Višje sodišče v Ljubljani; 2018-06-21; IV Cp 1054/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2018:IV.CP.1054.2018
Date: 2018-06-21
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI0621(51)_ENG_SUMJURE
JURE summary
JURE summary
The mother of two minor children (hereinafter ‘the plaintiff’) domiciled in Slovenia filed an action in which she sought rights of custody and maintenance over the children against their father domiciled in Germany (hereinafter ‘the defendant’).
The action was filed with Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’), but the defendant raised an objection of a lack of jurisdiction of the Slovenian courts. The Court of First Instance invoked Article 8 of the new Brussels II Regulation (1), according to which ‘the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised’. The children were Slovenian citizens, moved with their parents for a limited time (less than two years) to Germany, where they were registered only for a temporary stay, and then they returned with the plaintiff to Slovenia. Considering the circumstances of the case, mainly the age of the children, the time spent in Slovenia and in Germany, their language skills, citizenship and integration into the social environment, the Court of First Instance decided in preliminary-ruling proceedings that the defendant’s objection shall be dismissed and that the jurisdiction of the Slovenian courts is established.
The defendant appealed before the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) alleging that the children were already habitually resident in Germany, because they started to attend a school and kindergarten respectively, they developed social relations with their friends and schoolmates and had already learned the German language.
The Court of Appeal re-assessed the circumstances of the case to better recognise where the habitual residence of the children was, bearing in mind that the habitual residence must be interpreted as meaning that such residence corresponds to the place where the children developed a higher level of integration into the social and family environment and how long the stays in the different countries were. The Court of Appeal asserted that the children had lived in Germany only for a limited time, the plaintiff never manifested an interest to stay in Germany permanently and in fact, the family moved to Germany only to improve its financial situation. Even if the children had learned the German language and had started to integrate into the German social environment, the time spent in Germany was considered too short to transfer the jurisdiction in favour of the German courts.
The Court of Appeal upheld the first instance conclusion that the children were habitually resident in Slovenia and that the jurisdiction of the Slovenian courts was justified. Therefore, the appeal was refused as unfounded.
(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.