Communicated on 18 December 2019

SECOND SECTION

Applications nos. 34694/19 and 38043/19 A.U. and Others against Slovenia and J.M. against Slovenia lodged on 26 June 2019 and 10 July 2019 respectively

SUBJECT MATTER OF THE CASE

The first applicant, in application no. 34694/19, and the second applicant in application no. 38043/19 are two fathers separated from their minor children ’ s mothers, who were granted sole custody of the children. The first applicant (application no. 34694/19) complains on his and on his four children ’ s behalf. The second applicant (application no. 38043/19) complains only on his behalf. Despite being considered to be as capable of caring for their children as the mothers, the applicants ’ requests for joint custody were refused on the grounds that the mothers were opposed to it. They however maintain regular contact with the children.

The applicants in both cases complain that the impossibility of one parent to obtain joint custody over the children in the absence of the other parent ’ s consent was not justified in the interests of the children and violated the applicants ’ right to respect for their family life. In this connection, applicant J.M. (application no. 38043/19) also argues that after he had concluded a judicial settlement granting sole custody to the mother, the circumstances had changed and the interests of the children warranted a new judicial decision – granting joint custody over the children to both parents – which the domestic courts, relying on the res iudicata principle, refused to take into account.

Relying on Article 8 in connection with Article 14 and on Article 1 of Protocol No. 12, the applicant fathers complain that in granting sole custody to the mothers – which has been a general practice in cases such as theirs – the domestic courts had discriminated against them on the grounds of gender. They argue, in particular, that domestic courts grant sole custody to mothers in 90% of the cases. In this connection, applicant A.U. (application no. 34694) also invokes Article 5 of Protocol No. 7.

QUESTIONS TO THE PARTIES

QUESTION S IN RESPECT OF APPLICATION NO. 34694/19

1. Does the first applicant (the applicant father) have locus standi , satisfying the requirements of Article 34 of the Convention, to lodge the present application on behalf of his four children (see Eberhard and M. v. Slovenia , nos. 8673/05 and 9733/05 , §§ 85-88, 1 December 2009 )?

2. Did the decisions of the domestic courts, which, in accordance with section 105 of the Marriage and Family Relations Act as in force at the relevant time, in the absence of his former wife ’ s consent refused to grant the first applicant joint custody over their children following their divorce, violate the first applicant ’ s right to equality between spouses as guaranteed by Article 5 of Protocol No. 7?

QUESTIONS IN RESPECT OF BOTH APPLICATIONS

3. Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention? In particular, have the domestic courts engaged in a thorough balancing of the interests at stake, taking into account the children ’ s best interests, and have they put forward relevant and sufficient reasons for their decisions regarding the attribution of custody (see Olsson v. Sweden (no. 1) , 24 March 1988, § 68, Series A no. 130; Zaunegger v. Germany , no. 22028/04 , §§ 56-61, 3 December 2009; and Buchs v. Switzerland , no. 9929/12, §§ 49-51, 27 May 2014)? Did section 105 of the Marriage and Family Relations Act as in force at the relevant time allow for a judicial review of whether in the absence of parents ’ consent joint custody would be in the interests of the child?

4. Have the applicant fathers suffered discrimination on the grounds of their gender, contrary to Article 1 of Protocol No. 12 and Article 14 of the Convention read in conjunction with Article 8 of the Convention (see Konstantin Markin v. Russia [GC] , no. 30078/06, § 124 ‑ 127, ECHR 2012 (extracts) , Zaunegger , cited above, § 51; and Buchs , cited above §§ 64-67)?

APPENDIX

Application no. 34694/19

No.

Applicant ’ s Name

Year of Birth

Nationality

Represented by

1.A.U.

1970Slovenian

Miha Å ERCER

2.K.U.

2005Slovenian

Miha Å ERCER

3.V.U.

2007Slovenian

Miha Å ERCER

4.H.U.

2009Slovenian

Miha Å ERCER

5.N.U.

2009Slovenian

Miha Å ERCER

Application no. 38043/19

No.

Applicant ’ s Name

Year of Birth

Nationality

Represented by

1.J.M.

1974Polish

Rok RAKUN