In this article, we will look at the different types of child protection measures regulated by the Family Code of the Republic of Slovenia, with an emphasis on relevant and current case law.

According to Article 159 of the Family Code, the types of child protection measures are interim measures, immediate removal of a child, and measures of a lasting nature. The fundamental principle in any action must be the child’s best interests. Respect for the most lenient measure must be ensured, which means that the measure imposed must allow parents to exercise parental care with as few restrictions as possible if the child’s best interests can be sufficiently protected. When 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.

Interim measures
A court will issue an interim measure if it is likely that the child is threatened. A threat to a child is a legal standard that is evaluated by the court in each individual case. The applicant must demonstrate the existence of a threat. It is not necessary for the damage to have already occurred to determine a threat to the child, as the likelihood that the child will suffer damage or that the damage will occur is sufficient. A threat to the child may be the result of an act (e.g., physical violence against the child) or neglect (e.g., child neglect) by the parents. The threat could be the result of the parents’ actions or the child’s psychosocial problems, which could manifest as behavioural, emotional, learning, or other issues as they grow up.

The Family Code recognizes several types of interim measures, including: an order to remove a child from their parents and place them with another person, in a crisis centre, in foster care, or in an institution; an order to enter the apartment or other premises where the child is located against the parents’ will; an order prohibiting or restricting contact; an order on the manner of contact; an order on a child’s upbringing and care; a child support order; an order prohibiting crossing the state border with a child; an order evicting a violent member from a shared apartment; an order prohibiting the child from approaching persons who endanger them; an order for insurance on a parent’s or child’s property and an order for a medical examination or treatment. When a court issues an order for any of the preceding, it also appoints another person, crisis centre, foster parent, or institution. The child should not be placed with someone who is not qualified to be a guardian. The provisions of the law governing the performance of foster care shall apply mutatis mutandis to the obligations of the other person to whom the child is placed and the supervision of the placement.

As an interim measure, the court may order that the contacts be made in the presence of a Social Work expert or the institution where the child was placed. The court determines the time and place of contacts, which are carried out for a maximum of two hours per week, through prior agreement with the Centre for Social Work or the institution. An interim supervised contact order is only valid for 9 months and cannot be reissued or renewed. The course of contacts is monitored by an expert, who must prepare and submit a report on the course of contacts to the court once a month. The Ministry responsible for the family provides the spatial and personnel conditions for the provision of supervised contacts.

If the interim measure was issued prior to the initiation of proceedings for the issuance of a court decision on the upbringing, care, and maintenance of the child, on contacts, the exercise of parental care, or a measure to protect the child’s best interests, this procedure must be instituted within 7 days. If the procedure is not initiated within the time limit, the court shall stop the procedure and, if necessary, annul the performed actions.

In this regard, the case law is also clear and consistent. According to the judgment of the High Court in Ljubljana ref. no. IV Cp 1574/2020 of 24.9.2020, the situation in the family is regulated by an interim measure when the child’s interests are so jeopardized that it is not possible to wait for the conclusion of the proceedings. Circumstances must be demonstrated that necessitate immediate but temporary action to prevent irreparable or irreversible harm to the child’s health and development. Furthermore, according to the decision of the High Court in Ljubljana with ref. no. IV Cp 1181/2020 of 21.7.2020, in accordance with settled case-law, the exclusive benefit of the child must be considered when issuing an interim measure on disputes arising from parent-child relationships. Because of the nature of interim measures, certain peculiarities in their issuance procedures are required, including the fact that the court decides in these proceedings on the basis of the standard of proof of probability given when there are more reasons in favour of a conclusion than those showing the opposite.

Immediate removal of a child
If a child’s benefits are so likely to be jeopardized that immediate removal from the parents is the only way to secure them, the Centre for Social Work shall take the child and place them with another person, a crisis centre, foster care, or institution before the court decides to issue an interim measure. In order to carry out the measure of immediate removal of a child, the following assumptions must be met cumulatively: the likelihood of the child being seriously threatened must be demonstrated (it makes no difference whether the child is seriously threatened due to the parents’ fault, which could be an act of violence, (e.g., physical violence), abandonment (e.g., neglect) or the occurrence of innocuous circumstances (e.g., parental illness)); insurance of the child’s benefits can only be achieved by the child’s removal (if the protection of the child’s benefits can be achieved by a milder measure, the implementation of the immediate removal of the child is not required); the child must be removed before an interim measure is issued (unless there is such a serious threat to the child that the Centre for Social Work must remove the child immediately) and placed with another person, a crisis centre, foster care, or institution. The child cannot be placed with someone who cannot be a guardian (a person deprived of parental care who is not legally capable, whose benefits are in conflict with the benefits of the client who has entered into a lifelong maintenance contract with the client, whose spouse or the extramarital partner has entered into a lifetime maintenance contract with the client and a person who, given their personal characteristics or relationship with the client or their parents, cannot be expected to perform custody duties properly). The provisions of the law governing the performance of foster care shall apply mutatis mutandis to the obligations of the other person to whom the child is placed and the supervision of the placement. In the event that a child must be removed immediately, the Centre for Social Work may be assisted by the police in accordance with the regulations governing the police’s tasks and powers. When performing an immediate removal of a child, the Centre for Social Work fills out a form that includes the Centre for Social Work and the personal name of the official who performed the removal, the child’s personal name and the person from whom the child was taken, the date and time of the removal, and a brief explanation of the subsequent course of the proceedings. The form is given to the person from whom the child was taken and is either handed over directly to the child’s parents or guardian or sent to them by registered post.

Within 12 hours of the child’s removal, the Centre for Social Work must propose to the court the issuance of a temporary measure on the child’s removal, on which the court must rule immediately or within 24 hours at the latest. If the Centre for Social Work does not propose the issuance of an interim measure within the time limit, if the court does not rule on the proposal, or if they refuse to issue an interim measure, the child is returned to the parents immediately.

According to the judgment of the High Court in Ljubljana ref. no. IV Cp 2189/2020 of 15.1.2021, states that the child was temporarily removed because the child was threatened due to the family’s extremely difficult living conditions, as well as the structure of life and the functioning of the boy’s parents (they did not prepare for the arrival of the new born, they did not prepare any equipment, they did not cooperate with professional services, they did not perceive any danger to the child’s health and life, they were unable to detect this due to their own mental instability, etc.). The court ruled that, for the sake of the child’s safety, he should be removed from his parents’ custody and temporarily barred from contact with them.

Measures of a lasting nature
When deciding on measures of a lasting nature to protect a child’s interests, the court considers the opinion of the Centre for Social Work, which must act with the care of a good expert when preparing the opinion. The Family Code regulates the following long-term measures: restriction of parental care, decision on medical examination or treatment, restriction or deprivation of contact, deprivation of a child to parents, placement in an institution, and deprivation of parental care.

Before the court decides on a lasting measure, the Centre for Social Work develops a plan to assist the family and the child. Once a year, the court receives a report on the implementation of the assistance plan. The assistance plan includes a description of the situation, the children’s needs, the family’s capabilities, the method of monitoring, the types of assistance, and a description of how the measure will be implemented. A family therapy program, psychiatric treatment, treatment for alcohol or illicit drug addiction, and other health and psychosocial programs may be included in the Centre for Social Work plan if it indicates that the parents will be able to take over the child’s upbringing and care after therapy or treatment, or in other cases where it is for the child’s benefit.

According to the Supreme Court decision ref. no. II Ips 706/2009 of 3.12.2009, the decision to deprive a person of contact rights is not only exceptional but also complex, as it requires a balance between the rights of several people, with the fundamental guiding principle being the pursuit of the child’s interests (and not rights). When deciding, courts (as well as other competent state bodies) are required to take measures (as a matter of course) to maximize the child’s benefits in a given situation. Decisions must be made quickly and efficiently, while also being comprehensive, considering all of the specific circumstances of the case and all of the legal options. The notion of a child’s benefit encompasses not only the benefit of a person up to the age of eighteen (short-term benefit), but also the benefit of a person who will manifest in their adulthood (long-term benefit). The goal of contacts is to ensure the child’s healthy and holistic development, i.e., their development into an independent adult. The decision on the child’s contact should not be based solely on the finding that the child refuses contact, especially if this refusal is (at least in part) due to the other parent’s conduct and has no real basis. According to the decision of the High Court in Ljubljana ref. no. IV Cp 2749/2017 of 19.12.2017, deprivation of the right to contact is a serious infringement on the parental right and especially on the right of the child, and thus this right cannot be taken away without a reliable and concrete finding that any contact is detrimental to the child.