Višje sodišče v Ljubljani; 2021-12-08; IV Cp 1984/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2021:IV.CP.1984.2021
Date: 2021-12-08
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI1208(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the legal nature of a decision ordering the return of a child to another jurisdiction, which determines whether such a case may be reopened.
The mother (hereinafter ‘the plaintiff’) applied to the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) for the return of her minor children to Switzerland, relying on the Hague Convention (1) and the new Brussels II Regulation (2). The Court of First Instance granted the application and dismissed the father’s (hereinafter ‘the defendant’) request for a retrial as inadmissible.
The Court of Appeal held that the purpose of both instruments applied by the Court of First Instance was not to determine parental rights finally, but to restore the status quo ante by ensuring the prompt return of the child to the place of their habitual residence prior to the wrongful removal. A return order under the Hague Convention is, by its nature, most comparable to a provisional measure. Provisional measures for the protection of children’s interests are issued in accordance with the procedure prescribed by the legislation governing enforcement and security. In particular, Article 10 of the ZIZ (3) provides that proceedings of this type may not be reopened unless expressly permitted by law. Consequently, a retrial is not allowed in respect of a decision ordering the return of a child.
Accordingly, the Court of Appeal dismissed the appeal as unfounded and upheld the decision of the Court of First Instance.
(1) Hague 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) Zakon o izvršbi in zavarovanju (Enforcement and Security Act).