In examining a complaint, the Ombudsman came upon the issue of changing the scope of contacts between parents and children who have been accommodated in an institution providing custody (or placed in the custody of another person) determined by a court. Contacts are “agreed on” in individual project groups (IPS), as defined by the Act Concerning the Pursuit of Foster Care (ZIRD). In our opinion, such a practice encroaches on the rights of underage children. We obtained an opinion on this practice from the Ministry of Labour, Family, Social Affairs and Equal Opportunities of the Republic of Slovenia, and regarding this practice and the Inspection for Social Affairs at the Labour Inspectorate of the Republic of Slovenia (in the remainder of the text below, the opinions of both institutions will be termed ‘the contrary opinion’), which see nothing disputable in the said practice. The said practice has been found in several social work centres. 2.15 CHILDREN’S RIGHTS Our opinion is that any determination or changes to contact lie solely within the jurisdiction of the courts and that without explicit authorisation, no one may decide on this. What is especially important in the said practice is that no legal means are available against such decision-making. The legal basis for changing the scope, time and manner in which contact is carried out is, according to the contrary opinion, is provided in the provisions of paragraph one and two of Article 27 of the ZIRD and in Article 37 of the Rules on conditions and procedures for the implementation of the Act Concerning the Pursuit of Foster Care (Rules). In the first two paragraphs of Article 27, the ZIRD stipulates that a foster carer must deal with all important issues regarding the care and education of the child in agreement with the child’s parents or guardian and the competent social work centre. For this purpose, he or she must participate in the individual project group appointed by the social work centre for the treatment of an individual child. A foster carer is obliged to consider the instructions of the social work centre and the agreements of the individual project group. In our opinion, such provisions provide no support at any point for the opinion that the child’s parents, foster carer and the social work centre can agree on any substantive issue that is in explicit conflict with what has been previously determined by a court decision. In our opinion, ZIRD relates primarily to the obligations of a foster carer and his or her relationship with the social work centre. If a foster carer who fails to comply with the instructions of the social work centre or the individual project group, this may be grounds for terminating a foster care contract. Meanwhile, the said Article cannot be understood in a way that provides the social work centre or the individual project group with a legal basis for taking arbitrary decisions on the child’s fate. In our opinion, the only interpretation of the provision of Article 37 of the Rules is that agreements are made by the individual project group necessary for the actual implementation of contacts determined by a court, not for making changes to contacts determined by a court. Even if the said provision was actually meant to allow for the project group to make changes to contacts, such regulation of children’s rights with an implementing regulation is unacceptable. A possible regulation which would allow an individual project group to determine contacts between parents and children on its own, regardless of the decision of the competent court, would not be in accordance with the principle of legality or the principle of equality before the law as per paragraph two of Article 14 of the Constitution. It is not completely clear how agreements in the individual project group are arrived at. If every agreement must enjoy the consensus of all members of the individual project group, then it could be understood that it is only possible to make an agreement where the explicit consent of the child in custody (under legal working age) and possible other members of the potentially extended individual project group is provided, as envisaged by Article 35 of ZIRD. If full consent is not given, it is not clear what kind of majority is required for an agreement to be considered as adopted. The contrary opinion always emphasises that agreements made by the individual project group does not constitute decision-making and that there is no outvoting in the process. The contrary opinion emphasises that all members of the individual project group participate in making agreements, although it is clear from the response from the Inspection for Social Affairs that “changing contacts at the individual project group upon agreement made by the social work centre and parents is not disputable”. It can be concluded from the foregoing that two groups of legally determined members of the individual project group – foster carers and children – have no say in this. As an argument that making agreements at the individual project group should not be confused with decision-making, we have also received a statement noting that such agreements are 150 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 not enforceable. Although we believe that this argument is not relevant to the basic question, we emphasise that we otherwise agree that an agreement (decision) cannot be considered enforceable as defined by the provisions of the Claim Enforcement and Security Act, but it is actually enforced on the basis of the provisions of ZIRD, which demands that a foster carer – as the person who provides the child with care and education – follow agreements made by the individual project group. Based on the complaints examined so far, we assess that in many cases children do not attend meetings of the individual project group at all (especially if they are very young, when their absence is understandable). In our opinion, the social work centre has undoubtedly a great influence on the opinions of the individual project group, because a foster carer, for example, as already mentioned, in particular needs to consider the instructions of the individual project group, and he or she will probably find it hard to prevent in practice an ‘agreement’ which is not, in his or her opinion, in the child’s interests. This is particularly problematic in cases when a foster carer wants to retain custody, and other participants in the individual project group (representatives of the competent social work centre) have the power to terminate the custody contract – this certainly puts the foster carer in a subordinate position to a certain extent. In such a case, the social work centre also plays a role in which, at the same time, it protects the right of parents and children to live together if the conditions for this are provided, and the right of children to be separated from parents if the conditions demand this, which greatly hampers the advocacy of the child’s interests exclusively. We believe that the making of agreements by individual project groups is in many cases in fact a form of informal decision-making by experts at the social work centre, while the issue of who or how such decisions may be challenged is not defined at all. No means of legal protection are available against such a decision, which is why parents can also be put in a very subordinate position in the social work centre. All the possible problems were revealed in one concrete example, with the social work centre being solely responsible for establishing that the children explicitly reject (increased) contact with their parents (this wish is supposed to be a result of the manipulation of children), to which opposition was also explicitly expressed by both foster carers (who are supposed to have a strong interest in including the children in the foster family to the greatest extent and as long as possible). Therefore, although three of the five persons who, in accordance with the provisions of the ZIRD, comprise the project group opposed increased contact, the agreement to extend contact was taken by the project group. This particularly worries us, because in this case the court determined in advance the contact between parents and children in custody on specific days, namely for eight hours in total. The court expressly stressed in the explanatory note why contacts with children spending the night with parents were not appropriate. Contacts were later extended by the project group to several days without interruption, which in our opinion was an encroachment on the court decision not only in terms of scope, but also in terms of substance. An additional difficulty is that it is not completely clear who, if anyone, represented the interests of the children in the procedure. The children were taken from their parents, so it is possible that the parents represented their interests in the procedure, which perhaps are not consistent with the interests of the children. Foster carers do not have the status of children’s representatives, and cannot bring an action on behalf of a child, and the child cannot do this on his or her own. The social work centre was the institution which actually provided a solution, which in our opinion is an encroachment on the children’s rights. Thus the children had no legal recourse to protect their rights. We believe that this is a serious problem, which probably concerns in one way or another all children who have been taken from their parents. Such issues should be unambiguously resolved by law, because when the scope and manner of contacts are being determined – as an important right of children and parents – at least the possibility of legal protection, including of the children, must be provided. 2.15.4 Position of children in court proceedings In May 2015, we organised a panel discussion, attended by around 300 participants, which addressed the position of children in judicial proceedings. At the panel discussion, we wanted to find ways to improve the position of children involved against their will in proceedings they do not understand, so that all participants in the proceedings would pursue the best interests of children and also ensure them. In preparing for the panel ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 151 2.15 CHILDREN’S RIGHTS Deciding on contacts between parents and children taken into custody