Višje sodišče v Ljubljani; 2021-10-18; IV Cp 1438/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2021:IV.CP.1438.2021
Date: 2021-10-18
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI1018(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the extension of a child’s placement in an educational institution and the restriction on crossing Slovenia’s state border.
The child’s father, a Russian national (hereinafter ‘the defendant’), who had temporary residence in Slovenia, had previously been subject to a measure placing his minor son, also of Russian nationality, in the Vzgojni dom (Youth Residential Care Institution, hereinafter ‘the VD’) due to concerns regarding possible violence against the child and the need to secure the child’ schooling and upbringing. In the current proceedings, the child’s guardian ad litem requested the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) to prohibit the child from crossing Slovenia’s borders and to extend the child’s placement in the VD for another school year. The Court of First Instance granted the request, issued a provisional measure restricting travel, extended the placement, and regulated contact between the defendant and the child.
The defendant appealed, arguing that he had only planned a weekend trip to Russia, which was within the period when he was entitled to contact with the child. He maintained that the activities undertaken during contact time fell within his parental authority and that there had been no reason for the lower court to impose a travel ban. He also claimed that the extension of the placement was premature and contrary to the child’s best interests, since the child’s condition had allegedly stabilised and further stay in the VD was unnecessary.
The Court of Appeal first confirmed that Slovenian courts had jurisdiction under Article 8 of the new Brussels II Regulation (1), since the child’s habitual residence was in Slovenia. Although Article 42(1) of the ZMZPP (2) would normally require the application of Russian law to family matters between Russian nationals, the Court of Appeal found that the case had a much closer connection with Slovenia. Under the exception clause in Article 2(1) of the ZMZPP, Slovenian substantive law therefore applied.
Assessing the merits, the Court of Appeal found that the Court of First Instance was justified in acting urgently and issuing a provisional measure. The child’s endangerment stemmed not only from the defendant’s conduct but also from the child’s emotional and behavioural difficulties, which required structured care and medication. Although the child’s condition had improved since placement in the VD, it had not improved sufficiently to allow termination of the measure. However, extending the placement for another full year was considered excessive. The Court of Appeal therefore partially upheld the appeal and amended the decision by limiting the duration of the temporary measure until a specified date (31 January 2022), after which the child’s situation was to be reassessed.
Concerning the restriction on crossing the state border, the Court of Appeal agreed that parents generally remain entitled to decide on the child’s activities during contact, but not to take the child abroad without authorisation. The defendant failed to prove that he would have returned the child to the VD on time, and such travel would have jeopardised the child’s stability and treatment. The measure restricting travel was therefore justified under the DZ (3). Nonetheless, the restriction could only last as long as the child remained placed in the institution. When deciding on the further placement, the Court of First Instance must also review whether limiting parental authority regarding border crossing remains necessary.
Accordingly, the Court of Appeal partially upheld the appeal and amended the decision of the Court of First Instance.
(1) 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.
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(3) Družinski zakonik (Family Code).