PARTLY DISSENTING OPINION OF JUDGE STEINER

(Translation)

Although I share the majority ' s view that there has not been a violation of A rticle 8, I cannot agree with them regarding the A rticle 6 aspect .

The present case concerns one of the most sensitive issues falling within the realm of family law , namely, the well-being of the children following a breakdown of the parents ' relationship . The situation, here, is unusual: on the one hand we have a father with a disability, who was nonetheless awarded custody of his children, and on the other we have the social services, whose role is to secure the children ' s well-being and who have wide powers in that respect. The mother, for her part, appear s to play only a secondary role . The investigations were in fact therefore ca rried out in respect of the applicant. Although conducted in an administrative context , the investigations are of a type such as to affect the applicant, that is, the children ' s father . In order to answer the q uestion as to whether a dispute over a “right” is in issue, one cannot base oneself on the fact that the applicant has not been adversely affected . If one were to proceed in that way, the existence of a right would be conditional on the – f avo u rable o r unfavourable – outcome of the dispute.

In this case there was potentially a dispute over a right that is none other than the very important one of a father ' s right to continue to have custody of his children, as awarded him in accordance with a judicial agreement reached in contentious proceedings ( see paragraph 10 of the Facts ). The existence of a “ right ” cannot therefore be seriously disputed. That the right is also a “ civil ” one is manifestly clear from the family-law context. This has been confirmed by the Court ' s case-law from the outset . Measures affecting parent-child relationships (visits, return etc.) indisputably fall within the civil-law sphere , as they are an aspect of contentious proceedings relating to personal rights (see, for example, O. v. the United Kingdom , judgment of 8 July 1987, Series A no. 120, § 60). In the present case the measures in question could potentially have been part of pre-contentious proceedings that could have given rise to measures affecting custody of the children . The points made in paragraph 100 of the judgment show clearly that this could have been the case .

It was therefore in the applicant ' s interests for a court to rule on the reasons for the investigation s , their content and the manner in which they would be conducted. That was not possible because the courts refused to c arry out such a review . P roceedings before the Supreme Court cannot replace a specific review on the merits .

With increasing frequency, especially in family-law cases, the decisions of this Court , rather than having regard to the substantive aspects of the case – the merits of the solution adopted by the domestic courts in a particular case being largely considered to be compatible with the Convention – are tending to place emphasis on the procedural aspects. It is surprising that this approach was not followed in the present case .