Višje sodišče v Ljubljani; 2018-11-08; IV Cp 2220/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2018:IV.CP.2220.2018
Date: 2018-11-08
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI1108(51)_ENG_SUMJURE
JURE summary
JURE summary
The case regards a request for a provisional measure giving custody of a child to its father domiciled in Slovenia (hereinafter ‘the plaintiff’), which was resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
The child lived for 11 years in Slovenia, but after the divorce of its parents, it moved with its mother (hereinafter ‘the defendant’) to Austria, where it lived for other 3 consecutive years. During a short holiday stay of the child with the plaintiff in Slovenia, which was approved by the defendant, the plaintiff decided to file a request for a provisional measure giving custody of a child to him.
The application was filled with the Okrožno sodišče v Kranju (hereinafter ‘the Court of First Instance’), which invoked Article 8 of the new Brussels II Regulation (1), according to which ‘the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised’. Since the child was considered habitually resident in Austria, the Court of First Instance declared the lack of its jurisdiction to hear the case.
The plaintiff appealed to the Court of Appeal and sought annulment of the first instance decision, alleging that the child expressed its intention to stay in Slovenia, that the defendant treats the child improperly, that the child has problems speaking German language and that it had lived in Slovenia much longer than in Austria.
The Court of Appeal held that the child was already appropriately integrated in the Austrian society, where it also attended education. The child had been living in Austria for more than 3 years during which the plaintiff did not ask for the return of the child, so the stay in Austria can be considered at least tacitly agreed. Conversely, the present request for a provisional measure came during a short-term stay of the child in Slovenia. The consent of the defendant to leave the child permanently resided in Slovenia cannot be assumed. The Court of Appeal upheld the conclusion of the Court of First Instance concerning Article 8 of the new Brussels II Regulation. Neither does Article 20 of the same Regulation provide a basis for a decision in the present case, since the measures taken pursuant paragraph 1 of this Article shall, pursuant to paragraph 2 of the same Article, ‘cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers.’ The Court of Appeal held that the Austrian courts shall have jurisdiction in this case, and it is primarily up to these courts to substantially determine what is in the best interests of this child.
The appeal was held unfounded, and the first instance decision was upheld. The Court of First Instance was instructed to not only declare the lack of its jurisdiction, but to reject the request for an interim measure directly.
(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.