Višje sodišče v Ljubljani; 2020-11-03; IV Cp 1162/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2020:IV.CP.1162.2020
Date: 2020-11-03
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82020SI1103(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned a dispute between parents regarding the exercise of parental responsibility, specifically the determination of the state in which their minor daughter should attend primary school.
A mother (hereinafter ‘the defendant’) moved with the child to Croatia and enrolled her in school there without the father’s (hereinafter ‘the plaintiff’) consent. The plaintiff requested the Court of First Instance to issue a provisional measure to ensure schooling in Slovenia, arguing that the relocation was unlawful and contrary to the child’s best interests.
The Court of First Instance rejected the plaintiff’s request and, ex officio, issued a temporary order replacing the plaintiff’s consent, thereby allowing the child’s enrolment in the Croatian school to stand. It reasoned that, under Article 113 of the ZZZDR (1), questions significantly affecting a child’s development require either parental agreement or, failing that, a court decision; given the lack of agreement and the urgency before the start of the school year, judicial intervention was necessary. The Court of First Instance relied on the child’s demonstrated adaptation in Croatia and the likelihood that a change would cause stress and harm. In a subsequent and distinct application, the Court of First Instance applied the criterion of ‘endangerment’ under Article 161 of the DZ (2), concluding that this threshold had not been met and therefore rejecting the renewed request for a provisional measure.
The plaintiff appealed. He argued that the defendant’s conduct amounted to unlawful removal under the Hague Convention (3); that Slovenian courts had jurisdiction under Article 8 of the new Brussels II Regulation (4) by reference to the child’s habitual residence; that his right to be heard was breached by reliance on documents and the expert report; and that replacing his consent without a motion from the defendant and by reference to non-final decisions from other proceedings was inadmissible.
The Court of Appeal dismissed the appeal and upheld the lower court’s reasoning and decisions. It held that in disputes about the exercise of parental responsibility (questions materially affecting the child), courts may issue provisional measures ex officio to protect the child, and that the Court of First Instance acted within those powers when it replaced the plaintiff’s consent to schooling in Croatia. The Court of Appeal emphasised that the child’s best interests were paramount and that maintaining schooling in Croatia was justified by her successful adaptation and the risk of harm from further change. It further clarified that proceedings under the Hague Convention and the present non-contentious proceedings are legally distinct: the Slovenian court was neither determining a return under the convention nor reassessing the Croatian court’s ruling. Alleged procedural violations were rejected; the plaintiff had opportunities to respond, and the expert evidence was properly considered.
Accordingly, the Court of Appeal dismissed the appeal as unfounded and upheld the decision of the Court of First Instance in its entirety.
(1) Zakon o zakonski zvezi in družinskih razmerjih (Marriage and Family Relations Act).
(2) Družinski zakonik (Family Code).
(3) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(4) 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.