DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I feel unable to subscribe to the reasoning and the conclusion of the majority as regards the alleged violation of Article 8 taken in conjunction with Article 14 (art. 14+8).

1. First of all it is necessary to examine whether there really was an interference by a public authority with the applicant ’ s family life within the meaning of Article 8 (art. 8). When they separated, the parents did not reach agreement on custody of the children, both parties claiming it for themselves in the competent courts. At first instance and on appeal the courts found for the mother, while the Supreme Court decided in favour of the father. The case therefore concerned a private dispute between two individuals - each of whom was equally entitled from the beginning - which the courts, to which the parties turned as they had failed to reach an agreement, had to decide on the basis of the applicable law, since the fact that the mother had - without authorisation - taken the children away with her did not give her any additional rights. Accordingly, the fact that the children were taken back to their father ’ s home following the final decision of the Supreme Court was not in itself an interference with the mother ’ s rights within the meaning of Article 8 (art. 8).

2. Even assuming that there was an interference, the following should be noted.

The only criterion on which the courts should base their decision in a case such as this is the welfare of the children. The Supreme Court determined the welfare of the children differently from the courts below. It is not for the Strasbourg Court to substitute its assessment for that of the competent State authorities, which enjoy a wide margin of appreciation in the matter. But it is nevertheless the Court ’ s duty to review whether the choice made by these authorities was within the margin of appreciation that the Convention grants them and did not infringe the rights secured in it.

In this instance it did not. The Supreme Court attached more importance to the adverse effects on the children ’ s welfare which might result from the mother ’ s membership of the religious community of the Jehovah ’ s Witnesses. It did not therefore discriminate against the mother ’ s religion as such but merely took into consideration certain consequences which belonging to that religion might entail for the well-being of the children, and this would seem to me to be wholly legitimate.

Furthermore, the Supreme Court criticised the courts below for neglecting the fact that, in deciding on the children ’ s future religious education unilaterally, the mother had infringed the provisions of the 1921 Act.

3. Even though I do not find in the present case any violation of Article 8 taken together with Article 14 (art. 14+8), I have to deprecate the phrasing of some of the reasons given in the Supreme Court ’ s judgment. But as the Court has noted many times, inept and unfortunate phrasing in a judicial decision does not on its own constitute a violation of the Convention.

PARTLY DISSENTING OPINION OF JUDGE WALSH

1. I do not agree that in this case there was a violation of Articles 8 and 14 (art. 14+8) taken together, or alone, by reason of the Supreme Court ’ s decision which overturned the decision of the lower court by withdrawing from the applicant the custody of her children. The refusal was grounded on the fear that the children ’ s welfare could be put at risk by reason of the applicant ’ s intention not to permit a blood transfusion, if medically necessary, to either of her children should the occasion arise unless ordered to do so by a court.

2. The mother ’ s attitude was dictated by the tenets of the religious society or sect she had joined subsequent to the birth of her children. She had become a member of Jehovah ’ s Witnesses after quitting the Catholic Church and she had accepted the view that to permit blood transfusion for her children, who were in her custody, would be morally wrong. Her children had remained members of the Catholic Church, as had her husband. Her children had no known objection to a necessary blood transfusion. In effect the applicant was imposing her religious beliefs upon the life and health of her children and in disregard of the rights of the father and of the provisions of the Religious Education of Children Act 1921.

3. The father ’ s notice of appeal to the Supreme Court specifically mentioned the withholding of possible blood transfusion as the reason for seeking a reversal of the order of the lower court. That was an objective ground which a court might or might not, in any given case, regard as a sufficient ground for the transfer of custody. That is not a matter upon which this Court could usurp the discretion of the national court. The matter before the Supreme Court was a question of the hazard of the health of the children. In gauging the seriousness of the hazard the Supreme Court recognised that the cause of the hazard was, admittedly, the applicant ’ s new religious views. The reason or motives for the creation of the hazard are but secondary to the objective effect of the existence of the hazard. If the applicant ’ s attitude was not traceable to a religious belief the question before the national court would remain essentially the same. The fact that the hazard was brought into existence by a religious belief not shared by those upon whom it was sought to impose it does not create a situation where the removal of the hazard must necessarily, if at all, be regarded as a discrimination on the grounds of religious belief. The national court ’ s duty was to evaluate or weigh the effects as distinct from the cause.

4. The appeal to the Supreme Court was heard before the divorce of the parents became final. After that a different legal situation arose which could give rise to a further recourse to the national courts in consequence of the effect of the divorce on the provisions of the Religious Education of Children Act 1921. That is a situation which is not before this Court.

5. I agree with the decision of the Court in relation to Article 8 (art. 8) taken alone, Article 9 (art. 9) and Article 2 of Protocol No. 1 (P1-2).