Višje sodišče v Mariboru; 2019-05-21; I Cp 377/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2019:I.CP.377.2019
Date: 2019-05-21
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0521(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’), concerned proceedings for the return of a child from Slovenia to another Member State.
The Court of First Instance granted the father’s (hereinafter ‘the plaintiff’) request for the return of a minor child to Hungary and ordered the mother (hereinafter ‘the defendant’) to return the child to the plaintiff immediately. The Court based its decision on the Hague Convention (1) and the new Brussels II Regulation (2).
The defendant appealed, arguing that she had informed the plaintiff that she had obtained employment abroad and intended to move there with the child. As the plaintiff had not objected, she believed that consent to the relocation had been given.
The Court of Appeal held that the Court of First Instance had correctly relied on the relevant international instruments. As emphasised by the Court of First Instance, the Hague Convention is not intended to resolve disputes concerning parental rights, but rather to restore the previous situation by ensuring the child’s prompt return to the State of his or her habitual residence following wrongful removal. As less than one year has passed since the removal, the court could reject the plaintiff’s request only on the grounds set out in Article 13 of the Hague Convention. In this case, the Court of First Instance correctly found that the removal of the child was wrongful, as the plaintiff had not consented to the relocation of the minor to Slovenia. The mere fact that the plaintiff did not object to the move, as the defendant claimed on appeal, was not sufficient to conclude that consent had been given. Consent must be clear and unequivocal.
However, the Court of First Instance failed to correctly apply Article 11(2) of the new Brussels II Regulation, which provides that ‘it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity‘, and Article 13(2) of the Hague Convention, which allows refusal of return if the ‘child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views’. The Court of First Instance did not give the child this opportunity, nor did it assess his maturity. Given that the child was 11 years old, such an assessment should have been carried out.
Accordingly, the Court of Appeal upheld the appeal, set aside the decision of the Court of First Instance and remitted the case for reconsideration, instructing the lower court to hear the child if appropriate and to assess the other documents submitted by the defendant.
(1) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(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.