Višje sodišče v Ljubljani; 2024-02-27; I Cp 772/2023
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2024:I.CP.772.2023.1
Date: 2024-02-27
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI0227(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned a claim for non-material damage arising from the alleged wrongful removal of a child to another Member State and the alleged interference with parental rights.
The father (hereinafter ‘the plaintiff’) brought an action before the Court of First Instance against the mother (hereinafter ‘the defendant’), seeking EUR 22 000 in compensation for non-material damage (fear, mental anguish due to an interference with personality rights and family life, and reduced life activity). The dispute originated in June 2016, when the defendant took the parties’ minor daughter from their shared home in Slovenia to Croatia without the plaintiff’s consent. The plaintiff argued that this constituted a wrongful removal and that the defendant thereafter prevented him from exercising parental responsibility and maintaining contact with the child. The defendant contended that her conduct was not unlawful, as it was necessary to protect the child from a conflict-ridden and harmful family environment, a position supported by findings in parallel family-law proceedings.
The Court of First Instance established its international jurisdiction under Article 7(2) of the Brussels I Regulation (recast) (1), since the alleged harmful event occurred in Slovenia. Applying Slovenian substantive law in accordance with Article 4(1) of the Rome II Regulation (2), it dismissed the claim. Although the removal was unilateral, the court held that it was not unlawful for the purposes of civil liability, as it was justified by the child’s best interests. It further noted that the plaintiff’s application for the child’s return under the Hague Convention (3) had been rejected by the Croatian courts owing to a serious risk of psychological harm to the child, and that subsequent Slovenian judicial decisions had entrusted the child to the defendant’s care and regulated contact.
The plaintiff appealed, alleging procedural irregularities relating to the separation of claims and an incorrect application of substantive law. He argued, in particular, that the courts had failed to give proper effect to the Hague Convention and to the European Union instruments governing parental responsibility relied on by the plaintiff when assessing the unlawfulness of the defendant’s conduct.
The Court of Appeal dismissed the appeal. It clarified that, although the plaintiff had initiated multiple proceedings based on the same historical events, he was entitled to pursue different forms of judicial protection deriving from the same factual basis (for example, preventive or injunctive relief under Article 134 of the OZ (4) and a claim for monetary compensation under Article 179 thereof). As regards the merits of the tort claim, the Court of Appeal endorsed the reasoning of the Court of First Instance. It emphasised that, under the Ustava Republike Slovenije (5) and the Convention on the Rights of the Child (6), the child’s best interests constitute the primary consideration.
In balancing the competing rights, the Court of Appeal held that the child’s interests prevail over the parents’ rights. Since the relocation to Croatia was necessary to protect the child from a harmful environment, the element of unlawfulness, required for tort liability, was absent. The Court of Appeal further confirmed that the defendant did not unlawfully interfere with the plaintiff’s parental rights or the exercise of contact, observing that the child maintained a strong emotional bond with the defendant and that any difficulties in exercising contact stemmed from mutual communication failures between the parents rather than from any intention on the defendant’s part to alienate the child.
Accordingly, the Court of Appeal dismissed the appeal and upheld the judgment of the Court of First Instance.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
(3) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(4) Obligacijski zakonik (Obligations Code).
(5) Ustava Republike Slovenije (Constitution of the Republic of Slovenia).
(6) United Nations Convention on the Rights of the Child of 20 November 1989.