X v. SLOVENIA

FIFTH SECTION

DECISION

Application no. 4473/14
X
against Slovenia

The European Court of Human Rights (Fifth Section), sitting on 12 May 2015 as a Chamber composed of:

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
Vincent A. De Gaetano,
André Potocki,
Helena Jäderblom, judges,

and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 23 January 2014,

Having deliberated, decides as follows:

THE FACTS

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).

A. The circumstances of the case

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

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.

1. The care order and restrictions imposed on the applicant’s contact visits with the children

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.

2. The withdrawal of the applicant’s parental rights

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.

3. The applicant’s fine

31. On 3 September 2003 the applicant was fined by the police. The applicant did not submit any further details in this regard.

B. Relevant domestic law

32. 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 ...”

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:

Article 116

“(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:

Article 411

“(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...

COMPLAINTS

35. The applicant complained under Article 8 of the Convention that the welfare authorities had taken his children into foster care and restricted his contact with them, and that later the domestic courts had withdrawn his parental rights. He further complained under Article 6 § 1 of the Convention about undue delays in the related proceedings. Lastly, the applicant also cited Article 4 of the Convention with in regard to a fine imposed on him.

THE LAW

A. Complaints under Article 6 and 8 of the Convention

36. The applicant complained that his children had been taken away from him, that contact with them had been restricted, and that his parental rights had been withdrawn.

37. The applicant also complained about the length of the court proceedings.

38. The Court considers that the complaints raised by the applicant fall to be examined under Article 8 of the Convention (see X v. Slovenia, cited above, § 70, and V.A.M. v. Serbia, no. 39177/05, § 115, 13 March 2007).

39. 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.”

1. Complaints concerning the care order and restrictions imposed on the applicant’s contact with Y and Z prior to the interim court order of 19 July 2011

40. According to Article 35 § 2 (b), an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”. The Court must therefore ascertain whether the two applications brought before it by the applicant relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, Decisions and Reports 80-A, p. 170, and Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006).

41. As regards the complaints about the placement of the children in foster care and the restriction of the applicant’s contact with his children prior to the interim court order of 19 July 2011, the Court has already found in X v. Slovenia (cited above, §§ 75 and 77) that these complaints were inadmissible as the applicant had failed to exhaust domestic remedies.

42. The Court considers that in so far as the facts of the case refer to the period antecedent to the interim court order of 19 July 2011, the application relates to the same person, the same facts and the same complaints as those in the application decided by the Court on 22 June 2012.

43. It follows that this complaint must be rejected under Article 35 §§ 2 (b) and 4 of the Convention as being substantially the same.

2. Complaints concerning the restrictions imposed on the applicant’s contact with the children after the interim court order of 19 July 2011

44. As regards the complaint about the interim court order, the Court found in X v. Slovenia (cited above, § 76) that this order was not yet final, as the applicant had lodged an appeal against it.

45. The Court notes that after that appeal was dismissed by the Maribor District Court in the judgment of 5 June 2012, the applicant failed to appeal to the Higher Court.

46. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. Complaints concerning the withdrawal of the applicant’s parental rights

47. The Court finds that the withdrawal of the applicant’s parental rights amounted to an interference with his right to respect for his family life (see M.D. and Others v. Malta, no. 64791/10, § 73, 17 July 2012).

48. It must therefore be examined whether this interference complied with the requirements of the second paragraph of Article 8, namely whether it was “in accordance with the law”, pursued an aim or aims that were legitimate under paragraph 2 of this provision, and could be regarded as “necessary in a democratic society” (see B.B. and F.B. v. Germany, nos. 18734/09 and 9424/11, § 45, 14 March 2013).

49. The Court notes that the domestic courts’ decisions had a basis in national law.

50. The Court further considers that the measure aimed at safeguarding the best interests of the children. There is nothing to suggest that it was applied for any other purpose in the present case.

51. In determining whether the withdrawal of the applicant’s parental rights was “necessary in a democratic society” the Court has to 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. In this type of case it is of paramount importance what is in the best interests of the children (see, for example, Enke v. Germany (dec.), no. 545/08, 9 October 2012). Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all those concerned. It follows from these considerations that 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 under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001‑VII).

52. The Court observes that the reasoning contained in the domestic courts’ decisions was detailed and based on objective expert opinions (see paragraph 22 above).

53. On the one hand they found that the children had formed a close emotional connection with the foster parents and that they wished to stay with them. Moreover, they found that the children were rejecting the applicant, did not want to have any contact with him, and were afraid of him (see paragraph 22 above).

54. On the other hand they found that owing to his personality and the circumstances of his life the applicant was not able to fulfil his parental responsibilities to the children’s benefit (see paragraph 23 above).

55. The Court reiterates that when a considerable period of time has passed since a child was originally taken into public care, the interest of a child in not having his or her de facto family situation changed again may override the interest of the parents in having their family reunited (see K. and T. v. Finland, cited above, § 154).

56. In the present case the domestic courts, considering the expert opinions on the applicant and the children, concluded that after the children had been with the foster parents for nine years, where they had been properly taken care of, it was in their best interest to make that situation permanent. The stability of that relationship, without the constant fear of being returned to the applicant, who was not able to take care of them, was important for the children’s proper development.

57. Thus, the Court considers that the domestic courts adduced relevant and sufficient reasons to justify their decisions. They gave weight to the children’s needs and the father’s abilities, emphasising the best interests of the children. The Court accepts that the withdrawal of the applicant’s parental rights was the most appropriate measure, regard being had to all the circumstances of the case, to ensure a stable and continuous custody situation for the children.

58. For these reasons the Court concludes that the interference with the applicant’s right to respect for his family life was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.

59. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

4. Complaint about the length of the custody proceedings

60. The applicant has already complained about the length of those proceedings in his previous application no. 40245/10. In the case of X v. Slovenia (cited above) the Court found on 28 June 2012 a violation of Article 8 in connection with the delays in the court proceedings which had been pending since 9 February 2005.

61. As regards the reasonableness of the length of the rest of the proceedings, it is noted that since 28 June 2012 they lasted for one year and four months at three levels of jurisdiction. This cannot be considered an excessive delay.

62. The Court therefore finds that this complaint is also manifestly ill-founded and must be rejected under Article 35 § 3 (a) and 4 of the Convention.

B. The remainder of the applicant’s complaints

63. Lastly, the applicant cited Article 4 of the Convention. However, he failed to substantiate this complaint, which moreover appears to be misconceived.

64. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 4 June 2015.

              Claudia WesterdiekMark Villiger
RegistrarPresident

Full & Egal Universal Law Academy