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The Ombudsman intervenes with the Ombudsman of BiH to help protect the best interests of the child

The Ombudsman intervened with the Ombudsman of Bosnia and Herzegovina (BiH) to speed up the process of appointing a guardian at a social centre in BiH, thus contributing to the protection of the best interests of a minor child.

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The Ombudsman was contacted by a citizen of Austria concerning the guardianship of her minor cousin, a citizen of Bosnia and Herzegovina, who was undergoing rehabilitation treatment at the University Rehabilitation Institute of the Republic of Slovenia - Soča (URI Soča) as a result of a car accident in the territory of Slovenia. The petition indicated that the social work centre in BiH was unresponsive and refused to arrange guardianship, despite the fact that the child's parents had given custody of the child to the petitioner by notarial deed. The letter also indicates that the BiH Ombudsman had been informed of the problems.

The Ombudsman has learned from a conversation with the petitioner that the Ljubljana - Moste Social Work Centre is assisting her with her affairs, but that the problems are not related to the conduct of the Slovenian authorities, but to the conduct of the BiH authorities. The Ombudsman also learned from the conversation with the Moste Social Work Centre that in addition to the unresponsiveness of the social work centre in BiH, the Embassy of BiH in Ljubljana is also unresponsive, which, despite the decision on the appointment of a guardian for a special case, has not arranged a valid identity document for the child.

The Moste Social Work Centre also provided the Ombudsman with a report on the findings, which indicated that the father and mother had endangered the life of the child in a car accident in Slovenia, resulting in the child suffering serious injuries to his head, brain and internal organs. Both parents were confirmed after the accident to have tested positive for psychoactive substances and to have failed to ensure the safety of the child. After the accident, the parents told Moste Social Work Centre that they were unable to take care of their son and wanted the petitioner to take care of him. The parents also transferred custody of their son to the petitioner by notarial deed and did not want the child's grandmother, who lives in Bosnia and Herzegovina, to take custody, as her age made it difficult for her to take care of herself.

The report also showed that as soon as the petitioner learned of the accident, she came to Slovenia to take care of the child. It was noted that the child calmed down completely around the petitioner and was very responsive to her voice and touch, unlike when the child was in contact with his father, regarding whom the child expressed great fear. The parents visited their son once or twice a week for a few minutes, but when he was transferred to the URI Soča, they were no longer interested in him. The Moste Social Work Centre report summarised the active involvement of the petitioner in the care of the child, and she was admitted to the ward together with him at the URI Soča, as it was necessary for her to participate actively in the rehabilitation programmes. The petitioner has a settled life in Austria and the conditions for taking the child into care and wishes the child to stay with her.

The Moste Social Work Centre further stated that it was indisputably necessary to immediately terminate the procedures for the withdrawal of parental care in BiH, as the parents, by their inappropriate, dependent lifestyle, violence in the partner relationship, complete disregard for the child's basic and developmental needs, and failure to provide the child with a basic sense of security, both in BiH and later outside BiH, had caused the child's significant developmental delay and the trauma that had been diagnosed by the doctors in Slovenia. The Moste Social Work Centre therefore proposed to the BiH Centre for Social Work that the protracted case be resolved by BiH immediately issuing a decision placing the petitioner as guardian, at least temporarily.

On the basis of all the information obtained and the report presented, the Ombudsman considers that Moste Social Work Centre has approached the solution of the problems in a way that secures the best interests of the child by taking urgent measures to protect the best interests of the child and has done everything it could within its competence in the given situation. The Moste Social Work Centre was not in a position to issue a custody decision for the child as it did not have the competence to do so. Article 15(2) of the Private International Law and Procedure Act (ZMZPP) provides that provisional protection measures shall be ordered for a foreign national or stateless person who is in the Republic of Slovenia in accordance with the law of the Republic of Slovenia and shall last until the competent State has taken a decision on the matter and has taken the necessary action. The report of Moste Social Work Centre indicated that the procedure for placing a child under guardianship was ongoing in BiH and therefore Moste Social Work Centre was able to apply urgent protection measures to protect the best interests of the child. As the child was in hospital and thus not at risk from the parents, Moste Social Work Centre only issued a decision on the placement of a guardian for a special case, which would have allowed the petitioner to arrange for the expiring identity documents for the child. The Ombudsman assessed that the Moste Social Work Centre acted in accordance with its competences and protected the child to the maximum extent possible, and that all activities were also carried out in order to ensure that the child received adequate rehabilitation after his discharge from hospital, despite the fact that he did not have health insurance.

During the proceedings, the Ombudsman became aware that the problems were on the side of the BiH authorities and therefore informed the Ombudsman of BiH himself, by telephone and then by official letter, of the unresponsiveness of their Social Work Centre and asked him to consider, as a matter of priority, the possibilities for assistance in the specific case, within the scope of his competences. The Ombudsman of BiH sent the Ombudsman a copy of the enquiry, which was forwarded to the competent social work centre in BiH.

The Ombudsman also addressed the Slovenian Ministry of Foreign Affairs (MFA) with a request for urgent assistance and asked it to consider, as a matter of priority, the possibility of urgent assistance in the specific case, in so far as it relates to the issue of a valid passport for the child by the Embassy of Bosnia and Herzegovina (BiH).

Shortly after the request was sent to the MFA, the Moste Social Work Centre received information that the child was already with the petitioner in Austria, as the social work centre of BiH had issued a temporary custody decision, on the basis of which the petitioner was able to take custody of the child after discharge from the URI Soča.

The Ombudsman found that the Slovenian authorities had done everything to protect the best interests of the child and considered that the conduct of the Moste Social Work Centre in the specific case constituted good practice, as in addition to the above-mentioned measures, it had been in contact with the doctors, the petitioner and had taken extreme care to resolve the problems that had arisen. In the present case, the Ombudsman has also done everything in his power, and he believes that by intervening with the Ombudsman of BiH, he has succeeded in expediting the procedure for the appointment of a guardian at the Social Centre in BiH, thus contributing to the protection of the best interests of the child. 21.0-8/2022