Social workers’ accounts of custody and custody transfers in cases of homicidal violence

ABSTRACT

This article analyses Swedish social workers’ accounts of custody when a parent is in remand prison or prison due to homicidal violence that has resulted in the death of the other parent. How do social workers justify or excuse assessments of custody and custody transfers? What legal dilemmas can be discerned? The empirical material comprises six group interviews with 14 Swedish social workers based on two fictional vignettes. The interviews have been analysed using accounts theory and in relation to how social workers reason about their discretion. The social workers used four main accounts related to assessments of custody: Time and stability in foster care, Legal context, Deficient parenting and Kinship relations. The results show that although social workers believe that deadly violence is a serious risk factor and consider transferrals of custody to foster parents to be an important tool for safeguarding children in long-term foster care, custody decisions are also assessed in relation to possible rejections in courts, the legal basis for placement (compulsory care or voluntary placement) and the children’s age. The length of imprisonment of the parent appears to be an important factor for suggesting a custody transfer in cases of homicidal violence. The results are discussed in relation to the legal context and the protection of children.

KEYWORDS:

• violence
• child protection
• vignettes
• law
• children’s rights

Introduction

This article is about Swedish social workers’ accounts of custody when children need foster care as a result of homicidal violence. There is growing awareness of the negative impact of domestic violence on children, which is now regarded as psychological abuse that can cause serious emotional problems (Evans, Davies, and DiLillo 2008; Holt, Buckley, and Whelean 2008; Osofsky 1998; Stark, Choplin, and Wellard 2019; Øverlien 2010). Children who are exposed to domestic violence are also at increased risk of physical violence (Holt, Buckley, and Whelean 2008; Janson, Jernbro, and Långberg 2011). The more serious the violence between parents, the higher the risks and impact on children (Hester, Pearson, and Harwin 2007: Jouriles et al. 1998).

However, a normative presumption of joint custody and parental contact as being best for children appears to guide decision-making in courts in the Nordic countries, even when children have witnessed or been exposed to violence in the home (Bruno 2015; Forssell and Cater 2015; Hiitola and Hautanen 2017; Ottosen 2006). This presumption has also been noted in more child protective countries (Hart and Bagshaw 2008; Holt 2011; Kaganas and Day Sclater 2004; Sheehy and Boyd 2020; Stark, Choplin, and Wellard 2019).

Previous studies have shown that lack of child care ability, as well as violence or threats, is a common conflict area when parents are involved in child custody disputes in Sweden (Bergman and Rejmer 2017). There also tends to be an overlap between custody disputes in family court and child protection cases in the social services (Bergman and Rejmer 2017; Hughes and Chau 2012). Family law and child protection, however, put contradictory demands on adult victims of violence to facilitate contact with a violent parent and protect children from violence (Hiitola and Hautanen 2017; Hughes and Chau 2012). A parent (usually a mother) who opposes the other parent having contact with the child due to domestic violence might be questioned (e.g. Eriksson 2003; Eriksson and Hester 2001; Kaganas and Day Sclater 2004; Sheehy and Boyd 2020; Stark, Choplin, and Wellard 2019).

Shared custody is emphasized in family law in Sweden, which may be seen as part of a broader gender equality discourse (Eriksson 2002). Previous studies have shown that family law secretaries (Eriksson 2003) and social workers in child protection (Mattsson 2017) tend to view violence between parents and violence against children as separate phenomena. Further, being violent towards a partner is not necessarily interpreted as lacking parental skills, which might be problematic from a risk and child perspective.

Swedish social workers have to initiate a child investigation whenever a child is suspected of having witnessed or been subject to violence in the home (SOSFS 2014:4) and abuse within the family should be taken into account when child custody cases are decided (Prop 2005/06:99; 6:2a PC¹). Nevertheless, in cases of homicidal violence, a violent custodial parent will automatically become a child’s sole legal custodian unless the district court decides otherwise. Social workers in child protection have the discretion to initiate such a court process, to address a need for a change in custody. However, there is a lack of knowledge regarding how they account for assessments of custody in cases of homicidal violence.

This article analyses Swedish social workers’ accounts of custody when a parent is in remand prison or prison due to homicidal violence that has resulted in the other parent’s death. How do social workers justify or excuse assessments of custody and custody transfers in cases of deadly violence? What legal dilemmas can be discerned?

How social workers reason in cases of homicidal violence puts different professional accounts on its edge, and can shed light of the interpretation of law in practice and the protection of children in these cases.

The Swedish context

The Nordic countries have been described as family service orientated, focusing on early support and partnership with parents (Gilbert 2012). In Sweden, social services have limited opportunities to provide interventions to children without the legal custodians’ consent. Even in cases of serious neglect and abuse, it is only when the proper care of the child cannot be guaranteed with the consent by the custodial parents² that compulsory care can be decided (1 § CYPA³). In compulsory care cases, the social services are legally entitled to make decisions regarding the child’s care instead of its legal custodians (11 § CYPA). When children are placed in accordance with the Social Services Act (SSA)⁴ (with custodians’ consent), the legal custodians’ still have a major say in decisions concerning their child while it is in foster care (e.g. school decisions, contact with relatives).

Maintaining relationships with birth parents for children in care is seen as important, and there is no time limit for the duration of foster care. The birth parents remain the child’s legal custodians unless the social services submit an application to the district court for a custody transfer. The adoption of foster children is rare and usually starts with a custody transfer to the foster parents, since adoption normally requires the custodian’s consent.

If it is obviously in the best interests of a child that the foster parents become the child’s custodians, a custody transfer will be decided (6:8 PC). Such a decision will be made by the district court, and the best interests of the child will be the decisive factor (6:2a PC). The opportunity for foster parents to apply for a custody transfer has been used to a limited extent in Sweden, even if it has increased over time (National Board of Health and Welfare 2006), as have custody cases initiated by the social services (SOU 2017:6 , p. 125–127). Since July 2003, the social services have been obliged to assess whether a custody transfer is appropriate whenever a child has been in the same foster family for 3 years (6:8 SSA; 13 § CYPA).

However, the social services are obliged to suggest a change in custody whenever this is regarded as being in the best interests of the child (5:2 Social Services Ordinance 2001:937). The Parental Code also declares that a change in custody shall be decided if a parent in the exercise of the custody of the child is ‘guilty of abuse or neglect or in other ways fails to care for the child in a way that could endanger the child’s health or development’ (6:7 PC), or if a parent is ‘durably prevented from practicing the custody of the child’⁵ (6:8a PC). If it is not possible or suitable to change custody to another parent, one or two special legal custodians will be assigned by the court, which might be the child’s foster parents if the child is already in care (custody transfer). Studies by the National Board of Health and Welfare (2006, 2013) indicate that a custody transfer is extremely rare when it comes to a parent being ‘guilty of abuse or neglect’ (6:7 PC) and in cases of domestic violence that are not lethal. This could partially be because the other parent applies for sole custody in these cases or that the social services are awaiting a custody transfer until the child has formed a relationship with its foster parents (SOU 2017:6).

Previous studies of custody transfers are limited but indicate that the social services seldom applies for a custody transfer to foster parents if a custodial parent disagrees (Mattsson 2010; Wissö and Johansson 2018). Wissö and Johansson’s (2018) study of 32 court district decisions on custody transfers to foster parents in Sweden showed that an extended period in foster care and a child having a sense of belonging to a foster family were the most common factors. Even though all court decisions but one decided in favour of a custody transfer, their results highlight different interpretations considering whether a functioning contact between the child and its birth parents is an obstacle for a custody transfer (Wissö and Johansson 2018; c.f. Skivenes 2010).

Regarding domestic violence and homicidal violence, knowledge of custody transfers is even more scarce. A follow-up by the National Board of Health and Welfare (2013) concerning how social services in Sweden dealt with 23 cases in which the father had killed the mother, showed that a custody transfer was sought in 18 of the cases, the father remained the child’s custodian in the other five. In one half of the cases in which a new custodian was sought, it took more than one year. Subsequently, another six cases were identified, resulting in a total of nine out of 29 children whose fathers were their custodians at the time of the study (SOU 2017:6 p. 361–362). One problem could be a lack of appropriate ‘new’ custodians in the child’s network (National Board of Health and Welfare 2013). The possibility of assigning a temporary custodian with professional knowledge if the children are otherwise being practically cared for has been suggested (SOU 2017:6).

Theoretical perspectives

This article is based on the notion that assessments of custody are made within a discretionary space in which interpretations of the law and the needs and best interests of the child are necessary. Molander (2016) distinguishes between discretionary space and discretionary reasoning, in which the latter refers to how professionals justify decisions when the warrants are weak. Initiating a process that could result in a parent losing custody of their child can be seen as unusual or even controversial from a family service perspective. At the same time, failing to initiate a custody transfer in cases of homicidal violence could be questioned from a child perspective. Taking this into account, social workers might not only need to justify their assessments of legal custody, they may also need to excuse them given their complex normative context. Thus, Scott and Lyman’s (1968) accounts theory has been used as a tool in the analysis.

Scott and Lyman (1968, 46–47) define accounts as ‘a statement made by a social actor to explain unanticipated or untoward behaviour’ and state that ‘an account is not called for when people engage in routine, common-sense behavior in a cultural environment that recognizes that behavior as such’. They distinguish between two major accounts: justifications in which the actor accepts responsibility but denies the pejorative quality associated with an action, and excuses in which the actor admits that the action might be bad, but denies full responsibility for it.

Accounts theory has, for example, been used in studies that focus on criminal behaviour (e.g. Jacobsson 2012; Uglevik 2012) and to a certain extent, to analyse how professionals in human service organizations account for their work (e.g. Persson and Wästerfors 2009; Åkerström 2002) and interventions (Iversen 2014). Aronsson and Nilholm (1990) have shown how misinterpretations were often accepted and retold in group discussions on a custody case. Buttny (1993) understands accounts as interaction that is shaped within a specific context, also stressing a constructionist perspective. Some researchers have broadened the understanding of accounts as narratives or storytelling (Orbuch 1997).

I use the understanding of accounts as outlined by Scott and Lyman (1968) as it provides an analytical tool for illustrating different explanations in situations that social workers find difficult. How social workers in interaction assess custody, in an interview conducted by a researcher, might primarily reveal a professional logic within their discretionary space. In the analysis, the legal and normative context is thus of specific relevance for understanding how social workers reason about their discretion.

Group interviews with social workers

The article is based on six group interviews with 14 Swedish social workers with 2–3 participants in each interview. Two fictional vignettes were used as a basis for discussion in all interviews, steered by a semi-structured interview guide. Social workers tend to discuss complex cases with colleagues, which is why group interviews were appropriate. Vignettes might be useful for discussing sensitive matters in groups (Hughes and Huby 2004) and the use of vignettes allowed all social workers to discuss similar and constructed cases. Although vignettes do not necessarily correspond to how professionals would act in practice, they can illustrate values and norms (Kullberg and Brunnberg 2007) that influence practice.

Information about the research project was distributed to child welfare agencies in seven municipalities and those who wanted to participate in an interview contacted the researcher . The interviews were conducted between November 2014 and May 2015. The respondents worked in four middle-sized or larger municipalities in Sweden. Thirteen of the respondents were women, and the respondents’ ages varied (average age 42 years). They had worked in the profession between a couple of months and 40 years (average length 11.7 years). The interviews lasted approximately 1.5 hours and were recorded and transcribed verbatim. All respondents worked or had prior experience of child investigations in child protection. At the time of the interview, the majority of respondents worked with investigations or support to children in social services; three worked in family law. .Numbers (1–14) have replaced the names of the respondents, and the transcriptions have been translated and slightly adapted to suit a written and English text.

Vignettes

The vignettes are based on previous research and knowledge of child protection and the research questions of the project (see Hughes and Huby 2004). Besides homicidal violence, the vignettes include social problems and dilemmas that are common in child protection cases. Each phase of the vignettes corresponds to a specific part of the legal decision-making process; decisions regarding an immediate care decision (phase one), choice of placement (phase two) and assessing the need for a custody transfer (phase three). In this article, only discussions related to legal custody and custody transfers have been analysed and discussed (primarily associated with the discussions in phase one and three in the vignettes).

Vignette one (summary)

Phase one: Two boys (aged 5 and 7) have been placed in an institution by the on-call social services after the children’s fatherhad killed their mother. They did not witness their mother’s death. The father is in remand prison, has confessed and wants psychiatric care since he suffers from depression. The father has previously threatened and abused the mother in front of the children and the family is known by the social services. Phase two (after three months): The children are in temporary foster care, and the father is expected to be convicted of murder. The father wants the children to be placed in kinship care with his sister and her family. The mother’s single sister is also willing to take care of the children. The aunts have different opinions about the father’s future capability as a father. The children do not want to see their father. Phase three (after one year): The father is sentenced to 10 years in prison for murder. The children are placed in foster care and want to stay there. The oldest boy does not want to meet his father but has talked with him on the phone a couple of times at the father’s initiative. The youngest boy misses his father and has visited him twice in prison accompanied by a contact person. The children become anxious when social services review care every 6 months and fear that they will have to move. The father is still the children’s legal custodian, but the foster parents think that a custody transfer to them will be in the best interest of the children. They want continued support from the social services in order to deal with parental contact for the children.

Vignette two (summary)

Phase one: Social services receive information from the police concerning a girl (aged 12) and a boy (aged 10), stating that the children’s mother has killed the children’s father during a fight. The children are still at school. The parents have previously received counselling from social services due to their disputes and domestic violence. The mother claims she acted in self-defence. Phase two (after four months): The children are placed in the temporary care of their grandmother and grandfather (the mother’s parents). The mother has been sentenced to 2 years in prison for causing the father’s death, but the prosecutor plans to appeal and claim manslaughter. The children have regular contact with their mother and want to keep in touch. However, they want to remain with their grandparents, with whom they have stayed many times previously when their parents quarrelled. The mother has started a new relationship and wants her children to be placed with another foster family (not relatives). Phase three (after 15 months): The children are in kinship care with the mother’s parents and have had regular contact with the mother during this time. The mother is soon to be released from prison and has recently remarried. Her new husband is unemployed and has moved into the mother’s apartment since he had no permanent accommodation. The mother wants the children to live with her and her new husband once she is released. The children, now 11 and 13 years old, want to stay with their grandparents where they thrive and can focus on school and may only consider staying with their mother every other weekend, as they have not met her new husband. The grandparents want the children to remain in their care and state that the children feel let down by their mother.

Analytical approach

The interviews had previously been analysed from different perspectives and themes. For this article, the transcriptions were read several times and then coloured in order to highlight talk about legal custody. Subsequently, one document was created in which talk about custody from all the interviews was gathered. Accounts theory was used as a tool in the analysis and I initially stayed close to the different justifications and excuses outlined by Scott and Lyman (1968). During the process, these were modified into key themes in the interviews and I ended up with four main accounts: Time and stability in foster care, Legal context, Deficient parenting and Kinship relations. Throughout the interviews, these accounts varied and were mixed. The focus is on the verbal content in the interviews, however pauses (…) and interruptions (-) are spelled out. The excerpts are presented in the order they appear in the interview, and excluded talk from a respondent is marked by / – /.

Results – accounts of legal custody

In vignette one, all social workers stated that a change in custody was called for, either immediately or later on. In vignette two, a custody transfer was not seen as being equally necessary and more difficult to legally motivate, since the mother was not serving such a long sentence.

Time and stability in foster care

The main justification in vignette one for a change in legal custody was the long time the children would need to spend in foster care, since the father was expected to spend several years in prison. Thus, providing a sense of stability for the children was seen as important. Growing up in compulsory care was not regarded as a suitable option since, according to Swedish law, foster care must be considered and reviewed every 6 months.

3: Yes exactly. I would probably have been quite positive about doing a custody transfer.

4: Absolutely. Ten years is a long time in a child’s life, should they be subjected to these considerations [of care]-

5:-Yes, exactly.

4:- every six months? What would we be doing to the kids then? I think we continue to abuse them, putting them in this concern.

3: They have been exposed to enough separations. (Interview 2, vignette 1, phase 3)

It was also stated that a change in custody was the only way to legally ensure that the children remained in foster care and were not returned to their birth parent.

8: /---/ In this case, I believe that the children should not return to their father.

9: No.

8: That’s what I think. Then it’s important to safeguard them, somehow they have to know that, we are going to live here… And there is no other legal way than this, to transfer custody. (Interview 4, vignette 1, phase 3)

Previous studies have shown that when custody is transferred to foster parents, the children have usually been in foster care for several years (Wissö and Johansson 2018; Wissö, Johansson, and Höjer 2019). In vignette one it was evident from the start that the foster care would have to last a long time, and custody was discussed at an early stage on in half of the interviews. Some social workers claimed that they always consider a custody transfer when the foster care is expected to last for a long time.

14: /---/ I’m thinking, why shouldn’t the foster parents be custodians if they [the children] are going to be spending their entire childhood there?

Interviewer: So it is the length of the placement that makes you think this?

13: If you know that they’re going to live there until they become adults, when there are …concerns that will not change. I’m thinking about parents who have intellectual dysfunctionalities, deficiencies that will not change.

Interviewer: No, right.

13: And also, how old the children are when they are placed in foster care. If it is the children of parents with addictions, then the parents need to address their addiction fairly immediately. They cannot continue for two years, and then ‘Now I want to, can I have my child back’. (Interview 6, vignette 1, phase 3)

This implies that the expected time in foster care, not only the actual time the child has already spent in care, is of importance when social workers are making custody assessments.

Children’s age

As seen in the quote above, children’s age was also an important factor when assessing the need for a change in custody and was connected to accounts about time and stability in foster care. A custody transfer was justified as being important if the children were young and when the placement was expected to last for a long time.

10: In favour of a custody transfer is what we have said about stability but, in a way, it also has to do with their age. To do it before they reach their teens in order to have more stability before they enter what is a difficult period in life for all children.

12: Yes. (Interview 5, vignette 1, phase 3)

The quote above concerns vignette one in a phase in which the children had turned six and eight years of age, respectively. For the children in vignette 2, their older age (11 and 13) in phase 3 could instead be used as a justification for not transferring custody to the foster parents.

Interviewer: Then you would have suggested compulsory care. Is there a reason for considering a custody transfer in this case or-

1: - No.

Interviewer: It’s not necessary?

1: No, the children are so big now and it would be strange having their grandmother and grandfather as legal custodians.

Interviewer: Is it more difficult when it’s relatives? What are your thoughts?

1: Yes, they’re also the wrong generation… No, I would probably not have considered it. (Interview 1, vignette 2, phase 3)

This shows how a custody transfer is not always seen as a necessary legal tool for providing stability in care for slightly older children, possibly since older children can more easily claim their wishes. The social workers also talked about the importance of listening to the wishes of children, particularly older children, about decisions regarding contact and foster care.

Practical reasons – to safeguard a normal life

There were also practical considerations connected to accounts about time and stability in foster care, that a change in custody was needed to safeguard a normal life in care without depending on the parent’s influence and decisions.

10: /…/ And it is very unpractical to have a custodian that is not around.

12: Yes, to be crass, that is one of the first arguments-

10:-Yes.

12: - that it’s very impractical.

10: Yes.

12: And the foster parents will get a completely different scope for action if they become legal custodians.

11: Just to be able to go out on trips and such like-

10: -Live a more normal life.

(Interview 5, vignette 1, phase 3)

According to the Parental Code (6:8a), the court shall decide to make a change in legal custody if the parent is ‘durably prevented from practicing the custody of the child’. Social workers used accounts related to this to justify that a change in legal custody was in the best interests of the child in vignette one.

9: It will be quite difficult for him to practice custody from prison.

8: Yes, it’s ten years. Yes exactly.

9: Ten years, which will probably be shorter, but still it’s quite difficult for him to practice custody. He won’t be able to be a custodian in practice. Instead, it will rather be a power he possesses, and the children don’t deserve that. They deserve a custodian who can be present and make decisions in their everyday lives. (Interview 4, vignette 1, phase 3)

A custody transfer makes a more normal life possible for children as well as foster parents, since foster parents then get authority to decide on issues in the child’s everyday life. Otherwise, it is either the social services (in compulsory care cases) or the child’s custodial parent who has the final say in these matters.

The legal context

Accounts explicitly related to the legal context concern uncertainty related of the legal system and the legal basis for placement.

Uncertainty related to the legal system

Scott and Lyman (1968) refer to ‘scapegoating’ as an excuse in which an actor places responsibility for an action on another person or factor that is beyond their own control. In this study, a fear of rejection in court was used as a similar excuse and as an obstacle to proposing a change in legal custody, although it was seen as being in the best interests of the children.

9: When the mother is released, such a short period of time has elapsed. So, the question is, what hope do you have of being able to do a custody transfer? But if you think about what you would like to do… I would probably want to do it [a custody transfer] anyway, to safeguard the children, but I might not be that optimistic about such an application, maybe because the mother has not yet demonstrated how bad things might be, so to speak. (Interview 4, vignette 2, phase 3)

Since it was not known how long the mother would be detained, in vignette two a change in legal custody was seen as being difficult to motivate. The social workers also highlighted the risk of endangering the cooperation with the mother and losing the opportunity to make further interventions if the district court did not approve of a custody transfer.

7: The risk is, if it’s not approved [by court], then you have burnt your bridges entirely to work with this mother.

Interviewer: If you propose a custody transfer?

7: Yes. And then you would still want some view into this family, or work with the mother and her parenting abilities, and she might not want to do this afterwards.

(Interview 3, Vignette 2, phase 3)

Thus, initiating a change in legal custody was regarded as something that may result in a loss of control of the case once the mother had been released from prison. Previous studies have also discussed social workers’ dependency on parents’ consent and cooperation in relation to child protection (Ponnert 2007; Leviner 2011, 2014). This can be related to the legal emphasis on voluntary interventions and placements (1:1 SSA; 1 § CYPA), and the lack of compulsory interventions towards parents if compulsory care of the children is not decided in court.

The interviews also revealed some uncertainty amongst some social workers regarding how to interpret the rules for a custody transfer to foster parents. According to the law, the social services are obliged to assess whether a change in custody is needed when a child has been with the same foster parents for 3 years (6:8 SSA; 13 § CYPA), and these 3 years were discussed in four of the interviews.

11: But custody, now they have been there for one year, and a custody transfer is not usually considered until after three years.

10: No, exactly.

12: Yes, but you can, you can actually advance it [a custody transfer].

11: And that, maybe, in this case. (Interview 5, vignette 1, phase 3)

In another interview, the social workers referred to this as ‘the three-year rule’. It seemed as many social workers regarded 3 years as a normative departure for when it would be suitable to initiate a custody transfer to foster parents, although possible to bend if necessary. However, a custody process shall be initiated whenever necessary (5:2 Social Services Ordinance).

Legal basis for placement

The legal context could also be used as a justification in vignette two, that there was no need to make a change in custody when the mother was to be released from prison, since the children were already in compulsory care (CYPA).

4: We would probably-

3:-No

4:-not have thought about it [doing a custody transfer] then-

5:-No

4: -because it’s such a short sentence. So we probably wouldn’t, although it’s not unthinkable.

3: As long as there is a decision on compulsory care-

4: -Yes, there is no reason to

3:- I believe that no further actions are needed. (Interview 2, vignette 2, phase 3)

If the children are in compulsory care, social services have the power to make all decisions regarding the child’s care (11 § CYPA). Although in vignette two the social workers expressed their doubts about the caring skills of the mother, most social workers regarded compulsory care as being sufficient to protect the children from having to move from their foster home against their will.

Deficient parenting

In vignette one, the social workers argued that the crime committed by the father had damaged the children and their living conditions and development. From this perspective, it was assessed that the children would not be harmed if the father lost custody. On the contrary, it was regarded as a form of protection.

1: Yes, he is automatically the sole custodian now and the question is how much he should be allowed to decide, what he is capable of, given the state of his health but there is also the question of what has happened. (Interview 1, vignette 1, phase 1)

Deficient parenting is a justification with similarities to what Scott and Lyman (1968) refer to as ‘denial of injury’, in which an action is not seen as harmful to those people about which the community needs to be concerned (in this case, the children). It also has similarities to ‘denial of victim’ (Scott and Lyman 1968), in which an action is regarded as being permissible, since the victim of negative consequences deserves these consequences.

8: /---/ should a person who has robbed another person of their life be given custody? As a matter of principle, I also wonder, is the parent capable of looking after the best interests of the child? I think it is an issue that you need to address very quickly, this business of compulsory care and maybe also see who is going to be given custody of the children – their father or someone else. Because, if a person has behaved so terribly and robbed their children of their parent, is he suitable? I think that the suitability can be strongly questioned. (Interview 4, vignette 1, phase 1)

A change in custody shall be made when a parent is ‘guilty of abuse or neglect or in other ways fails to care for the child in a way that could endanger the child’s health or development’ (6:7 PC). Although none of the social workers explicitly referred to this legal argument for a custody transfer, deficient parenting due to deadly violence was used to additionally justify a custody transfer when it was expected that a child would be spending a long time in foster care.

Kinship relations

In both vignettes, relatives were potential kinship carers, and in vignette two, the grandparents became foster parents. This raised another account, which used kinship relations to account for curtailed discretion. In a previous quote the grandparents were described as the ‘wrong generation’ for taking over custody displaying how kinship relations can be seen as an obstacle for initiating a change in custody. A previous study has also showed how grandparents might feel questioned by social workers due to their age (Linderot 2020). However, in another interview, the grandparents as potential legal custodians were not seen as problematic, on the contrary, since the children already knew them.

8: It’s only a brief period but at the same time it [a custody transfer] would be for the benefit of the children because their grandparents are not strangers to them.

9: No exactly.

8: So I would-

9: -It would be worth giving it a go. (Interview 4, vignette 2, phase 3)

In vignette one, some of the social workers argued that a change in custody was necessary if the children were to be raised by relatives (aunt and family) of the victim (mother).

7: It also depends on where you place the children, because if it’s with relatives of the mother, and they feel a kind of hatred towards the father, it would become very difficult. If the child is in out-of-home care and it was the custodial parent who killed their relative, they have to cooperate until the child is..

6: Mm. Yes.

7:.. 18 or 21 or something…I think it would become very problematic. In such cases we would not have been able to place the child with relatives-

6: -No

7: -if the father shall remain the legal custodian. (Interview 3, vignette 1, phase 1)

Thus, the social relations between different relatives and family members appear to play an important role when social workers are assessing legal custody in cases of homicidal violence and can be used as both a justification for not suggesting a change in legal custody and as a justification for doing so.

Discussion

This study provides a social worker perspective on assessments of custody in cases of homicidal violence in a Swedish context. The results show that social workers regard children’s exposure to homicide to be a serious risk to their well-being and acknowledge a change in custody as an important legal tool for protecting these children and to provide stability in care. However, the results also highlight how social workers' custody assessments are linked to the legal framework, the legal basis for placement, the child’s age, to family relations with kinship carers and the need to cooperate with parents. The length of imprisonment of the parent appears to be a crucial factor for initiating a change in legal custody in these cases, even if deficient parenting could be used to further account for such a decision.

A fear of the total loss of parental cooperation and a rejection in court might prevent Swedish social workers from initiating a custody transfer, even if this is assessed as being in the best interests of the children. This fear can be seen as being relevant in relation to both national and international research, which has shown how violence is often downplayed in court decisions concerning custody (e.g. Bruno 2015; Eriksson 2007; Forssell and Cater 2015; Hart and Bagshaw 2008; Hiitola and Hautanen 2017; Holt 2011; Ottosen 2006; Sheehy and Boyd 2020; Stark, Choplin, and Wellard 2019). It can also be understood in relation to the significance of parental cooperation in the Swedish legal system. The least intrusive principle in the Nordic countries has been problematized from a child perspective (Pösö, Skivenes, and Hestbæk 2014), and a strong legal focus on parent’s cooperation could be particularly problematic when children need protection (Ponnert 2007; Leviner 2011).

In this study, justifications as well as excuses were used as accounts for initiating or not initiating a change in custody in cases of homicidal violence, displaying a complex assessment practice in which the seriousness of violence alone is not decisive for initiating a change in custody. Although several accounts could be related to the Parental Code, the legal context was primarily used to account for not initiating a change in custody based on the uncertainty related to court decisions, and the need for parental cooperation and consent.

Previous studies indicate that a custody transfer to foster parents does not usually take place until the child has been in foster care for several years (National Board of Health and Welfare 2006; Wissö and Johansson 2018). In cases of homicidal violence, a custody transfer might also take time due to difficulties finding an appropriate new custodian, or not take place at all (National Board of Health and Welfare 2006). The Swedish Children’s Ombudsman has previously suggested that legal custody should be automatically tried in cases of homicidal violence (Children’s Ombudsman 2013). When asked, few social workers thought that this was a good idea, even if they asked for further guidelines.

Limitations and implications for practice

This study is a small, qualitative study based on fictional vignettes in a Swedish context and more studies are needed to provide a fuller understanding of social workers’ practice in cases of homicidal violence. Further, it is not possible to draw any conclusions related to gender, since the vignettes also differed in other aspects. However, this study adds to the understanding of a complex practice in which research is scarce, and in which professionals’ assessments have a significant impact on children’s lives.

There is an ongoing debate in Sweden about how to strengthen children’s rights and need for stability in foster care (Ds 2021:7; SOU 2015:71), partially as a result of cases discussed in the media in which children were returned to their birth parents after several years in foster care since a young age, with poor or even fatal consequences. The National Board of Health and Welfare has been tasked by the Swedish government to suggest how day care interventions for children without their custodial parents’ consent could be increased (Government(Regeringen) 2019–11-14). Increased legal opportunities for bridging the gap between voluntary support and compulsory care are probably necessary in order to strengthen young children’s right to protection.

In an investigation that proposed a number of modified regulations concerning custody (SOU 2017:6), joint custody is still high lightened as being in the best interests of children in general, and the Children’s Ombudsman (2017) criticized the investigation for not distinguishing between conflicts with and without violence in the discussion. A possibility to assign a temporary legal custodian to enhance a future custody transfer in cases of serious violence has however been rproposed (SOU 2017:6) and is now possible since July 2021 (6:10d PC). . The social workers in this study expressed uncertainties on courts decisions on legal custody in cases of homicidal violence when the custodial parent was not sentenced to a longer term, and some expressed uncertainty to whether a change in custody was appropriate before the children had stayed 3 years in foster care. Accordingly, there is probably a need to further revise and specify the rules for changing custody in certain situations in which children are particularly vulnerable, for example, in cases of extreme domestic violence, or when the foster parents are the only psychological parents the child has known since a young age.

Acknowledgments

This study is part of the research project ‘Deadly violence amongst parents. Social workers’ assessments and arguments on different legal options, and children’s need for care’ and was funded by the Swedish foundation ‘Stiftelsen Allmänna Barnhuset’. I would also like to express my gratitude to all the social workers who participated in the study..

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Stiftelsen Allmänna Barnhuset under Grant FB13-0020.

Notes

1. PC: Parental code (1949: 381).

2. Or/and consent by the child, from 15 years of age.

3. CYPA: The Care of Young Persons Act (1990:52).

4. SSA: Social Services Act (2001:453).

5. Author’s translation.