Višje sodišče v Mariboru; 2024-04-04; III Cp 259/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2024:III.CP.259.2024
Date: 2024-04-04
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI0404(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’), concerned the return, under the Hague Convention (1) and the new Brussels II Regulation (2), of a child wrongfully retained in Slovenia.
The Okrožno sodišče v Mariboru (hereinafter ‘the Court of First Instance’) ordered the father B. B. (hereinafter ‘the defendant’) to return the child A. A. to the mother C. C. (hereinafter ‘the plaintiff’). It found that the plaintiff held rights of custody under German law and that the defendant had wrongfully retained the child in Slovenia after a contact visit in October 2023, despite a written undertaking to return her. The Court of First Instance also held that return proceedings do not determine parental responsibility on the merits, but are intended to restore the status quo and enable the courts of the State of the child’s habitual residence to decide those issues. The Court of First Instance further explained that, since the case concerned the removal of a child from one Member State to another, Article 11 of the new Brussels II Regulation was also applicable and supplemented the Hague Convention in the return proceedings.
On appeal, the defendant alleged procedural infringements, in particular the refusal to hear a clinical psychologist, challenged the assessment of the child’s objections to return under Article 13(2) of the Hague Convention, and argued that the return would expose the child to psychological harm and educational disruption.
The Court of Appeal dismissed the appeal. It held that the Court of First Instance had correctly relied on German law and on the evidence showing that the plaintiff held rights of custody within the meaning of Article 3 of the Hague Convention, and that the defendant’s failure to return the child as agreed constituted a wrongful retention. It also confirmed that a decision on return is not a decision on the merits concerning parental responsibility, but is closest in nature to an interim measure, so that the procedural rules applicable to enforcement and security measures govern such proceedings.
The Court of Appeal further held that the exceptions to return under Article 13 of the Hague Convention must be interpreted restrictively. The circumstances relied on by the defendant, including the child’s dissatisfaction with her living arrangements, the mother’s move, schooling issues and the alleged conduct of the mother’s partner, did not establish the grave risk required to refuse return. As regards the child’s objections, the Court of Appeal found that the child had been heard repeatedly by the competent social services and by the judge, and that the Court of First Instance had given sufficient reasons for concluding that her statements, assessed in context and in the light of her maturity and the defendant’s influence, did not justify refusal of return.
Consequently, the Court of Appeal upheld the return.
(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.