area of child protection. However, assessing the development in the light of the CRC suggests that there are limits to this progress. Vulnerable children are not guaranteed a legal right to voice and are only given informal opportunities to be heard by the social services, while it is parents who are primarily regarded as clients in all three areas of the social services we studied. This is in line with our hypothesis that the lawmaker is recognising parents’ rather than children's participatory rights, and that this parental focus has blocked a more ambitious implementation of the CRC and a development towards a more ‘child-focused’ policy regime (Gilbert et al., Reference Gilbert, Parton and Skivenes2011). Our conceptual framework thus helped us to identify obstacles for the implementation of the CRC in Sweden. The aim of democratisation reforms to empower citizens in their capacity as welfare clients has yet to be extended to children. Swedish (and other) lawmakers have good reasons to reflect on the options to clarify children's participatory rights in national legislation.
When children are not incorporated in the conceptualisation and measurement of child welfare as actors, this may have repercussions for their well-being. We have argued that children's right to be heard and their right to participate in decisions that directly concern them is not only an integrated, but also as a constituent, part of child welfare. Here, the right to voice can be better understood as a set of participatory rights. This theoretical reconceptualisation of child welfare suggests that a successful implementation of child policies may be dependent on the active participation of children and that this applies to both protection and provision. This goes beyond the literature focusing on participation in formal decision-making (Matthews and Limb, Reference Matthews and Limb1998; Kirby, Reference Kirby2002), which has not considered children's participation in their own welfare (article 12, CRC). Instead of viewing participation as incompatible with child welfare, we argue that children's participation is, in many instances, essential to receiving protection and provisions (see also Sanders and Mace, Reference Sanders and Mace2006; Percy-Smith and Thomas, Reference Percy-Smith and Thomas2010). The children's rights literature has good reasons to look beyond the balancing of different types of rights and to study instead how different rights are interrelated.
Our conceptual framework speaks to the old tension between children as ‘beings’ and ‘becomings’, and how this tension can be resolved by recognising that children also have participatory rights in the context of policy institutions such as social services and education. The main policy implication is the importance to invest in children's agency. To evaluate child policy, where participatory rights are a constituent part of other dimensions of welfare, requires the elaboration of new measures of children's participation. This includes more specific questions about children's participation in the decision-making process, their right to voice and how their opinions are taken into consideration in the various arenas where their welfare is the object of decision-making. These arenas include the family as well as society at large. New measurements of children's participation will, in turn, enable policy analysis of how participation interrelates with other aspects of welfare, potentially feeding in to a virtuous circle of promoting child welfare. Finally, we would argue that an important future task of social science research is to spell out how a comprehensive policy regime could be designed that more firmly expresses the CRC.
Acknowledgements
We would like to thank participants at the Social Policy Network 2013 Autumn Seminar, in particular Bo Vinnerljung and Daniel Seldén, and participants at the ISA 2014 World Congress in Sociology, Yokohama, in particular Joan Durrant and Gregg Olsen, for useful comments and suggestions on earlier versions of this manuscript. We thank Children's House Foundation (Stiftelsen Allmänna Barnhuset), Sweden, for financial support.
