FIRST SECTION

DECISION

Applications nos. 34694/19 and 38043/19 A.U. and Others against Slovenia and J.M. against Slovenia

The European Court of Human Rights (First Section), sitting on 1 February 2022 as a Committee composed of:

Krzysztof Wojtyczek, President, Erik Wennerström, Ioannis Ktistakis, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications nos. 34694/19 and 38043/19 against Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”);

the decision to give notice of the complaints concerning Article 8 of the Convention, taken alone and in conjunction with Article 14, and Article 1 of Protocol No. 12 (both applications) and the complaint concerning Article 5 of Protocol No. 7 (application no. 34694/19) to the Slovenian Government (“the Government”), represented by their Agent, Mrs N. Pintar Gosenca, Senior State Attorney, and to declare inadmissible the remainder of the applications;

the decision not to have the applicants’ names disclosed;

the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The first applicant, A.U., is the father of four children (the second applicant born in 2005, the third applicant born in 2007 and the fourth and fifth applicants born in 2009), whose mother is X. In 2016, following the breakdown of the relationship between the first applicant and X, the district court, after holding a hearing, awarded the custody of the children to X. The first applicant was granted contact every other week and half of the holidays and was obliged to pay child support to X. The court noted that the conditions for joint custody set out in domestic law were not met since the parents had not reached an agreement on that. It further referred to the report of the welfare authorities, which noted that while both parents were capable of taking care of the children, X was more engaged in arranging day-to-day affairs such as coordinating the communication regarding the contacts and purchasing necessities for the children. The welfare authorities opined that the primary custody should be given to X in the event no agreement was reached. The first applicant did not object to the welfare authorities’ report and did not request that an expert be appointed to provide an opinion as to what arrangement would be in the children’s best interest.

2. The appeal court upheld the district court’s judgment finding, inter alia , that it would have been in the children’s best interest had the parents agreed to joint custody but that no such agreement had been reached. It also noted that the first applicant had not objected to the report of the welfare authorities. The Supreme Court dismissed his leave to appeal on points of law.

3 . The first applicant subsequently lodged a constitutional complaint and a petition for the review of constitutionality of the legal provisions pursuant to which custody of children was to be awarded to one of the parents if they failed to agree to joint custody. On 17 January 2019 the Constitutional Court rejected the petition and refused to accept the constitutional complaint for consideration. The court considered, inter alia , that the petition did not raise an important question because the challenged law had in the meantime been amended so that the courts could grant joint custody to the parents even in the absence of an agreement. One judge provided a dissenting opinion concerning, in particular, the incompatibility of the challenged regulation with the Constitution and the question of the effect of the changes in legislation on the first applicant’s situation.

4. The applicant, J.M., is the father of two children, born in 2008 and 2010 respectively, whose mother is Y. In 2012, following their separation, the applicant and Y reached a court settlement by which Y had the custody of the children and the applicant was to pay child support and had regular contact with the children. Later on, after modifying several times his claim lodged with the court, the applicant requested joint custody of his children. Following several hearings where the parties and the appointed expert were heard, the district court delivered a judgment in which it found that a parent who opposed joint custody could not be forced into it by a judgment. It also noted that the applicant and Y had problems communicating with each other, as confirmed by the welfare authorities and the court-appointed expert, and that a valid settlement had been already reached on the issue of custody. By the same judgment, the court extended the applicant’s contact rights to fifteen consecutive days each month and half of school holidays.

5. The appeal court upheld the above findings and noted that in view of the established conflictual relationship between the parents, joint custody would anyhow not be in the best interest of the children.

6. The applicant’s request to the Supreme Court for leave to appeal on points of law was dismissed. On 17 January 2019, his constitutional complaint and petition for the review of constitutionality similar to the ones lodged by the first applicant A.U. were also refused. Two constitutional court judges provided dissenting opinions similar to the one in A.U.’s case (see paragraph 3 above).

7. The applicants in both cases complained that the impossibility of one parent to obtain joint custody in the absence of the other parent’s consent had led to the breach of their rights under Article 8 of the Convention. Relying on Article 8 taken together with Article 14 and on Article 1 of Protocol No. 12, the applicant fathers complained that in granting sole custody to the mothers – which had allegedly been a general practice in cases such as theirs – the domestic courts had discriminated against them on the ground of gender. In this connection, the first applicant A.U. invoked also Article 5 of Protocol No. 7.

JOINDER OF THE APPLICATIONS

8. Having regard to the intertwined subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

THE COURT’S ASSESSMENT

9. The general principles concerning custody proceedings have been summarised in Å irvinskas v. Lithuania , no. 21243/17, §§ 92 to 97, 23 July 2019, and Petrov and X v. Russia , no. 23608/16, §§ 98-102 and 106, 23 October 2018. As regards the principles concerning discrimination on the grounds of sex see Petrov and X , cited above, §§ 124-25, and as regards evidence of indirect discrimination see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 184, 186-89, ECHR 2007 ‑ IV.

10. The Court considers that the first applicant A.U. has standing to act on behalf of his children (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII, and contrast Eberhard and M. v. Slovenia , nos. 8673/05 and 9733/05, § 89, 1 December 2009). It however does not find it necessary to address the remaining Government’s objections since the complaints are in any event inadmissible for the following reasons.

11. No issue arises with the lawfulness and the legitimate aim of the impugned decisions. The parties agreed that according to the law in force at the relevant time joint custody could only be granted when both parents agreed to it. Having regard to the margin of appreciation enjoyed by the national authorities in this field, this is not by itself incompatible with the requirements of Article 8 (compare Petrov and X , cited above, § 105). It is further noted that in the present cases the mothers opposed joint custody and therefore sole custody had to be awarded to one of the parents. In respect of the first applicant A.U., the courts decided in favour of X essentially on the basis of the report prepared by the welfare authorities, which the first applicant had not challenged. The applicant J.M. did not ultimately request sole custody of his children and joint custody was not, as mentioned above, possible. The settlement by which Y were to have sole custody thus remained in force. There is nothing to indicate that the findings reached by the domestic courts within their competence were not based on the best interest of the children or unreasonable and thus fell outside the wide margin of appreciation afforded to the domestic authorities in this area. The Court furthermore notes that no issue arises as to the fairness of the decision-making process.

12. Moreover, the applicant fathers were able to live with their children half of the time, their contact rights being equal to that of the children’s mothers. The applicant fathers both maintained parental rights and could turn to the domestic court if they considered that a certain decision of a custodial parent which concerned a significant issue was not in their child’s best interest. Furthermore, the applicants did not substantiate in what respect, other than the payment of child support by the first applicant, which does not fall within the scope of the complaints examined here, their situation had been affected by the fact that the mothers had sole custody.

13. It follows that the above complaints are inadmissible under Article 35 § 3 (a) of the Convention for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

14. With respect to the applicant fathers’ complaints of discrimination (Article 8 taken together with Article 14, Article 1 of Protocol No. 12 and Article 5 of Protocol No. 7), the Court discerns no difference in treatment as regards the attribution of custody to the applicants in their capacity as fathers. Either of the parents could oppose joint custody and neither the legislation nor the domestic decisions issued in the present cases indicate any preference of granting custody to the mothers based on their gender or related circumstances (compare Buchs v. Switzerland , no. 9929/12, §§ 71-73, 27 May 2014, and contrast, Zaunegger v. Germany , no. 22028/04, §§ 46-48, 3 December 2009). Furthermore, the statistical analysis prepared by the first applicant A.U., which allegedly showed that mothers were granted custody of children in ninety percent of cases, does not appear to be of such reliability to constitute prima facie evidence of indirect discrimination. On the other hand, it has not been disputed that the percentage of women with sole custody of their children was statistically higher than that of the number of men with sole custody. However, there is no evidence before the Court which would allow it to conclude that this was contrary to the applicants’ rights under Article 14. In particular, in the present cases, the impugned decisions were supported by sufficient reasons which constituted objective and reasonable justification for granting sole custody to X and Y.

15. It follows that these complaints are also inadmissible under Article 35 § 3 (a) of the Convention for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 24 February 2022.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President

APPENDIX

No.

Application no.

Lodged on

Applicant Nationality

Represented by

1.

34694/19

26/06/2019

A. U. Slovenian K. U. Slovenian V. U. Slovenian H. U. Slovenian N. U. Slovenian

Miha Å ERCER

Ljubljana

2.

38043/19

10/07/2019

J. M. Polish

Rok RAKUN

Ljubljana