In this article, we will look at how the Family Code of the Republic of Slovenia regulates child protection measures. The Family Code recognises a variety of measures, including interim measures, immediate removal of a child, and measures of a lasting nature. In the following articles, the various types of child protection measures will be discussed separately, with an emphasis on relevant and current case law.
Child protection measures aim to protect children, not to punish their parents. The fundamental principle in any action is the child’s best interests.
According to Article 153 of the Family Code, the court and the Centre for Social Work must perform the necessary actions and measures required for the upbringing and protection of a child, as well as the protection of their property and other rights and benefits. This is derived from Article 56 of the Constitution of the Republic of Slovenia, which stipulates that children are entitled to special protection and care, as well as human rights and fundamental freedoms commensurate with their age and maturity. It further stipulates that children are entitled to special protection from economic, social, physical, mental, and other forms of exploitation and abuse and that children and minors who are not cared for by their parents, do not have parents, or do not receive adequate family care are entitled to special state protection. The state thus has an obligation to intervene in family or private life when the best interests of the child are at stake.
According to Article 154 of the Family Code, parents have the right and obligation to protect their child’s rights and benefits before anyone else. Where parents fail to exercise these rights and obligations or fail to exercise them for the benefit of the child, the state must take measures to protect the child’s rights and benefits. Child protection measures may be implemented until the child reaches the age of full capacity to act, unless otherwise specified in the Family Code. A child attains the full capacity to act when they reach the age of majority, or when a minor enters marriage or enters non-litigious proceedings due to becoming a parent. Child protection measures may be maintained even if the child has attained full capacity to act and is placed in an institution or a foster family.
The court has the jurisdiction to impose child protection measures under Article 155 of the Family Code. However, the court can only intervene in private and family life in justified cases and with a carefully chosen measure. According to Article 160 of the Family Code, the court imposes child protection measures ex officio or on a proposal, decides on the termination of the measure if the reasons for it have ceased, imposes a different child protection measure if the current measure adversely affects the child’s health, development, or property, decides to extend the imposed measure, or re-implements the measure. The court provides the competent Centre for Social Work with the final court decision on the child protection measure, which then monitors the measure’s implementation. Individual child protection measures have a maximum time limit set by the Family Code unless the court extends the imposed measure. The court makes decisions on measures or changes to the implementation of measures in non-litigious proceedings.
The principle of a less onerous measure is stated in Article 156 of the Family Code. When deciding on a child protection measure, two restrictions must be considered: that a measure be imposed that allows parents to exercise parental care with as few restrictions as possible if the child’s best interests can be sufficiently protected, and that the child is not taken away from the parents if the child’s best interests can be sufficiently protected. If less onerous measures fail to adequately protect the child’s best interests, the court intervenes by implementing measures that interfere with parental care to a greater extent.
The Family Code also determines the conditions for imposing child protection measures; specifically, Article 157 states that a court may impose a child protection measure if it determines that the child is threatened. A child is threatened if they have suffered or are highly likely to suffer harm as a result of the parents’ action (e.g., violence against the child) or neglect (e.g., neglect of the child), or as a result of the child’s psychosocial problems manifesting as behavioural, emotional, learning, or other problems in their upbringing. Harm includes harm to a child’s physical or mental health and development, as well as damage to the child’s property. A threat to a child is a legal standard that is evaluated by the court in each individual case.
According to Article 158 of the Family Code, when deciding on a child protection measure, the court considers the child’s opinion expressed by themselves or by someone they trust and have chosen, if they are able to understand its meaning and consequences. A court may issue an interim measure without first seeking the child’s opinion.