The protection of the child’s best interests is a fundamental principle of Slovenian family law. When parents fail to fulfill their obligations or when the child’s best interests so require, the state may intervene in family life through various measures. The Family Code represents the foundational legal act in the field of family relations in Slovenia.

The central principle of the entire family law system is the principle of the child’s best interests, which is enshrined both in the Constitution of the Republic of Slovenia and in numerous international documents, among which the United Nations Convention on the Rights of the Child stands out. This principle requires that the child’s best interests be given primary consideration in all decisions concerning the child. This applies both to decisions made by parents and to decisions made by courts and social work centers.

Measures for the protection of the child’s best interests are regulated in the Family Code (hereinafter: FC) on a graduated basis. The legislator envisioned a system of measures ranging from the least to the most invasive, with the principle of proportionality applying — milder measures are always applied first, and stricter ones only when milder measures prove insufficient. Measures of a more permanent nature are measures imposed by the court when temporary measures or emergency removal of the child are not sufficient to protect the child’s best interests, while at the same time the circumstances do not yet warrant the withdrawal of parental care. These therefore represent an intermediate category of measures that are stricter than temporary ones but milder than the complete withdrawal of parental care. The purpose of these measures is to enable parents, with appropriate assistance and supervision, to improve the conditions in which the child lives and to eliminate the circumstances that endanger the child’s best interests.

The Family Code exhaustively lists the measures of a more permanent nature that the court may impose. One of the more common measures addressed in this article is the removal of the child — namely, the court removes the child from the parents and places the child with another person, in foster care, or in an institution, if the child is endangered and the child’s best interests can only be adequately safeguarded through removal, and if the circumstances of the case indicate that the parents will be able to resume care for the child’s upbringing and protection after a certain period (Article 174 of the FC). This measure lasts a maximum of 3 years. During this time, the parents must eliminate the causes that led to the child being endangered. An extension of the measure is possible only exceptionally, when it is expected that the child will be able to return to the family soon. The court simultaneously decides on the placement of the child in foster care, an institution, or with another person (and also appoints the foster parent, institution, guardian, or other person), the parents’ right to contact (unless it assesses that contact endangers the child — in which case it prohibits contact), and the maintenance that the parents must pay (maintenance must be paid by the parents into a special account for the child, opened by the child’s guardian). However, it is necessary to distinguish between the removal of a child and the withdrawal of parental care, which are two different legal institutions. The removal of a child involves the physical separation of the child from the parents or the person with whom the child lives, while parental care is not necessarily withdrawn from the parents. The withdrawal of parental care, on the other hand, is a legal act by which a parent loses all rights and obligations arising from parental care.

Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to the established case law of the Constitutional Court and the European Court of Human Rights, comprises two mutually intertwined rights: the right of the child to live with their parents or to at least have contact with them, and the right and duty of parents to care for and raise their child. The child’s best interests as a rule dictate the preservation of the child’s bond with the family, and every effort must be made to maintain personal relationships. An important aspect highlighted by the European Court of Human Rights regarding the separation of the child from the parents is the passage of time, which can have irreversible consequences for the relationship between the child and the parent with whom the child does not live, and particularly in cases of prolonged separation, may ultimately lead to a decision where the need to preserve the actual family situation in the name of the child’s best interests prevails over the parent’s interest in family reunification. In light of the above, since the removal of a child constitutes state interference with parental care, which under the Constitution belongs primarily to the parents, the existence of these preconditions must be based on concrete and reliably established circumstances. The Higher Court in Ljubljana explained in its decision ref. no. IV Cp 977/2022 dated 20 June 2022: “In the proceedings for the removal of a child, it is therefore necessary to establish the degree of endangerment of the child, what support has already been offered to the family and how the family responded to it, what possibilities exist for strengthening the parents and/or the child so that the family can live together again, what potential obstacles exist to achieving this goal, and how to maintain (or, in cases where it was not established or was severed, how to establish) and strengthen the bond between the child and the parents during the execution of the measure. The court is not bound by the proposal, nor is it limited by the evidentiary initiative of the participants (second paragraph of Article 6 of the ZZNP-1). It is obliged to take evidence necessary to reliably establish all important circumstances. In doing so, the court must take into account that the removal is temporary and is imposed with the goal of family reunification, that the manner of executing the measure must not obstruct the achievement of this goal, and that the state is therefore obliged to ensure that parents and children are able to have regular contact during the execution of the measure.”

In view of all the above, the removal of a child is a serious legal measure that profoundly affects the lives of children and parents. In judicial proceedings, the requirement for procedural safeguards is particularly important, as the court is obliged in every case to enable parents effective participation in the proceedings, to ensure an independent expert assessment, and to observe the principle of the shortest time — that is, to strive to ensure that measures are implemented only for as long as strictly necessary and that the child is returned to the primary family environment as soon as possible.

If you find yourself in proceedings related to measures for the protection of your child’s best interests, it is crucial that you know your rights and act prudently. If you are facing court proceedings, we recommend that you seek professional legal assistance. Our law firm has many years of experience in the field of family law and is prepared to help protect your rights and the rights of your children.