It is a fact that any contact between a child and the parent with whom he or she is no longer living, and returning to the parent in whose care he or she has been entrusted, is a certain stress and strain for the child, but this has become part of the child’s life due to the parents’ decision to no longer live together, and must be accepted as such. The situation is not the child’s fault and it is the parents’ duty to support the child as much as possible and, above all, to respect each other despite the existence of negative feelings stemming from their failed relationship.¹

The child has the right to have contact with both parents and both parents have the right to have contact with the child, and the child’s best interests are ensured by the contact (Article 141, paragraph 1, of the Family Code; hereinafter: DZ). The parent exercising the contact must refrain from doing anything that hinders the exercise of the contact and the care and upbringing of the child (cf. Article 141, paragraph 2, of the DZ).

The principle of the best interests of the child is laid down in Article 7 of the DZ. Parents, who have priority over all others in their care for and responsibility for the best interests of the child, are obliged to care for the child in all activities relating to the child. They shall bring up children with respect for their person, individuality and dignity. According to Article 7(3) of the DZ, parents act in the best interests of the child if, taking into account in particular the child’s personality, age and stage of development and desires, they adequately meet the child’s material, emotional and psychosocial needs by acting in a manner that demonstrates their care for and responsibility towards the child, and provide the child with appropriate educational guidance and encouragement in his or her development. State authorities, public service providers, holders of public authority, local authorities and other natural and legal persons are obliged to have regard to the best interests of the child in all their activities and proceedings in relation to the child. The State shall provide the conditions for the functioning of non-governmental organisations and professional institutions for the development of positive parenting.

Article 8 of the DZ provides for the special protection of children, namely that children shall enjoy the special protection of the State whenever their healthy development is endangered and other interests of the child so require.

The right to family life is also protected under Article 8 of the European Convention on Human Rights (hereinafter: the EKČP), the requirements of which, in accordance with Article 8 of the Constitution of the Republic of Slovenia, also fulfil the content of Article 54(1) of the Constitution of the Republic of Slovenia, insofar as it concerns procedural aspects of this right, in conjunction with Article 22 of the Constitution of the Republic of Slovenia. The mutual enjoyment of each other’s company by parents and children is one of the fundamental elements of this right. Therefore, a measure separating a child from his or her parents constitutes an interference with that right, which may be permissible only if it is in accordance with the law, pursues a legitimate aim and can be regarded as necessary in a democratic society. The European Court of Human Rights (hereinafter: ESČP) emphasises that a fair balance must be struck between the interests of the child and the interests of the parents, and that the best interests of the child, which may outweigh the interests of the parents in terms of their nature and importance, must be given particular weight. The best interests of the child are of paramount importance when deciding on matters relating to the child.²

The best interests of the child usually dictate that the child’s ties with the family are preserved, and every effort must be made to maintain personal relationships. On the other hand, it is in the best interests of the child to ensure that he or she develops in a healthy environment, and parents cannot be entitled under Article 8 EKČP to take measures that would be detrimental to the child’s health and development. A child should not be separated from his or her parents against their will unless such separation is in the child’s best interests. An important aspect highlighted by the ESČP in relation to the separation of a child from his or her parents is the passage of time, which may 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 de facto family situation in the name of the child’s best interests outweighs the parent’s interest in family reunification. While courts enjoy a wide margin of discretion when it comes to deciding on the custody of a child, further restrictions, such as limiting the child’s right of access to his or her parents, are subject to stricter scrutiny by the ESČP, as such decisions may to a greater extent impair the maintenance of the bond between the (younger) child and one or both parents.³

The duty of the State to provide special protection for the family and children also derives from the United Nations Convention on the Rights of the Child (hereinafter: KOP). A child has the right, as far as possible, to know and be cared for by his or her parents (Article 7(1) of the KOP). States Parties are required to respect the right of a child who is separated from one or both parents to maintain regular personal contact and direct communication with both parents (Article 7(1) of the KOP). In accordance with Article 19 of the KOP, States Parties are obliged to protect the child by all appropriate legislative, administrative, social and educational measures. Such safeguards should include effective procedures for the adoption of social programmes that provide the necessary support to the child and those caring for him/her, as well as other forms of protection.

The right of access is thus generally enshrined in the DZ, and is also supported by the EKČP, the KOP and, ultimately, the Constitution of the Republic of Slovenia. When it comes to the right of contact between a child and a non-resident parent, it is important to pursue the child’s best interests, and both parents must be clearly aware of their responsibilities and roles and prepare the child for contact with the non-resident parent and, of course, encourage contact at all times.

[1] VSL Decision IV Cp 2141/2015 of 29.7.2015.

[2] Up-116/24-54, U-I-28/24-23 of 5.9.2024.

[3] Ibid.