Višje sodišče v Mariboru; 2010-07-20; I Ip 623/2010
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2010:I.IP.623.2010
Date: 2010-07-20
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82010SI0720(51)_ENG_SUMJURE
JURE summary
JURE summary
There was a dispute between spouses in divorce proceedings over the custody of their child A. By the decision of the Tribunale di Tivoli, Italy, the sole custody was provisionally granted to the father (hereinafter ‘the plaintiff’), but A. was ordered to stay in children’s home in Rome until the final decision in the case had been reached. However, on the very day that the Italian judgment was delivered, the mother (hereinafter ‘the defendant’) and A. left Italy and travelled to Slovenia, where they intended to remain.
Subsequently, several proceedings concerning this issue took place at various Slovenian courts. The plaintiff requested and obtained recognition of the Italian provisional measure within the Republic of Slovenia. Following the recognition, the plaintiff brought an action before the Okrajno sodišče v Slovenski Bistrici (hereinafter ‘the Court of First Instance’) seeking the return of A. through the enforcement of that measure.
The present case regards an appeal brought by the defendant against the decision of the Court of First Instance, in which it refused the defendant’s objection against the plaintiff’s request for the enforcement of the Italian provisional decision and the return of A.
The appeal was assessed by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’), which stated that A. had been in Slovenia for more than three years, that A. refused to return to Italy, especially to the children’s home and that the competent Slovenian social service declared that the child had adequate conditions for staying and learning in Slovenia. A professional psychological expert indicated in its findings that the return of A. to Italy would cause a traumatic experience to the child since it was already well integrated into Slovenian society and is of age 12, which could be very turbulent for the relations of the child even without its forced return to Italy.
The Court of Appeal cited Article 12(1) of the Hague Convention (1) which provides that the authority concerned shall order the return of the child ‘where a child has been wrongfully removed or retained’ and where ‘at the date of the commencement of the proceedings … a period of less than one year has elapsed from the date of wrongful removal or retention’. Article 12(2) further provides that the return shall be ordered even ‘where the proceedings have been commenced after the expiration of the period of one year … unless it is demonstrated that the child is now settled in its new environment’.
However, the Court of Appeal stated that the plaintiff filled the action for A's return more than two years after its removal from Italy. Furthermore, it was sufficiently proved that A. was already settled in its new environment. Moreover, as A. was already 12 years old, it had already ‘attained an age and degree of maturity at which it is appropriate to take account of its view’ as assumed by Article 13 of the Hague Convention.
The Court of Appeal considered that the return of the child would also violate the fundamental Slovenian constitutional principles concerning the rights and duties of parents towards children and under such circumstance the return of child may be refused by Article 20 of the Hague Convention also.
Based on all findings in this appellate procedure, the appeal of the defendant was granted. The first instance decision was amended in such a way that the objection of the defendant was fully upheld and the request of the plaintiff to return A. was dismissed.
(1) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.