Višje sodišče v Ljubljani; 2012-05-03; IV Cp 1237/2012
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2012:IV.CP.1237.2012
Date: 2012-05-03
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82012SI0503(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute between a father (hereinafter ‘the plaintiff’), domiciled in Slovenia, and a mother (hereinafter ‘the defendant’), domiciled in the United Kingdom, concerning the custody over their daughter. There were two different proceedings between the parties.
In the first proceedings the Okrožno sodišče v Kranju (hereinafter ‘the Court of First Instance’) decided that the child must be returned to the defendant living in London.
The plaintiff subsequently filled a new request before the same court seeking a provisional and protective measure to be taken to keep the daughter with him. The Court of First Instance declared the lack of jurisdiction of the Slovenian courts to decide on a provisional measure in this dispute. According to Article 20 of the new Brussels II Regulation (1) the courts shall take provisional, including protective, measures in urgent cases. The Court of First Instance held that no urgent matter supported the request.
The case was further examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), where the plaintiff alleged that the child is a Slovenian citizen, currently living with him in Slovenia and thus return to the UK would not be in her best interest.
The Court of Appeal stated that it must not be overlooked that the request for provisional measures (in the second proceedings) was made to prevent the enforcement of a court decision (in the first proceedings), which must be considered as an abuse of procedural law.
The Court of Appeal refused to assess the grounds supporting the issue of a provisional measure, dismissed the appeal and upheld the contested decision claiming a lack of Slovenian jurisdiction.
(1) 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.