Višje sodišče v Mariboru; 2023-12-20; III Cp 688/2023
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2023:III.CP.688.2023
Date: 2023-12-20
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82023SI1220(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’), concerned the placement and guardianship of a minor child.
Following a series of judicial decisions, the child, A.A., was removed from the care of her mother, D.D., and initially placed with her older half-sister, F.F., as an interim measure. However, this environment was later deemed unsuitable for the child’s upbringing. The Center za socialno delo (Social Work Centre, hereinafter ‘the plaintiff’) therefore applied to the Court of First Instance to place the child in foster care and to regulate contact between the child and her mother, her aunt B.B. (hereinafter ‘the defendant’), and her half-sisters F.F., G.G. and H.H.
The Court of First Instance accepted the expert’s opinion and the plaintiff’s proposal, placing the child with a foster family and appointing the plaintiff as guardian. The defendant appealed against this decision, arguing that the Court of First Instance had misjudged the facts, failed to assess her personal suitability, and neglected to compare the foster family’s conditions with those she could provide. She claimed that it would be in the child’s best interests to be placed in her care, either as a foster child or under her guardianship.
The Court of Appeal stressed that the paramount consideration in all family proceedings is the best interests of the child (Article 7 of the DZ (1)). Under Article 176(4) of the DZ, when parental responsibility is withdrawn, the court must also decide on the child’s placement and guardianship. The Court of Appeal identified two decisive criteria for determining placement: (i) whether the person with whom the child is to be placed is personally suitable, and (ii) whether such placement is in the child’s best interests. These two criteria are interdependent and must be evaluated in light of the specific circumstances of each case.
After assessing the evidence, including the expert opinions, witness testimony, and the child’s emotional ties, the Court of Appeal found that the concerns expressed about the defendant’s sincerity and cooperation with institutions were not serious enough to preclude placement. It concluded that the defendant possesses adequate parental capacities, that the child is securely attached to her, and that she has long fulfilled the role of the child’s primary maternal figure. The Court noted that removing the child from this environment would cause emotional distress and separation anxiety. Even while the child was placed with her half-sister, F.F., it was the defendant who provided regular and effective care on weekends and often during the week.
Accordingly, the Court of Appeal allowed the appeal and amended the decision of the Court of First Instance, ordering that the child be placed with the defendant. It also modified the arrangements for contact with the mother and half-sister, as well as the maintenance payments.
Finally, under Article 242 of the DZ, the Court of Appeal appointed the defendant as the child’s guardian rather than as a foster parent, finding that guardianship was more consistent with the child’s long-term welfare. As the defendant resides in Austria, the Court of Appeal observed that the decision may be recognised and enforced there pursuant to Article 21 of the new Brussels II Regulation (2).
(1) Družinski zakonik (Family Code)
(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.