Last Edited: December 2005
Summary and Analysis
In Slovene child protective proceedings, the Civil Procedure Act promises “the child who is capable of understanding the meaning of the proceedings and the consequences of the decision” an opportunity to attend an “informal discussion” with the court. Where a child's interests conflict with that of her parent or legal guardian, Slovene law further specifies that a collision guardian be appointed to act in that child's best interests. In practice, however, children in Slovenia may not be receiving the fullest protection of these laws, as indicated in a recent diploma thesis:
Related passages from a diploma thesis
Lidija Cvetković, Defender of Child's Rights, 2003
According to Article 213 of the Matrimony and Family Relations Act, a collision guardian can be appointed in cases where the interests of children and their parents clash. The Human Rights Ombudsman of the Republic of Slovenia drew attention to the fact that this institute is (too) rarely used in practice. In a survey carried out with centers for social works the author of the thesis obtained some answers regarding the practice on collision guardians. The collision guardians are appointed in cases of clashes of interests in property and probate procedures and in establishing maternity/paternity. In addition, the centers appoint collision guardians in cases where at least one of the parents and a child are party in the procedure. The criteria for appointing the collision guardian are not stipulated for in the law therefore they are determined on a case by case basis, usually by the court. In cases where there is no collision the interest of the child is represented by his/her parents. However, the centers give the opportunity to a child in the age over 15 (sometimes the age over 10) to express his/her views.
In appointing procedures, the education of a collision guardian is not taken into account. The most common criterion for the collision guardian is to be close to a child (e.g. relatives, friends of the family, but also workers of the centers for social work and NGO representatives). The center has expressed that it is useful for the collision guardian to have legal education. In general, it is difficult to find an appropriate and trained guardian who would be willing to undertake the function of a guardian voluntarily. Namely, they are only entitled to reimbursement of expenses that arise from performing the function of a guardian. In addition, workers at the centers for social work are usually too biased to perform the function in accordance with the child's best interest. According to the centers, the collision guardians should be professional, paid and organized within independent organizations, and appropriate training (including legal) should be introduced.
A representative of an NGO that took part in proceedings as a collision guardian on several occasions explained that his task was to assure that the proceeding was carried out in accordance with legal provisions and not to give opinions on what would be in the child's best interest in concrete cases. Moreover, the representative never had contact with the children (whose average age was three) to whom he was appointed a collision guardian. In practice, the collision guardian has no influence and is only appointed as required by law, but has an actual power to protect a child's interests.
Sources of Law
(Note: the following translations are not official, and are provided for reference purposes only)
Matrimony and Family Relations Act
Children under the age of 18 are represented by their parents or legal guardian.
Part IV of the Act: Guardianship
Section 5: Guardianship for special cases
1) In cases of a dispute between a child and his/her parents, a collision guardian may be appointed to a minor upon whom parents are exercising their parenting rights, in order to perform specific legal actions concerning both the child and his/her parents and in other cases when their interests clash.
2) The ward [a child under guardianship] is appointed a collision guardian in cases of a dispute between a child and his/her guardian [where there is already a guardian appointed to a child since his/her parents are not able or willing to take care of a child] and in cases when their interests clash.
3) In cases of a dispute between two or more minors over whom the same person is exercising parenting rights, or between two or more wards that have the same guardian, each minor or ward is appointed a collision guardian for the purpose of settling dispute. Collision guardian is also appointed when a legal action has to be carried out concerning these minors or wards.
4) When parents, adopters, guardians or state or other bodies during performing their duties learn about a case provided for in this Article they need to notify a center for social work on this.
1) Parent's parenting rights can be terminated with a court decision if a parent is abusing his/her parenting rights, or if he/she left a child, or if he/she showed with his behavior that he/she is not willing to take care of a child, or if he/she is neglecting his/her parenting duties towards a child in any other way.
2) Parenting rights are returned to parents with a court decision if the reason behind the termination of parenting rights has ceased to exist, except in cases when a child was adopted.
3) In the latter cases the court decides according to the non-litigious civil procedure.
Chapter 8: Measures taken by the Center for social work
The center for social work is obliged to take all necessary measures required by upbringing and care of a child or protection of his property rights or the child's other rights and interests.
1) A child may be taken away from his/her parents by the Center for social work and be given for upbringing and care to another person or institution if the parents neglect the child's upbringing and care and if such measure is required due to other important reasons concerning the child's interest.
2) By this measure other rights and duties of parents towards the child are not terminated.
3) The center for social work monitors the implementation of a measure stipulated in the first paragraph of this article.
Civil Procedure Act
Part III: Special procedures
Chapter 27: Procedure in marital disputes and disputes arising from relationships between parents and children
Disputes arising from relationships between parents and children are disputes on the establishment and contesting of paternity or maternity and disputes on the care,
upbringing and maintenance of minors and persons over the age of 18 under extended
parenting rights (hereinafter referred to as: children) regardless of the fact whether
these disputes are being resolved independently or in the same time as marital
disputes or paternity or maternity disputes.
Marital disputes and disputes arising from the relationships between parents and children are closed to the public.
In marital disputes and disputes arising from relationships between parents and children, courts are obliged ex officio to undertake everything necessary to protect the rights and interests of children and other persons not able to take care of their rights and interests.
In disputes regarding the care, upbringing and maintenance of children [the bench deciding upon the rights and interests of a child] is not bound to submissions of the parties; when this Act so provides the bench can decide on matters even without the submission of the parties.
In order to protect the children, the bench may establish the facts not stated by the parties and may gather information necessary to adopt a decision. Persons and organizations that have at their disposal the information necessary for a decision are obliged to provide such information to the court, even against the will of persons concerned.
Children over the age of 15 who are capable of understanding the meaning and
legal consequences of their actions must be given an opportunity to perform
procedural actions independently as a party to a dispute.
The legal guardian of such child may perform procedural actions only up until a child declares that he/she is taking over as a party to a dispute.
A child below the age of 15 that is considered by the court as not being able to understand the meaning and legal consequences of his/her actions is represented by a legal guardian.
If the interests of a child and his/her guardian clash, the court appoints a collision guardian to the child. The court acts the same way in cases when it estimates that according to the circumstances of the case this is necessary to protect the child's interests.
In deciding on the education and care of children, the court shall be bound to advise the child who is capable of understanding the meaning of the proceedings and the consequences of the decision in an appropriate manner of the introduction of the proceedings and of his right to state an opinion thereon. Considering his age and other circumstances, the child shall be invited, through intermediary of the social services or a school social worker, to attend an informal discussion in the court. Such discussion may be attended by a person whom the child so designates.
The judge shall make a record on the discussion and, as the case may be, record the discussion on a tape. For reasons of protection of interests of the child, the court may decide not to allow his parents to inspect the record or to listen to the tape recording.
The child who has reached the age of fifteen and has produced his opinion during the proceedings shall be served upon the decision, from which he may also take appeal.
In proceedings on marital disputes and disputes arising from the relationships between parents and children, the court may, at the request of a party or ex officio, issue temporary injunctions on the care and maintenance of children as well as temporary injunctions prohibiting one or both parents from having personal contact with a child . . .
Non-Litigious Civil Procedure Act
The court may allow a party without legal capacity to perform individual procedural actions for the purpose of exercising his/her rights or interests if the court estimates that this party is capable of understanding the meaning and legal consequences of such actions.
The proceeding for terminating parenting rights can be initiated at the request of one of the parents having parenting rights, by the local center for social work, by a child over the age of 15 who is capable of understanding the meaning of the proposal and its legal consequences, or by a public prosecutor. The court initiates the procedure ex officio when it learns in any way of the existence of reasons for terminating parenting rights.
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