CASE OF V. v. SLOVENIA
No violation of Art. 8
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. The applicants appealed against the care order. On 13 August 2004 the Ministry dismissed their appeal, by which the order became enforceable. 14. The applicants challenged this decision in a claim before the Administrative Court. On 5 July 2005 the court issued a judgment rejecting their claim. 15. 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. 17. 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). 18. 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. 19. 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. 20. On 13 October 2006 a hearing was held before the Maribor Authority, at which the applicants were present. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. On 18 December 2009 the applicants challenged this decision before the Administrative Court. 31. 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. 32. During the proceedings the applicants five times requested access to the Maribor Authority’s file, which was granted. 33. 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. 34. 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. 35. 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. 36. 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). 37. 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). 38. 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. 39. 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. 40. 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. 41. 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. 42. 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. 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. 44. 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. ...” 45. 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. ...” 46. 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: “(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.” (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. ...” “Following the placement of a child in foster care, the welfare authority must strive to eliminate the reasons which led to the removal.” 47. 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; ...” 49. 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. 50. 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. 51. 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. 52. 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 ...” 53. 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.