U-I-273/98

Reference no.:
U-I-273/98
Objavljeno:
Official Gazette of RS, no. 60/99 and OdlUS VIII, 169 | 01.07.1999
ECLI:
ECLI:SI:USRS:1999:U.I.273.98
Act:
Marriage and Family Relations Act (Official Gazette SRS, No. 14/98 - consolidated text) (ZZZDR), Arts. 78, 105

Social Aid Act (Official Gazette RS, Nos. 54/92 and 43/94 - dec. CC) (ZVS), Art. 88
Operative provisions:
It is not consistent with the Constitution that, pursuant to Article 105 of the Marriage and Family Relations Act (Official Gazette SRS, No. 14/89 – official consolidated text), it is within the competence of the social work centre to decide on child custody, while, pursuant to Article 78 of the same Act, it is within the competence of the court to decide on the same matter.
 
Article 88 of the Social Security Act (Official Gazette RS, No. 54/92 and 42/94 – Constitutional Court Decision) is not inconsistent with the Constitution in the part that relates to the competence determined in the second paragraph of Article 105 of the Marriage and Family Relations Act.
 
The National Assembly must remedy the inconsistency referred to in Point 1 of the operative provisions within one year of the day of publication of this Decision in the Official Gazette of the Republic of Slovenia.
Abstract:
The provision of the Marriage and Family Relations Act (hereinafter: ZZZDR), which determines the competence of the social welfare center to decide on certain cases on the protection and education of children, is not inconsistent with the constitutional protection of mutual relations between parents and children (Art. 54 and Art. 56.1 of the Constitution) because such competence would not allegedly ensure enough procedural safeguards. Also in a proceeding before the social welfare center parents are given the opportunity to make statements concerning the facts necessary for deciding a case, to state their opinion and to have their opinion taken into consideration in the center's decision. The right to state an opinion is also guaranteed to children capable of stating such opinion. Furthermore, children are also provided the opportunity to appear in proceedings held by the agency of a conflict-of-interests representative. In addition, all affected persons are guaranteed judicial protection by an independent and impartial court against the decisions of the center which is able to examine and ascertain by itself the relevant facts.

It is inconsistent with the principle of equality before the law (Art. 14.2 of the Constitution) that the power to decide on the protection and education of children is, according to Art. 105 of ZZZDR, granted to the social welfare center, while, according to Art. 78 of the same Act, such power is granted to the court.

Under both provisions the object of deciding is the same, and the legislature did not have any sound and rational reasons to determine the competence of two different bodies.

The petitioner's argument that ZZZDR does not determine that the court has jurisdiction to decide on the custody and education of children in the situation of a divorce when the child had been born within a cohabitation and the parents subsequently married, is evidently unfounded.
Password:
Family relations, rights and duties of parents, rights of children.
Equal protection of rights.
Right to judicial protection.
Rights and duties of parents.
Rights of children.
Principle of equality before the law.
Constitutional Court, court as a petitioner, concrete constitutional review (Art. 156 of the Constitution and Art. 23 of the Constitutional Court Act) - no stay of ordinary court proceedings.
Constitutional Court, time limit determined for the legislature, according to Art. 48 of the Constitutional Court Act.
Extension of proceedings as an official duty (the principle of linking issues).
Review of the conformity of a statute with an international convention.
Dissenting opinion of a Constitutional Court judge.
Statute, interpretation.
Marriage, family.
Cohabitation.
Legal basis:
Constitution, Art. 14.2, Art. 22, Art. 23, Art. 53, Art. 54, Art. 56.1, Art. 127, Art. 156
Convention on the Protection of Human Rights and Fundamental Freedoms (EKČP), Art. 8
Courts Act (ZS), Arts. 109, 110
Administrative Procedure Act (ZUP), Arts. 44, 49, 143, 233 Act on the Judicial Review of Administrative Acts (ZUS), Art. 14 Social Aid Act (ZSV), Arts. 86, 88
Constitutional Court Act (ZUstS), Arts. 21, 23, 24, 26, 30, 48
Note:
In the reasoning of its Decision the Constitutional Court referred to its Cases No. U-I-172/94, dated 9 Nov. 1994 (DecCC III, 123), No. U-I-48/94, dated 25 May 1995 (DecCC IV, 50), No. U-I-225/96, dated 15 Nov. 1998 (DecCC VII, 7). Case No. U-I- 235/96 was joined with the case under consideration by the Constitutional Court Ruling of 20 May 1999, for reason of joint consideration and deciding.
Document in PDF:
The full text:
U-I-273/98
1 July 1999
 
 
DECISION
 
At a session held on 1 July 1999 in proceedings to review constitutionality initiated upon the request of the Supreme Court, and in proceedings to examine the petition of Matjaž Gerlanc, Velenje, the Constitutional Court
 
 
decided as follows:
 
1. It is not consistent with the Constitution that, pursuant to Article 105 of the Marriage and Family Relations Act (Official Gazette SRS, No. 14/89 – official consolidated text), it is within the competence of the social work centre to decide on child custody, while, pursuant to Article 78 of the same Act, it is within the competence of the court to decide on the same matter.
 
2. Article 88 of the Social Security Act (Official Gazette RS, No. 54/92 and 42/94 – Constitutional Court Decision) is not inconsistent with the Constitution in the part that relates to the competence determined in the second paragraph of Article 105 of the Marriage and Family Relations Act.
 
3. The National Assembly must remedy the inconsistency referred to in Point 1 of the operative provisions within one year of the day of publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
 
Reasoning
 
A
 
1. The Supreme Court challenges the provisions of Articles 105 and 114 of the Marriage and Family Relations Act (hereinafter referred to as the MFRA) insofar as they determine the competence of a social work centre to decide on child custody, and Article 88 of the Social Security Act (hereinafter referred to as the SSecA) in the part that refers to Article 105 of the MFRA. Owing to the inconsistency of the legislature, which in some cases determined that it is within the competence of a court to decide upon child custody, while in other cases such falls within the competence of a social work centre, Articles 104 and 105 of the MFRA are, in the opinion of the Supreme Court, contrary to Article 14 (equality before the law) and Article 22 (the equal protection of rights) of the Constitution. The different competences allegedly entail different procedural guarantees (e.g. the possibility of issuing interim injunctions, the position of children in proceedings), and that different substantive and procedural rules could result in different decisions in similar cases. Allegedly, there are no reasonable grounds for such a distinction to be drawn. Furthermore, it is alleged, that the position of children varies in relation to the competence of the courts or the competence of the administration. If a court decides on child custody, it also simultaneously decides on their maintenance (and, if necessary, it may even establish paternity prior to this); however, if a social work centre decides on child custody, then it is necessary to initiate new proceedings before a court to decide on child support. It is alleged that such regulation is contrary to the right of children to special protection and care (first paragraph of Article 56 of the Constitution). Owing to the insufficient procedural guarantees in proceedings in which a social work centre decides, the challenged provisions of the MFRA and SSecA are allegedly contrary to the right to respect for family life (Articles 53 and 54 of the Constitution and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR). In an administrative procedure, the principle of free disposition, the right to be heard and to make statements, and the principles of direct adduction of evidence and adversary proceedings are allegedly curtailed due to the requirement to protect the public interest. An oral hearing is allegedly not mandatory. It is stated that a social work centre performs various functions in the area of family law, e.g. it decides on the right to adopt a specific measure that interferes with parental rights and the implementation of such measure, it provides for the protection of the child's interests in such proceedings, and it advises the parents after these proceedings have been concluded. It is alleged that this triple role held by the centre is incompatible with the right to respect for family life, which requires that an independent and impartial body decide on these issues. In addition, such role allegedly prevents the judicial protection from being effective. It is stated that if the social work centre does not appoint a guardian ad litem for the child, the child cannot file a law suit before the competent court due to lack of the necessary legal capacity; however, if the centre does appoint such a guardian ad litem for the child, in practice such person is an employee of the centre, who has no interest in filing an appeal against the centre's decision. The effectiveness of judicial protection is allegedly also impaired by the fact that affected persons are neither knowledgeable of the law nor aware of their rights in the event that a social work centre fails to act. Although both civil and administrative procedures guarantee fair proceedings to the individual pursuant to Article 23 of the Constitution and Article 6 of the ECHR, the Supreme Court deems that civil proceedings represent a stronger guarantee that the right to respect for family life will be respected. The Supreme Court therefore suggests that the Constitutional Court abrogate the challenged provisions on the competence of the administrative authority. At the same time, it states that a need may arise during the proceedings to review the constitutionality of other MFRA provisions pursuant to which social work centres are responsible for deciding on interferences with the right to respect for family life (first paragraph of Article 106, second paragraph of Article 113, fourth paragraph of Article 114, Articles 119 to 121, and Article 150).
 
2. In substantiating the grounds for filing the request, the applicant stated that the question of the constitutionality of the challenged statutory provisions arose when deciding on the appeal to the Supreme Court against a decision on the rejection of a legal action to issue a new decision on child custody. In the challenged judgments, the courts of first instance and second instance allegedly held that a social work centre is competent to decide on child custody after the termination of a common-law marriage. The Supreme Court granted the appeal and remanded the case to the court of first instance for new adjudication. In general, the proceedings should have been stayed. Since the case was already finally decided, the potential annulment of the challenged statutory provisions, given the ex nunc effects of a Constitutional Court decision regarding such, could only have affected a decision in the case at issue if the case had been remanded to a stage before the final decision was issued.
 
3. In the same way as the Supreme Court, petitioner Matjaž Gerlanc also challenges the MFRA as, in the event of a divorce, a court decides on who should be awarded custody of the children, while, in the event of the termination of a common-law marriage, a social work centre decides thereon. Such regulation is allegedly contrary to Articles 14 and 53 of the Constitution. It is argued that, since the MFRA does not regulate cases where a child is born in a common-law marriage and the parents subsequently marry and then divorce, it is also contrary to Article 25 of the Constitution (right to a legal remedy). He substantiates his legal interest on the fact that the court that decided on his divorce from his daughter's mother also decided on the awarding of the custody of their daughter, who was born out of wedlock. He proposes that the Constitutional Court, taking European standards into account, impose on the legislature the obligation to amend the Act and determine the jurisdiction of specialised family courts.
 
4. The National Assembly believes that sufficient safeguards for the protection of the rights and legal interests of parties to the proceedings are built into both administrative and civil proceedings. The Supreme Court has already pointed to certain advantages of the administrative procedure, such as its speed and the flexibility of procedural rules. In the opinion of the National Assembly, the principle of the protection of the rights of citizens and the public interest, the principle of assistance to laypersons, the principle of procedural effectiveness and economy, and the principle of material truth are also important. In the National Assembly’s opinion, the principle of the protection of the rights of citizens obliges the public administrative authority to make it easier for citizens to exercise their rights. The principle of the protection of public interest makes it impossible for parties to exercise their rights contrary to public interest, which, in the case at issue, is represented by the constitutional provisions on the special protection of children and respect for the family. In its opinion, this principle and the principle of material truth do not differ from the rules that apply in civil procedures. According to the National Assembly, the adversarial nature of the proceedings is also sufficiently guaranteed in administrative procedures; in addition, and unlike in the civil procedure, it is obligatory to obtain the opinion of an expert commission. If the competent authority has failed to act, the parties may have a direct influence on accelerating the proceedings by filing a law suit due to the authority's failure to act. Last, but not least, it is also stated that a decision of a social work centre is subject to the two-stage judicial review of administrative acts. In the National Assembly’s opinion, it is crucial that the competent authorities decide on the basis of the same rules of substantive law in both procedures. The existing regulation could, in its opinion, only be disputed in terms of the equal protection of rights or equality before the law. However, if also in regard to such the decisive question is whether each of the two procedures provide for sufficient safeguards, then, in the National Assembly’s opinion, the two above-mentioned constitutional provisions have not been violated. The National Assembly agrees with the position that a special procedure should be provided for decision-making on family law issues. This procedure is to be regulated in the new family legislation which is being prepared; however, until its enactment, the MFRA will allegedly be complemented by the European Convention on the Exercise of Children's Rights that will be directly applied to concrete cases after its ratification.
 
5. The Government replied to the request. It stated that there are two reasons for the division of competences between the social work centres and the courts. Firstly, by determining that a centre has competence only if the parents, after they have terminated their common-law marriage, cannot agree on child custody, the negative aspect of the right to respect for family life determined in Article 8 of the ECHR was enacted. The second reason for such division was in the conceptualisation of family and common-law marriage. It is argued that even the European Court of Human Rights has only recently taken actual and not just legally established family relations into account. In the Government’s opinion, the Supreme Court’s allegation that, owing to insufficient procedural safeguards, the effective protection of the right to respect for family life is not guaranteed and that this could lead to a violation of Articles 53 and 54 of the Constitution is only partially substantiated. The General Administrative Procedure Act (Official Gazette SFRY], No. 47/86 – consolidated text – hereinafter referred to as the GAPA) allegedly sufficiently guarantees the implementation of the principle of free disposition, the principle of adversary proceedings, the right to be heard and to make statements, and the principle of direct adduction of evidence. Since the parties to custody proceedings are always parents with conflicting interests, an oral hearing is allegedly mandatory already pursuant to the GAPA. According to the Government, the obligatory presence of experts, which is determined in Article 88 of the SSecA, guarantees the protection of the child's interests in the proceedings. There have allegedly been no cases on which the social work centres have failed to decide. It is alleged that, in practice, the proceedings may only be prolonged due to the complexity of a specific case. The Government claims that such is supervised by both the competent Ministry and the Ombudsman. Only the claim of the Supreme Court that only one person decides on issues that arise on the basis of the challenged MFRA provisions is, in the Government’s opinion, partially substantiated. More specifically, it is argued that, according to the first paragraph of Article 55 of the GAPA, the social work centre is obliged to appoint a temporary guardian ad litem if the commenced proceedings must be continued due to the urgency of the matter. Moreover, the position of the Supreme Court that issues that arise after either a divorce or the termination of a common-law marriage and that are identical in substance should be decided on by a court is allegedly also substantiated. The Government deems that the right of common-law spouses to privacy should be limited by the positive aspect of the right to respect for family life, the right of children to special protection, and the right to judicial protection. According to the Government, such is to be regulated by the new family legislation which is being prepared; however, until its enactment, the European Convention on the Exercise of Children's Rights will complement the provisions of the MFRA.
 
 
B–I
 
6. Pursuant to Article 23 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter referred to as the CCA), a court may file a request for a review of the constitutionality of a law if an issue arises in relation to the proceedings it is conducting. According to its request, the Supreme Court challenges Articles 105 and 114 of the MFRA in their entirety, and Article 88 of the SSecA in the part that refers to Article 105 of the MFRA. Since the requirement determined in Article 23 of the CCA was met only with regard to the second paragraph of Article 105 in conjunction with the first paragraph of Article 114 of the MFRA, and with regard to Article 88 of the SSecA insofar as it refers to Article 105 of the MFRA, and since the statement of reasons for the request referred only to these provisions, the Constitutional Court limited the scope of the review to these provisions. In conjunction with the second paragraph of Article 105 of the MFRA, the first paragraph of Article 114 thereof determines the competence of the social work centres to decide on child custody if the parents do not live together and cannot reach an agreement on who the child will live with and, therefore, who will exercise the parental rights; the mentioned Article 105 of the MFRA and the challenged part of the provision of the SSecA determine two of the procedural rights of persons who participate in such proceedings. The issue of competence to decide on child custody if the parents do not live together was decisive in the proceedings in connection with which the Supreme Court submitted the request for the review of constitutionality. However, the Supreme Court had not stayed these proceedings but initiated the proceedings before the Constitutional Court after it had granted the appeal and remanded the case to the court of first instance for new adjudication.
 
7. If a court deciding on a matter deems a law which it should apply to be unconstitutional, pursuant to Article 156 of the Constitution, it must stay the proceedings and initiate proceedings before the Constitutional Court and continue the proceedings after the Constitutional Court has issued its decision on the constitutionality of the law. This has been the situation thus far in cases where the Constitutional Court has decided upon the request of a court (see, for example, Decisions No. U-I-172, dated 9 November 1994 – Official Gazette RS, No. 73/94, and OdlUS III, 123; No. U-I-48/94, dated 25 May 1995 – Official Gazette RS, No. 37/95, and OdlUS IV, 50; No. U-I-225/96, dated 15 January 1998 – Official Gazette RS, No. 13/98, and OdlUS VII, 7). In all the mentioned cases, which the Constitutional Court has already decided, the Supreme Court stayed the proceedings for deciding on the legal action filed in the context of the judicial review of administrative acts, i.e. prior to the final decision on the matter. However, in the Supreme Court’s opinion, the finality of the decision in relation to which the Supreme Court initiated these proceedings represents an obstacle to the effects of a potential annulment of the challenged statutory provisions in the case at issue. The Constitutional Court has not yet decided as to whether this position is correct; however, it is not possible to deny its merits in advance. In this regard and in relation to the function that the Supreme Court, as the highest court in the country, holds in terms of ensuring the uniformity of case law (Article 127 of the Constitution and Article 109 of the Courts Act, Official Gazette RS, No. 19/94 – hereinafter referred to as the CtsA), the Constitutional Court decided that the requirement for initiating proceedings determined in Article 23 of the CCA had been met, despite the fact that the proceedings in this case had not been stayed.
 
8. Petitioner Matjaž Gerlanc did not explicitly state which of the provisions of the MFRA he is challenging, but it is clear from his petition that he is challenging Articles 78 and 105. During the proceedings for examining the petition, the Supreme Court submitted the request, in which the issues raised were similar to those in the petition, and therefore the Constitutional Court joined both proceedings.
 
9. The petitioner demonstrated his legal interest, which is a requirement for initiating proceedings (Article 24 of the CCA), by asserting that the same court which had decided on his divorce from his daughter's mother had also decided on the awarding of custody of his daughter, who was born out of wedlock.
 
10. The allegation that the MFRA does not determine the competence to award custody of a child in a case such as the petitioner’s, and that thus his right to a legal remedy (Article 25 of the Constitution) has been violated, is not substantiated. It is clear from both statutory provisions, which were challenged by the petitioner, that in cases such as the petitioner’s the courts have the competence to award the custody of children. Pursuant to the first paragraph of Article 78 upon divorce the courts also decide on child custody and child support. The provision refers to the children of spouses who divorce and does not draw a distinction between children born in or out of wedlock. Other statutory provisions do not contradict such an interpretation of the provision. Deciding on child custody is also the subject of the first paragraph of Article 105 of the MFRA, however, in relation to this provision, Article 78 is more specific. Article 105 is actually a general rule to be applied if the parents do not live together; Article 78, however, determines a special rule to be applied in instances when the parents’ separate lives are a consequence of their divorce. The petitioner failed to explain the asserted inconsistency between the challenged MFRA provisions and Articles 14 and 53 of the Constitution, despite being requested by the Constitutional Court to do so. Therefore, the Constitutional Court has reviewed this allegation only on the basis of the applicant’s statements; however, it has taken into account the petitioner's request to respect European standards and determine the jurisdiction of special family courts.
 
 
B–II
 
11. The second paragraph of Article 105 of the MFRA determines the competence of the social work centre to decide which parent the child is to live with if the parents live separately and cannot reach an agreement thereon. The parent with whom the child lives or who has been awarded custody of the child is entitled to exercise parental rights pursuant to the first paragraph of Article 114 of the MFRA. The challenged part of Article 88 of the SSecA determines that, before reaching a decision in administrative cases regarding the rights and interests of a child pursuant to Article 105 of the MFRA, social work centres must obtain the opinion of an expert commission in special declaratory proceedings and set a date for an oral hearing. The allegation made in the request, according to which the mentioned provisions of the MFRA and SSecA are contrary to the right to respect for family life (Articles 53 and 54 of the Constitution and Article 8 of the ECHR) due to insufficient procedural guarantees in the proceedings in which the social work centre decides, is therefore unfounded.
 
12. An essential element of the right to respect for family life guaranteed by Article 8 of the ECHR is the mutual enjoyment by parents and children of each other’s company.[1] The safeguard guaranteed by the Convention obliges the state to take measures to ensure the actual existence and protection of a family.[2] Such measures include substantive rules on how to regulate the exercise of parental care and the maintaining of contacts between children and their parents who do not live together; to certain extent the provision of Article 8 also influences any procedure in which these issues are resolved. Effective respect for family life requires that the competent authority, on the basis of all the relevant circumstances, decide on future relations between parents and children, and that such is not left to be decided by the mere passage of time. The competent authorities must therefore proceed swiftly.[3] In proceedings regarding the relations between parents and children, parents must have sufficient opportunity to express their views and interests so that the competent authority takes these statements into account and the parents have the opportunity to use the legal remedies available in due time.[4] As substantiated hereinafter, Article 54, the first paragraph of Article 56, Article 22, and Article 23 of the Constitution guarantee these safeguards to parents and children. In the case at issue, there was therefore no need to separately review whether the challenged statutory provisions violated Article 8 of the ECHR.
 
13. The first paragraph of Article 54 of the Constitution provides that parents have the right and duty to maintain, educate, and raise their children. It is the parents who are primarily entitled and obliged to care for their children. The first paragraph of Article 56 of the Constitution specifically provides that this duty of parents corresponds to the right of children to be cared for and raised by their parents. According to this provision, children enjoy special protection and care, and shall enjoy constitutional rights consistent with their age and maturity. In this way, the Constitution also draws attention to how parental care and the right of children to the independent development of their personality are intertwined. The existence of this mutual relationship between parents and children is not contingent on whether or not the children were born out of wedlock or whether or not their parents live together.[5] The natural bond from which this legal obligation arises is the same in all instances. This constitutes the basis for the precept of the Constitution that children born out of wedlock have the same rights as children born in wedlock (the second paragraph of Article 54).
 
14. The fact that the above-mentioned provisions are included in the chapter on human rights and fundamental freedoms demonstrates that the state may not, in principle, interfere with this relationship between parents and children. If the guarantee of mutual connectedness between parents and children is to be effective, the state is also obliged to adopt rules that will enable the actual establishment and protection of such relationships. The procedure for deciding on the exercise of parental care and the maintaining of contact between children and their parents who do not live together forms part of these rules. The affected persons must be guaranteed participation in this procedure in a manner that allows for the protection of their rights. These safeguards are guaranteed in particular in Articles 22 and 23 of the Constitution. On the basis of the guarantee of the equal protection of rights (Article 22 of the Constitution), parents have the right to declare facts that are relevant to a decision, to express their opinion, and to have their opinion taken into account in proceedings to decide on child custody. Pursuant to the same provision, in conjunction with the first paragraph of Article 56 of the Constitution, children who are capable of forming an opinion also have the right to express their opinion, which the competent authority must take into account when making a decision. Taking into account age and maturity, on the basis of the above-mentioned constitutional provisions a child may also participate in proceedings either by himself or through a special representative who in the event of a dispute between the parents must not be either one of them. The right to judicial protection (Article 23 of the Constitution) provides affected persons access to an independent and impartial court, the right to request such court to decide on the merits of the case, and the right to request a decision to be made without undue delay. With regard to the allegations in the request submitted in the case at issue, there was no need to decide on whether, in addition to the mentioned procedural safeguards, the effective protection of the mutual connectedness between parents and children requires more than what is provided for by Articles 22 and 23 of the Constitution.
 
15. The allegations put forward in the request, in which the applicant substantiated the deficiencies of the procedure before the social work centre and, as a result, also the judicial procedure, are unfounded. The social work centre must act pursuant to the provisions of the GAPA, according to which a party to the proceedings is not only the person who has initiated the proceedings or the person against whom proceedings have been initiated, but also other persons who have the right to participate in proceedings in order to protect their rights or legal interests (Article 49 of the GAPA). In proceedings to decide on the custody of children, both parents and the child are parties to the proceedings. Parties to administrative proceedings have the right to state facts that are relevant to a decision, adduce evidence, respond to the statements and evidence adduced by opposing parties, participate in an oral hearing (Article 143 of the GAPA), and file legal remedies (Article 233 of the GAPA). The special provision of the second paragraph of Article 105 of the MFRA guarantees children who are capable of forming an opinion the right to express it. They are provided the opportunity to participate in administrative proceedings though a guardian ad litem. Article 213 of the MFRA imposes the duty to appoint such representative on the authority conducting the proceedings. According to this provision, minors are appointed a special guardian in the event of a conflict between them and their parents, for the minors to be able to perform specific legally relevant actions, and in other instances where their interests are in conflict with the interests of their parents. This provision can only be understood to mean that the appointment of a guardian ad litem is required in all instances of a potential conflict of interest between the parents and the children. Such is the case with a decision as to which of the parents the child will live with.
 
16. It is a fact that, when arranging relationships within the same family, the same social work centre can assume two different functions: that of an institution, the existence of which has been prescribed by the state in order to offer professional advice and help with arranging the relationships between family members (the second paragraph of Article 15 of the SSecA); and that of the competent authority that has been granted the power to decide on the rights and duties of individual members of the same family. This can influence the impartiality of the person who decides a case, but not necessarily. The fact that a professionally trained person is acquainted with the relations within a family and counsels them does not necessarily entail that this person will be biased in subsequent decision making. If an affected person believes that some other circumstances exist that cast doubt on the impartiality of the person who decides in the proceedings, the affected person may request his or her exclusion (Article 44 of the GAPA). In addition, such person is also guaranteed subsequent protection before an independent and impartial court, which has the possibility to examine the established state of facts and to investigate the relevant facts on its own (first paragraph of Article 14 of the GAPA). It is for the legislature to assess whether counselling is still possible despite such a connection between functions, and such is further not the subject of the request in question.
 
17. The allegations referring to judicial protection against the decisions of social work centres are also unfounded. As already stated, children must be appointed a guardian ad litem. It is already clear from the function of a guardian ad litem, who represents one of the parties to the proceedings, that a person who is an employee of the authority deciding in such proceedings and who is thus obliged to follow the instructions of this authority cannot be appointed as guardian. It therefore follows from the interpretation of the statutory provisions that, in the cases it is deciding on, a social work centre cannot simultaneously perform the function of a child's representative. The alleged violation of Article 23 of the Constitution is also not substantiated by the assertion that parties who participate in proceedings are laypersons and are unaware of their rights in the event that the administrative authority fails to act. This aspect of the effectiveness of the protection of rights is conditional upon the active participation of the parties and their due care for their rights in proceedings, and does not depend on whether their rights are decided on by an administrative authority or a court.
 
18. Moreover, the allegation that the right of children to special protection and care (the first paragraph of Article 56 of the Constitution) has been violated by the challenged provisions of the MFRA is unfounded. This constitutional provision does not require the legislature to vest the power to decide on all family-law related questions with either the court or the social work centre.
 
19. For all the above-mentioned reasons, the challenged part of Article 88 of the SSecA is not inconsistent with the Constitution. The provision explicitly prescribes two procedural safeguards – an oral hearing and the obtaining of the opinion of the expert commission. Both safeguards only extend the scope of rights of parties to proceedings before social work centres. The decision as to whether the applicant is correct to assert that the explicit provision on a mandatory oral hearing in certain family-law related cases excludes the mandatory nature of the hearing in other cases is not relevant to the case at issue.
 
20. However, the allegation put forward in the request that the challenged provision of the MFRA is contrary to the principle of equality before the law (the second paragraph of Article 14 of the Constitution) is substantiated since that provision, contrary to other similar cases, establishes the competence of a social work centre to decide on the exercise of parental rights. The second paragraph of Article 14 does not prohibit the legislature from regulating the positions of legal subjects differently, but from doing so arbitrarily, without reasonable and objective grounds. Such entails that differentiation must serve a constitutionally admissible aim, that this aim must be reasonably related to the subject of regulation by law, and that the differentiation introduced must be an appropriate means for achieving this aim.
 
21. Pursuant to Article 78 of the MFRA, a court decides on child custody in divorce proceedings, and also subsequently if changed circumstances and the children’s interests require such decision to be altered. The second paragraph of Article 105 in conjunction with the first paragraph of Article 114 of the MFRA determines the competence of a social work centre to decide on which of the parents will exercise parental rights if the parents live separately and cannot reach an agreement on such. Pursuant to both provisions, the subject of the decision making process is the same: the competent authority decides on which of the parents will exercise parental rights in instances when they do not live together.
 
22. By claiming that the competence of different authorities may lead to different decisions on the merits, the applicant fails to substantiate the difference that is relevant to the review in terms of the second paragraph of Article 14 of the Constitution. To be more specific, both cases relate to the application of the same substantive rules: in deciding which parent a child should live with, the competent authority must take into account the child’s interests. Furthermore, both cases are finally decided by the Supreme Court as the court of last instance, which gives legal opinions that are binding for all its panels on issues that are relevant to the uniformity of the case law (Articles 109 and 110 of the CtsA). The difference between both groups of cases is in the competence to decide on this issue and, as a result, in the procedures in which the competent authority decides. In the first case, a court decides on the exercise of parental rights in a civil procedure; in the second case, however, it is a social work centre that decides in an administrative procedure, the judicial review of its decision being subsequently provided in proceedings for the judicial review of administrative acts. An important difference also lies in the fact that, if a social work centre decides on the exercise of parental rights, judicial proceedings must be initiated in order to determine child support; however, if a court decides on the exercise of parental rights, it also decides on child support in the same proceedings if the parents cannot reach an agreement thereon.
 
23. The connecting factor for the differentiation is the parents' divorce. Regardless of whether the children were born in wedlock or before the marriage was contracted, and regardless of whether it is the first decision on the awarding of custody of the children or a subsequent change to this decision, if the parents divorce, a court is competent to decide on the exercise of parental rights (the first and fourth paragraphs of Article 78 of the MFRA). In all other cases, i.e. if the parents do not divorce but only live separately, or if they have never married but lived in a common-law marriage that was terminated, or they lived together only for a short period of time, or have not lived together at all, a social work centre decides on child custody in an administrative procedure (the first paragraph of Article 105 of the MFRA and Article 86 of the SSecA).
 
24. The legislature did not have reasonable and objective grounds for the described differentiation. The Government claims that such solution gave priority to the negative aspect of the right to respect for family life, i.e. that the state is not to interfere if the parents have decided not to marry. Even if we ignore the fact that the challenged provision also applies to cases where married parents live separately, which entails that the above-mentioned position is therefore incorrect, the aim pursued by the challenged provision has not been achieved. More specifically, a social work centre's decision is also issued in an administrative procedure and is, as such, an administrative act that is authoritative in nature. It is also not possible to substantiate the difference with the assertion that only the union of spouses and children is (or has until recently been) a legally regulated family unit. Since the MFRA entered into force, relationships between parents and children have been legally regulated, regardless of whether or not the parents are married, and such relationships are the subject of the challenged regulation. Both groups of cases primarily concern a dispute between parents who no longer live together, and not the state's interference with the relationships between parents and children. Thus, if the parents reach an agreement, the social work centre does not decide at all. Moreover, the fact that in divorce proceedings, which are within a court’s competence, all issues related to divorce are decided concurrently could not have been a reason for determining different competences. If a court has already decided on child custody, it also decides on the issue again if circumstances change. As the issue of whether or not the parents are divorced has no connection with the subject of the decision, i.e. the decision on the exercise of parental rights, the second paragraph of Article 105 in conjunction with the first paragraph of Article 114 of the MFRA is contrary to the principle of equality before the law (the second paragraph of Article 14 of the Constitution).
 
25. Having established that the second paragraph of Article 105 in conjunction with the first paragraph of Article 114 of the MFRA is contrary to the principle of equality before the law, there was no need to review whether it was also inconsistent with the guarantee of the equal protection of rights referred to in Article 22 of the Constitution.
 
26. The challenged provision of the MFRA is not inconsistent with the Constitution because the legislature was not permitted to determine the competence of a social work centre to decide on the exercise of parental rights if the parents were not living together and had not reached an agreement on whom their children will live with. It is only inconsistent with the Constitution as, in some cases it determines the competence of a court to decide on child custody, while in other cases it determines the competence of a social work centre to decide thereon. Therefore, the Constitutional Court has not abrogated the challenged provision of the MFRA but has only established its unconstitutionality. For the same reasons, the provisions of the MFRA that determine the competence of a court to decide on the custody of children if their parents do not live together (the first and fourth paragraphs of Article 78 of the MFRA) are also inconsistent with the Constitution. Pursuant to Article 30 of the CCA, the Constitutional Court may also review the constitutionality of other provisions of the same or other regulation for which a review of constitutionality or legality has not been proposed, if such provisions are mutually related or if such is necessary to resolve the case. Since the establishment of the unconstitutionality of the second paragraph of Article 105 in conjunction with the first paragraph of Article 114 of the MFRA inevitably results in the unconstitutionality of the first and fourth paragraphs of Article 78 of the MFRA, the Constitutional Court decided that these two provisions are also inconsistent with the Constitution. When the already published Civil Procedure Act (Official Gazette RS, No. 26/99) enters into force, the fourth paragraph of Article 78 of the MFRA will cease to apply (the first paragraph of Article 501 of the Civil Procedure Act). Since the division of competences to decide on child custody that was challenged by the applicant and is provided in the MFRA at the time of the issuing of this Decision remains the same, the cessation of the application of the fourth paragraph of Article 78 of the MFRA has no effect on the decision in the case at issue.
 
27. The Supreme Court also drew attention to the possible unconstitutionality of other provisions of the MFRA according to which the social work centre is competent to decide on measures that entail an interference with the right to respect for family life. However, as the requirements for adjudication pursuant to Article 30 of the CCA were not met, the Constitutional Court did not extend the proceedings to a review of the constitutionality of these provisions.
 
 
C
 
28. The Constitutional Court adopted this Decision on the basis of Article 21, the second paragraph of Article 26, Article 30, and Article 48 of the CCA, composed of: Franc Testen, President, and Judges Dr Janez Čebulj, Dr Zvonko Fišer, Dr Miroslava Geč-Korošec, Lojze Janko, Milojka Modrijan, Dr Mirjam Škrk, Dr Lojze Ude, and Dr Dragica Wedam-Lukić. The Decision was adopted by seven votes to two. Judges Testen and Ude voted against. Judge Ude submitted a dissenting opinion.
 
 
Franc Testen
President
 
 
Endnotes:
[1] Judgment in W. v. United Kingdom, dated 8 July 1987, Publications of the European Court of Human Rights (hereinafter referred to as the Publications), Series A No. 121, pp. 27, 59.
[2] Judgment in Marckx v. Belgium, dated 13 June 1979, Publications, Series A No. 31, pp. 15, 31, and Johnston v. Ireland, dated 18 December 1986, Publications, Series A No. 112, pp. 25, 35.
[3] Judgment in W. v. United Kingdom, op. cit., pp. 29, 65.
[4] Ibidem, pp. 28, 63–64.
[5] The Government's position that the European Court of Human Rights has only recently taken into consideration actual – and not just legally recognised – family relations is erroneous. The European Court of Human Rights does not make the concept of family conditional upon the parents being married. In 1986, in Johnston v. Ireland (cited in note 2), it already decided that family life also exists in cohabitation relationships, in particular in the case of unmarried partners and their children who have lived together for several years. In an earlier case, i.e. Marckx v. Belgium (cited in note 2), it found a violation of Article 8 of the ECHR as the state had not recognised the legal bond between a child born out of wedlock and the relatives of her mother.
 
Dissenting Opinion of Judge Dr Ude, Joined by Judge Testen
 
 
I do not agree with the decision that the statutory regulation, which determines that, pursuant to Article 105 of the Marriage and Family Relations Act, it is within the competence of a social work centre to decide on child custody, while, pursuant to Article 78 of the same Act, it is within the competence of a court to decide on the same matter, is inconsistent with the Constitution. According to this decision, the regulation that determines that a court decides on child custody especially in the event of a divorce or if a decision regarding such is subsequently changed, while a social work centre decides on child custody if the parents live separately and cannot reach an agreement on the custody of their children (i.e. especially with regard to children born out of wedlock or in the event of the termination of a common-law marriage), is therefore unconstitutional.
 
The majority decision rejected the majority of the reasons stated by the applicant (the Supreme Court of the Republic of Slovenia) to substantiate its claim that the statutory provisions on the competence to decide on child custody are contrary to the Constitution. The Decision dismissed the allegations that, when a social work centre decides on child custody, not all procedural safeguards are guaranteed either in the administrative procedure or in the subsequent proceedings for the judicial review of administrative acts and such statutory regulation violates the right of children to special protection and care (the right referred to in Article 56 of the Constitution). It was, however, decided that the provisions of Articles 105 and 78 of the MFRA are contrary to the principle of equality before the law (the second paragraph of Article 14 of the Constitution of the Republic of Slovenia) as that there are no reasonable and objective grounds for enacting different competences.
 
This finding is, in my opinion, erroneous. The reasons for different competences with regard to deciding on child custody may no longer be convincing. It is even possible to take the view that it would be justified from a professional perspective to determine the competence of the courts to decide on the custody of children, regardless of the question of whether these legal relationships are being decided on in divorce proceedings or when parents do not live together. It is however, in my opinion, impossible to claim that there are no reasonable and objective grounds to determine different competences, which would entail that such a regulation is arbitrary.
 
Different competences to decide on child custody were the result of the evolution of the legal regulation of family relationships and of procedural economy. It was logical that the legislature had determined the competence of courts for deciding on child custody in the case of divorce already before the MFRA entered into force. In divorce proceedings, a court decides on the legal relationships between spouses who are also often in conflict regarding the question of who will take care of and raise their children and how their maintenance will be ensured. However, it is primarily in affiliation proceedings that a court decides on children born out of wedlock and their maintenance, i.e. when the putative father does not attempt to obtain custody of the child. On the contrary, he disputes his paternity and this is the reason why judicial proceedings are necessary in the first place. Only later, after 1976, did legal relationships develop with regard to common-law marriage, for which the legal order determined several legal consequences. Only during this period did child custody disputes arise in relation to children born out of wedlock, i.e. in common-law marriages. Those disputes primarily arose after the termination of such common-law marriages; however, given their nature, these were not terminated in judicial proceedings, but by actual cessation. The evolution of legal relationships therefore led to different competences for decision-making. Common-law marriage – its establishment and termination – still differs from marriage in real life and in terms of legal regulation. What is particularly characteristic of common-law marriage is that it often evolves without the involvement of state authorities (i.e. a registrar) or intervention from the courts. Therefore, there also exist grounds for a different regulation concerning the custody of children born in such a union. It is therefore impossible to claim that there are no reasonable and objective grounds at all for such differentiation.
 
I am also of the opinion that the time is now ripe to determine the competence of courts for deciding on legal relationships of this kind. This is demonstrated by a new definition of the competence to decide on child custody and child support in the second paragraph of Article 406 of the new Civil Procedure Act, which emphasises that courts are competent to decide on child custody and child support regardless of whether they are decided upon independently or together with matrimonial disputes, or in proceedings to determine or contest paternity or maternity. Certainly, the mere fact that the competence of the courts was determined on the basis of convincing expertise does not entail that a different regulation is unconstitutional. In short, that which is based on convincing expertise is not always the sole constitutionally admissible option.
 
I believe that, on this occasion and by its decision, the Constitutional Court engaged in the professional polemics on the competence to decide on child custody and assumed the role of arbiter. Ultimately it even took the position that a regulation, according to which the administrative authorities and social work centres would have exclusive competence to decide on legal relationships of this kind, would also be constitutionally admissible. The Constitutional Court considered a different regulation of competence to be unconstitutional and adopted the position that either a court or a social work centre may be competent, but only to the exclusion of the other. Such finding could only be substantiated if the Constitutional Court assessed that legal protection standards are not equal in court and administrative proceedings (including proceedings for the judicial review of administrative acts) or that they are lower in one of them. In the case at issue, however, the Constitutional Court rejected the allegations regarding the lower legal protection standard in the administrative procedure, but nevertheless ultimately considered the division of competences to be unconstitutional. In my opinion, there are no reasonable grounds for such a decision.
 
 
Dr Lojze Ude
Franc Testen
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Supreme Court
Date of application:
23.07.1998
Date of decision:
01.07.1999
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Document:
AN02110