Višje sodišče v Ljubljani; 2017-04-06; IV Cp 793/2017
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2017:IV.CP.793.2017
Date: 2017-04-06
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82017SI0406(51)_ENG_SUMJURE
JURE summary
JURE summary
The parents of a two-year old minor moved from Slovenia to France in order to start a new life, however, the father (hereinafter ‘the plaintiff’) was not granted a residence permit and returned to Slovenia. The mother (hereinafter ‘the defendant’) remained in France and intended to move to the United States. The plaintiff sought the right of custody over the child and its return to Slovenia.
The Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) invoked Article 8 of the new Brussels II Regulation (1) and declared the lack of its jurisdiction according to the French habitual residence of the child. The plaintiff appealed the decision claiming that the minor was a Slovenian national, had been living in France only for one month, had no relations there and did not speak French language.
The Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) stated that the habitual residence of the child is indeed the decisive factor in the determination of jurisdiction in this case. However, the new Brussels II Regulation does not provide definition of this term. It therefore falls to the national courts to thoroughly assess all aspects of the current living situation of the child, including the integration of the child into the social and family environment, length of and reasons for staying in the territory of a certain Member State, the nationality of the child, their knowledge of the language, conditions for education and other social links of the child to that State.
The Court of Appeal held that the factual situation of this case cannot lead to conclusion of the child's habitual residence being in France, so the first instance decision was annulled.
(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.