Višje sodišče v Ljubljani; 2025-08-07; IV Cp 1324/2025
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2025:IV.CP.1324.2025
Date: 2025-08-07
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82025SI0807(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned an application for the return of two children from Slovenia to the Netherlands.
The Court of First Instance dismissed the application of the father (hereinafter ‘the plaintiff’) seeking an order that the mother (hereinafter ‘the defendant’) return their two daughters to the Netherlands. It held that the children had not been wrongfully removed or wrongfully retained in Slovenia within the meaning of the Hague Convention (1).
On appeal, the plaintiff argued, inter alia, that the Court of First Instance had referred to the new Brussels II Regulation (2), although the applicable European Union instrument was the new Brussels II Regulation (recast) (3), which supplements the Hague Convention in cases of this kind between Member States. He further submitted that the parties had expressly agreed that the children would return to the Netherlands after one year, that this agreement had never been changed, and that he had never consented to their permanent stay in Slovenia. He also disputed the conclusion that the children’s habitual residence had become Slovenia.
The Court of Appeal upheld the assessment that, although the parties had initially agreed that the defendant would move to Slovenia with the children for one year, their subsequent conduct showed that they had later departed from that arrangement and had agreed that the family would continue living in Slovenia for an indefinite period, pending a longer-term decision. In those circumstances, the retention of the children in Slovenia and their integration into the Slovenian environment were the result of the parents’ voluntary decision. The plaintiff had consented, as evidenced by several of his actions, to the children residing in Slovenia for an indefinite period. Accordingly, his rights of custody, including the right to determine the children’s place of residence and rights of access, had not been infringed within the meaning of Articles 3 and 5 of the Hague Convention.
The Court of Appeal also upheld the conclusion that the children’s habitual residence was in Slovenia at the time the return application was lodged, which justifies the jurisdiction of the Slovenian courts. It further held that the plaintiff’s later change of position could not unilaterally undo the parties’ subsequent agreement and revive their earlier arrangement for a temporary stay in Slovenia followed by a return to the Netherlands. Since there had been no wrongful removal or wrongful retention, the application for the children’s return was unfounded. The complaint concerning the reference to the new Brussels II Regulation was also rejected, since the plaintiff had not explained how that reference could have affected the correctness of the decision.
The appeal was therefore dismissed and the decision of the Court of First Instance was upheld.
(1) 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.
(3) Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).