Vrhovno sodišče; 2021-04-21; II Ips 25/2021;Vrhovno sodišče Republike Slovenije; 2020-05-08; II Ips 25/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2021:II.IPS.25.2021
Date: 2021-04-21;2020-05-08
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI0421(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards custody of a child removed by one of the parents to a different country addressed to the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’).
A child having a Slovenian father (hereinafter ‘the plaintiff’) and a Croatian mother (hereinafter ‘the defendant’) was born in Slovenia, where both parents lived. After the cohabitation of the parents had broken down, the defendant took the child to Croatia without the plaintiff’s consent and knowledge.
Both parties have applied before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) for custody of the child and establishing the right of access between the child and the other parent. The Court of First Instance noted the existence of the proceedings before the Croatian court, where the plaintiff requested the child’s return to Slovenia under the Hague Abduction Convention (1). This fact was, however, held irrelevant since the subject of proceedings requesting the return of a child and the subject of the current proceedings seeking to determine custody were different. The Court of First Instance also declared a lack of jurisdiction to decide on the return based on the Convention since only the state to which the child was removed has such jurisdiction. It based its jurisdiction on the new Brussels II Regulation (2) and proceeded with an assessment of the living environment of both parents and their attitude to the child. Following the experts’ opinions, it granted custody to the defendant but precisely determined the conditions of contact with the plaintiff.
The Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) slightly modified the contact conditions but upheld the first instance decision overall.
The plaintiff requested the Supreme Court to annul the lower instances’ decisions and to assess (a) whether the lower courts were obliged, before deciding on the custody, to ensure the return of the child unlawfully removed from Slovenia, and (b) whether the proceedings held by the lower courts violated the right for a fair trial.
The Supreme Court recalled that the guiding principle when deciding parent-child disputes is the child’s best interest. The Supreme Court held that the lower courts failed to rule on the child’s return since the new Brussels II Regulation also gives such jurisdiction to the Slovenian courts. However, returning the child to the country of origin is not necessary for a decision on the merits of custody. A fair trial can also be ensured when the child is not returned. According to the Supreme Court, the lower courts thoroughly assessed which parent was better suited to be entrusted with the child’s custody. And while doing so, they also considered that the child was living in Croatia due to its removal by the defendant. The courts maintained intense contact between the child and the plaintiff through precise contact arrangements so the plaintiff was not deprived of his parental rights. The Supreme Court confirmed that the assessment of what was in the child’s best interest had been carried out correctly.
The Supreme Court held the grounds of the plaintiff’s appeal to be unfounded and dismissed the appeal.
(1) The Hague Convention on the Civil Aspects of International Child Abduction of 1980.
(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.