Q v. SLOVENIA

FOURTH SECTION

DECISION

Application no. 14401/17
Q
against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 10 April 2018 as a Committee composed of:

Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 10 February 2017,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, who was granted anonymity by the Court of its own motion (Rule 47 § 4 of the Rules of Court), is a Slovenian national. She was represented before the Court by Mr V. Cugmas, a lawyer practising in Slovenske Konjice.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Removal of the children from the applicant’s home

3. On 25 December 2015 the applicant’s daughter X and son in law Y left their two children, then aged five years and two years, with the applicant and her partner, who were their grandparents. Two days later, while the children were still with their grandparents, X died and Y was arrested on suspicion of having murdered her. Y has subsequently been detained on remand, pending criminal proceedings against him.

4. At the request of the V. Social Work Centre (hereinafter “the V. Centre”), which had territorial jurisdiction over the children, an officer from the S.G. Social Work Centre (hereinafter “the S.G. Centre”), which had territorial jurisdiction over the applicant, visited the applicant. The S.G. Centre’s officer agreed that the children should continue to stay at the applicant’s home. The applicant was advised to lodge a request for a foster care licence (vloga za pridobitev dovoljenja za izvajanje rejniške dejavnosti, see paragraph 24 below).

5. On 12 January 2016 a third person was appointed as custodian to the applicant’s grandchildren. The custodian did not object to the children`s staying with the applicant. However, no formal decision on the placement of the children with the applicant was issued.

6. On 25 January 2016 the applicant submitted a request for a foster care licence in order to be able to foster her grandchildren.

7. On 17 February 2016 the S.G. Centre issued an assessment of the applicant’s suitability to be a foster parent. It stated that the placement of the children in the applicant’s care would not be in their best interests.

8. On 21 March 2016, after interviewing the applicant and Y, convening the expert group for the protection of children (hereinafter the “expert group”), and obtaining data from different institutions (medical, educational-care and others), the V. Centre issued an order formally removing both children from Y and placing them in foster care, but allowing them to live with their grandparents until commencement of the placement. The V. Centre, referring to the S.G. Centre’s assessment of the applicant’s suitability to be a foster parent (see paragraph 7 above), stated that the applicant and her partner could not provide proper care for the children and that another family should be found. This order was not served on the applicant because she had not been a party to the proceedings. Neither the children’s custodian nor Y lodged an appeal against that decision.

9. At some point before the children were taken into foster care, the applicant was orally informed by the V. Centre that she had been deemed unsuitable to be a foster parent.

10. On 30 March 2016 the V. Centre took the children from their nursery to the chosen foster family. The applicant was only informed of this later by phone. According to information provided during the subsequent administrative proceedings (see paragraphs 11 to 13 below) on 29 March 2016, the expert group expressed the opinion that informing the applicant of the anticipated removal of the children would have posed a risk of media exposure of the children because the applicant had previously informed the media of certain events in her struggle to keep the children.

11. On 8 April 2016 the applicant instituted proceedings before the Administrative Court, alleging that her rights guaranteed by Article 53 of the Constitution (Marriage and Family) and Article 8 of the Convention had been violated because of the removal of her grandchildren. She also requested that the children be returned to her.

12. On 11 May 2016 the Administrative Court issued its judgment without holding a hearing. It found that the applicant’s right to family life had been violated because of the way the V. Centre had enforced the decision of 21 March 2016 (see paragraphs 8 and 10 above), in particular because the V. Centre had not involved the applicant and her partner properly in the process leading to the removal of the children. However, it dismissed the applicant’s claim in so far as it concerned the conduct of the S.G. Centre and her claim for the return of the children. The applicant appealed.

13. On 19 October 2016, after holding a hearing, the Supreme Court partly dismissed the applicant’s appeal (in the part concerning the alleged violation by the S.G. Centre) and partly rejected it (in the part concerning the return of the children). Recognising the existence of the family life enjoyed by the applicant and her grandchildren, the Supreme Court found that the V. Centre should have not removed the children from the applicant until the decision on her application for a foster care licence had been delivered by the competent ministry (see paragraph 16 below). The V. Centre’s removal of the children thus lacked a legal basis. However, as regards the applicant’s claim for the return of the children, the Supreme Court noted that the issue of the placement of the children was to be resolved by the courts in the foster care proceedings in relation to which the decision of 11 April 2016 dismissing the applicant’s application for a foster care licence was being challenged (see paragraphs 16, 17, 21 and 23 below).

14. The applicant lodged a constitutional complaint challenging, in particular, the dismissal of her claim for the return of the children. On 24 January 2017 the Constitutional Court decided not to accept her constitutional complaint for consideration.

2. Proceedings concerning foster care licence

15. As indicated in paragraph 6 above, on 25 January 2016 the applicant submitted an application for a foster care licence in order to be able to foster her grandchildren.

16. On 11 April 2016 the applicant’s application was dismissed by the Ministry for Labour, Family, Social Affairs and Equal Opportunities (hereinafter “the Ministry”). In its decision the Ministry referred to the S.G. Centre’s assessment of the applicant’s suitability to be a foster parent and the V. Centre’s finding that the children needed a secure family environment and that the applicant and her partner were unable to provide for the adequate physical and mental development of the children. It was pointed out that the applicant had not allowed, or had had only very restricted contacts with Y’s relatives, and that in the past she and her partner had been unwilling to care for the children because they had found this to be too exhausting. It was also noted that they had refused to cooperate with the welfare authorities, which would have been essential for the implementation of any foster care plan. Furthermore, the applicant and her partner refused offers of psychological and professional assistance, and, despite having signed a statement that they would not expose the children to the media, they had done so several times.

17. The applicant challenged this decision before the Administrative Court. The latter appointed an expert in clinical psychology, D.T., to examine the applicant, the children and their interaction, as well as the applicant’s partner and daughter who lived in the same household. D.T. was asked to determine whether foster care by the applicant would be in the children’s best interest. He found that while the applicant had been capable of taking care of the children occasionally when they had been entrusted to her by the parents, she was not equipped for the demanding long-term and comprehensive care of the children both of whom suffered from certain cognitive and/or behavioural issues and needed special care. He concluded that foster care by the applicant would therefore not be in the best interest of the children, who had in the meantime integrated well in the foster family. However, he also found that it would be beneficial for the children to maintain emotional ties with the applicant and other relatives and that the applicant and her partner were able to play an active role of the grandparents to the children in question. On 10 January 2018, after holding a hearing in the case, the court dismissed the applicant’s claim, relying largely on the findings of D.T.

18. On 15 February 2018 the applicant appealed to the Supreme Court. According to the latest information available (26 February 2018), on that date the proceedings were still pending.

3. Contact arrangements

19. The applicant and her partner maintained contact with their grandchildren after their placement in foster care. Pursuant to the most recent C. District Court’s decision of 15 June 2017, they are entitled to spend two hours with them every other week. On 12 October 2017 the applicant filed a new proposal for extended contact with her grandchildren. It would appear that these proceedings were, on 26 February 2018, still pending.

20. Contact arrangements between the children and Y and other relatives had also been put in place.

B. Relevant domestic law and practice

21. The relevant parts of the Administrative Disputes Act (Official Gazette no. 105/2006 with amendments) provide, in so far as relevant, as follows:

Section 4

“(1) In an administrative dispute the court shall also determine the legality of individual acts and actions by which the authorities have infringed an individual’s human rights and fundamental freedoms if no other judicial protection is provided.

...”

Section 33

“...

(2) A claim may be filed against a violation of human rights and fundamental freedoms under this Act seeking:

– to annul, issue or amend an individual act,

– to declare that an action infringed a human right or fundamental freedom of the plaintiff,

– to prohibit further action,

– to undo the consequences of an action.”

Section 66

“(1) In the administrative dispute referred to in the first paragraph of section 4 of the Act the court may establish the illegality of an act or action, prohibit the continuation of an individual action, issue a decision on a plaintiff’s request for compensation for damage, and order whatever is necessary to eliminate the infringement of human rights and fundamental freedoms and restore lawfulness.

(2) The court shall issue decisions without delay on putting an end to continued actions and introducing measures aimed at restoring lawfulness if an unlawful action is still ongoing; an appeal is admissible against such a decision within three days. The Supreme Court shall adjudicate on the appeal within 3 (three) days of its receipt.

(3) If the court cannot decide without delay in the case referred to in the preceding paragraph, it may issue an interim order of its own motion in accordance with section 32 of this Act.”

22. Section 75 of the Administrative Dispute Act provides the grounds on which a decision of the administrative court can be challenged before the Supreme Court. The grounds include breach of procedural rules or substantive law and wrong or insufficient establishment of facts. Section 80 further provides that when the Supreme Court holds a hearing and establishes facts differently from the facts as established by the Administrative court, it may amend the first-instance judgment.

23. Pursuant to the Constitutional Court’s decision of 2 April 2009 (no. Up-1618/08), a claim to an Administrative Court on the basis of Section 4 (1) of the Administrative Disputes Act is admissible under the following conditions: (i) it must allege a violation of a human right or fundamental freedom; (ii) there must be a causal link between the violation alleged and the action of the state body; (iii) the result of the action must be unlawful hindrance or limitation of the enjoyment of the human right or fundamental freedom or the prevention of such an enjoyment; (iv) there should be no other judicial protection available; (v) the victim must lodge an action for protection from such unlawful action.

24. Furthermore, the relevant parts of the Act on the Implementation of Foster Care (Official Gazette no. 110/2002 with amendments) provide:

Section 7

“(1) A relative of the child may provide foster care if the Social Work Centre [responsible for the child] establishes that this is in the best interests of the child in the light of all the circumstances of the case.

...”

Section 14

“(1) A relative of the child does not have to apply for a foster care [licence] under the provisions of this act.

(2) The Ministry (responsible for family) may issue a licence to the child’s relative at his or her request ... on the [basis of] the written and reasoned conclusion of the Social Work Centre [responsible for the child] showing that this type of foster care would be in the child’s best interests.

...”

THE LAW

A. As regards the complaint under Article 8 of the Convention

25. The applicant complains under Article 8 of the Convention about the Supreme Court’s decision rejecting her claim to return her grandchildren into her care (see paragraph 13 above). 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.”

26. The applicant argues that the Supreme Court, which found a violation of her and her grandchildren’s right to respect their family life, should have ordered the return of the grandchildren to her.

27. The Court first reiterates that there may be “family life” within the meaning of Article 8 of the Convention shared between grandparents and grandchildren where there are sufficiently close family ties between them. While cohabitation is not a prerequisite, as close relationships created by frequent contact also suffice, relations between a child and the grandparents with whom he or she had lived for a time will normally be considered to fall within that category (see Kruškić v. Croatia (dec.), no. 10140/13, § 108, 25 November 2014).

28. That being so, and given that the domestic courts recognised the existence of family ties between the applicant and her grandchildren (see paragraphs 12 and 13 above), the Court will proceed on the assumption that the relations between them constituted “family life” as protected by Article 8 of the Convention.

29. The Court further reiterates that in normal circumstances the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child. When a parent is denied access to a child taken into public care, this would in most cases constitute an interference with the parent’s right to respect for family life as protected by Article 8 of the Convention, but it would not necessarily be the case where grandparents are concerned. In the latter situation, there may be an interference with the grandparents’ right to respect for their family life only if the public authority reduces access to below what is normal, thus refusing the grandparents the reasonable access necessary to preserve a normal grandparent-grandchild relationship. That is so because respect for family life in such situations implies an obligation for the State to act in a manner calculated to allow the ties between grandparents and their grandchildren to develop normally (see Kruškić, cited above, § 110, and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 221, ECHR 2000‑VIII). Thus, the right to respect for the family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contact between them (see Kruškić, cited above, § 111).

30. Turning to the present case, the Court notes, first of all, that the applicant has, according to the latest information available, right to contact with the grandchildren for two hours every other week (see paragraph 19 above). She does not provide any arguments to the effect that this contact is insufficient for her to preserve a normal grandparent-grandchildren relationship. Instead, she complains that, following the Supreme Court’s decision of 19 October 2016 (see paragraph 13 above), the children should have been returned to her.

31. The question therefore arises whether the non‑return of the applicant’s grandchildren amounted to an interference with Article 8, given the nature of the relationship at issue (see paragraph 29 above). The Court has previously found in situations where, as in the present case, grandchildren have been left without parental care, that grandparents could under Article 8 of the Convention also be entitled to have their wish to have a grandchild formally entrusted to their care taken into account when decisions on that child’s placement are made (see Kruškić, cited above, § 114, and Scozzari and Giunta, cited above, § 222).

32. The Court observes in this connection that in the present case the possibility of the applicant and her partner taking care of their grandchildren has not been discounted by the authorities. As a matter of fact, the applicant had been advised to apply for a foster care licence (see paragraph 4 above) that is specifically regulated for the purposes of kinship care (see paragraph 24 above), which she duly did (see paragraph 6 above). However, her application was dismissed in a reasoned decision (see paragraph 16 above). The applicant subsequently had the opportunity to challenge the dismissal before the court, which she did. At the date of the latest information available to the Court (26 February 2018), the proceedings were pending on appeal (see paragraphs 17 and 18 above).

33. The unlawfulness which has been acknowledged by the Administrative and Supreme Court ‒ and of which the applicant does not complain in her application to the Court ‒ relates to the process of removing the children from the applicant’s care prior to issuance of the Ministry’s decision on the applicant’s application for a foster care licence (see paragraphs 12 and 13 above). However, when, on 11 May and 19 October 2016, the Administrative and Supreme Court found the said unlawfulness, the applicant’s application for a foster care licence had already been dismissed by the Ministry’s decision of 11 April 2016 (see paragraphs 12, 13 and 16 above). Therefore, the aforementioned courts were not in a position to order a return of the children to the applicant as a way of implementing their decisions because at that point the applicant had been found by the Ministry’s decision to be unsuitable as a long-term carer for her grandchildren. Moreover, the ensuing court proceedings concerning the dismissal of the foster care application were at that point pending, which meant that the applicant was able to pursue her argument that the children should be entrusted to her in those proceedings (see paragraphs 13, 16, 17 and 23 above).

34. Taking the foregoing into account, in particular the fact that the applicant’s application for a foster care licence was dismissed in a reasoned decision which was upheld by the Administrative Court and was, on 26 February 2018, still being challenged before the Supreme Court, the Court finds the applicant’s complaint concerning the domestic courts’ refusal to return her grandchildren into her care manifestly ill-founded. It must thus be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

35. In so far as the applicant’s complaint under Article 8 of the Convention concerns the domestic proceedings in which she is challenging the dismissal of her application for a foster care licence, it is noted that the applicant lodged an appeal on 15 February 2018 and that these proceedings were, on 26 February 2018, still pending (see paragraph 18 above). This complaint is thus inadmissible as premature and must be rejected pursuant to Article 35 § 4 of the Convention.

B. As regards other complaints

36. The applicant further complains under Article 6 § 1 of the Convention that no hearing was held in the court proceedings concerning the removal of her grandchildren and no relevant evidence was produced before the Supreme Court allowing it to establish whether or not they should be returned to the applicant (see paragraphs 12 and 13 above).

37. The applicant also complains under Article 13 of the Convention about the rejection of her further appeal and her appeal on points of law by the Supreme Court (see paragraph 13 above) and about the inadequate reasoning of the Constitutional Court decision (see paragraph 14 above).

38. Articles 6 § 1 and 13, in so far as relevant, read as follow:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

39. As regards the applicant’s complaint that no hearing was held in her case, the Court notes that it is true that no hearing was held before the Administrative Court in the proceedings concerning the removal of the children (see paragraph 12 above). However, the Supreme Court, which acted in this set of proceedings as an appeal court and had full jurisdiction with respect to determining facts and law (see paragraph 22 above, and, by contrast, Malhous v. the Czech Republic [GC], no. 33071/96, § 62, 12 July 2001), held a hearing (see paragraph 13 above) and thereby remedied the alleged shortcoming which occurred in the proceedings before the Administrative Court. As regards the evidence-taking, the Court notes that the proceedings before the Administrative Court and the Supreme Court which concerned the removal of the children were adversarial and there is no indication in the case file that the applicant had been prevented from adducing evidence or commenting on evidence. These complaints are therefore manifestly ill-founded and must thus be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

40. As regards the complaint under Article 13 of the Convention, the Court reiterates that the Article in question requires a remedy in domestic law only where an individual has an “arguable claim” that one of his or her rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). However, given its above findings, according to which the applicant’s main complaint under Article 8 of the Convention is inadmissible as manifestly ill-founded and premature (see paragraphs 34 and 35 above), the Court considers that her related complaint under Article 13 of the Convention cannot be considered “arguable” within the meaning of the Court’s case-law. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 May 2018.

Andrea TamiettiVincent A. De Gaetano
              Deputy RegistrarPresident

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