Višje sodišče v Ljubljani; 2007-04-18; IV Cp 1792/2007
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2007:IV.CP.1792.2007
Date: 2007-04-18
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82007SI0418(51)_ENG_SUMJURE
JURE summary
JURE summary
In this case, a father of three children (hereinafter ‘the plaintiff’) applied before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) requesting that the court divorce his marriage and grant him custody over the children. The mother of the children (hereinafter 'the defendant') requested by a counter-claim that custody should be granted to her. Both parties requested preliminary custody over the children.
The Court of First Instance divorced the marriage, granted the custody to the plaintiff and adjusted the defendant's right of access.
The defendant accepted the decision concerning the divorce, but appealed the decision concerning custody on several grounds. She alleged that: 1. she was not allowed to follow the procedure in German language, despite being a German citizen; 2. she was not served with the documents which instituted the proceedings in German; 3. German courts should have the jurisdiction since all children are German nationals; 4. the daughter is only 3-years old, does not speak Slovenian and is already living with her in Germany, therefore a move to father would not be in her interest; 5. the first instance decision was based on the consideration of the Social Work Centre, where she was refused opportunity to present her opinion in German - moreover, the children were interviewed in the presence of the plaintiff, which affected their statements in favour of him.
The Višje sodišče v Ljubljani (hereinafter ’the Court of Appeal’) cited Article 8 of the new Brussels II Regulation (1), according to which ‘the courts of a Member State shall have jurisdiction … over a child who is habitually resident in that Member States at the time the court is seised’ and Article 2(11) in conjunction with Article 10 of the same Regulation, according to which ‘in case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State’. Two children lived with plaintiff in Slovenia and one child unlawfully moved with her mother to Germany without the plaintiff's consent the day before the plaintiff filled the action. Despite all children being German natives, the jurisdiction of the Slovenian courts was upheld on the basis of their habitual residence.
The Court of Appeal further held that the defendant was wrongfully prevented from use of her native language, mainly before the Social Work Centre, which manifestly violated civil procedure rules. The Court of First Instance also erred in serving the documents only in Slovenian language in contrary to Regulation (EC) No 1348/2000 (2), as Germany accepts the delivery of foreign official documents by postal means only if the documents were translated into German. The Court of First Instance also insufficiently assessed the best interests of the children.
Therefore, the Court of Appeal partially annulled the first instance decision and referred the case back to the Court of First Instance for further proceedings, where the influence of the decision on the children, with the presence of the defendant acting in her native language, must be re-assessed.
(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) Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.