Vrhovno sodišče Republike Slovenije; 2024-11-13; II Ips 47/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2024:II.IPS.47.2024
Date: 2024-11-13
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI1113(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Vrhovno sodišče (hereinafter ‘the Supreme Court’), concerned the scope of appellate review and the application of substantive law in proceedings involving the removal of parental care and the placement of a child in substitute care.
The Center za socialno delo (hereinafter ‘the Centre’) had carried out an emergency removal of several children from their mother, A. A., under Article 167 of the DZ (1), citing severe endangerment. The present proceedings relate only to the youngest daughter, C. A. The Centre initially placed her with her adult sister, B. A., but later assessed that the child was also at risk there, and she was moved first to a crisis centre and subsequently to foster care. Both B. A. and their aunt D. A. expressed interest in taking long-term care of the child.
The Court of First Instance withdrew the mother’s parental care, placed the child in foster care, regulated contact and ordered the mother to pay maintenance, and appointed the Centre as guardian.
D. A. appealed. The Court of Appeal held a hearing, examined the parties and the expert, and concluded that placement with D. A., who lives in Austria, better served the child’s best interests. It therefore placed the child with D. A., determined contact arrangements, ordered maintenance to be paid to D. A., and appointed her as guardian, thereby combining substitute care and guardianship in a single person.
The Centre lodged a revision request to the Supreme Court, arguing that the Court of Appeal had exceeded the boundaries of the appeal, had not decided fully, had wrongly displaced foster care with ‘placement to another person’, and had misapplied substantive law. It also relied on Article 56 of the new Brussels II Regulation (2), asserting that the Austrian authorities’ consent was required.
The Supreme Court recalled that, under Article 176 of the DZ and Article 107 of the ZNP-1 (3), when parental care is withdrawn, the court must, in the same proceedings, regulate substitute care and also decide on contact arrangements and child maintenance. These issues are inseparably linked to determining who provides the child’s daily care. Where no guardian has yet been appointed, the court must also decide on guardianship.
The Court of Appeal did not exceed the appeal’s scope: the appellant challenged the child’s placement in foster care, and decisions on contact, maintenance and guardianship were legally dependent on that issue. Nor was the decision incomplete: placement with a relative, combined with appointing that person as guardian, is expressly foreseen as a form of substitute care under Article 176 DZ and ensures complete replacement of parental care.
Regarding substantive law, the Supreme Court stressed that the key test is the child’s best interests, rooted in Article 54(1) of the URS (4) and the DZ. The Court of Appeal had given detailed reasons—based on the expert evidence, the child’s established emotional bonds, the inadequacy of the previous placements, and the confirmed suitability of D. A.’s home—why placement with the aunt was in the child’s best interests. The revision did not challenge the legal standard, but only the factual assessment, which is not permissible at the revision stage.
As regards European Union law, the Court of Appeal correctly applied the new Brussels II Regulation. The Court of First Instance had obtained confirmation from the Austrian authorities that, in cases of placement with relatives, their consent under Article 56 was not required.
Accordingly, the Supreme Court dismissed the revision and upheld the decision of the Court of Appeal.
(1) Družinski zakonik (Family Code).
(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) Zakon o nepravdnem postopku (Non-Contentious Civil Procedure Act).
(4) Ustava Republike Slovenije (Constitution of the Republic of Slovenia).