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FIFTH
SECTION
CASE OF V. v. SLOVENIA
(Application
no. 26971/07)
JUDGMENT
STRASBOURG
1 December
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of V. v.
Slovenia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Ann
Power-Forde,
Ganna Yudkivska,
Angelika
Nußberger, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26971/07) against the Republic
of Slovenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Slovenian nationals, Ms D.V. and Mr J.V.
(“the applicants”), on 19 June 2007. The President of the
Chamber granted anonymity to the applicants of his own motion under
Rule 47 § 3 of the Rules of Court.
- The
applicants were represented by Odvetniška DruZba Čeferin,
a law firm practising in Grosuplje. The Slovenian Government (“the
Government”) were represented by their Agent, Mrs T. Mihelič
Zitko, State Attorney.
- The
applicants alleged, in particular, that their right to respect for
family life has been violated because of the removal of X and Y and
restrictions on their contact rights.
- On
8 July 2010 the President of the Third Section decided to give notice
of the application to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1) and to give priority to the application
under Rule 41 of the Rules of the Court. The Court subsequently
changed the composition of its Sections (Rule 25 § 1 of the
Rules of Court) and the present case has been assigned to the newly
composed Fifth Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
- The first applicant has four children from previous
relationships; one of them is a girl, X, born in October 1995, whose
biological father’s identity remains unconfirmed. The other
three daughters are grown up. They have never lived with the
applicants.
- The
applicants have been in a relationship since 1999 and were married in
May 2004. In December 2001 twins, a girl W and a boy Y, were born to
the applicants. On 5 May 2003, W died in suspicious circumstances.
The autopsy report showed that she had several bone fractures and had
sustained severe injuries to her internal organs. On 28 September
2009, the first applicant was found guilty of continuously causing
severe bodily harm to W and of negligent
manslaughter of W. She was sentenced to eight years and six
months in prison. The second applicant was found guilty of negligent
manslaughter of W and was sentenced to three years in prison.
The Higher Court confirmed the verdict and the proceedings are
currently pending before the Supreme Court following the request for
protection of legality (extraordinary remedy) lodged by the
applicants. The first applicant started serving her sentence on 8
October 2010. The second applicant has a serious heart condition and
his prison sentence has been temporarily suspended.
B. The taking of the applicants’ children and the
care orders
- On
14 May 2003, following W’s death, a social worker from the
Maribor Welfare Authority (hereinafter referred to as “the
Maribor Authority”) called the applicants and asked them to
bring X and Y, who both lived with the applicants, to the paediatric
hospital for examination. The children stayed in the hospital until 2
June 2003. In the meantime, it was established that X was traumatised
by the death of W and that Y had delayed psychophysical development.
Measures were taken by the social workers to find a suitable foster
family that would receive X and Y.
- Following several meetings with the applicants and in
view of psychological reports prepared during X’s and Y’s
hospitalisation, the Maribor Authority, on 2 June 2003, issued an
emergency care order removing Y, then two years old, from the
applicants and X, then seven years old, from the first applicant, and
placing them in foster care. In the emergency care order, the Maribor
Authority referred to suspicious circumstances of W’s death and
found that there were indications of possible domestic violence and
neglect. It also noted that the applicants had not been critical of
their situation and that X and Y would have been at risk if left at
home. The order stated that contact between the applicants and Y as
well as between the first applicant and X be allowed for one hour
every two weeks under supervision, beginning on 25 June 2003.
- On
3 June 2003, presumably before the children were taken to the foster
home, the Maribor Administrative Unit issued a decision allowing the
enforcement of the Maribor Authority’s emergency care order.
The applicants were verbally informed of the order on the same day.
They received it in writing on 4 June 2003.
- On 17 June 2003 the applicants appealed against the
emergency care order stating, inter alia, that a medical
examination had not shown any signs of maltreatment, that no measures
had previously been taken against them by the Maribor Authority and
that they had taken proper care of X and Y. They also submitted that
three of the first applicant’s children had been successful in
school and were now already grown up, and also that X had no learning
difficulties. Their appeal was dismissed by the
Ministry for Labour, Family and Social Affairs (hereinafter
referred to as “the Ministry”) on 20 October 2003.
- The applicants challenged that decision before the
Administrative Court. The latter, relying on the Maribor Authority’s
findings, rejected their claim on 16 March 2004. It found that the
procedure had been conducted properly.
- In the meantime, the Maribor Authority established an
internal expert panel consisting of three employees, namely a
sociologist, a lawyer and a social worker (hereinafter referred to as
“the Maribor panel”). It also obtained a psychological
report concerning X and Y. After each contact between the applicants
and the children took place, a record was made by the social workers.
The applicants were offered counselling, which they refused. On 4
December 2003 a hearing was held before the Maribor Authority, at
which the applicants were present. On 18 December 2003 the Maribor
Authority issued an ordinary care order, by which Y was removed from
the applicants, X was removed from the first applicant, and both were
placed in foster care. At the same time, the Maribor Authority set
out contact arrangements, stating that the applicants could see Y and
the first applicant could see X under the Maribor Authority’s
supervision for one hour every two weeks. It found that the children
were living under psychological pressure and were neglected, in that
they did not have a proper behaviour model at home. Y needed more
support to catch up in his development and X needed therapy due to
being under severe psychological pressure. Her psychological needs
were entirely ignored by her mother, who was extremely egocentric.
The applicants were advised to undergo parenting counselling.
- The
applicants appealed against the care order. On 13 August 2004 the
Ministry dismissed their appeal, by which the order became
enforceable.
- The
applicants challenged this decision in a claim before the
Administrative Court. On 5 July 2005 the court issued a judgment
rejecting their claim.
- On
a further appeal the Supreme Court, on 16 November 2005, quashed the
Administrative Court’s judgment and ordered a re-examination of
the case in so far as the removal of the children and their placement
into foster care were concerned. They found that a removal order
could only be issued if supported by a report from an independent
expert. In the instant case, however, the psychologist who had drawn
up the report was an employee of the Maribor Authority.
16. Subsequently, the Administrative Court again considered the
case and quashed the Ministry’s decision on 17 January 2006. It
ordered that an independent expert be appointed and that the
applicants’ ability to ensure the normal mental and physical
development of X and Y, which was crucial for the care order, be
further assessed. On 9 March 2006 the Ministry ordered the Maribor
Authority to re-examine the case.
- On 23 March 2006, following the quashing of the
ordinary care order by the Ministry, the Maribor Authority issued a
new emergency care order, by which the children were to remain in the
foster home. In the written grounds, it stated that the reason for
re-examination of the matter concerning the ordinary care order was
the fact that no independent expert had been appointed and that the
higher courts had given no indication that the children should be
returned to their parents. In addition, the Maribor Authority
referred to the fact that an indictment had been lodged against the
applicants, alleging that they had caused the death of W by
negligence, which would have in itself been a sufficient reason for
taking their remaining minor children into public care. The order did
not set out any new contact arrangements, as this issue was pending
before the Maribor District Court (see paragraph 43
below).
- The applicants appealed against the emergency removal,
on the grounds that it was unjustified. The appeal was rejected by
the Ministry, which found that there were sufficient grounds for
emergency placement of the children in foster care. On 23 August 2006
the applicants lodged a claim with the Administrative Court, which
was rejected on 13 March 2007, as the court agreed that the facts as
established by the Maribor Authority and its panel were sufficient to
justify the emergency placement of the children in foster care
pending the outcome of the proceedings concerning the ordinary care
order.
- In the meantime, on 14 April 2006, the Maribor
Authority appointed a forensic expert in psychology to draw up a
report on the applicants’ capacity for parenting. He submitted
his report on 10 September 2006. On the basis of the examination of
the applicants, Y and X, the first applicant’s other daughters,
the social workers and neighbours, and having regard to the
circumstances surrounding W’s death, the expert found that Y’s
and X’s psychophysical development would be at a serious risk
if they stayed with the applicants, who were unable to satisfy their
basic needs. It found that the second applicant was passive and as
such unable to take an active role in the family, and that the first
applicant had developed an “emotionally unstable personality
disorder with querulous and socially inadaptable behaviour”. He
also found that the contact should certainly not be extended and that
the applicants should be given clear limits as regards their contact
with Y and X.
- On
13 October 2006 a hearing was held before the Maribor Authority, at
which the applicants were present.
- On
11 January 2007 the Ministry allowed the applicants’ request
for a change of venue. The case concerning the care order was
consequently allocated to the Ptuj Welfare Authority (hereinafter
referred to as the “Ptuj Authority”), which appointed
their internal expert panel (hereinafter referred to as the “Ptuj
panel”) on 25 April 2007. After the change of venue, the
Maribor Authority regularly reported to the Ptuj Authority on the
contact between the applicants and the children.
- On
20 June 2007, on the basis of the reports collected so far, the Ptuj
panel issued an opinion that the applicants were unfit parents. It
also noted that the children could potentially be returned to their
parents if the latter underwent appropriate therapy.
- A
hearing was held on 19 July 2007 before the Ptuj Authority, which
allowed the evidence proposed by the applicants - an opinion of
another independent expert, reports from the primary school, an
interview with X -and ordered a home visit to be carried out. An
interview was also held with the applicants, foster parents and a
social worker with responsibility in the case.
- The
expert in psychology requested by the applicants was appointed on 20
July 2007. She was asked to assess the applicants’ capacity for
parenting, whether the return of the children would be in the
latter’s interest, and what the children’s wishes were.
On 26 July 2007 additional questions proposed by the applicants were
forwarded to the expert for reply. Subsequently, a forensic expert in
psychiatry was also requested to prepare a report.
- On 14 December 2007 the expert in psychology submitted
her report. She concluded that the applicants were unable to take
proper care of X and Y, and that it was in the children’s
interest to stay with the foster family. She also noted that contact
should continue to be supervised and should not be extended.
According to the opinion of the psychiatrist, both applicants had a
personality disorder although the first applicant’s disorder
was particularly severe. The report suggested that the normal
development of the children was likely to be jeopardised if they
returned to their primary family.
- On 3 January 2008 the Ptuj panel, on the basis of the
new expert reports, issued another report proposing that a care order
be issued and that the children remain in foster care. The Ptuj panel
also took into account the social workers’ reports drawn up
after each contact between the applicants and the children, and noted
that the applicants had not improved their behaviour towards the
children, despite being constantly provided with advice in this
respect.
- On
12 March 2008 a hearing was held before the Ptuj Authority at which
the applicants, who contested the experts’ reports and the
report by the Ptuj panel, were also present.
- On 19 May 2008 the Ptuj Authority, having regard to
the evidence obtained in the proceedings, delivered a care order by
which it decided that Y and X should be taken from the first
applicant and Y should also be taken from the second applicant. Both
should remain in foster care. It proposed that the parents undergo
appropriate therapy, after which their parenting ability would be
examined again.
- The
applicants lodged an appeal with the Ministry, which was dismissed.
At that point the second ordinary care order become enforceable and
replaced the emergency order of 23 March 2006.
- On
18 December 2009 the applicants challenged this decision before the
Administrative Court.
- On 5 July 2010 the Administrative Court delivered a
judgment rejecting the applicants’ claim. The court, having
regard to the evidence collected in the administrative proceedings,
concurred with the findings of the administrative authorities and
rejected the applicants’ claim. The applicants did not appeal.
- During
the proceedings the applicants five times requested access to the
Maribor Authority’s file, which was granted.
C. The applicants’ request for the return of the
children
- On
19 September 2005 the applicants requested the Maribor Authority to
initiate proceedings for the return of the children. They stated that
no measures had been taken with a view to reuniting the family; in
particular, that a “project group”, including them,
should have been set up and had not been. It should also have
included X and Y and the foster parents and should have aimed to draw
up a schedule for the return of the children, as stipulated in the
domestic law.
- On
1 December 2005 the Maribor Authority dismissed the request as
essentially the same as the issue of the children’s care and
contact, which had already been decided by the decision of 18
December 2003, which was enforceable.
- On
24 July 2006 the Ministry dismissed an appeal by the applicants.
However, on 23 February 2007 the Administrative Court quashed that
decision and ordered a re-examination of the case, finding that the
applicants’ request concerning the implementation of the foster
care and the proceedings concerning the taking of the children were
two separate issues with different legal bases.
- On
8 June 2007 the applicants attended a meeting with the Maribor
Authority, where they were invited to explain their request. On 31
July 2007 the Maribor Authority discontinued the proceedings. The
applicants appealed, stating that the Maribor Authority had conducted
proceedings arbitrarily and it should have invited them formally and
in writing to correct the request if it considered it incomplete. On
15 November 2007 the Ministry set aside the Maribor Authority’s
decision of 31 July 2007, finding that the applicants had never
withdrawn their request and that the Maribor Authority should
therefore have decided on it. However, it stressed that although this
was a separate request it was nevertheless connected to the issue of
the taking of the children and should be decided at the same time.
Consequently, the Ptuj Authority decided the issue in its decision of
19 May 2008, by which the children were to remain in foster care. The
applicants’ appeal and a claim to the Administrative Court was
rejected (see paragraphs 28 to 31
above).
D. Contact arrangements and activities aimed at a
possible reunification of the family
- The Maribor Authority has remained responsible for the
contact arrangements, counselling and monitoring of the children’s
foster care. It set out contact arrangements in its emergency order
of 2 June 2003 and then in its ordinary care order of 18 December
2003. The applicants were allowed to see X and Y under the
Authority’s supervision for one hour every two weeks (see
paragraphs 8 and 12 above).
On 23 December 2003 the applicants requested contact with X and Y
during weekends. This was rejected by the Maribor Authority as in
breach of the valid decision on contact arrangements. On 19 August
2005 the applicants requested that their contact take place out of
doors and to have X and Y at home at weekends. The latter request was
transferred to the Maribor District Court on 28 August 2005 (see
paragraph 43 below).
- After
the children were taken into foster care, reports were regularly
prepared by social workers indicating several problems which occurred
during the visits, in particular due to the first applicants’
abrupt behaviour and the pressure she put on the children as regards
their behaviour towards her, in particular on X, whom she pressured,
among other things, to write requests to return home. The first
applicant was intensively involved in the organisation of the leisure
activities and schooling of X and problems regularly occurred in this
respect as well. On 3 October 2003 the Maribor Authority also decided
that the first applicant should not have telephone conversations with
X, to whom she had given a mobile phone and made frequent calls, as
this was causing X a lot of stress. During the first years after the
children were taken into foster care the applicants often tried to
approach them at the foster parents’ home or at school, for
which reason a restraining order was requested by the Maribor
Authority. In 2005 the Maribor Authority prepared a care plan, which
included steps planned with a view to possible family reunification,
such as assistance in order to improve contact, the applicants’
attendance at special counselling and therapy sessions and attention
to be given to the children’s wishes as well as regular reviews
of the situation with reunification in mind. The plan also noted that
the return would depend on whether the applicants would be sentenced
in the criminal proceedings.
- The Maribor Authority regularly organised thematic
meetings at which social workers discussed the situation regarding X
and Y. The applicants had been regularly (often monthly and
occasionally weekly) invited to discuss issues relating to X and Y as
well as to attend consultations. The reports drawn up during or after
these meetings indicated that the applicants did not have a
constructive attitude and were unwilling to undergo therapy.
- In addition to the above meeting, the “individual
project group” was set up in 2005 and has held meetings since
then. The applicants, foster parents and social workers dealing with
the case were usually invited to these meetings, where they discussed
issues relating to the day-to-day life of the children and the
applicants’ parenting and visiting arrangements.
- The
reports of the meetings between the applicants and the social workers
show that both applicants were involved in contact arrangements and
had the opportunity to express their opinion as regards X and Y. The
reports also indicate that the applicants were normally also able to
have contact with the children on special occasions such as
birthdays, Y’s first communion and the applicants’
marriage ceremony.
- It would appear that during the last two years or so
the contact between the applicants and the children has improved and
is now no longer being supervised. At the meeting of the “individual
project group” held on 24 August 2010, at which the applicants
were present, the following was agreed: contact would take place
every two weeks, namely once on Sunday (from 10 a.m. to 7 p.m., with
the applicants picking up and returning the children) and once on
Wednesday (from 2 p.m. to 6 p.m., with a social worker bringing the
children to the applicants’ home and picking them up at the end
of the visit). According to the information supplied by the
applicants following the first applicant’s incarceration, the
second applicant takes Y and X from the foster family and spends a
day with them every two weeks. The Maribor Authority’s report
of 23 November 2010 also indicates that during each meeting the
second applicant takes Y and X to visit the first applicant in prison
and afterwards spends the rest of the day with them. The latter
report also noted that Y expressed the wish to visit the first
applicant once a month and the second applicant twice a month, and
did not wish to visit the applicants without the presence of X.
Likewise, X stressed in her letter to the first applicant dated 5
January 2011 that she wished to have contact with her no more than
once a month.
E. Contact arrangement proceedings before the court
43. On 28 August 2005 the Maribor Authority forwarded to
the Maribor District Court the applicants’ request of 19 August
2005 for extended contact with X and Y (see paragraph 37
above). The court held two hearings and appointed an expert in
psychology. The court regularly inquired about the progress of the
criminal proceedings against the applicants: the latest inquiry was
made on 18 January 2010. The proceedings appear still to be pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant provisions of the Slovenian Constitution
read as follows:
Article 53
(Marriage and the Family)
“...
The state shall protect the family, motherhood,
fatherhood, children and young people, and shall create the necessary
conditions for such protection.”
Article 53
(Rights and Duties of Parents)
“Parents have the right and duty to maintain,
educate and raise their children. This right and duty may be revoked
or restricted only for such reasons as are provided by law in order
to protect the child’s interests.
...”
- The Constitutional Court Act (Official Gazette no.
64/2007 – official consolidated version) provides in so far as
relevant:
“(1) A constitutional appeal alleging a
violation of human rights or fundamental freedoms may, under the
conditions determined by this Act, be lodged against individual acts
by which state authorities, local authorities, or holders of public
power have decided on rights, obligations, or legal interests of
individuals or legal entities.
...”
- Relevant provisions concerning removal of children and
foster care are included in the Marriage and Family Relations Act (
Official Gazette no. 69/2004 - official consolidated version,
hereinafter referred to as “the Family Act”). They read
as follows:
Section 120
“(1) A welfare authority can remove a
child from his or her parents and place him or her in the care of
foster parents or an institution, if the parents have neglected him
or her or if this is necessary for other reasons for the protection
of the child’s interest.
(2) The removal of the child does not affect
the other rights and responsibilities of the parents.
(3) The welfare authority is responsible for
the monitoring of the implementation of the above measure.”
Section 157
(1) A welfare authority can place a child in
foster care if he or she does not have his or her own family or
cannot live with his or her own family for different reasons or if
his or her physical and psychological development is at risk at home.
...”
Section 161
“Following the placement of a child in foster
care, the welfare authority must strive to eliminate the reasons
which led to the removal.”
- Furthermore, section 88 of the Social Security Act
(Official Gazette no. 3/2007 - official consolidated version)
provides, in so far as relevant, as follows:
“When welfare authorities deal with the
administrative matters concerning rights and interest of children
according to sections 105, 106, 114, 120 and 121 of the Family Act,
they shall, before taking any decision, ... obtain a report from an
internal expert panel (strokovna komisija) and hold a hearing.
The panel referred to in the preceding paragraph is
formed by the expert council of the welfare authority ...”
48. The Administrative Disputes Act (Official Gazette no.
105/2006) provides in its section 83 grounds on which an appeal on
points of law can be lodged with the Supreme Court. The grounds are
provided as alternatives. The relevant text reads as follows:
(1) A judgment of a first-instance court can
be challenged by an appeal on points of law, which shall be lodged
thirty days of the service of the judgment on the party.
(2) The appeal on points of law is admissible
if:
...
2. it concerns an important legal questions
...;
3. it the impugned decision has serious
consequences for the party;
...”
- As regards the contact rights of parents and estranged
children, the old section 106 of the Family Act (in force until 1 May
2004) provided that the parent who did not live with his or her child
had a right to have contact with him or her unless the Welfare
Authority decided otherwise.
- However, the Constitutional Court set aside this
provision in its decision no. U-I-312/00 delivered on 23 April 2003.
This decision was primarily concerned with the contact rights of
parents who did not live together but had never been married, and
therefore the issue of contact arrangements could not have been part
of divorce proceedings before a court. The Constitutional Court found
that the system whereby the welfare authorities decided on contact
arrangements was unconstitutional in that it did not provide for the
same level of protection of the children’s rights to
participate in the proceedings as would have been provided by way of
court proceedings. The Constitutional Court however noted that the
system was not problematic in respect of the protection of the
parents’ rights of participation. Parents were able to be
sufficiently involved in administrative proceedings by having the
right to express their opinion, to request evidence, to comment on
submissions by other participants, to participate in the hearing and
to lodge appeals. Because it was determined that there was
insufficient protection for children’s rights, the
Constitutional Court ordered that new legislation should be adopted
within a year with a view to transferring matters concerning contact
arrangements to courts.
- As a result of the above Constitutional Court’s
decision, an amendment to the Family Act (Official Gazette no.
16/2004) was adopted and entered into force on 1 May 2004. According
to the transitional provision, proceedings instituted before the
entry into force of the amendment were to be completed before the
administrative authorities. However, the requests concerned by the
amendment made to welfare authorities after the above mentioned date
should be automatically transferred to the court.
- Section 106 of the amended Family Act reads, as far as
relevant, as follows:
“(1) A child has a right to have
contact with both parents. Both parents have a right to have contact
with their children. The contact is meant primarily to serve the
child’s interest.
...
(5) The court can withdraw or restrict the
right to contact only if this is necessary for the protection of the
child’s interest. Contact would not be in the child’s
interest if it caused psychological pressure or if it caused risk to
the child’s physical and psychological development. The Court
can decide that the contact should be carried out under the
supervision of a third person or by means other that visits if this
is necessary in order to protect the child’s interests.
...
(7) Before taking a decision under the ...
fifth paragraph of this section, the court must obtain an opinion
from the welfare authority. The court shall consider also the child’s
opinion, if he or she is able to express it himself or herself, or
with the assistance of another person he or she trusts and has chosen
...”
- Moreover, section 106.a was introduced with the
above-mentioned amendment. It provides that the child has a right to
have contact with the extended family members, apart from his or her
parents, if he or she is personally attached to them. These included
the current or previous spouse or partner of one of his parents. The
contact should be agreed between the parents, the child, if he or she
is able to understand the matter, and the persons in question. The
welfare authorities should assist in the matter. If no agreement is
reached, the court shall decide on the issue further to a request
lodged by a child who is fifteen or older, the persons in question or
the welfare authority.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that in her submissions lodged on 31 October 2010, that
is after the communication of the application to the Government, the
first applicant also complained about the length of the court
proceedings concerning contact arrangements. The latter complaint is
not an elaboration of the applicants’ original complaints, on
which the parties had already commented. The Court considers
therefore that it is not appropriate to take this matter up now. It
will be dealt with in a separate case (see Andriy Rudenko
v. Ukraine, no. 35041/05, § 21, 21 December 2010).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained under Article 8 of the Convention that the
domestic authorities had removed X and Y and placed them in foster
care without having a legal basis to do so and without any justified
reason. As regards the lack of a legal basis, the applicants refer to
Constitutional Court decision no. U-I-312/00 (see paragraph 50
above).
- The
applicants further complained that their request for the return of
their children had been entirely ineffective.
- Lastly,
the applicants complained that the contact restrictions were
unjustified and that the welfare authorities were not competent to
impose such restrictions on them.
- Article
8 of the Convention reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
1. The Government objection concerning the second
applicant’s victim status in respect of the removal of and
contact with X
- The
Government argued that the second applicant was not the biological
nor the adoptive father of X. They further maintained that de
facto family ties did not exist between the second applicant and
X. They had lived together no more than three years prior to X’s
removal and the second applicant had in any event not been involved
in her upbringing. They also submitted a recent letter from X, in
which she referred to the second applicant by name.
- The
applicants argued that although formally speaking the second
applicant and X were not in a family relationship, they had lived
together as a family, and the second applicant had taken care of X as
if she was his own child.
- The
Court notes that the second applicant never specified that his
complaint related also to removal of and contact with X, who was not
his natural child. Neither has he pursued any legal avenues available
to him in the domestic system requesting contact on the basis that he
had close ties with X (see paragraph 53 above).
The Court therefore considers that his complaint is solely related to
the removal and contact arrangements with Y. It follows that it is
not necessary to take cognisance of this Government’s
objection.
2. The issue of exhaustion of domestic remedies
(a) Proceedings concerning removal of the
children
- The
Government argued that the applicants had failed to exhaust domestic
remedies in respect of their complaint concerning the care order
proceedings, as they had not appealed to the Supreme Court against
the judgment of 5 July 2010. Had they done that, they could also have
challenged the Supreme Court’s decision before the
Constitutional Court. That the appeal on points of law would be an
effective remedy for the applicants was proven by the fact that the
applicants had previously been successful by using this remedy.
- The
applicants did not provide any comments as to why they did not use
the above-mentioned remedy.
- The
Court notes that it has not been disputed that any decision by the
Administrative Court can be challenged before the Supreme Court. It
further notes that the applicants did not challenge the emergency
orders before the Supreme Court nether did they challenge the
legality of the care order by means of appeal on points of law
against the Administrative Court judgment of 5 July 2010 (see
paragraph 48 above). The same applies to their
request for the return of the children, which, after the Ministry’s
decision of 15 November 2007, was part of the same proceedings.
The Court moreover notes that any decision by the Supreme Court could
further be challenged by means of a constitutional appeal, in which
an appellant can allege a violation of constitutional rights
including those relating to family life (see paragraphs 44
and 45 above). Having regard to the foregoing,
the Court concludes that the applicants failed to exhaust domestic
remedies in respect of their complaint relating to the removal of the
children and placing them in foster care. This part of the
application should thus be rejected for non-exhaustion of domestic
remedies in accordance with Article 35 §§ 1 and 4 of the
Convention.
(b) Proceedings concerning contact
arrangements
- The Government moreover argued that the applicants
should have used civil remedies, namely a request for the termination
or prevention of an infringement of personal rights under section 134
of the Civil Code and a claim for compensation under section 179 of
the Civil Code. They also maintained that lack of jurisprudence
showing how the above-mentioned provisions applied to the alleged
violation of parental rights should not be sufficient for a finding
that the aforementioned remedies were inadequate.
- As
regards the claim under section 134 of the Civil Code, the applicants
argued that the family law as lex specialis applied to the
applicants’ situation, and that the proceedings were
predominantly of an administrative nature. The Government’s
suggestion that the applicants should have used the aforementioned
civil claim had no basis in law. Moreover, a compensation claim under
section 179 of the Civil Code would not have been adequate, as it
could have not led to the return of the children or a change of
contact rights.
- The
Court, like the applicants, finds it difficult to see how the
aforementioned remedies could have been applied in the context of the
applicants’ complaint concerning contact arrangements. However,
even assuming that any of them could in theory have offered adequate
redress, the Government failed to produce any case in which the
courts had ruled on such a complaint. While it is not for the Court
to give a ruling on an issue of domestic law that is as yet
unsettled, the absence of any case-law does indicate the uncertainty
of these remedies in practice (see, mutatis mutandis, Horvat
v. Croatia, no. 51585/99, § 44, ECHR 2001 VIII; Marini
v. Albania, no. 3738/02, § 156, ECHR 2007 XIV
(extracts); and De Jong, Baljet and Van den Brink v. the
Netherlands, 22 May 1984, § 39, Series A no. 77). The Court
therefore concludes that by not making use of the civil remedies
referred to by the Government the applicants did not fail to comply
with the requirement of exhaustion of domestic remedies in respect of
their complaint concerning contact arrangements.
3. Compliance with the six-month time-limit in respect
of the period between 9 March 2006 and 23 March 2006
- The
Government argued that as regards the period between 9 March 2006 and
23 March 2006, in which the taking of the children was not based on
any decision, the applicants have not complied with the six-month
time limit.
- The
applicants disputed this argument and maintained that the alleged
violation was of a continuing nature.
- The
Court observes that in so far as the applicants could be understood
to be complaining of a lack of legal basis for the removal of the
children during the period between the quashing of the first ordinary
care order and the issuing of the second emergency order (see
paragraphs 16 and 17
above) this complaint should have been seen as of an autonomous
nature. If the applicants considered that they had no effective
remedy to challenge the situation during the aforementioned period,
they should have introduced this complaint no later than six months
after 23 March 2006, when the second emergency care order was issued
providing a basis for the continuous placement of the children into
foster care. By lodging their application only on 19 June 2007, the
applicants failed to comply with the six-month requirement set out in
Article 35 § 1. This part of the application should be rejected
under Article 35 § 4 of the Convention.
4. Conclusion
- The
Court finds that the complaints relating to the care orders and
return of the children should be declared inadmissible under Article
35 § 4 of the Convention. As regards the remainder of the
applicants’ Article 8 complaints, which concerns restrictions
imposed on their contact rights, the Court notes that it is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicants argued that the contact with X and Y was excessively
restricted by decisions which were issued by the welfare authorities.
The latter, however, in their view had no competence to decide on the
matter. In this connection, they referred to Constitutional Court
decision no. U I 312/00, and argued that as a result
of this situation X’s and Y’s procedural rights were
breached. Furthermore, they argued that there had been no specific
reasons to restrict their contact with the children.
- The
Government argued that the restrictions on the applicants’
contact rights were based on the findings of relevant experts.
Although the first applicant was shown to be particularly
problematic, the second applicant was unable to function
independently of her. Contact restrictions therefore needed to be
applied to both of them. The Government further maintained that the
authorities were making continuous efforts to improve the
relationship between the applicants and X and Y by providing
counselling to the applicants at special meetings and during the
children’s visits. The applicants were, however, not willing to
undergo therapy or to change their behaviour. It has been only
recently that the relationship between the applicants and the
children has improved, which was mostly due to the fact that the
children had grown up in the meantime. Finally, the Government argued
that the State cannot force parents to undergo therapy, and that this
would in any event be non-productive.
2. The Court’s assessment
- The
Court finds - and this was not contested by the Government - that the
restrictions concerning the first applicant’s contact with X
and Y and the second applicant’s contact with Y amounted to an
interference with the applicants’ right to respect for their
family life.
- For
an interference to be justified according to the second paragraph of
Article 8, it has to be shown to be “in accordance with the
law”, to have an aim or aims that is or are legitimate under
this paragraph and to be “necessary in a democratic society”
for the aforesaid aim or aims.
(a) Whether the interference was “in
accordance with the law”
- As
to whether the measure in question was “in accordance with the
law”, the Court would first point out that its power to review
compliance with domestic law is limited and that it is in the first
place for the national authorities, notably the courts, to interpret
and apply that law (see, for example, Eriksson v. Sweden, 22
June 1989, § 62, Series A no. 156).
- The
Court observes that the contact arrangements were determined by the
Maribor Authority on 18 December 2003. At that time the welfare
authorities had competence to decide on matters such as contact
arrangements (see paragraph 49 above), which
could subsequently be challenged before the Administrative and
Supreme Court. The Court notes that on 1 May 2004 an amendment to the
Family Act entered into force following Constitutional Court decision
no. U-I-312/00 delivered on 23 April 2003 (see paragraph 50
above). According to that amendment, the courts acquired jurisdiction
in matters concerning restriction of parents’ contact with
their children. In line with the aforementioned amendment, the
applicants’ subsequent request of 19 August 2005 was referred
to the court (see paragraphs 51 and 52
above), which has not yet decided on it.
- As
regards the contact arrangements which had later been made before the
Maribor Authority, it appears that these arrangements, which were
favourable to the applicants, were not decided by the authority but
were agreed among the participants, including the parents. There is
nothing to suggest that such agreements could not have been reached
with the participation of the welfare authority, which had remained
responsible for the implantation of the foster care and for the
measures with a view to reuniting the parents and the children (see
paragraph 46 above).
- The
Court therefore concludes that the restriction on the applicants’
contact rights was “in accordance with the law”.
(b) Whether the interference pursued a
legitimate aim
- The
Court finds that the restrictions were imposed with the legitimate
aim of protecting Y’s and X’s interests.
(c) Whether the interference was
“necessary in a democratic society”
- It
has also to be considered whether the measures at issue could be
regarded as “necessary in a democratic society”. The
notion of necessity implies that the interference must be
proportionate to the legitimate aim pursued. In assessing whether the
contact restrictions were a disproportionate interference with the
applicants’ Article 8 rights, the Court must consider whether,
in the light of the case as a whole, the reasons adduced to justify
this measure were relevant and sufficient for the purposes of
paragraph 2 of Article 8 of the Convention (see, among other
authorities, K. and T. v. Finland [GC], no. 25702/94, §
154, ECHR 2001-VII). In carrying out that assessment it must be borne
in mind that the national authorities have the benefit of direct
contact with all the persons concerned, often at the very stage when
care measures are being envisaged or immediately after their
implementation. The Court’s task is not to substitute itself
for the domestic authorities in the exercise of their
responsibilities for the regulation of the public care of children
and the rights of parents whose children have been taken into care,
but rather to review, in the light of the Convention, the decisions
taken by those authorities in the exercise of their powers (see,
among others, Johansen v. Norway, 7 August 1996, § 64,
Reports of Judgments and Decisions 1996 III).
- The Court would also reiterate that, while national
authorities enjoy a wide margin of appreciation in deciding whether a
child should be taken into care, stricter scrutiny is called for as
regards any further limitations, such as restrictions placed by those
authorities on parental contact rights. Such further limitations
entail the danger that the family relations between a young child and
one or both parents would be effectively curtailed (see Elsholz v.
Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII, and
Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002 I).
In this connection, the Court recalls the principles set out in
Neulinger and Shuruk v. Switzerland case in so far as
they are relevant also to the present context (see Neulinger and
Shuruk v. Switzerland [GC], no. 41615/07, §§ 134-6,
6 July 2010 and R. and H. v. the United Kingdom, no.
35348/06, §§ 73-4, 31 May 2011).
In particular, in all decisions concerning children, their best
interests must be paramount. The child’s best interests may
thus, depending on their nature and seriousness, override those of
the parents. The parents’ interests, especially in having
regular contact with their child, nevertheless remain a factor when
balancing the various interests at stake (Neulinger and Shuruk v.
Switzerland, cited above, § 134).
- Turning
to the present case, the Court notes that Y and X were taken into
foster care on 2 June 2003, when the emergency care order was issued.
The latter also set out contact arrangements, which were restricted
to one hour every two weeks under supervision. Such arrangements were
maintained until sometime in 2010. The Court notes that the
restrictions on the contact between the applicants and the children
were based essentially on two grounds. Originally, they related to
the circumstances of the death of W, who was the same age as Y. These
circumstances led to a suspicion of domestic violence and neglect of
W, which was later confirmed by the criminal court finding both
applicants guilty of negligent manslaughter and the first applicant
guilty of causing severe injuries to W. In the face of the
circumstances in which W died, it was only reasonable for the welfare
authority to be concerned about the risk the children could be
exposed to at home and to take precautionary measures to protect X
and Y, which included restricting contact with the applicants.
Secondly, the reports drawn by the experts in psychology and
psychiatry, one of whom was proposed by the applicants, all deemed
the applicants unsuitable as parents and indicated their, in
particular the first applicant’s, negative influence on the
children’s well-being. The experts possessed the required
skills and had been able to make a direct assessment of the
situation: they were, apart from the first one, independent of the
welfare authority. They all advised that the contact should not be
extended beyond the initial arrangement, as this would be to the
detriment of X and Y (see paragraphs 12, 19
and 25). The Court notes that in following the
experts’ proposal the welfare authorities were striving to
safeguard the children’s best interest. It finds that the
reasons relied on in justifying the restriction imposed on the
applicants’ contact rights were relevant and sufficient for the
purposes of paragraph 2 of Article 8 of the Convention
- The
Court further notes that the contact took place regularly, every two
weeks, and that the applicants, who have retained their parental
rights in respect of Y and the first applicant in respect of X, were
continually involved in the children’s life and education.
Meetings between the applicants and the social workers were held
regularly, and it would appear from the reports made in this
connection that the applicants’ wishes concerning the
implementation of contact arrangements were adhered to as much as
possible. The Court also observes that sustained efforts were made on
the part of the authorities to facilitate contact and possible family
reunification, and that the situation was regularly examined to see
whether there had been any improvement in the family situation (see
paragraphs 37 42
above). It would appear that for a number of years the situation had
not improved, in large part due to the applicants’ lack of a
constructive attitude, which had been noted in the aforementioned
reports as well as in the last expert’s opinion from 2007 (see
paragraphs 25, 26 and 39 above). The contact, one hour every two
weeks, nevertheless took place. It would appear that in 2010 the
situation improved, to which the authorities reacted by agreeing to
extending the contact to the whole day without supervision. These
arrangements appear to be agreed to by the applicants and in line
with the wishes of the children, who have opposed more frequent
contact (see paragraph 42 above). Since the
first applicant started serving her prison sentence, the children
continue to spend a day every two weeks with the second applicant and
go with him to visit the first applicant in prison.
- Having
regard to the reasons adduced for the restriction of the applicants’
contact with Y and the first applicant’s contact with X, and to
the steps taken by the authorities with a view of facilitating the
contact and possible reunification, the Court finds that there has
been no violation of Article 8 of the Convention in the present case.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants also complained about the length of the proceedings
concerning the care order. Although they cited Article 13, this part
of the application in substance concerns Article 6 § 1 of the
Convention. Having said that, the Court notes that the applicants had
at their disposal remedies to expedite proceedings as well as to
claim compensation for the alleged undue delay under the relevant
provisions of the Act on Protection of the Right to a Hearing without
Undue Delay. They failed however to avail themselves of these
remedies, and this part of the application must thus be rejected for
non-exhaustion of domestic remedies in accordance with Article 35
§§ 1 and 4 of the Convention (see Eberhard and M. v.
Slovenia, no. 8673/05 and 9733/05, §§ 144-48, 1
December 2009, and Nezirović v. Slovenia
((dec.) no. 16400/06, 25 November 2008).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning restrictions
on the applicants’ contact with Y and the first applicant’s
contact with X admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 1 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
