Višje sodišče v Mariboru; 2024-01-30; III Cp 54/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2024:III.CP.54.2024
Date: 2024-01-30
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI0130(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’), concerned the international jurisdiction of the Slovenian courts in proceedings on parental responsibility involving a child with connections to both Slovenia and Italy.
On 30 August 2022, the father (hereinafter ‘the plaintiff’) applied to the Court of First Instance, seeking that the minor child be entrusted to him, that the mother (hereinafter ‘the defendant’) pay child maintenance, and that the court grant an order substituting for the defendant’s consent to the child’s enrolment in school in Slovenia. The child, who held Slovenian and Italian nationality, had previously lived with both parents in Italy and was integrated there (including through schooling). In July 2022, the child travelled to Slovenia, attended a summer school in the Slovenian language, and remained in Slovenia with the plaintiff for the summer. The plaintiff asserted that the child refused to return to Italy. After the plaintiff’s application, the Court of First Instance issued an interim order (1 September 2022) substituting the defendant’s consent for school enrolment and temporarily entrusting the child to the plaintiff; the defendant subsequently objected to jurisdiction.
The Court of First Instance later held that the Slovenian courts lacked jurisdiction and rejected the plaintiff’s application, on the basis that the child’s habitual residence at the time the court was seised was in Italy. The plaintiff appealed, arguing in essence that the concept of habitual residence had been assessed too narrowly and that the child’s integration in Slovenia and expressed wish to remain there should have been given greater weight.
The Court of Appeal dismissed the appeal. It confirmed that jurisdiction was governed by the new Brussels II Regulation (recast) (1). Recalling the Regulation’s objective of safeguarding the child’s best interests through the criterion of proximity (Recital 20), it held that, under Article 7, jurisdiction in matters of parental responsibility lies with the courts of the Member State in which the child is habitually resident at the time the court is seised. The decisive date was therefore 30 August 2022. The Court of Appeal held that, at that time, the child had been in Slovenia for only about two months, essentially in the context of summer holidays (including attendance at a language summer school), and had not yet become sufficiently integrated into social and educational life in Slovenia for habitual residence to shift from Italy. In particular, enrolment in a Slovenian primary school began only on 1 September 2022, i.e. after the proceedings had been initiated. The Court further noted that the provisions on wrongful removal or retention were inapplicable, as that aspect had been withdrawn. Finally, although the Regulation also provides for choice-of-court jurisdiction (Article 10), the case did not turn on that mechanism; jurisdiction remained governed by Article 7 on the basis of the child’s habitual residence.
Accordingly, the Court of Appeal upheld the decision that the Slovenian courts lacked international jurisdiction.
(1) 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).