CONCURRING OPINION OF JUDGE SCICLUNA

I wish to point out, at the outset, that I fully endorse the conclusions reached by the Chamber in respect of Article 6 and that this opinion is only related to that part of the judgment dealing with Article 8.

While concurring with the Chamber in the sense that the automatic application of Article 197(4) of the Criminal Code and, therefore, without the possibility of scrutiny by the domestic courts before its application, constitutes a violation of Article 8, and while agreeing fully with the considerations made in the judgment in that respect, I am not of the opinion that the absence of procedures to challenge the application of such a measure at a future date in itself constitutes a breach. In other words, it does not follow that because automatic application of the measure constitutes a breach of Article 8, then, once applied, the perpetual application (until the attainment of majority by the child) of it constitutes a breach. Indeed, the facts of the case clearly show that, notwithstanding the application of Article 197(4), access by the first applicant, M.D., to her minor children had gradually increased, meaning that although she may have been deprived of parental authority, she was not deprived of seeing her children, of being with them and of having them residing with her for periods of time. Consequently, in the present case I only see a violation in respect of the automatic application of Article 197(4). Should the application of Article 197(4) be subject to an assessment by a domestic court, then I do not believe that future reviews would be required. The deprivation of parental authority is, vis-à-vis the parent, an extreme form of punishment, and this will be taken into consideration by a court when making its assessment as to whether such an extreme measure is required in the particular circumstances before it.

Naturally, the procedure mentioned in paragraph 89 of the judgment should be made available in all cases which have been subject to the automatic application of Article 197(4).