7.  The applicant was born in 1979.
8.  The applicant is the biological mother of four children. Together with her husband, G., a French citizen, she has a son, P., who was born on 13 November 2001. In December 2005 he was placed in foster care in Slovenia and has remained there ever since, having only occasional contact with the applicant. The applicant does not attend meetings with the welfare workers and foster parents and does not pay maintenance for him. On 19 November 2007 the applicant gave birth to her second child, M. In April 2008 the competent French authorities placed M. in foster care in France and referred the applicant for psychological counselling. M. was later adopted in France and has no contact with the applicant.
9.  On 5 January 2010 the applicant gave birth to her third child, A., in the Postojna Maternity Hospital. The hospital informed the Ljubljana Social Work Centre of A.’s birth. The Ljubljana Social Work Centre arranged for the applicant to be transported to and accommodated at her mother’s home. The Cerknica Social Work Centre (“the Cerknica Centre”) provided the applicant with a nursing service and housekeeping assistance three times a week. The T. Association also helped the applicant care for A. Nonetheless, it was noted that the applicant was unable to take care of A. and often travelled and left A. at home, and that the applicant’s mother could not cope with this. Since December 2010 A. has been living with his father, G., in France.
10.  The present application concerns the withdrawal of the applicant’s parental rights in respect of her fourth child, E., who was born on 31 December 2010.
11.  On 29 December 2010 the applicant’s mother phoned the Cerknica Centre to inform them that the applicant was returning from France by train and was heading directly to Postojna Maternity Hospital, where she would shortly give birth. On 4 January 2011, after the applicant had given birth to E., the Cerknica Centre’s social workers visited her in the hospital, where the medical staff brought to their attention that the applicant was unable to take care of E. and needed constant supervision and help. Consequently, on 7 January 2011 the applicant’s stay in the hospital was extended until 10 January 2011. Following her discharge from the hospital, she went to live with her mother temporarily – an arrangement which the applicant and her mother agreed upon following an intervention by the Cerknica Centre. The Cerknica Centre provided the applicant with family help at home, a social service which included the participation of the T. Association and the community nursing service, domestic help with household tasks three times a week, and the assistance of a peripatetic worker from the Ljubljana Psychiatric Hospital.
12.  On 19 January 2011, via email, the Cerknica Centre asked the Slovenian Consulate in Paris to enquire of G. whether he was willing to take care of E. On 7 February 2011 the consulate replied to the Cerknica Centre that the French social services had talked with G., who had doubts as to whether E. was his daughter and whether he could take care of her. The Cerknica Centre’s records of the phone call show that on 11 February 2011 it tried to telephone G. but was unsuccessful. On 15 February 2011, via email, the Cerknica Centre asked the consulate to enquire of G. whether he was willing to give his consent to E.’s adoption.
13.  On 20 January 2011 the peripatetic worker who monitored the applicant at home (see paragraph 11 above) informed the Ljubljana Psychiatric Clinic of his concerns about the applicant’s mental state. The applicant was referred for an emergency examination by a clinical psychologist, which she refused to undertake. In addition, the community nursing centre and the worker helping the applicant with household tasks informed the Cerknica Centre of problems they had noticed in the applicant’s care of the newborn.
14.  On 28 January 2011 the social workers talked to the applicant, who, considering E. old enough to travel, explained to them that she was planning to travel to France before 31 January. Subsequently, the team of professionals met at the Cerknica Centre and concluded that E.’s well-being was at serious risk.
15.  On 30 January 2011 the applicant travelled to France to see her husband. She left E. with her mother, E.’s grandmother. As the applicant’s mother was not willing to take care of E., on 1 February 2011 the Cerknica Centre issued an interim removal order with immediate effect whereby E. was removed from her parents and placed in the Crisis Centre for Children. The Cerknica Centre also filed a criminal complaint against the applicant for abandoning a child, but the criminal proceedings were later discontinued.
16.  On 16 February 2011 E. was placed in the care of the Cerknica Centre on the basis of section 201 of the Marriage and Family Relations Act (hereinafter “the Family Act” – see paragraph 60 below). On 18 February 2011, by way of an interim care order, the Cerknica Centre placed E. in the care of foster parents, who later adopted her (see paragraph 50 below). On 23 March 2011 the Cerknica Centre issued a final removal and care order removing E. from her parents and placing her in foster care. It based its decision on sections 119, 120, 157 and 158(2) of the Family Act (see paragraph 60 below). It does not appear that the applicant attempted to challenge the removal and/or care order in any way.
17.  Following E.’s birth the applicant often changed places and travelled back and forth to France. Her location was not always known to her family or the Cerknica Centre, which tried to reach her, unsuccessfully.
18.  The applicant has been diagnosed with paranoid schizophrenia. In October 2009 she was placed in a psychiatric hospital for the first time, in Ljubljana Psychiatric Clinic. Since giving birth to E. she has been placed in a psychiatric hospital several times, including against her will on at least one occasion.
19.  In her statement of 10 January 2011 a doctor from the Postojna Maternity Hospital noted that the applicant had been refusing to take medication, and the peripatetic worker from the Ljubljana Psychiatric Clinic said the same in his statement of 20 January 2011 (see paragraph 13 above).
20.  The case file indicates that as of 7 January 2011 the applicant was regularly examined by a psychiatrist from the Idrija Psychiatric Hospital, often on a monthly basis.
21.  The Cerknica Centre’s records of 9 April 2014 show that the Cerknica Centre offered services including counselling to the applicant, who refused this, arguing that she had already joined a self-help group and had monthly sessions with a psychologist and psychiatric examinations every three months.
22.  Dr M., who examined the applicant, stated in his report of 31 March 2014 and at a hearing (see paragraph 41 below) that the applicant’s illness, paranoid schizophrenia, had been in remission for some time and she had been taking her medication regularly. In 2015 the applicant’s condition worsened and she had to be hospitalised twice in that year.
23.  On 15 March 2011 the Cerknica Centre held the first meeting of the Individual Project Team (hereinafter “the IPT”), which was set up under the Foster Care Execution Act (see paragraph 61 below) to monitor E.’s foster care. Although, as E.’s parent, the applicant was invited to the meeting, she did not attend it because she was travelling. The IPT was composed of social workers, the foster parents and the applicant.
24.  The Cerknica Centre’s records of the IPT’s meeting, prepared by a social worker, show that on 6 June 2011 the applicant visited the Cerknica Centre, enquiring about E. for the first time. On 5 July 2011 the first contact session with E. took place. The social worker who was supervising the contact session noted in the report that the applicant’s behaviour during the contact session had been inappropriate for E.’s age, because she had tried to put E., then six months old, on her feet.
25.  The Cerknica Centre’s records of the IPT’s meeting show that on 12 January 2012 the applicant again asked the Cerknica Centre if she could see E. The second contact session took place on 31 January 2012. The applicant cancelled the next scheduled contact session which was to take place on 28 March 2012 because of her alleged departure to France. On 15 May 2012 the third contact session took place. The Cerknica Centre’s records of a phone call with the applicant indicate that on 19 June 2012 the Cerknica Centre contacted her with a view to arranging another contact session, but no agreement was reached as she ended the conversation saying that she was busy. On 2 July 2012 the Cerknica Centre enquired with the applicant as to whether she wanted another contact session to be arranged, but she declined, referring to her poor “state”. As further noted in the Cerknica Centre’s records, the applicant confirmed that she was aware that the Cerknica Centre would organise another session as soon as possible if she so wished. Following a request by the applicant of 4 July 2012, the fourth contact session took place on 11 July 2012. A social worker from the Kranj Social Work Centre who was supervising the contact session noted in her report that the applicant was tired during the contact session and stopped playing with E. after a couple of minutes. The contact session scheduled for 26 September 2012 was cancelled due to the applicant’s illness.
26.  Another thirteen contact sessions between the applicant and E. took place before the end of 2014. They all took place in the presence of the foster parents and the Cerknica Centre’s social worker. According to the records of the IPT meetings, the presence of the foster parents was necessary because of E.’s age and the need to ensure her sense of security, given that she and the applicant did not have a close relationship.
27.  The reports of the contact sessions prepared by the social worker supervising them indicate that during most of the sessions the applicant appeared distant and remained largely passive, observing E. without having any interaction with her. Numerous reports of the contact sessions further indicate that during the sessions E. did not approach the applicant on her own initiative. On several occasions she wanted to leave before the end of the contact session and stayed only because the foster parents entertained her. Furthermore, in her reports of the sessions, the social worker noted that the foster parents encouraged E. to establish contact with the applicant and the relatives present at the sessions, and that they were accessible and communicative with respect to the applicant and her questions about E. Following a request made by the applicant at the IPT meeting in February 2014 for help in establishing her relationship with E., the social worker and the foster parents offered her help with regard to future contact sessions and encouraged her to engage more actively in establishing the relationship. It was noted in the reports of the contact sessions of 2 July 2014 and 10 September 2014 that the applicant had made efforts to establish a connection with E., which had led to some interaction between them. However, no such interaction had occurred at the last contact session, which had taken place on 26 November 2014.
28.  The records of the IPT meetings, which took place every couple of months, show that the contact sessions took place on the dates agreed at the meetings based on the applicant’s requests. The Cerknica Centre, the foster parents and the applicant agreed that the contact sessions would take place gradually because E. did not know the applicant.
29.  On 8 January 2014 the applicant asked the Cerknica Centre for contact sessions on a more regular basis. The Cerknica Centre advised her to institute proceedings before the Ljubljana District Court, which was competent to decide on her contact with E. in the absence of the agreement.
30.  As requested by the applicant in May 2016, the inspection authorities of the Ministry of Labour, Family, Social Affairs and Equal Opportunities carried out an inspection with a view to determining whether the Cerknica Centre had impeded contact between the applicant and E. Their report and the documents in the file show that on at least on five further occasions the Cerknica Centre informed the applicant that she should institute proceedings before the Ljubljana District Court if she was not satisfied with the existing arrangements. The IPT records also show that at that time the applicant was in contact with her lawyer, with whom she had discussed the possibility of taking the matter to court.
31.  According to the report issued by the inspection authorities, the Cerknica Centre had acted in a professional way in arranging the contact sessions, and had good reasons to put the interests of the child first. The inspection report also noted that the Cerknica Centre had insisted on that contact pending a decision by the Constitutional Court, and had on numerous occasions informed the applicant of the judicial remedy she should use if she found the existing contact arrangements unsatisfactory. The report further found that after the Constitutional Court had confirmed the withdrawal of the applicant’s parental rights (see paragraph 48 below), the Cerknica Centre had properly considered that the contact had been forced upon E. and thus was not in her best interests.
32.  It would appear that the Cerknica Centre also asked the Human Rights Ombudsman to provide a general opinion on what would be in the child’s best interests in the situation in question – the withdrawal of parental rights or permanent foster care. On 29 July 2015 the Human Rights Ombudsman replied to the Cerknica Centre, noting that if the child could not be reunited with her family, the next best solution was adoption. They confirmed that foster care should be understood to be a temporary measure and that, as regards a change in contact arrangements, advising the mother to institute court proceedings was the only available option.
33.  The records of the Cerknica Centre indicate that on 23 September 2015 the Cerknica Centre enquired of the applicant whether she had taken any steps to change the arrangements by means of court proceedings. According to those records, she answered that she had been too busy with other things.
34.  On 15 February 2016 the Cerknica Centre sent the applicant some photos of E.
35.  On 7 March 2011 the Cerknica Centre lodged an application with the Ljubljana District Court seeking that the applicant and G. be divested of their parental rights, on the grounds that they had neglected and abandoned E., had not taken care of her basic needs, had repeated the problematic behaviour, and had jeopardised the well-being of the child. In the Cerknica Centre’s opinion, protecting the interests of the child required the withdrawal of the parental rights of both parents.
36.  The applicant received legal aid and was represented by legal counsel in the proceedings. She disputed the Cerknica Centre’s arguments in the application of 7 March 2011, and argued that she, as a result of mental illness, was not able to understand the proceedings. She submitted that since E. was safe in foster care there was no urgency to divest her of her parental rights. In her view, the court should wait for her mental health – which at that point was poor – to improve before deciding the application. Provided that she received appropriate therapy, she would be capable of taking care of the child, so the withdrawal of her parental rights was not necessary. In addition, the applicant argued that the aim of the proceedings was to give E. up for adoption and preclude her from later seeking to have her parental rights restored.
37.  The court appointed an expert psychiatrist, Dr K., who met the applicant for an interview. In his opinion of 16 May 2012 he submitted to the court that the applicant suffered from a disease on the schizophrenia spectrum, but had the capacity to be a party in the proceedings. He noted that the applicant was in remission (the period when a patient does not have positive psychotic symptoms); however, that was a recent development and the remission was still unstable. He further noted that the disease could rapidly turn into its active form. Dr K. also stated that provided the applicant took the prescribed medication regularly, her health condition would not deteriorate; however, if she failed to do so, the deterioration would be inevitable. He attached the opinion of an expert in clinical psychology, J., who had also examined the applicant and found that her attitude toward her health condition was not sufficiently serious and that her sense of reality was deficient. The applicant showed indications of extensive and persecutory delusions, while her emotional state was elated and inappropriate for the situation. Dr K. further explained that, in his opinion, the applicant was not able to take care of the child at that time. Her health condition had not improved to such a degree that she could assume the care and upbringing of a child who was a minor.
38.  On 29 November 2012 the Ljubljana District Court issued a decision whereby it divested the applicant and G. of their parental rights in relation to E. on the basis of section 116(1) of the Family Act (see paragraph 60 below). With regard to the applicant’s understanding of the proceedings, the Ljubljana District Court concluded, on the basis of Dr K.’s expert opinion as well as the applicant’s own statements, that she was regularly taking the medication and that she did not lack the capacity to be a party to the proceedings at issue. With respect to G., who had not responded to the Cerknica Centre’s application for the withdrawal of his parental rights and had remained inactive in the court proceedings, the court noted that he had not shown any interest in E. and had clearly demonstrated that he was not going to take care of her. With respect to the applicant, it found that the applicant had abandoned E. and had seriously neglected her parental responsibilities. The court pointed out that the same pattern could be observed as regards the applicant’s attitude towards the other three children.
39.  Following an appeal by the applicant, on 16 April 2013 the Koper Higher Court quashed the first-instance court’s decision in the part relating to the applicant and remitted the case for re-examination. It stressed that the lower court had failed to clarify whether the applicant’s behaviour in question and her attitude towards her illness and treatment was due to the mental illness itself, or was a result of her voluntary actions.
40.  In the new proceedings, the Ljubljana District Court appointed a new expert psychiatrist, Dr M., and obtained the opinion of an expert psychologist, Dr P. The court held a hearing and, inter alia, examined the applicant and the two experts.
41.  After personally examining the applicant on 23 September 2013, Dr M. submitted to the court a written expert opinion confirming that she had a mental disorder on the schizophrenia spectrum and noting that her character appeared to have been affected by the illness. According to Dr M., the applicant’s lack of a realistic understanding of her illness, her negative attitude towards treatment, and her abandonment of E. were all the results of her mental illness. Acknowledging that the illness could be controlled and the symptoms managed by medication, as well as noting that the course of the condition depended on each individual, Dr M. stressed that the prognosis for the applicant’s illness was not good, and therefore it was not possible to expect her to be able to take care of E. In particular, it was noted that, notwithstanding the episodes of remission, schizophrenia, like some other mental illnesses, led gradually to a permanent deterioration in a person’s capacities, and such a process would occur despite the applicant’s medical treatment. Dr M. also noted that, in the interview, the applicant herself had openly expressed doubts as to whether she could take care of her daughter on her own.
42.  After conducting an interview with the applicant and clinically examining her, Dr P. submitted a written report in which he noted that the applicant suffered from a chronic mental disorder on the schizophrenia spectrum which was incurable but treatable (manageable). In his opinion, deterioration causing the applicant’s unpredictable behaviour was inevitable, and the old behaviour pattern was likely to repeat. According to him, the applicant’s understanding and awareness of the child’s needs had been reduced to an understanding and awareness of her primarily physiological needs. The applicant did not understand the parental role and was unable to see the child as an individual with her own needs and desires. He found that the applicant was properly equipped intellectually, but had emotional problems such as diminished empathy. In his opinion, at that time the applicant was not able to care for or bring up E., and was not a suitable person to do so because she could not be expected to provide a stable environment for the child. He also noted that she had not expressed a wish to have custody of E., but had expressed her desire to have more frequent contact with her. Dr P. found E. lively, communicative and cordial, but restrained in relation to the applicant. The expert concluded that contact with the mother was burdensome and forced upon E. The expert also noted that, when observing the contact session, he had not noticed any emotional connection between the applicant and E.
43.  On 3 April 2014 the Ljubljana District Court issued a new decision divesting the applicant of her parental rights in relation to E. on the basis of section 116 of the Family Act (see paragraph 60 below). The court found, on the basis of the new expert opinions (see paragraphs 41 and 42 above), that the applicant had suffered from paranoid schizophrenia for many years before its critical manifestation. It further reasoned that the consequences of the disease in the applicant were a non-critical attitude to the illness, and as a result the applicant was not able to understand her health problems, their seriousness, or the importance of treatment. Equally, her neglectful conduct in relation to E. when she had left her did not reflect the true will and conscious action of the applicant. The court weighed the interests of the child against those of the applicant. It noted that, in the absence of any realistic possibility of the applicant resuming care of the child, it was more appropriate to withdraw her parental rights and provide the child with a substitute family for permanent care and emotional stability. Having regard in particular to the above‑mentioned expert opinions, the court concluded that the applicant should be divested of her parental rights. It based the conclusion on the fact that she suffered from paranoid schizophrenia which, though controllable, was incurable, could possibly worsen, and would in any event lead to negative personality changes. The court also had regard to fact that the applicant had four children but all the children were cared for by other foster or adoptive parents, and she had spent only a month with E., whereas E. had spent most of her life with the foster family, in an environment where she could be provided with permanent care and emotional stability, something which could not be provided by her mother.
44.  The applicant appealed, arguing that it was unacceptable to divest her of her parental rights solely because of her mental illness, and that the legislation provided no basis for such an extreme and disproportionate measure. In her opinion, E.’s interests would be sufficiently safeguarded by foster care, which would be a less intrusive measure. Moreover, she argued that her illness was in remission, she was regularly taking medication, and did not present any danger to E. She further argued that the conclusion that contact was not in E.’s interests was unfair. In her view, the first-instance court had not taken into account that she had been doing her best, including by trying to find a job in order to improve her situation.
45.  On 21 October 2014 the Koper Higher Court dismissed the applicant’s appeal. It held that the fact that her actions had not been deliberate could not be a crucial factor in a decision under section 116 of the Family Act. The main criterion for a decision was the child’s best interests. The court further found that the reason behind the withdrawal of the applicant’s parental rights was the fact that there was no prospect that the family would ever be reunited. During the remission stage of her illness, the applicant could function in her daily life, but she could not take care of her daughter either at that time or in the future. In this connection, the court found that the applicant lacked empathy, did not understand her parental responsibilities, and had been mostly passive during the contact sessions with E. The court noted that the applicant had not abused her contact rights, but had failed to establish proper communication with E., and consequently a basic parent-child relationship. The court rejected the applicant’s argument that E. should remain in foster care, finding that this was only a temporary measure intended to enable parents to exercise their parental responsibilities pending their children being returned to them. Since reunification of the applicant’s family was not likely to happen, protection of the child’s best interests required a more lasting measure aimed at ensuring permanent care and emotional stability for the child. The court concluded that “when balancing the child’s interests against the mother’s rights, it was not possible to give priority to the mother’s interest in maintaining her parental rights”.
46.  The applicant subsequently asked the Supreme State Prosecutor to lodge a request for the protection of legality. On 19 February 2015 the Supreme State Prosecutor informed the applicant that there were no grounds for his intervention in the case.
47.  On 30 January 2015 the applicant lodged a constitutional complaint against the Koper Higher Court’s decision (see paragraph 45 above). She invoked several provisions of the Constitution, as well as Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention. She disputed the lower court’s findings concerning the poor quality of the contact she had had with E., and argued that depriving her of her parental rights was unjustified because she had not posed any danger to E., and the court’s preference for adoption over fostering in cases such as hers violated the biological parents’ rights. In her opinion, the lower court’s position implied that people with incurable mental illnesses who presented no danger to their children could not have parental rights just because they were unable to take proper care of their children. She also argued that the concept of proper care had not been defined by any of the lower courts. Furthermore, she pointed out that she wished to maintain contact with E., but had been unable to do so since the Koper Higher Court’s judgment of 21 October 2014.
48.  On 10 December 2015, by five votes to three, the Constitutional Court dismissed the applicant’s constitutional complaint. It found that the lower court’s arguments relating to the applicant’s permanent inability to take care of E., the absence of a family bond between her and E., her inability to establish a relationship with E. during the contact sessions, and the benefits of providing E. with a substitute family for permanent care and emotional stability, justified the withdrawal of her parental rights in the child’s best interests. In the Constitutional Court’s opinion, when weighing the child’s interests against the mother’s rights, the interests which should prevail were E.’s interests in her permanent and stable care and upbringing. As regards the applicant’s argument concerning discrimination against mentally ill people, the Constitutional Court found that the withdrawal of her parental rights had not been based on the fact that she suffered from mental illness, but on the fact that she had been permanently incapable of taking care of E. and the finding that there was no prospect that the family would ever be reunited. It was for domestic courts to protect the child’s interests in the most appropriate way. In E.’s case, they had decided that this was possible only by ensuring a permanent and stable substitute family environment. Moreover, the Constitutional Court upheld the Koper Higher Court’s finding that section 116 of the Family Act could be applied to the present case despite the applicant lacking intent as regards her actions threatening E. (see paragraph 45 above). It considered that the Koper Higher Court’s interpretation of the scope of the application of section 116 complied with Article 54 (1) of the Constitution, which provided that parents could be divested of their parental responsibility or have that responsibility limited only on the grounds provided for by law in order to protect a child’s interests. In the Constitutional Court’s view, that provision did not imply that the State was to protect the child’s interests only when he or she was threatened by the deliberate actions or omissions of his or her parents. The Constitutional Court’s decision was served on the applicant’s representative on 12 January 2016.
49.  Judge D. Jadek Pensa of the Constitutional Court, who voted against the above decision, wrote a dissenting opinion, joined by the other two dissenting judges. She pointed out that the interference in the applicant’s case had been particularly serious, and noted that the right to know one’s parents and have contact with them was an internationally recognised right of a child. In her view, the lower court should explain why E. would be at risk of harm by knowing her mother and having contact with her. She also found it questionable whether the applicant had been given sufficient opportunity to form a bond with E., and argued that the positive obligations imposed on the authorities, including the Cerknica Centre, had been disregarded.
50.  On 16 May 2016 the Cerknica Centre issued a decision on E.’s adoption by her foster parents. On 2 June 2016 the decision became final and the foster care in respect of E. was terminated and in effect replaced by the adoption. The applicant was not a party to those proceedings.
51.  In its decision, the Cerknica Centre relied on Article 20 of the Convention on the Rights of the Child and section 141 of the Family Act (see paragraphs 60 and 63 below). It emphasised that foster care was a temporary measure and that a child needed a long-term placement which provided him or her with permanent loving care and intimacy from the same person. The Cerknica Centre found that it had exhausted all possibilities for reunification with the biological family. Furthermore, the Cerknica Centre held that the relationship between E. and her foster parents was strong and safe, indicating that the foster parents would take care of her in a responsible and appropriate manner.
52.  On 19 May 2016 the applicant initiated court proceedings against two social work centres which had been involved in the contact arrangements in the past and E.’s adoptive parents, seeking the regulation of her contact with E. and an interim decision setting out temporary contact arrangements pending the court proceedings. She requested that contact sessions take place every fortnight for three hours. In her opinion, it was in the child’s interests for her to know her mother. She maintained that contact sessions with E. in the past had been rare, and that she had expressed her wish to have them more often; however, the Cerknica Centre had limited them even further and had suspended them after the Constitutional Court’s decision (see paragraphs 31 and 48 above). The applicant received legal aid and was represented by legal counsel in the proceedings.
53.  The Koper District Court appointed an expert in psychiatry and paediatric psychiatry, Dr Z., who, inter alia, carried out a psychiatric examination and an interview with the applicant, and held a paediatric psychiatric interview with E. In her expert opinion, Dr Z. emphasised the applicant’s inability to establish an adequate relation with E. Notably, her findings showed that the applicant was emotionally unresponsive, lacked empathy, had a distorted view of reality, and was not capable of either perceiving the child as an individual or reacting to her needs. In Dr Z.’s opinion, E.’s contact with someone like the applicant, who did not understand and was not able to react to the child, would be unpleasant, painful and burdensome. Since, in the present case, it was the child’s biological mother who did not know how to respond or touch the child, the contact experience could be traumatic for E. Dr Z. also emphasised the relevance of the applicant’s negative attitude towards E.’s adoptive parents, which could be harmful to E. She observed that, in the past, E.’s adoptive parents had encouraged E.’s contact with the applicant and had not acted as her competition. The expert refused to arrange a contact session between the applicant and E., as she believed that that would be contrary to the professional rules of medicine and harmful for E.
54.  On 9 August 2016, after holding a hearing, the Koper District Court dismissed the applicant’s application for the regulation of contact (predlog za ureditev stikov) and an interim decision. It firstly observed that E. had been adopted after the contact proceedings had been initiated (see paragraph 50 above). Consequently, the social work centres had stopped playing a role in arranging the contact, and the court dismissed the applicant’s application in so far as it was directed against them, without any further examination. Furthermore, the adoption had resulted in a different legal basis which the court had to apply in determining contact between the applicant and E. In particular, since the applicant was no longer considered to be E.’s parent, the relevant provision for the regulation of contact became section 106.a of the Family Act, which regulated a child’s contact with people who were not his or her parents (see paragraph 60 below). The court held that it would allow contact between E. and the applicant if it established on a cumulative basis that E. was personally attached to the applicant, had a family-type relationship with her, and that the contact was in E.’s interests. Therefore, it found the question of responsibility for the quality of contact sessions in the past irrelevant for the purposes of determining the case at hand.
55.  In its assessment, the court relied on Dr Z.’s expert opinion (see paragraph 53 above) and the statements of the social worker who had supervised the contact sessions in the past and observed that, during the sessions, the applicant had been largely passive and there had been no proper interaction between her and E. It concluded that there was no personal connection between the applicant and E. Having regard to the nature of the actual relationship between the applicant and E., the applicant’s health situation at that time, her inability to form a relationship that would be beneficial to E., her negative attitude towards the adoptive parents, and the consequences the contact would have for E., the court found that the contact would not be in her interests. As the child’s interests constituted the first and paramount consideration in the case, it dismissed both the application for contact and the application for an interim decision.
56.  The applicant appealed, maintaining that the decision not to grant her any contact was disproportionate and based on flawed findings and an erroneous application of the law. She argued that Dr Z.’s expert opinion was incomplete and focused on the observations of contact sessions in 2014. In the applicant’s opinion, Dr Z. had failed to examine the possibility that progress in establishing a relationship with E. could have been made had the Cerknica Centre not arbitrarily suspended the contact more than a year and a half earlier. Furthermore, invoking Article 8 of the Convention, she argued that the first-instance court had not carried out a proportionality test when weighing up the rights of the child and the applicant. It had also failed to assess whether the authorities had done everything to maintain her relationship with E., especially after her parental rights had been withdrawn.
57.  On 4 April 2017 the Koper Higher Court dismissed the appeal. It found that the first-instance court had convincingly established in a well-reasoned decision that contact with the applicant was not in E.’s interests because of the applicant’s lack of emotional capacity to establish a relationship with E. and her negative attitude towards the adoptive parents. The Koper Higher Court emphasised that in cases like the one at hand, where the interests of the biological mother, the child and the adoptive family had to be balanced against each other, the interests of the child constituted the main guidance. Since the reintroduction of contact with the applicant would be harmful, even traumatic, for E.’s health and development, the mother’s right to family life had to give way to the child’s right.
58.  The applicant lodged an application for leave to appeal on points of law, which was rejected as inadmissible by a decision of the Supreme Court of 8 August 2017. The court held that the decision against which the applicant had lodged an application for leave to appeal had been issued in non-contentious civil proceedings in which an appeal on points of law was inadmissible unless otherwise provided for by law.
59.  A request by the applicant for free legal aid for the proceedings before the Constitutional Court had been rejected on the basis that the proceedings had no prospect of success owing to non-exhaustion of domestic remedies. She did not appeal against that decision, nor did she lodge a constitutional complaint.