Višje sodišče v Ljubljani; 2024-03-26; IV Cp 416/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2024:IV.CP.416.2024
Date: 2024-03-26
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI0326(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the jurisdiction of the Slovenian courts to rule on an application for interim measures relating to parental responsibility in the context of an intended divorce and an alleged wrongful removal of children.
The plaintiff, a Slovenian national, and the defendant, a Croatian national, had lived in London since 2011, where their three children were born. The children are Slovenian nationals and have lived in London and attended school/nursery there. In June 2023, the family moved to Slovenia and took steps towards establishing residence there. At the end of August 2023, the defendant left Slovenia with the children and returned to London with them without the plaintiff’s consent.
In September 2023, the plaintiff applied to the Court of First Instance for interim measures, seeking, inter alia, that the children be entrusted to him, that contact with the defendant be supervised, and that restrictions be imposed on the children’s cross-border movements and travel documents. The Court of First Instance held that the Slovenian courts lacked jurisdiction and dismissed the application as inadmissible, on the ground that the children’s habitual residence remained in the United Kingdom within the meaning of Article 5 of the 1996 Hague Child Protection Convention (1).
The plaintiff appealed, arguing, in essence, that the Court of First Instance had misapplied the rules on jurisdiction, including by relying on the new Brussels II Regulation (recast) (2) despite the United Kingdom no longer being a Member State. He also contended that the children’s habitual residence had shifted to Slovenia during the summer of 2023.
The Court of Appeal held that, where a child’s habitual residence is in a third State that is a party to the 1996 Hague Child Protection Convention, jurisdiction in matters of parental responsibility and protective measures is governed by that Convention. The decisive question was therefore whether the children had acquired habitual residence in Slovenia before the application was lodged, or prior to their return to London. Applying the established case-law criteria (centre of the child’s life interests, assessed on the basis of all factual circumstances), the Court of Appeal concluded that the children had not become integrated into Slovenian social and educational life to a degree capable of shifting their habitual residence from London. Their stay in Slovenia (June–August 2023) was short and comparable in nature to extended holiday periods. In contrast, the children had been living in London and attending school/nursery there for many years. Nor could jurisdiction be derived from Article 10 of the Convention, since the Convention’s conditions for adopting protective measures linked to divorce proceedings were not met in the circumstances. Accordingly, the Slovenian courts lacked jurisdiction to order the requested interim measures.
For completeness, the Court of Appeal also addressed jurisdiction in matrimonial matters. It held that Slovenian jurisdiction for divorce could not be founded on Slovenian national rules (ZMZPP (3)), because Articles 3 and 6 of the new Brussels II Regulation (recast) exhaustively govern jurisdiction vis-à-vis a spouse who is a national of another Member State and restrict recourse to residual national jurisdiction. As the defendant is a Croatian national, jurisdiction could not be established in Slovenia outside the grounds listed in that Regulation.
Accordingly, the Court of Appeal upheld the dismissal of the application for interim measures.
(1) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
(2) 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).
(3) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).