JOINT PARTLY DISSENTING OPINION OF JUDGES BERRO AND MØSE

1. To our regret we cannot follow the majority ’ s reasoning concerning Article 3 of the Convention. Leaving aside the complaints under Article 6 § 1 and Article 13, which are rightly declared inadmissible in the judgment (see paragraphs 190-92), it is our view that the present case should be examined under Article 8.

2. The judgment correctly concludes that, as a result of the protracted custody proceedings, which lasted for more than four years, there has been a violation of Article 8 both with respect to the first applicant – the daughter – and the second applicant – the mother (see paragraphs 176-87 and 188-89 respectively).

3. The applicants also complained that the authorities had not complied with their procedural positive obligations under Article 3 and/or Article 8 because they had refused to prosecute the father and failed to remove the daughter from the father ’ s custody and thus prevent him from committing further violent acts against her (see paragraph 104).

4. As stated in the judgment, albeit in a different context (see paragraph 167), it is firmly established in the Court ’ s case-law that it is master of the characterisation to be given in law to the facts of the case, and that it is not bound by the characterisation given by the applicant or the Government. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.

5. The majority have chosen to focus on Article 3 (see paragraphs 131 ‑ 32). Finding that the cumulative effect of all purported acts performed by the father would “if they were indeed perpetrated” render the treatment the daughter was allegedly exposed to sufficiently serious to reach the threshold of severity required under Article 3 (see paragraph 135), they find that the evidence is sufficient to consider the allegations under that Article arguable and hence to trigger the State ’ s procedural obligation under that provision. Therefore, in the majority ’ s view, the daughter ’ s complaints under Article 8 are absorbed by her claims under Article 3 (see paragraphs 140-43).

6. In our view, this approach under Article 3 does not take sufficient account of the factual context of the case. The manipulation of common children and (false) accusations of child abuse are very frequent in highly conflictual relationships between separated parents and are often instrumental in custody battles for the children. In this connection we note that in the period between 5 July 2006 and 7 March 2008 altogether eight criminal complaints were filed against the mother and the father, most of which they filed against each other. Five criminal complaints were dismissed, including the three in which it was alleged that criminal offences of child abuse and domestic violence had been committed against the daughter (see paragraph 9 of the judgment). It is also revealing that the mother insisted that the father be prosecuted and convicted specifically for the criminal offence of child abuse even though the conduct the applicants had accused him of could also be regarded as a criminal or minor offence of domestic violence, or as a criminal offence of bodily injury (for which he was being prosecuted).

7. According to the Committee on the Rights of the Child, children ’ s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care, and prosecuting parents is in most cases unlikely to be in their children ’ s best interests (see paragraph 96 of the judgment). It is also noteworthy that it has not yet been established by a final judicial decision whether or not the daughter ’ s eye injury was inflicted by the father during the incident of 11 February 2011 (see paragraphs 35-51 of the judgment).

8. Furthermore, it seems to us that the majority ’ s approach concerning the procedural obligation to prosecute the father is not fully consistent with its subsequent conclusion that there was no violation of the obligation to prevent ill-treatment by removing the daughter from his custody (see paragraphs 153-163). Here, the judgment refers to the local social welfare centre ’ s assessment of 12 May 2011 that the daughter was not at risk; the refusal of the first-instance court on 7 June 2011 to grant the mother ’ s request for provisional measures, due to the absence of sufficient proof that abuse had taken place; and the combined report from forensic experts in psychiatry and psychology of 19 December 2011 stating that there were no contraindications for the daughter to remain living with her father.

9. In the present case the daughter was traumatised by the conflictual situation between her parents, who, according to the experts, were both equally unfit to take care of their daughter, and she inflicted injury on herself because the authorities failed to take sufficient account of her views during proceedings that lasted too long. The complaints should have been examined exclusively under Article 8 of the Convention, which guarantees the right to respect for private and family life.