The topic of this book is children’s situation at pre-school and school when there is a history of domestic violence and the parents are disputing parental responsibility, the child’s living arrangements or the child’s contact with the non-residential parent. These kinds of situations can create difficulties not just for the child with disputing parents but for all the children at school as well as school staff. In our own previous studies in this field we have seen examples of how family law proceedings may impinge upon school and school activities. However, while there has been considerable discussion about issues of child protection and the cooperation between school and social services in that context, studies on the intersection between pre-school/school and family law disputes seem virtually non-existent. This is also the case when it comes to family law, school and different forms of childhood adversity. The aim of this book is thus to contribute to increased knowledge about the underexplored area of children’s lives at pre-school and school, and about social work with children at risk.

As regards living arrangements, the 1989 reforms in England and Wales made it clear that it was expected that the children would reside with one parent and that the non-residential parent would have contact (formerly known as access). The presumption in current policy and law is that contact between a child and the non-resident parent is the desired outcome of any court proceedings (Hester, 2011; Radford and Hester, 2006; Trinder et al., 2006). The ethos of the Children Act of 1989 is conciliatory and parents are expected to work out arrangements for their children if they separate. The point of departure is that courts should only get involved as a last resort.

A similar development can be seen in Sweden. A chain of changes to the family law since the 1970s have aimed to reduce conflict between parents and to encourage agreements over contact, custody and residence (see Nordborg, 2005). This increased emphasis on agreements and parental cooperation has changed the role of the courts in Sweden as well (see Schiratzki, 1997). As has been the case in England, legal reforms in the family law area have aimed to remove family law disputes out of the courts and to avoid long, repeated and costly legal processes. Other institutions are expected to tackle the problem of parental disputes. For example, the local authority social services have since 1991 been obliged to offer ‘cooperation talks’, which is a kind of mediation, to parents who do not live together and want to solve conflicts regarding their children (Socialtjänstlagen [SoL] Chapter 5 § 3). This kind of mediation can also be mandated by the court in a legal dispute between parents (Föräldrabalken [FB] Chapter 6 § 18).1 Here we can compare with England where mediation and other forms of dispute resolution services outside of court have become increasingly central to policy in this field (see, for example, Ministry of Justice et al., 2011; Ministry of Justice, 2012).

Following the recommendations made by a governmental inquiry in Sweden on custody disputes in the mid-1990s (SOU 1995:79), in 1998 it also became possible for Swedish courts to award joint custody against the explicit wish of one parent. The inquiry strongly emphasized joint custody as the preferable option at separation or divorce. The changes to the law that came into force in 1998 also increased the possibilities for the court to specify contact and residence arrangements when parents share custody (which was not possible before; see Prop. 1997/98:7). Parents who share custody are defined as jointly responsible for the care of the child and for ensuring that the child’s physical and psychological needs are fulfilled. The parents also share decision-making rights regarding the child and are obliged to make all major decisions jointly – that is, all that goes beyond the everyday care (food, clothes, bedtimes, leisure time activities etcetera). One parent cannot make any major decision ‘of central importance for the child’s future’ unless the best interests of the child ‘apparently demand’ such a decision (FB Chapter 6 § 13). It can be noted that in comparison to England, parents in Sweden are expected to co-operate to a larger extent when they share legal responsibility for the child. In England, the Children Act 1989 makes it clear that where more than one person has parental responsibility for a child, each of them may act alone in meeting that responsibility, except in particular circumstances where the consent of everyone with parental responsibility is required (such as when changing the child’s name or removing the child out of the jurisdiction of England and Wales for a longer period of time). The law in England and Wales thus makes it possible to allow the residential parent a greater degree of freedom to make decisions regarding the child, compared to Swedish law. However, it can also be noted that the most recent review of the family law area and the government’s plans for further reforms indicate that an increased emphasis on shared decision-making between parents can be seen in England and Wales as well (see Ministry of Justice, 2012).

A key foundation for policy is the notion of the child’s right to contact with parents, and in England also with other people such as grandparents and siblings. In both countries contact is framed as the child’s right (not a parental right). However, in both England and Wales, and Sweden, in practice children lack opportunities to enact this right: in neither country the child is automatically a party to the case. In England and Wales, this is not the case unless there are particular circumstances that make the case complex (see below), and in Sweden it is never the case. When children are not parties to the case and do not have legal representation, it is adults – most commonly parents or persons with parental responsibility – who have to raise the question of the child’s right to contact. Another interesting feature of the construction of the law – seen from children’s rights point of view – is the fact that there tend to be a lack of measures to force parents to comply with a contact order. Instead, sanctions tend to be aimed at the residential parent – and as a consequence also the child. For example, if contact ordered by a Swedish court is undermined or not supported by the residential parent, there are options of legal sanctions. The residential parent may be fined and ultimately the contact order may be enforced (with the help of the police) (FB Chapter 21 § 3). However, if the residential parent or the child wants the child to have contact with an unwilling parent, there are no legal measures (such as fines) available at all; ‘contact refusing’ parents are surrounded by a ‘law-less space’ in Swedish law, as Nordborg (2005, p. 114) puts it.

In both countries, the interests and rights of the child are supposed to be at the heart of the legal process. In England and Wales, for all proceedings under the Children Act 1989 when the court considers a question of the child’s upbringing, the child’s welfare should be the court’s paramount consideration. According to the Swedish Parental Code, all decisions in family law disputes should be based upon the best interests of the child (FB Chapter 6 § 2a). As regards domestic violence, measures have gradually been introduced in both countries to enable courts to appropriately deal with this issue. In England and Wales some important steps were taken in 2000, through a Court of Appeal decision and the Children Act Sub-Committee report Contact Between Children and Violent Parents. Both of these were important in placing greater emphasis on risk assessment and management in contact cases (Hester, 2011; Trinder et al., 2010). In the following year, the Lord Chancellor’s Department launched new guidelines for the family courts on Child Contact Where There Is Domestic Violence. Moreover, in 2002 the Children Act was amended by the Adoption and Children Act, which included changes that involved an extension to the definition of ‘significant harm’ to include witnessing domestic violence (the ill-treatment of another person). More recently, measures have also been introduced to assist screening of risk in court proceedings (see Trinder et al., 2010).

In Sweden, courts are (since 1993) obliged to consider the risk of abuse, kidnapping or other forms of harm to the child when assessing the best interests of the child. In family law cases it is not necessary to prove ‘beyond reasonable doubt’ that a child will be harmed by contact, custody or residence arrangements. It should be enough that ‘there are concrete circumstances indicating risk’ (LU 1992/93:22, 22; Author’s translation). Thus the level of proof required should be significantly lower than in criminal law cases (Nordborg, 2005). However, previous reviews of the lower courts’ practice in cases where statements about violence have been made by one or both parties indicated that at that time (around the new millennium) practice had developed in a way which was contrary to the legislator’s intent (see below). In the wake of severe criticism of both the family law itself and of practice, a parliamentary committee was appointed in 2002 to review changes made in both 1996 and 1998 (Dir. 2002:89). Special consideration was to be given to the situation for children where one parent has been subjected to serious crimes by the other parent. After having consulted both research and different interest groups, and after having conducted some investigations of its own, the committee concluded with a critique of legal practice similar to that previously expressed by others (SOU 2005:43). The work of the committee resulted in safety-oriented changes to the law that came into force on 1 July 2006 (see Chapter 2).

However, although the UNCRC has been ratified both by England and Sweden, and the principles relating to the child’s best interests and the child’s right to express their views have been included in respective legislation, children’s voices are seldom heard in family law proceedings (e.g. Dahlstrand, 2004; James and James, 1999; Socialstyrelsen, 2003). As discussed above, in neither country are children parties to the case. Thus it is adults who will report on children’s views and wishes.

In England, the court can request a welfare report under s7 Children Act 1989 either from the local authority or from a Children and Family Reporter, who is an officer appointed by the Children and Family Court Advisory and Support Service (CAFCASS, 2013). The report will normally contain information about the child’s views, wishes and feelings, although the officers making the report will not just record the child’s wishes’ but make recommendations based on what they think is in the child’s best interests. A similar situation can be found in Sweden where social workers from the local authority social services carry out court-mandated investigations into the child’s situation. In larger local authorities family law social workers are separated organizationally from social workers concerned with, for example, child protection investigations or different forms of support to children and families. However, in smaller municipalities family law investigations, child protection investigations and other social service tasks are often carried out by the very same professionals. The impact on the children of such differences has not so far been researched. Like their English equivalent, Swedish family law social workers should, if it is not deemed completely inappropriate, investigate ‘the child’s view’ and give an account of it to the court (FB Chapter 6, § 19). In this context children’s views are filtered through the voices of adults, just as is the case in England and Wales.

It can also be noted that in both countries, children are only given this limited opportunity to influence the living arrangements and relationships when there is a dispute between the parents. When parents agree, the principle is not to intervene: the principle of parental autonomy is stronger than children’s views or welfare (see James and James, 1999). Thus parental agreement is presumed to be identical to the best interests of the child.

Research on the relationship between school and social services also addresses the potentially problematic aspects of inter-agency cooperation from the perspective of service users. A recurring theme is the possibility of parents manipulating staff...