1. Key facts of the case
A girl was born in April 2016 who did not leave the hospital with her biological parents but was taken into compulsory care by the social services. The reason for the compulsory care was that both parents suffered from extensive mental illness as well as substance abuse. A few weeks later, she was placed in a family home where she grew up with two foster parents and their three daughters.
In 2018, when the biological mother and father asked the court to cease the compulsory care of the girl, the Administrative Court’s assessed that the circumstances due to which the compulsory care was initiated, still existed to a certain extent, even though positive changes were observed. The court therefore found that the conditions to terminate the care where to be regarded as unfulfilled. When the case came up for review in the Court of Appeal in September 2018, it was decided that the girl would move back to her biological family as the Court of Appeal, opposed to the Administrative Court, found that the irregularities that justified the compulsory care had ceased to exist.
On January the 30th 2020, the girl was found dead and hidden in her home in Norrköping, Sweden. In the media, she came to be called “the Little Heart” (Lilla Hjärtat). In August 2020, her mother was sentenced to one year and nine months in prison for causing the death of another person through negligence. The verdict was appealed to the Court of Appeal, which in June 2021 sentenced the mother to eight years in prison for manslaughter. The case received a lot of public attention and provoked strong reactions.
2. Applicable law
In Swedish criminal law, there is no general obligation to intervene when a person is in danger. However, a position as a guarantor may in some cases give rise to an obligation to intervene. In the doctrine, the prevailing view is that parents are to be regarded as guarantors of protection towards their children.
The crime of killing a person may furthermore be committed both as a crime of intent and as a crime of negligence in Swedish criminal law. Murderer and manslaughter are crimes of intent. A person who takes the life of another person is guilty of murder and is sentenced to imprisonment for a fixed term of at least ten and at most eighteen years, or for life. If, in view of the circumstances that occasioned the act or for some other reason, is considered less serious, the person is guilty of manslaughter and is sentenced to imprisonment for at least six and at most ten years.
A person who causes the death of another person through negligence is guilty of causing the death of another and is sentenced to imprisonment for at most two years or, if the offence is minor, to a fine. If the offence is gross, the sentence is imprisonment for at least one year and at most six years.
3. Criminal proceedings
3.1 Introduction
On January 30, 2020, police were ordered to the girl’s home address in Norrköping. There, the then three-year-old was found dead and the body had been hidden for about three days before it was found under a cot.
The autopsy report presented in the preliminary investigation and during the trial showed that the girl was severely malnourished and had 102 physical injuries, four drug-classified preparations in the body, cerebral hemorrhage, a broken wrist and pneumonia caused by inhalation of gastric contents. The medical examiner also noted that the course of death was protracted and lasted between 3 and 12 hours.
The biological parents were taken into custody on 2 February 2020. On 16 February 2020, however, the biological father was dismissed from suspicion as he was found dead in his cell. The investigation showed that no misconduct was committed by the prison staff and the investigative findings suggested that the death was caused by late effects of drug use.
On 15 May 2020, the District Attorney brought charges against the girl’s mother.
3.2 The District Court 6 August 2020
The district court could not determine who caused the girl’s death nor exactly how the death occurred. The court furthermore did not consider it proven that the mother was present when Esmeralda was injured and drugged.
However, it had been found proven that the mother was present after the incident and then understood that the daughter needed hospital care. The fact that the mother, as guardian, still did not call for help was considered by the court as the cause of the daughter’s death through negligence. The penalty was decided as imprisonment for 1 year and 9 months, which also included two drug offenses.
3.3 The Court of Appeal 21 June 2021
Both the prosecutor and the mother appealed the verdict to the Court of Appeal.
The Court of Appeal also did not consider it proven that the mother was present when the girl was injured nor when she was drug poisoned.
The Court of Appeal however, similarly to the District Court, upheld that the mother was in a position of a guarantor in relation to her daughter, and that she hence could be held criminally liable for not ensuring that the girl received help. The Court of Appeal further found it proven that the mother, when the incident took place, was indifferent to the fact that the daughter would die as a result of her not ensuring that the girl received care. The defendant thus could be regarded as having had a reckless intent to the girl’s death. The Court of Appeal therefore convicted the woman of intentionally killing the girl.
The Court of Appeal however found that the circumstances where such that the crime was to be considered manslaughter and not murder, whereby the mother was sentenced to imprisonment for eight years.
4. Disclosure of information
The case started receiving attention when the police, in a press release, disclosed that they had found a body and arrested two suspects. Information about the incident started to spread in various media channels. The newspaper Aftonbladet published an article, the day of the press release, in which they disclosed that one of their sources claimed that it was a three-year-old girl who had been found dead.
The police and the public prosecutor’s office were restrictive regarding disclosure of information and during the detention was provided negotiation professional secrecy (yppandeförbud).
Professional secrecy in this regard is a prohibition for anyone who has participated in a court hearing to tell others what was disclosed during the hearing. Professional secrecy during hearings is rare and only introduced in certain cases where it may be particularly important that information presented during a hearing does not become generally known, perhaps in consideration of securing evidence or with regards to the protection of sensitive personal information.
As a general rule, the preliminary investigation is not publicly disclosed until the prosecutor has decided to press charges. Thus, as charges were brought, parts of the preliminary investigation were made public. However, some parts of the preliminary investigation were still covered by confidentiality and some parts of the trials were furthermore held behind closed doors. The secrecy in the judgment and during the trial mainly concerned photographs of the victim.
5. Media coverage
5.1 Systematic and individual errors
The media mainly criticized errors in the current regulation regarding the termination of compulsory care as well as potential errors committed by the Court of Appeal.
In an article by SVT (Swedish public television), it is written that “The Court of Appeal and the child’s own lawyer considered that the three-year-old girl, who was placed in a family home, was not exposed to any risk by moving home to her biological parents. Today she is dead” (Kammarrätten och barnets egen advokat ansåg att den treåriga flickan, som var familjehemsplacerad, inte löpte någon risk av att flytta hem till sina biologiska föräldrar. I dag är hon död). In another report, in the newspaper Expressen, it is reported that “The Social Welfare Board has tried to protect the girl through the means of compulsory care and placement in a family home, but after the Court of Appeal’s ruling, the girl was allowed to move home to her mother. The case raises questions of whether the courts really take the ”best interests of the child´ into account”(Socialnämnden har försökt skydda flickan med ett tvångsomhändertagande och familjehemsplacering men efter kammarrättens dom fick flickan flytta hem till mamman. Fallet väcker frågor om domstolarna verkligen tar hänsyn till ”barnets bästa”). A report in the newspaper DN with the headline “She did not get to turn four” (Hon fick inte fylla fyra) was the most viral article in connection to the case. In this article, the current regime is criticized in connection to a long and gripping report about the girl’s time in the family home and the subsequent separation from the host family.
5.2 The biological parents
As stated above, media coverage of the tragedy mainly referred to the alleged shortcomings in the regulation regarding the cessation of compulsory care. In this context, the suspects have been consequently highlighted as examples of incapacitated parents.
In the article in the newspaper Dagens Nyheter, which became one of the most viral reports about the incident, the biological parents were described in the following way:
“Dad: impulsive, anxiety attacks, cognitive impairment. Addiction to benzodiazepines. He seems close to a hatred of authorities. Since 2000, he appears in several sections in the indictment register: a number of drug crimes, threats against an official, violent resistance, illegal threats, violations of the knife law” (Pappan: impulsiv, ångestattacker, kognitiv nedsättning. Beroende av bensodiazepiner. Han tycks nära ett hat mot myndigheter. Sedan år 2000 förekommer han i flera avsnitt i belastningsregistret: En rad narkotikabrott, hot mot tjänsteman, våldsamt motstånd, olaga hot, brott mot knivlagen).
“The mother: severe depression and anxiety, taking sedative medications. She’s defending the father” (Mamman: svår depression och ångest, äter dämpande mediciner. Hon försvarar pappan).
In other newspapers, such as Expressen, the mother’s lifestyle was described in a more detailed manner. For example, an article was published in which the mother’s drug purchases are mapped.
In another article published in Expressen, parts of the personal investigation, which the court requested from the prison service, were published. In the article, the following is disclosed: “The Little Heart’s’ mother, 40, grew up in Jehovah’s Witnesses – later on, she left the strictly religious home (…) The investigation reveals substance abuse, mental illness, pro-criminal attitudes and the feeling of exclusion from society. NN describes that, at the time of the incident in the current indictment, she was under the influence of drugs and therefore does not fully remember the incident” (“Lilla hjärtats” mamma, 40, växte upp inom Jehovas vittnen – senare lämnade hon det strikt religiösa hemmet (…) Av utredningen framkommer en missbruksproblematik, psykisk ohälsa, prokriminella attityder och känslan av ett utanförskap från samhället. NN beskriver att hon vid händelsen i aktuellt åtal var påverkad av narkotika och därför inte till fullo minns händelsen).
The case, which provoked strong reactions from the public, furthermore gave rise to the establishment of new children rights organizations. One of these organizations is called “Brinn för Barnen”. This organization published a long and in-depth article in which both biological parents are described in a detailed manner. Below are two excerpts from the article published by the association.
“[The girls] biological mother will in the text be referred to as BM. She grew up in Jehovah’s Witnesses and moved away from her family early. BM states that [she and her family] have remained in contact, but that the contact is not fully unproblematic … In 2006 she gave birth to a son for which she is solely responsible and in 2010 the family is brought to the social services for the first time. BM has a history of suicide attempts and severe anxiety issues for which she medicates with benzodiazepines.” (Esmeraldas biologiska mamma kommer i texten att benämnas som BM. Hon är uppväxt inom Jehovas vittnen och flyttar från familjen tidigt. BM uppger att de har kontakt men inte en helt oproblematisk sådan… 2006 föder hon en son som hon är ensam ansvarig för och 2010 aktualiseras familjen hos socialtjänsten för första gången. BM har en historia som innefattar suicidförsök och en svår ångestproblematik som hon medicinerar med bensodiazepiner).
“[The girl’s] biological father grew up in a family where there is alcohol abuse. The father in the family works at sea and is absent for long periods. The mother’s alcohol abuse is so serious that she later develops an alcohol dementia. BP states that since childhood he has had difficulties controlling his mood and he experiences great difficulties concentrating. He talks about a constant feeling of not fitting in and experiencing himself as different (…) BP develops an addiction and gets involved in serous criminality early. He is convicted of, among other things, violent resistance, drug crimes, violent crimes and serious gun crimes. He suffers from a severe anxiety and in his medical records there are questions at issue regarding both emotional disorders and personality disorders.” (Esmeraldas biologiska pappa är uppväxt i en familj där det förekommer alkoholmissbruk. Pappan i familjen arbetar till sjöss och är frånvarande långa perioder. Mammas alkoholmissbruk är så pass allvarligt att hon senare utvecklar en alkoholdemens. BP uppger att han sedan barndomen haft svårt med att kontrollera sitt humör och han upplever stora problem med att koncentrera sig. Han berättar om en ständig känsla av att inte passa in och att uppleva sig själv som annorlunda (…) BP utbildar sig till kock och är periodvis yrkesverksam inom restaurangbranschen. BP utvecklar tidigt ett missbruk och en grov kriminalitet. Han döms bland annat för våldsamt motstånd, narkotikabrott, våldsbrott och grovt vapenbrott. Han lider av en svår ångestproblematik och i hans journaler finns frågeställningar om både emotionella störningar samt personlighetsstörningar. När han träffar BM är han sedan en tidigare relation pappa till tre barn. Umgänget med barnen fungerar mycket dålig).
6. Impact on the suspect or accused person and on the general public
The case gave rise to widespread public reactions as well as outrage regarding the current regulation. This, in turn, led to political reactions, where both the government and opposition parties raised the issue of the need for legislative change in order to prioritize the rights of the child rather than the rights of the parents. In April 2020, the government appointed the inquiry called “Lex Little Heart” which aimed to review how the principle of the best interests of the child can be strengthened in connection to an eventual cessation of compulsory care. The inquiry recently presented proposals for changes to the current legislation.
In addition to this, the case has given rise to the establishment of several non-profit children’s rights organizations. Among others, the organization mentioned above called “Brinn för Barnen “, but also the association “Lilla Hjärtat”, governed by the girl’s former foster parents.
The association Brinn för Barnen organized a demonstration on the 4th October 2020 to honor the girl and other children who may have been harmed as a result of the current legislation. On June 3, 2021 the organization furthermore organized a digital manifestation with the purpose of drawing attention to the recently presented proposals for changes to the law, which Brinn för Barnen thinks are too weak. Via their YouTube channel, speeches were given by lawyers, writers, social workers, journalists and the girls both foster parents. There was also a video published from when a representant from Brinn för Barnen handed over a letter as well as a petition with approximately 220,000 signatures to the Swedish Minister of Social Affairs.
Sources
Förvaltningsrätten i Linköpings, Dom mål nr 7708–18.
Kammarrätten dom 2018-05-17, Dom mål nr 7708–18.
C.f. Jareborg, Nils, Straffrättens gärningslära, Fritzes Förlag, Stockholm, 1995 [cit. Jareborg (1995), p. 132; Asp, Petter, Jareborg, Nils & Ulväng, Magnus, Kriminalrättens grunder, Iustus Förlag, Uppsala, 2013 [cit. Asp m.fl. (2013) p. 113; Strahl, Ivar, Allmän straffrätt i vad brotten angår, Nordstedts Juridik, Stockholm, 1976, p. 321 f.
Swedish Criminal Code, Chapter 3, Section 1.
Ibid, Chapter 3, Section 2.
Norrköpings tingsrätt, Dom mål nr B 353 20, p 10.
Norrköpings tingsrätt, Dom mål nr B 353 20, Aktibilaga 70, Förundersökningsprotokoll.
SVT (2020), Esmeraldas pappa dog i häktet – polisutredningen läggs ner (03/09).
TV4 (2020), Esmeralda, 3, dog hos sina föräldrar – i dag åtala mamman (15/05).
Norrköpings tingsrätt B 353 20, p 21. ff.
SVT (2020), Även Esmeraldas mamma överklagar tingsrättens fängelsedom, (28/08).
Göta hovrätt Mål nr B 2705-20, p 1. f.
Åklagarmyndigheten (2020).
Aftonbladet (2020), Föräldrar misstänks för vållande till 3-årings död (31/01) .
Åklagarmyndigheten (2020).
Public Access to Information and Secrecy Act, Chapter 18, Section 1.
The Freedom of the Press Act, Chapter 2, Section 3.
Cf. Public Access to Information and Secrecy Act, Chapter 3, Section 1; Swedish Code of Judicial Procedure, Chapter 5, Section 1.
Expressen (2020), FREDRIK SJÖSHULT: Socialens larm innan flickan hittades död (03/02).
[3] DN (2020), Hon fick inte fylla fyra (08/03).
Expressen (2020), FREDRIK SJÖSHULT: Socialens larm innan flickan hittades död (03/02).
Expressen (2020) ”Lilla hjärtats” mamma vägrar vård för missbruket (27/7).
Brinn för Barnen (2021), Esmeralda – flickan som samhället svek (23/05).
Brinn för Barnen (2021), Esmeralda – flickan som samhället svek (23/05).
Regeringen (2021).
See more at Lilla Hjärtat website.
See more at Brinn för Barnen.
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