X v. SLOVENIA
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mr X, is a Slovenian national, who was born in 1962 and lives in Sp. Duplek. The chamber decided that the applicant’s, the children’s and their mother’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of the Court). 2. 3. The applicant is the father of two children, Y, born in 2000, and Z, born in 2002. He was married to their mother, M, but they separated on an unknown date. 4. On 3 September 2003, after a physical conflict between the applicant and M, not for the first time, the children were taken away from them by the Maribor Welfare Authority. 5. According to the judgment in the case of X v. Slovenia (no. 40245/10, 28 June 2012) which concerned the applicant’s complaint about the length of the custody proceedings the facts appear as set out below. 6. On 4 September 2003 the children were placed in the care of a foster family by an interim care order. 7. On 11 February 2005 an ordinary care order was issued by which the children were removed from their parents indefinitely. 8. Between 2003 and 2005 the applicant did not have any contact with his children, and he repeatedly requested the Maribor Welfare Authority to return the children and to allow him to have contact with them. 9. On 17 October 2005 the Ministry of Labour, Family and Social affairs (“the Ministry”) allowed the applicant and M contact with the children once a month. 10. For the first two years the contact was successful, but later became stressful as the applicant and M became impatient and were in conflict during the meetings. In December 2007 the Welfare Authority concluded that continuing contact would not be in the children’s best interest. 11. In October 2008 the applicant confirmed that he did not want to have contact with the children under the arrangement set out in the Ministry’s decision of 17 October 2005. 12. By an interim court order of 19 July 2011 the applicant was again forbidden to have contact with the children. On the basis of expert opinions, the Maribor District Court found that the contact did not have a positive effect on the relationship between the applicant and the children, and that there was no real prospect of the situation improving to such an extent that the children could be returned to the applicant. 13. On an unknown date the applicant lodged an appeal with the Maribor District Court against the interim order prohibiting him from having contact with the children. 14. On 5 June 2012 the Maribor District Court dismissed this appeal. The domestic courts found that contact would not be in the children’s best interests, basing their decision on expert reports as explained in paragraphs 28 and 29 below. 15. The applicant did not lodge an appeal with the Higher Court in connection with the interim order. 16. In parallel with the above, on 9 February 2005 the Maribor Welfare Authority instituted proceedings before the Maribor District Court seeking the withdrawal of the parental rights of the applicant and M in respect of Y and Z. 17. The Maribor District Court ruled in 2005, deciding that the applicant and M should be divested of their parental rights. 18. In 2006, on appeal, the Maribor Higher Court quashed the decision and remitted the case for re-examination, with an instruction that the court should examine further evidence. 19. In 2010 the Maribor District Court found that the withdrawal of parental rights was the only appropriate measure. 20. On appeal, the Maribor Higher Court again quashed the decision and remitted the case for re-examination, finding that the expert opinions on which the decision was based were outdated. 21. On 5 June 2012 the Maribor District Court again decided to withdraw the parental rights of the applicant and M. It found that in 2003 the children, Y and Z, were hospitalised three times; they were neglected and dirty and had haematomas on their bodies. Police intervened several times in the applicant’s and M’s home due to verbal and physical conflicts. Among other things, M tried to burn down their house; she physically attacked the applicant several times; the applicant also beat her and physically punished the children; neither parent took proper care of the children. 22. As regards the children, a court-appointed expert found that they were emotionally attached to their foster parents; they felt safe and well in their home and were determined to stay with them. The children did not ask about the applicant during their stay with the foster parents. They were afraid of him and of being sent back to him; that uncertainty caused them emotional distress and anxiety. They showed fear of losing the safety and stability offered by the foster parents. They also expressed the wish not to have contact with the applicant, as when they met he was rude and constantly complained and spoke badly of the foster parents. They were rejecting the applicant and felt angry and disappointed at him. 23. As regards the applicant, the Maribor District Court found that he verbally attacked the professionals of Maribor Welfare Authority working on the case, and said he did not want to cooperate with them or with the foster parents. The applicant attended contact visits when it was convenient for him, and because of problems in his personal life contact often did not take place for long periods. He declined to have contact in accordance with the decision of the Ministry, and wanted to make his own arrangements. The applicant also despised the children for their positive attitude towards the foster parents. His personality and personal circumstances meant that he was unable to take on parental responsibilities to the benefit of the children. He was not able to see the children’s needs or to prioritise them, as his needs, sorrow, anger and disappointment prevailed. 24. The Maribor District Court concluded that, as the applicant was not capable of fulfilling his parental responsibilities to the children’s benefit, the withdrawal of custody was the most suitable measure at the time to protect the rights and interest of the children and provide them with an appropriate environment for their physical and emotional development. 25. On 4 October 2012 the Maribor Higher Court dismissed the applicant’s appeal and upheld the decision of 5 June 2012. 26. On 14 February 2013 the Supreme State Prosecutor’s Office lodged a request for the protection of legality, stating that the interests of the children were already satisfied when the children were taken from their parents and placed with a foster family, and thus there was no need for the withdrawal of parental rights. 27. On 11 July 2013 the Supreme Court dismissed the request for the protection of legality. 28. As regards the applicant, the Supreme Court found that, according to a court-appointed expert, he was hurt by the separation from his children. However, he was clearly unable to understand the reality of the situation, because of his egocentric way of thinking and his feeling that he was in conflict with the foster parents and the children. The applicant would need to show that he was willing to change his attitude as regards cooperation with the foster family and Welfare Authority. He would also need to show that he understood the need to fulfil the children’s needs and wishes, that contact with them could be rebuilt only gradually, and that he needed to adapt to that situation. However, the expert considered that the applicant was not capable of making these changes. 29. The Supreme Court observed that having been with them for nine years the children had become attached to the foster parents and were afraid of being taken away from them. It concluded that when, as in such a case, there is no real possibility that children could be returned to their parents, it is in the children’s best interests to make their relationship with the foster parents a permanent and stable one. 30. On 29 October 2013 the Constitutional Court refused to accept the applicant’s complaint for consideration. 31. On 3 September 2003 the applicant was fined by the police. The applicant did not submit any further details in this regard. 32. The relevant provisions of the Slovenian Constitution read as follows: “... The state shall protect the family, motherhood, fatherhood, children and young people, and shall create the necessary conditions for such protection.” “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 ...” 33. The following provision of the Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih, (old) Official Gazette of the Socialist Republic of Slovenia no. 15/1976, with amendments) is relevant to the present case: “(1) A parent who abuses parental rights or abandons his child, or has clearly demonstrated by his behaviour that he is not taking care of the child, or seriously neglects his duties in that respect, should be deprived of parental rights by a court decision. (2) Parental rights may be restored to a parent by a court decision if the reasons for its withdrawal no longer exist, unless the child has been adopted. (3) The above matters should be decided by the courts in non-contentious proceedings.” 34. The relevant provision of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 45/08) in so far as relevant, reads as follows: “(1) During the proceedings in ... disputes arising from relationships between parents and children a court may issue, of a party’s or of its own motion, an interim measure for ... the prohibition of the contact visits or for their restriction...