CONCURRING OPINION OF AD HOC JUDGE ZALAR, JOINED BY JUDGE MOTOC

1. I agree with the majority that there has been no violation of Article 8 of the Convention in this case. With this concurring opinion, I should like to underpin the majority reasoning with a particular legal and factual perspective, which is perhaps less visible from the methodology and argumentation in the majority ’ s reasoning. At the same time, the purpose of this concurring opinion is to prevent a possible superficial reading of the judgment which could lead the Slovenian welfare authorities to develop a policy of withdrawal of parental rights that would entail an excessive risk of violations of the Convention in similar cases. This specific perspective in the concurring opinion relates to the fact that the applicant, at a critical period, was a person with disabilities and not merely a vulnerable person.

2. The applicant ’ s disability was an undisputed fact between the parties. The evidence provided by two experts (Dr M and Dr P.) in the domestic court proceedings essentially corroborated each other ’ s findings, in the sense that it was established beyond doubt that the applicant suffers from a mental disorder on the schizophrenia spectrum, and that her negative attitude towards treatment and her abandonment of child E. resulted from her illness and that it was not reasonable to expect her to care for E. Thus, the applicant falls under the term “ person with disabilities ” as set out in Article 1 § 2 of the UN Convention on the Rights of Persons with Disabilities (hereinafter: the CRPD), which has been ratified by Slovenia and by more than 170 other States.

3. This high number of ratifications of the CRPD indicates a broad consensus among the Contracting States to as regards their obligations towards persons with disabilities, including in family matter s as described in Articles 1, 5 and 23 of the CRPD. In accordance with the Court ’ s general case-law, a very broad legislative consensus among the Contracting States has an impact on the methodology for interpreting the Convention in the sense that the margin of appreciation, in accordance with the Court ’ s general case-law, becomes narrower. [1]

In addition to this general approach, in a particular type of case, where the issue disputed between the parties is not a decision to take a child into foster care, but rather further limitations, namely the withdrawal of parental rights, the Court ’ s specific case-law calls for “ stricter scrutiny ”. [2]

4. Article 5 § 3 of the CRPD (equality and non-discrimination) states that in order to promote equality and eliminate discrimination State Parties are to take “ all appropriate steps ” to ensure that “ reasonable accommodation ” is provided. Reasonable accommodation means “ necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden ” where this is necessary in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms (Article 2 § 4 of the CRPD). Article 5 § 4 further states that “ specific measures ” which are necessary to accelerate or achieve de facto equality of persons with disabilities are not to be considered as discrimination under the terms of the CRPD.

5. While the Court did take the CRPD into account in section III of the present judgment (relevant international-law material), it did not refer to Article 5, but only to Article 1 and Article 23 §§ 2, 4 and 5 of the CRPD. However, even Article 1 and Article 23 §§ 2 and 4 of the CRPD, which the present judgment refers to, contain the legal + standard of de facto equal treatment in the enjoyment of all human rights and fundamental freedoms by all persons with disabilities. For that reason too, it was actually inevitable, as acknowledged by the Court in several parts of the judgment, that the Court would also examine the interference with the applicant ’ s right to family life resulting from withdrawal of her parental rights (and from the adoption of E., which followed as a consequence of the withdrawal of parental rights) from the perspective of her illness and the standards on equal treatment, since this is an inseparable part of Article 8 of the Convention. [3] Cases involving the withdrawal of parental rights from persons with disabilities cannot be exceptions in this regard.

6. Thus, for example, the Court states in the present judgment that the applicant ’ s complaint concerning her opportunity to influence decisions affecting her family life, which was raised also under Article 14 in conjunction with Article 8, has been appropriately dealt with under Article 8 alone. In addition, the Court states that the applicant ’ s complaint that the welfare authorities had failed to respond properly to her illness is also examined in the present judgment. Furthermore, the judgment states that in the case of vulnerable persons, the authorities must show “ particular vigilance and afford increased protection ” . The case of Kocherov and Sergeyeva v. Russia (no. 16899/13, 29 March 2016) is cited in the judgment; in it, the Court stated that the margin of appreciation varies in accordance with the “ nature of the issues and the importance of the interests at stake ”. There can be no doubt that the relevant aspect of the “ nature of the issue ” here is the applicant ’ s illness.

7. Thus, in the present judgment the Court did verify whether the Slovenian welfare authorities had taken “ positive steps ” and whether they had provided “particular care ” and “ increased protection ” in order to assist the applicant, who was vulnerable on account of her disability, in maintaining personal and family ties with her daughter, E. This approach by the Court, which is a well-established standard in the case-law regarding cases of serious interference in the family life of vulnerable parents (where parents are, for example, in harsh socio-economic situations, possibly combined with ethnic origin, [4] have a mild mental disability, [5] intellectual deficiencies [6] or another type of illness accompanied by psychological trauma [7] ) corresponds, in my opinion, to the broad consensus among the Contracting States concerning their obligations to provide appropriate and effective assistance in terms of the “ specific measures ” which are a necessary adjustment to accelerate or achieve de facto equality of persons with disabilities, while not imposing a disproportionate or undue burden as this is regulated under the CRPD [8] . These are, therefore, the scope and criteria by which the Court in this case evaluated whether the Slovenian welfare authorities had violated the applicant ’ s substantive right to family life as guaranteed by Article 8 of the Convention.

8. Thus, the crucial part of the reasoning concerning a non-violation of Article 8, including the relevant aspects of equal treatment, is set out in section B.3.c.ii.(É‘) of the present judgment, where the Court evaluates, from the standpoint of the Convention, some of the specific measures which were provided by the welfare authorities in this particular case. I also basically concur with this part of the judgment, but would like to add and emphasise certain particular factual and legal elements, as follows.

9. The judgment points out that the welfare authorities visited the applicant on 4 January 2010, just after she had given birth to E. The Cerknica Social Work Centre (SWC) assisted her in finding accommodation. She stayed with her mother for three weeks. During these three weeks the applicant was provided with various forms of social assistance and the services of an employee from a psychiatric hospital. She was referred for an emergency examination by a clinical psychologist, which she declined. In view of these measures by the Cerknica SWC, the majority is satisfied that the authorities responded promptly to the applicant ’ s difficulties and that there is no indication that they failed to take the necessary measures to assist her prior to her departure for France (on 30 January 2011), and that, once the applicant had left, the authorities had no choice but to place E. in care.

10. I can certainly agree with this conclusion by the majority, which relates only to the period prior to the applicant ’ s departure for France, but the child ’ s placement in foster care is not a disputed matter in this case, as the Court itself has pointed out. Nevertheless, even for this period, I think it needs to be added in more specific terms that the afore-mentioned special measures – in the sense of increased protection – included the activities of the Cerknica SWC, which found the option of placing the applicant and the newborn baby in a Crisis Centre in Piran. This was ultimately not a suitable solution. For that reason, and based on an arrangement between the Cerknica SWC and the maternity hospital, the applicant was allowed to stay in the maternity hospital until January 2011. The Cerknica SWC then reached an agreement with the applicant ’ s mother, so that the applicant and her child could stay at the home of the applicant ’ s mother for three weeks. The Cerknica SWC then helped the applicant to complete the application forms for obtaining parental allowance and childbirth benefit. Via the diplomatic-consular mission, the Cerknica SWC sought the view of the applicant ’ s husband and father of E. on how he intended to take care of the newborn child. [9] The father ’ s answer did not help to resolve the situation in any sense, in that he expressed doubts about his fatherhood of E. In this early period, the Cerknica SWC provided the applicant and her child with social assistance in the form of family help at home, which included the possibility of participating in the Tamala association, the community nursing service, where social worker R.V., who knew the applicant ’ s family history, was employed; in addition, a mobile worker from the Ljubljana Psychiatric Hospital was engaged. The Cerknica SWC also wrote the application for admission to the Gorenjska Maternity Home on the applicant ’ s behalf, because the applicant had failed to do so and the period of agreed accommodation with her mother was running out. [10] The mobile worker who was monitoring the applicant informed two psychiatrists from the Ljubljana Psychiatric Clinics about her mental state. The applicant was offered the possibility of emergency psychological care. The community nursing service sent reports about events in the family to the Cerknica SWC. [11] On 31 January 2011 the Cerknica SWC was informed that the applicant had gone to France to see her husband and had left E. with the child ’ s grandmother. [12] Taking into account these facts, which were not disputed in concrete terms by the applicant, I agree with the majority that the welfare authorities showed particular care and afforded to the applicant the necessary increased protection in the period before initiating the proceedings for the withdrawal of parental rights on 7 or 8 March 2011.

11. The problem, which is also highlighted in the judgment, is that on 7 or 8 March 2011, just two months after E. ’ s birth, and before the applicant had returned from France - she was hospitalised from 23 March to 15 June 2011 (initially in a closed ward of the Idrija Psychiatric Clinic) - the welfare authorities initiated the procedure to withdraw the applicant ’ s parental rights. [13] In principle, this act by the welfare authorities and their active role in the court proceedings for withdrawal of parental rights could decisively jeopardise the State ’ s obligations to put in place special measures and increased protection as regards the family life of the applicant and her child. Concerning this problematic issue, the majority ’ s reasoning first relies on the “ measure of discretion ” enjoyed by the welfare authorities in searching for suitable long-term care, given the complex family situation and the fact that they are in direct contact with the family. I do not consider that a “measure of discretion” at that stage of the process could be an argument to justify early initiation of the proceedings to withdraw parental rights. Two months after the child ’ s birth and without having at that stage any expert evidence on the (medical) nature of the applicant ’ s vulnerability [14] nor any other evidence on the prospects of her ability to care for the child in the (near) future, and although aware of her serious psychological problems, the welfare authorities still had an obligation to respect the Convention standards concerning special measures and increased protection for a vulnerable parent and her child, as long as these measures were not disproportionate or did not cause an undue burden in the light of the child ’ s best interests.

12. Instead of the “ measure of discretion ” argument, I consider that a decisive factor in this case, pointed to by the Court as the second basic argument for finding no violation, is the fact that although the welfare authorities initiated proceedings for withdrawal of parental rights very early in the process, they continued to provide special measures, which the Court would need to evaluate with strict scrutiny and from the standpoint of the “ increased protection ” standard.

13. In this respect, the judgment points out that the applicant maintained a relationship with E. through contact sessions until November 2014 and took part in the IPT group, the purpose of which was to monitor the foster care and organise contact sessions, while proceedings for withdrawal of parental rights were ongoing until 10 December 2015 (Up-70/15-35), when the Constitutional Court rejected the applicant ’ s constitutional complaint. The majority also took into consideration that, prior to January 2014, the applicant was never refused contact with E; the welfare authorities offered help and counselling on their own motion; the judgment adds that although the sessions often seemed not to help the applicant and her child to form a bond, this was mostly due to the applicant ’ s passive attitude and E. ’ s estrangement from her.

14. Since the period from the initiation of proceedings for withdrawal of parental rights (7 or 8 March 2011) until 10 December 2015 was the crucial timeframe for the Court ’ s evaluation of whether the welfare authorities provided sufficient care and increased protection in view of the applicant ’ s disability, I must emphasise that the involvement of the IPT, mentioned in the majority ’ s reasoning, meant that contacts between the applicant and her child were not merely “organised” by the welfare authorities. If contacts were merely “organised” by the welfare authority, this could only - given the applicant ’ s real disability - lead to additional evidence that contacts were not in line with the child ’ s best interests and, therefore, could only support the pending application for withdrawal of parental rights. Instead, from the Government ’ s Observations it can be concluded that the contacts were prepared in advance and actively facilitated by the IPT [15] . When on 15 March 2011 the applicant failed to respond to the IPT ’ s preparatory session in Kranj, that contact session did not take place. [16] Thus, it has been shown that the IPT ’ s role was to ensure, as far as possible, that the contact sessions were beneficial for the applicant and the child. Without the necessary preparation, contact sessions did not take place. [17]

15. The first two contact sessions between the applicant and her daughter, on 5 July 2011 and 31 January 2012, were held on the initiative of a professional staff member from the psychiatric clinic and of the employee of the Cerknica SWC. According to the Government ’ s Observations, the third contact on 15 May 2012 “was quite successful in terms of its substance ” . The next contacts were on 11 July 2012 (on an initiative of the applicant dating from 19 April 2012), 26 October 2012 [18] and 12 December 2012; concerning the latter session, it was reported that communication between the applicant and her daughter was better and that the applicant was involved in E. ’ s play and stroked her daughter a few times during the session. [19] The seventh contact between the applicant and her daughter took place on 13 February 2013; before that, during an IPT meeting on 17 January 2013, it was agreed that contacts would take place gradually, as the girl did not recognise the applicant and that E. would also gradually get to know the rest of her relatives. The applicant also asked if she could bring her older son to the contact session with E.; this was approved, and occurred during the meeting on 13 February 2013. [20] The IPT ’ s next preparatory meeting took place on 4 April 2013 and the eighth and the ninth contact sessions took place on 24 April 2013 and 12 June 2013 respectively. During the latter session, the applicant ’ s son was also present, and he played with his younger sister. [21] The tenth contact session was held on 18 September 2013, following a preparatory meeting between the Cerknica SWC and the applicant on 14 August 2013. [22] The eleventh contact session took place on 6 November 2013 and the applicant was accompanied by her son and, unexpectedly, by her niece. [23] In early 2014, the applicant asked the Cerknica SWC to arrange contacts with her daughter on a more regular basis. The next contact session was on 8 January 2014, when the applicant ’ s son was also present [24] . The next contact sessions were on 16 April 2014 and on 7 May 2014; during the latter, the applicant ’ s mother was present. On 21 May 2014, the applicant again indicated that she wished to have a contact session with her daughter. On 4 June 2014, the IPT preparatory meeting took place and the fifteenth and the sixteenth contact sessions occurred on 2 July 2014 and on 10 September 2014. It is reported that “ both times the applicant made a great effort to establish contact with her daughter. Through an active approach, the applicant managed to communicate with E. After the conclusion of the contact session, E. gave the drawings she made to the applicant. ” [25] On 22 September 2014 the applicant again asked the Cerknica SWC to arrange a contact session. After the IPT ’ s preparatory meeting, the seventeenth contact session took place on 26 November 2014; however, it was reported that the applicant failed to establish contact with her daughter. [26] The applicant continued to ask for contact sessions (for example, on 22 December 2014) despite the fact that on 21 October 2014 the court decision on withdrawal of the applicant ’ s parental rights became final. From that point, the Cerknica SWC instructed the applicant that she had to apply to a competent court in order for decisions to be made on any potential further contact sessions. The applicant had access to a lawyer at that point. [27]

16. In view of the above dynamics and the substance of the welfare authorities ’ activities, I did not hesitate in joining the majority, based on my conclusion that the welfare authorities respected the standards on special measures for increased protection for the applicant on account of her disability; in addition to the above-mentioned preparation, facilitation and organisation of contacts between the applicant and her child, the Cerknica SWC also assisted in placing her in a residential community (Angela ’ s Home of Sisters of the Family for Christ the Saviour) for treatment, at her own request. In 2012, the Cerknica SWC introduced the applicant to the coordinator of the “Paradox” residential community, [28] which she left in April 2012. [29] In March 2014, the Cerknica SWC offered a social service called “personal assistance” to the applicant, which was refused by her on the grounds that she was involved with the Šent community. Once a month she had sessions with a psychologist and once every three months she was examined by a psychiatrist. [30]

17. In my opinion, these activities, taken together, correspond to the Convention ’ s standards for special protection of persons with disabilities. Nothing in the materials submitted to the Court indicates that the welfare authorities did not have a genuine interest in providing special attention and increased protection for the applicant ’ s and E. ’ s right to a family life. If what the applicant said in her application is true, it seems that during contact sessions E. was instructed not to address the applicant with the term “mother”, but only as Mrs S [31] ; this could be considered as an isolated, although not unimportant, incident, which in my opinion cannot affect the overall judgment in this case.

18. As regards further examination of the necessity test and a balance between the rights of the applicant, the rights of the child and the public interest, I must add or emphasise two issues which are covered in section B.3.ii.ß of the present judgment, where the Court sets out arguments concerning the short-term and rather weak emotional ties between the applicant and E., compared with the stronger and longer-term emotional ties between the adoptive parents and E., the “ reasonableness ” of using the best ‑ interests-of-the-child test in ruling on this matter and the possibility of maintaining contact with a child even after withdrawal of parental rights under section 106.a of the Family Act. [32]

19. The first issue that I need to address relates to the judicial test that is referred to in paragraph 97 of the present judgment. The Court states that it does not consider “unreasonable ” the domestic court ’ s conclusions that the withdrawal of the applicant ’ s parental rights was in E. ’ s best interests.

20. The so-called “ (un)reasonableness ” test should not be understood in the given context as some kind of a check on “ arbitrariness ”. Generally, the test of arbitrariness is used by the Court when, for example, an applicant claims under Article 6 of the Convention that the national courts wrongly interpreted domestic law. [33] However, if the issue at stake before the Court is a legal concept which is integral to the Convention, as is the case with the principle of the best interests of a child under Article 8 of the Convention, the applicable judicial test is not limited to checks on arbitrariness or unreasonableness. For example, in the present judgment the arbitrariness test was applied in relation to the question whether the domestic courts interpreted section 116 of the Marriage and Family Relations Act in accordance with the Convention standards on the rule of law.

21. Therefore, I do not see or accept that the Court in this case applied only the test of arbitrariness or the so-called test of (un)reasonableness as regards the best interests of a child and the necessity of the interference with the applicant ’ s right. Instead, as the Court itself defines “ general principles ” in relation to the examination of the necessity of interference in a democratic society in section B.3.(c) of the judgment, the judicial test that was actually applied in this case was much more stringent. In the words of the Court in section B.3.(c.), a measure such as withdrawal of parental rights should be applied only in “exceptional circumstances ” and could only be justified if motivated by an “ overriding requirement ” pertaining to the child ’ s best interests. When the Court in paragraph 87 cites its own previous judgment in the case of Y.C. v. the United Kingdom (no. 4547/10, 13 March 2012), it reiterates that it is “incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child.” [34] Therefore, the strict scrutiny test when examining the withdrawal of parental rights from a person with a disability, usually an irreversible step, calls for protection which goes beyond the usual assessment of the impact of the proposed care measure on the parents and child, and the usual check of whether there was a sufficient evidentiary basis, whether reasons were relevant and sufficient, whether parents had sufficient opportunity to participate in the procedure and whether the children themselves were able to express their views.

22. Based on this test, I came to the same conclusion as the majority that the interference was necessary and was motivated by an overriding requirement pertaining to the best interests of the child, even though the material submitted to the Court (the Government ’ s Observations) showed that the applicant had “ demonstrated her interest ” in a relationship with her daughter after March 2012, through several initiatives to have contact with her daughter and had demonstrated commitment, which is visible from the positive aspects reported in 3 out of the 17 contact sessions, referred to in the Government ’ s Observations. [35]

23. The second issue that I must address in relation to the examination of the necessity of interference in the applicant ’ s Article-8 right relates to the Court ’ s argument on the possibility to have contact with the child even after withdrawal of parental rights under section 106.a of the Family Act. The Court did include in section I.B.2 of the present judgment some important extracts from the letter sent to the Court by the third ‑ party interveners (the adoptive parents).

24. In this regard, I must highlight another element of the afore ‑ mentioned letter from the adoptive parents to the Court which is not included in section I.B.2 of the present judgment. According to the Court ’ s case-law, it is important whether the withdrawal of parental rights – an extreme measure, running counter to the right of biological parents and children to enjoy a family life together – means that a child is prevented from having a personal relationship with his or her biological parents, since this could cut the child off from his or her “ roots .” Reference to the Court ’ s relevant case-law is also made in the present judgment. [36] For that reason, I find it very important that, in their submission to the Court of 31 December 2016, the adoptive parents stated, inter alia :

“The boys, who were already very well integrated into the nuclear and extended foster family when L. arrived, welcomed the little girl very warmly. The bond that had developed unusually quickly between them was extended to L. and the children now have very strong emotional ties to each other. The boys have called the little girl L. and since then we have used that name for her... In the wider social circle, they consider themselves, and are considered, as brothers and sister, although they have known since an early age that they grew in the stomachs of different mummies... They also know that they were born and lived for a certain period in another family which could no longer look after them, and that it is for that reason that they arrived in our family. Each of them knows those parts of the others ’ family histories which are not common to them all... Each child wishes to hear his or her own story, and the other two listen carefully. The children also ask questions and we reply in a way that is appropriate for their age. We are aware that they are not our biological children and that knowing about their family of origin is a matter of existential importance for them, as is contact with their biological families... The professional advisers from the Kranj, Radovljica, Domžale and Cerknica social welfare centres have helped us a lot, since they ... explained to us the human, legal and sociological importance of contacts between the fostered child and his or her biological family. To that end, we have always supported those contacts and we have also encouraged, actively supported and helped the three biological mothers, especially the applicant... We have facilitated and encouraged these contacts, even after the judgment on the withdrawal of parental rights was delivered, and still later after the judgment became final... Nonetheless, this right still exists; it is only its application that has been temporarily suspended, with the consent of all the parties, in order to protect L. ’ s best interests... We undertake to continue encouraging and strengthening the girl ’ s right to know her origins in the future.” [37]

25. This is important for compliance with the Convention, since the Court in the afore-mentioned case-law attaches particular importance to whether or not the withdrawal of parental rights is such as to prevent a parent from continuing to have a personal relationship with his or her child or to cut the child off from his or her roots. This Convention standard is in line with a broad legislative consensus among the States which have ratified and signed the UN Convention on the Rights of the Child, Article 8 of which regulates the right of a child to preserve his or her identity as recognised by law.

26. I have nothing to add to the reasoning of the Court, which states that this part of the application is unsubstantiated. I assume, since the applicant alleged a violation of the right to an effective legal remedy (Article 13) only in relation to the interpretation of section 116(1) of the Marriage and Family Relations Act, which was dealt with by the Court in its examination under Article 8 (legal basis and legitimate aim), that the Court did not communicate an eventual question in respect of Article 13 in conjunction with Article 8 to the Government, nor was any other aspect of Article 13 argued by the parties at the later stage of the proceedings before the Court.

[1] For the general impact of the (non-)existence of a relevant consensus between Contracting States concerning a particular legal matter on use of the margin of appreciation doctrine, see, mutatis mutandis , the Grand Chamber’s recent practice in: Khamtokhu and Aksenchik v. Russia , no. 60367/08 and 961/11, 24 January 2017, §§ 79, 85; Naït ‑ Liman v. Switzerland , no. 41357/07, 15 March 2018, §§ 181-203; and Correia de Matos v. Portugal , no.56402/12, 4 April 2018, § 137. In the case of Bayatan v. Armenia (no. 23459/03, 7 July 2011, § 102), the Grand Chamber states that in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs. The consensus emerging from specialised international instruments may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases (see also Demir and Baykara v. Turkey [GC], no. 34503/97, § 85, ECHR 2008).

[2] See Gnahor é v. France , no. 40031/98, 19 September 2000, § 54, and Kutzner v. Germany , no. 46544/99, 26 February 2002, § 67.

[3] Already in its early case-law the Court established that Article 14 formed an integral part of each of the provisions laying down rights and freedoms (see the judgment of 23 July 1968 in the Belgian Linguistic Case, Series A no. 6, pp. 33-34, § 9; Case of National Union of Belgian Police, judgment of 27 October 1975, Series A no. 19, p. 19, § 44; and Marckx v. Belgium , no. 6833/74, 13 June 1979, Series A, no. 31, § 32).

[4] See, for example: Moser v. Austria , no. 12643/02, 21 September 2006, § 68; N.P. v. Republic of Moldova , no. 58455/13, 6 October 2015, §§79-81; Soares de Melo v. Portugal , no. 72850/14, 16 February 2016, § 106.

[5] A.K and L. v. Croatia , no. 37956/11, 8 January 2013, §§ 72-73, 75, 80.

[6] Kutzner v. Germany , no. 46544/99, 26 February 2002, §. 75.

[7] Zhou v. Italy , no. 33773/11, 21 January 2014, §§ 57-58.

[8] Once this link between the Court’s case-law on treating vulnerable categories with special attention and increased protection and the broad consensus under the CRPD on special and necessary measures or modifications for persons with disabilities is established, it is of secondary importance whether this can be legally defined as an aspect of “positive discrimination” towards disabled persons in the sense that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see, mutatis mutandis , Case relating to certain aspects of laws on the use of languages in education in Belgium, 23 July 1968, Series A, No. 6, § 10; Thlimmenos v. Greece , no. 34369/97, 6 April 2000, § 44; Posti and Rahko v. Finland , no. 27824/95, 24 February 2002, § 82; Andrle v. the Czech Republic , no. 6268/08, 17 February 2011, § 48; Khamtokhu and Aksenchik v. Russia , no. 60367/08 and 961/11, [GC], 24 January 2017, §§ 64 and 82).

[9] Observations of the Government of the Republic of Slovenia on the admissibility and merits of the application, 28 November 2016 (hereinafter: the Government’s Observations), pages 7-8, points 10-11.

[10] Ibid. page 8, point 11.

[11] Ibid. page 9, point 12.

[12] On 1 February 2011 E. was taken from her parents and placed in the crisis centre for children (Palčica House of Shelter). The Cerknica SWC started searching for suitable foster family and on 18 February 2011 E. was placed in foster care (ibid. page 9, point 13).

[13] While in Italy, the applicant was forcibly interned in a psychiatric institution and subsequently transferred for treatment to Idrija Psychiatric Hospital in Slovenia; she was released on 20 January 2012 (ibid. pages 10-11, points 15 and 18.

[14] The relevant expert opinions, on the basis of which parental rights were withdrawn, were submitted in the domestic court proceedings in August 2013 and February 2014.

[15] Government’s Observations, page 44, points 110-111; page 46, point 116.

[16] Ibid. page 13, point 22. On page 20 (point 37), the Government’s Observations state that the applicant at that stage had contacts mainly on the initiative of her parents, and that she was always brought to the contact sessions by them.

[17] For the legal importance of “ preparatory counseling ” in family matters, see, mutatis mutandis, Scozzari and Giunta [GC], nos. 39221/98 and 41963/98, 13 July 2000, § 175.

[18] In August 2012 the applicant was re-hospitalised in the Idrija Psychiatric Clinic (Government’s Observations , page 42, point 101; page 43, point 105, 13, points 24-25).

[19] Ibid. page 44, point 108.

[20] Ibid. page 44, point 110.

[21] Ibid. page 45, point 112.

[22] Ibid. page 45, point 113.

[23] Ibid. page 45, point 115.

[24] Ibid. page 46, point 116.

[25] Ibid. pages 46-47, points 116-121.

[26] Ibid. page 47, points 122-124.

[27] Ibid. page 48, points 126-128.

[28] Ibid. page 41, point 95.

[29] Ibid. page 42, point 99.

[30] Ibid. page 36, points 70-71.

[31] Application dated 16 July 2016, submitted to the Court in Slovenian, page 5, point 3.

[32] The latter option, available under Slovenian law, is confirmed by the case-law of the Constitutional Court of the Republic of Slovenia (Up-56/17, Up-57/17, 13 March 2018, paragraph 9) and by the Supreme Court (IV Cp 1309/2017, 15 June 2017, paragraph 17, footnote 21).

[33] See, for example, Zubac v. Croatia , [GC], no. 40160/12, 5 April 2018, § 79.

[34] See also footnote no. 2 in this concurring opinion on the strict scrutiny test in similar cases of withdrawal of parental rights.

[35] For the relevance of a parent’s “ demonstrable interest ” and “ commitment ” as regards his/her relationship with a child in family disputes, in particular where the fact that family life between the persons concerned has not been (fully) established is not attributable to the applicant himself/herself, see, for example, Anayo v. Germany , no. 20578/07, 21 December 2010, § 57, and Ahrens v. Germany , no. 45071/09, 24 September 2012, § 58.

[36] In the present judgment reference is made to the case of Aune v. Norway (no. 52502/07, 28 October 2010). See also Zhou v. Italy , no. 33773/11, 21 January 2014, § 56; Gnahor é v. France , no. 40031/98, 19 September 2000, § 59; Soares de Melo v. Portugal , no. 72850/14, 16 February 2016, § 93.

[37] English translation by the Court’s Registry (original: French).