Višje sodišče v Ljubljani; 2018-09-19; IV Cp 1764/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2018:IV.CP.1764.2018
Date: 2018-09-19
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI0919(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the jurisdiction to decide on the return of a child allegedly wrongfully removed from Slovenia to Croatia and the related provisional measures on custody and contact.
The Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) was seised of an action brought by the father (hereinafter ‘the plaintiff’) seeking custody of his minor daughter, determination of contact and maintenance. He also applied for several provisional measures, including the return of the child to Slovenia under the Hague Convention (1) and the new Brussels II Regulation (2). The Court of First Instance held that it lacked jurisdiction to decide on the child’s return and rejected the related requests; however, it issued a provisional measure regulating contact between the plaintiff and the child until a final decision on the main issue was made.
The plaintiff appealed, claiming misinterpretation of Article 8 of the Hague Convention and arguing that Slovenian courts should also be competent to decide on the return.
The Court of Appeal confirmed that, under the Hague Convention, only the courts of the state to which the child has been wrongfully removed have jurisdiction to decide on a request for return. Although Article 8 allows the application to be submitted to the Central Authority of the state of origin or of any other Contracting State, this concerns only the transmission of the request, not the authority competent to decide on it. The decision must always be taken by the courts of the state where the child is located following the wrongful removal. Since the child had been taken to Croatia, only the Croatian courts were competent to rule on her return, and the Court of First Instance had rightly declared itself not competent.
The Court of Appeal further held that the remaining provisional measures, relating to custody, maintenance and contact, were correctly assessed by the Court of First Instance under Slovenian law. It found no evidence that the child was endangered in the mother’s care. The child was securely attached to the mother, who had an adequate capacity to provide proper upbringing. Living in another country and linguistic environment was not, in itself, harmful to the child. The provisional measure regulating contact between the plaintiff and the child, issued by the Court of First Instance, remained in force and was confirmed on appeal.
Accordingly, the Court of Appeal dismissed the appeal and upheld the decision of the Court of First Instance in its entirety.
(1) The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.