Court/Judicial body: Constitutional Court of Slovenia (Individual constitutional complaint procedure)
Date: April 23, 2003 CRC
Provisions: Article 1: Definition of a child Article 2: Non-discrimination Article 3: Best interests of the child Article 4: Implementation of rights Article 6: Survival and development Article 8: Preservation of identity Article 9: Separation from parents Article 12: The child’s opinion Article 18: Parental responsibilities
Other international provisions:Convention for the Protection of Human Rights and Fundamental Freedoms: Articles 8, 13 and 114European Convention on the Exercise of Children’s Rights, Articles 2, 3, 4, 5, 6, 7, 8, 9 and 10International Covenant on Civil and Political Rights: Articles 2, 14, 23 and 24
Domestic provisions: Act Ratifying the European Convention on the Exercise of Children’s Rights (“ECECR”): Articles 2, 3, 4, 5, 6, 7, 8, 9, 10 Administrative Procedure Act: Articles 43, 146, 223 Civil Procedure Act: Articles 409, 410 Marriage and Family Relations Act (“MFRA”): Articles 105, 106, 107, 114 Constitution: Articles 14, 15, 22, 23, 25, 41, 53, 54, 56 Constitutional Court Act: Article 30
Case summary
Background: Several individuals challenged the constitutionality of certain provisions in the Slovenian Marriage and Family Relations Act relating to custody and visitation.
Issue and resolution: Child custody and parent-child contact. The Court reviewed the provisions in question (Articles 105, 106, 107 and 114) and declared that: 1) Portions of Article 105 and 114 were unconstitutional because they implied that when parents separate, one of them will no longer have parental authority, even if the parents agree to joint custody and this is in the child’s best interests; 2) The first paragraph of Article 106 must be cancelled because did not provide children in administrative proceedings on custody the same rights that they are afforded in civil proceedings; and 3) The second paragraph of Article 106 entrusting the custodial parent to enable the child’s contact with the other parent was not in conflict with the Constitution.
Court reasoning: The Court considered each provision separately under the Constitution and relevant international law, using the following lines of reasoning: 1) Regarding joint custody, the Constitution affords parents equal rights to care for their children, even if they live separately. This right may only be limited in order to protect children’s rights, which are on an equal level with parental rights. Since prohibiting joint custody does nothing to protect children’s rights, it should be allowed where the parents so desire and it is not harmful to the child’s best interests. 2) Under the European Convention on the Exercise of Children’s Rights (ECECR), children involved in custody proceedings have the right to be informed, to express their opinions, and to request the appointment of a special representative. Slovenian laws implementing this Convention guarantees these rights in the courts, but not in proceedings before administrative government organisations. Because children must have these rights in all settings where custody is in question, the current provision on administrative proceedings is unlawful and not compliant with the ECECR. 3) Article 9 of the CRC guarantees a child’s right to maintain relationships with both parents. The provision in Slovenian law that asks the custodial parent to facilitate the child’s contact with the non-custodial parent does not prevent children from seeing both of their parents, and in fact could be interpreted to require that the custodial parent foster a relationship between the child and the non-custodial parent. Therefore, this provision is lawful and does not violate the CRC.
Excerpt citing CRC and other relevant human rights instruments as translated by the Oxford Reports on International Law in Domestic Courts 12. From what is stated above it follows that the allegations of claimants in regard of procedural deficiencies in decision-making of the centres for social work are unfounded as far as the status of parents in such proceedings is concerned. As far as the status of the child and his or her rights in the proceedings for determination of the access right are concerned, however, the answer to the question of whether the claim is well founded depends on whether the relevant rights are guaranteed to the child already under the aforementioned provisions of the Constitution, the CRC and the Act Ratifying the European Convention on the Exercise of Children’s Rights (hereinafter: ECECR), in particular when the access right is decided on by the centres for social work according to the first paragraph of Article 106 of the MFRA. In this respect it is also of particular importance whether the relevant provisions, which guarantee the special rights of the child, are directly applicable, given that the APA does not provide them. … 14. The provision of Article 9, point (3), of the CRC is directly applicable since the right of the child to maintain regular contacts with both parents clearly follows from it. At the time of this provision coming into force, the provision of the first paragraph of Article 106 of the MFRA was already in force in our legal system. This means that the provision of Article 9, point (3), of the CRC is a later and hierarchically higher provision ( Article 8 of the Constitution), which derogates provisions in force that conflict with it (lex posterior derogat legi priori). For this reason, the Constitutional Court did not need to deal with the question of whether the provision of the first paragraph of Article 106 of the MFRA should be interpreted in view of the first paragraph of Article 56 of the Constitution, since the provision of Article 9, point (3) of the CRC, which grants this right, is completely unambiguous. 15. The situation is, however, different with regard to the provisions of the ECECR. This treaty specifically regulates the procedural rights of the child (Articles 3 – 5), the obligations of the authorities competent to decide on the access right (Articles 6 – 9) and the role of the special representative of the child ( Article 10). The treaty recognises the child (who in accordance with the provisions of national law has an adequate level of understanding) has the right to be informed, the right to express his or her own opinion in the proceedings and the right to request the appointment of a special representative. The state’s parties may also ensure additional procedural rights for the child during the proceedings ( Article 5), including the right to exercise some or all of the rights of the parties to such proceedings ( Article 5d). Moreover, the treaty defines the role of judicial authorities competent for the decision-making.
Provided they have equivalent powers, both the courts and administrative authorities have this competence (first indent of Article 2, point (a)). It obligates them to do the following before reaching a decision: (a) to consider whether they have sufficient information at their disposal, and (b) to take a decision in favour of the child, as well as to ensure whenever the child with adequate level of understanding is concerned (as defined in the national law), that he or she has received all the relevant information, to consult the child in person, if necessary privately, themselves or through other persons or bodies, in a manner appropriate to the child’s level of understanding, to allow the child to express his or her opinion and to give due weight to that opinion ( Article 6). The competent authorities have the duty to act speedily; in urgent cases they must have the power to take immediately enforceable decisions ( Article 7); they must also have the power to act on their own motion in cases determined by the national law where the welfare of the child is in serious danger ( Article 8), and to appoint a special representative ( Article 9, para 1). The Convention also recommends the state’s parties to consider conferring on the competent authorities the power to appoint a separate representative ( Article 9, para 2), and in appropriate cases a lawyer, to represent the child. The ECECR furthermore determines the tasks of a special representative of the child ( Article 10). 16. However, most of the provisions of the ECECR cannot be enforced without implementing legislation. This is immediately clear from the provisions of the second paragraph of Article 4 and from Articles 5, 7 and 8 of the ECECR. The same applies to all those provisions (especially Article 3, Article 6, point (b), and Article 10, point (b)), from which it follows that the legislator must specify in what cases the child can be considered as having sufficient understanding in order to exercise the rights guaranteed to him or her under the Convention (either a certain age or other circumstances pursuant to which the competent bodies will have guidance as to which rights need to be ensured). That the treaty provisions are not directly applicable and that implementing legislation is needed can also be seen from the aforementioned provisions of the Civil Procedure Act (hereinafter: the CPA[1]), where the relevant provisions have already been implemented for the judicial proceedings. 17. The fact that the first paragraph of Article 106 of the MFRA confreres the competence to decide on the access right on the centres for social work is not in itself in conflict with the provisions of the Convention; the latter allows for an administrative authority to decide in such cases, but only if it has the powers equivalent to the ones of the court. However, centres for social work do not have such powers. The important provisions of the ECECR, which ensure special rights of the child whenever it is decided on the access right, are not directly applicable. On the other hand, the APA which is used by the centres for social work, does not contain such provisions as are included in the CPA. For that reason, the legislator has not fulfilled the obligation undertaken by the state when ratifying the ECECR. This is also why the provision of the first paragraph of Article 106 of the MFRA is in conflict with the relevant provisions of the ECECR. The Constitutional Court therefore abrogates it. … 20.
The second paragraph of Article 106 of the MFRA reads: “The parent with whom the child lives shall enable the contacts referred to in the preceding paragraph”. The claimants argue that this does not encourage nor guarantee the contacts between the child and the parents on a regular basis. This allegedly conflicts with Article 9, point (3), and Article 18 of the CRC with the right to family life ( Article 8 of the EKCP), with the third paragraph of Article 41 of the Constitution and with the rights and duties of parents ( Article 54 of the Constitution). The challenged provision indeed does not make any express reference to regular contacts, but it does not exclude such an interpretation. More than this, pursuant to the provision of the first paragraph of Article 56 of the Constitution, the family law principle of protecting the interests of the child ( Article 6 of the MFRA) and Article 9, point (3) of the CRC, this provision has to be interpreted in the sense of ensuring regular contacts. The second paragraph of Article 106 of the MFRA ensures the possibility of maintaining (regular) contact by imposing on the parent with whom the child lives the duty to enable the contacts (or the duty to renounce on anything that could prevent the contact). The challenged provision is therefore not in conflict with the relevant provisions of the Constitution and international conventions. The fact that it might not ensure and encourage the maintenance of regular contact between parents and their children in the legislative-technical manner (which would be the best way from the child’s point of view) does not of itself constitute a non-conformity with the Constitution or the aforementioned international conventions. Nor can this finding be affected by the above abrogation of the first paragraph of Article 106 of the MFRA; maintenance of contacts namely needs to be ensured and encouraged regardless of which authority has decided on this and in what proceedings.
Follow-up: Following this unanimous decision of the court, the legislature amended the MFRA. The new law in some ways exceeds the requirements reflected in the judgment because it recognises the right of access as not only a parental right, but equally a child’s right, and actively promotes more regular contact between children and parents with whom they do not live. It is also notable that in this context, Slovenia withdrew its reservation to Article 9 of the CRC that had allowed non-judicial bodies (in this case, administrative Centres for Social Work) to decide custody and parent-child contact issues. Notes: In the English translation of this case on which this summary is based, the beginning of the opinion states that the fourth paragraph of Article 114 of the MFRA is cancelled, however that provision is not discussed in the text. It also states that Article 107 and the third paragraph of Article 114 are not in conflict with the Constitution, but does not explain why.
CRIN Comments: Although this decision focuses to some extent on parental rights, CRIN believes that it and the legislative reforms that followed are consistent with the CRC and a positive step forward for children’s right to maintain contact with both of their parents.
Citation: U–I–312/00, Official Gazette RS, No. 42/2003; ILDC 41