Information Note on the Court’s case-law 259
February 2022
Q and R v. Slovenia - 19938/20
Judgment 8.2.2022 [Section II]
Article 6
Civil proceedings
Article 6-1
Reasonable time
Unreasonable length of proceedings, lasting six years and ongoing, for grandparent requesting foster care of grandchildren without parental care, not justified by Covid-19 related measures: violation
Article 8
Article 8-1
Respect for family life
Court’s refusal to hear young children without parental care represented by social services, and not by special guardian, in foster care proceedings brought by applicant grandparents: no violation
Facts – The applicants are grandparents of two children who were left without parental care. The applicants’ daughter was killed by her husband and the applicants’ grandchildren (then 3 and 5 years of age) came to stay with the applicant grandparents. After a few months, social services placed them in a foster family in another region. The first applicant requested a foster care permission with respect to her grandchildren.
Law – Article 6 § 1: The first applicant complained of the length of the foster care permission proceedings, which had so far lasted almost six years and were currently pending at first instance following the remittal of the case by the Constitutional Court.
Regarding the complexity of the case, while the domestic courts had had to resort to expert opinions in order to determine the applicant’s ability to act as a foster carer of her grandchildren and to identify the best interests of the latter in the sensitive circumstances of the case, that fact alone could neither explain nor justify that, after almost six years, the proceedings were still pending before the first-instance court.
Apart from certain periods of inactivity, the main reasons for the length of the proceedings related to the preparation of the expert reports, the remittal of the case following the first applicant’s constitutional complaint and the measures related to the Covid-19 pandemic:
Regarding the first two issues, it was for Contracting States to organise their judicial system in such a way that their courts were able to guarantee everyone the right to obtain a final decision on disputes concerning civil rights and obligations within a reasonable time. That applied to both the failure of the first instance court to appoint a special guardian and examine an expert, which had resulted in a remittal of the case, as well as the difficulties which had arisen due to the inadequate provision of experts or their excessive workload, which had resulted in significant delays. The Court furthermore noted that the appointed experts had been acting in the context of judicial proceedings supervised by the judge; the latter had remained responsible for the preparation of the case and for the speedy conduct of the trial.
On the other hand, the restrictions necessitated by the Covid-19 crisis could have understandably had an adverse effect on the processing of cases before the domestic courts. However, in the present case that could not absolve the State from its responsibility for the lengthy proceedings. In particular, the case would have been dealt with during the periods of Covid-19 related restrictions had it been classified as urgent. In view of the limited nature of contact between the first applicant and her grandchildren, the importance of what had been at stake for the first applicant (namely, her wish to look after her grandchildren following her daughter’s death) had called for special diligence on the part of the authorities, especially taking into account the first applicant’s argument concerning the effect of the passage of time on her relationship with the grandchildren.
The Court considered that the first applicant’s own conduct had not delayed the proceedings to any significant degree. Moreover, given the main reasons behind the delays and the dismissal of the first applicant’s acceleratory remedies, the Court was not convinced that, by availing herself of those remedies at an earlier stage of the proceedings, she could have influenced their course in any significant way.
Overall, the present case, even assuming that it had been of a certain complexity, had not been heard within a reasonable time.
Conclusion: violation (unanimously).
Article 8: The applicants also complained, on the one hand, about the domestic courts’ refusal to examine one of the experts, and, on the other hand, of the courts’ failure to hear the views of the grandchildren and appoint a special guardian to represent their interests.
As regards the first complaint, the first-instance court had read the relevant expert’s opinion, but had refused to examine him at the hearing because of, inter alia, his limited field of expertise. Two experts had been appointed when the contact between the applicants and their grandchildren had initially been determined and a new expert report had been prepared by the appointed child psychiatrist following the applicants’ request for extended contact. The applicants had been able to respond to her opinion in writing and orally at the hearing at which she had been examined. The first and second instance courts had explained why the relevant expert had not been examined and their reasons had been found to be adequate by the Constitutional Court. Having regard to the foregoing, and the fact that the first applicant had later objected to the relevant expert’s report, the Court did not find the domestic courts’ refusal to examine the expert unreasonable.
As regards the second complaint, the grandchildren had not been heard by the domestic court because the court-appointed child psychiatrist had considered that, at that time, they had not been capable of forming their view on the matter (at the time they had been eight and five years old respectively). The domestic court, in reaching its decision on contact, had relied largely on the report prepared by the aforementioned expert, who had examined the children. There was no reason to call into question the domestic court’s decision not to hear the children directly. In so far as the applicants had complained about the fact that the children’s interests had been represented by the Social Work Centre and not by a special guardian, the grandchildren were not applicants in the present case. Further, no arguments had been put forward demonstrating that the alleged flaw of representation could have affected the applicants’ position in those proceedings.
Conclusion: no violation (unanimously).
Article 41: EUR 3,000 to the first applicant in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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