The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) believes that the competent court overlooked the Ombudsman's key findings, which related to the broken trust of the child in the advocacy process due to his questioning at the main hearing before the conclusion of the advocacy. The Ombudsman promised the child that he would be able to give his opinion regarding the family situation during the advocacy, but this did not happen due to the questioning of the child at the main hearing and the conclusion of a court settlement before the end of the advocacy. This reinforced the child's previous position that institutions are not to be trusted, and thus nullified the work of the advocate, who managed to at least restore the child's trust in the authorities through meetings with him.

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The Ombudsman considered the application of the mothers' home and the competent Centre for Social Work (CSD) to appoint an advocate for the child in court proceedings regarding the removal of the child from the parents and the limitation of parental care. Both proposers believed that the child needed an advocate, and the child had expressed his desire for an advocate himself several times. In the process of appointing an advocate for the child, the Ombudsman obtained the consent of both parents and, by decision, also appointed an advocate for the child. The Ombudsman informed the competent court of the decision on the appointment of an advocate and also gave detailed explanations about the course of advocacy and the child's statement. In this particular case, advocacy took longer than usual, as the child had a marked distrust of authorities and institutions due to traumatic experiences. Therefore, more effort and time had to be invested in establishing a trusting relationship between the child and the advocate.

During the advocacy process, the Ombudsman was informed by the competent CSD about the date of the next main court hearing. After obtaining this information, the Ombudsman contacted the advocacy coordinator and found that the advocacy process would not be completed by the date of the main hearing. The Ombudsman informed the competent CSD and the competent court about this fact. After the main hearing, when the child met with the advocate, it was established that a court settlement had been concluded between the parents. The concluded court settlement mostly followed the wishes of the child, who was also questioned about this by the competent court at the main hearing, but despite knowing about the appointment of an advocate for the child and the subsequent notification by the Ombudsman that the advocacy would not be completed until the main hearing, the hearing was held and at the same time the child was asked about his wishes, and then, at the suggestion of the mother, with the agreement of the competent CSD, a court settlement between the parents was also accepted. After the completion of the advocacy, the Ombudsman informed the competent court of the statement obtained as part of the advocacy process and asked it for an explanation regarding the questioning of the child at the main hearing and the conclusion of the court settlement before the conclusion of the advocacy. The Ombudsman specifically emphasised that it had been explained to the child at the introductory meeting that, without external pressure, he would be able to express his opinion regarding the proposal to withdraw and limit parental care, and that his opinion would be heard and, if possible, followed by the competent court. if it was found be to his greatest advantage. The Ombudsman stated that by asking the child about his wishes at the hearing and then accepting a court settlement, even before the advocacy in the specific case had been completed, the court caused disappointment in the child and further strengthened his belief that the system and institutions are not to be trusted. His disappointment was felt during the last individual meeting with the advocate, where it was noticed that the child was no longer ready to participate as actively as during the previous meetings. The Ombudsman explained that he does not want to interfere in court proceedings, but in accordance with Article 3 of the Convention on the Rights of the Child (CRC), he is obliged to warn that in all activities related to children, whether they are run by state or private institutions for social welfare, courts, administrative bodies, or legislative bodies, the best interests of the child are the main guide. Namely, the contracting parties undertake to provide the child with such protection and care as is necessary for his well-being, taking into account the rights and duties of parents, legal guardians or other individuals who are legally responsible for the child, and that for this purpose they will adopt all appropriate legislative and administrative measures. In accordance with the provision of Article 12 of the CPC, the contracting parties also guarantee a child who is capable of forming his own opinions the right to freely express them in all matters related to him, and the weight of the expressed opinions is judged in accordance with the child's age and maturity. For this purpose, the child in particular has the opportunity to be heard in any judicial or administrative procedure related to him, either directly or through a representative or an appropriate authority, and this in a manner that is in accordance with the procedural rules of internal legislation.

The competent court approved the Ombudsman's interpretation of the provisions of the CRC. At the same time, it expressed its awareness that, in the light of the CRC, the Ombudsman was best able to explain the course of court proceedings to the child and help him prepare a statement, which was the goal of the advocacy. At the same time, the competent court stated that it was also true that the child was questioned at the hearing in the presence of the person proposing the procedure (CSD), which is also professionally qualified to identify the child's benefits, and that it also followed this in its decision, so let these would not be overlooked in this particular case.

The Ombudsman believes that the competent court missed the essence of the Ombudsman's findings in its response, as it did not problematise the fact that the court settlement did not pursue the child's best interests and that the child's wishes were not taken into account – instead, it highlighted the child's broken trust in the advocacy process after it was explained at the introductory meeting that he would be able to make a statement regarding his family situation as part of the advocacy. However, even though the court and the CSD were aware that the advocacy was still ongoing and had not been completed, he was still questioned at the main hearing, which reinforced his previous position that institutions should not be trusted. Thus, by deciding on the hearing, the court effectively nullified the work of the advocate, who had managed to restore the child's trust in authorities and institutions at least a little. (13.5-66/2024)