Višje sodišče v Ljubljani; 2019-10-02; IV Cp 1660/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:IV.CP.1660.2019
Date: 2019-10-02
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI1002(51)_ENG_SUMJURE
JURE summary
JURE summary
In light of the Court of Justice of the European Union’s (CJEU) interpretation of the relevant provisions, the concept of ‘habitual residence’ must be interpreted in the light of the context of the provisions of the new Brussels II Regulation (1) referring to that concept and the Regulation’s objectives, in particular the objective apparent from recital 12 thereof, according to which the grounds of jurisdiction established by that Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. In addition to physical presence, other factors must also be taken into account, which indicate that the presence is not in any way temporary or intermittent and that it reflects some degree of integration of the child into a social and family environment. In that context, it is necessary to take into consideration factors such as the duration, regularity, conditions and reasons for the child’s stay in the territory of the different Member States concerned, the reasons for the family’s move to that Member State, the child’s nationality, the place and conditions of schooling, linguistic knowledge, and the child’s family and social ties in that country.
The provisions of the new Brussels II Regulation and the case-law of the CJEU concerning the concept of habitual residence justify the reasoning of the contested decision, namely that habitual residence does not necessarily coincide with permanent residence and that the decisive point in time for its assessment is the date on which the action was brought.
The wrongful removal of a child does not affect the determination of the place of the child’s habitual residence.
(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.