DISSENTING OPINION OF JUDGE THOMASSEN

( Translation )

I am unable to agree with the majority who consider that the Court of Appeal ' s decision regarding the children ' s resi d ence constitutes discrimination between the father and mother on account of the latter ' s religious beliefs as a Jehovah ' s Witness.

Whil st it is true that the Court of Appeal ruled in very general terms on the adverse implications of the Jehovah ' s Witnesses ' beliefs for the children ' s education, it did nevertheless establish a link with th e adverse effects which, according to a psychiatrist, the mother ' s religious convictions were producing on the children. In addition, the Court of Appeal based its decision on a letter from one of the children , stating his wish to remain with his father , and on witness statements which confirmed that the children had said that they would prefer to live with the latter parent.

According to the Court ' s established case-law, the underlying principle which must guide court decisions in respect of a child is the latter ' s interests. Where necessary, a parent ' s interests must be subordinated to the se .

Every court decision taken after a divorce concern ing a child ' s residence creates , in principle , a distinction between the two parents, in that elements such as each of the parent ' s educational and emotional abilities, financial resources, housing conditions or place of residence may be decisive in the choice which must be made. It is clear that such a distinction, which, in a way, excludes the other parent from his or her child ' s daily life, may be perceived as unjust by that person.

A court ' s intervention in choos ing between two parents may be compared to the judgment of Solomon. Such intervention is an inevitable consequence of the parties ' decision to separate and it always represents interference in the family life of one of the parents.

In this context, a court may be obliged, in the child ' s interests, to examine more closely a parent ' s attributes and living conditions when reaching its decision, although certain arguments would be insufficient to justify another form of State interference in a parent ' s family life, such as for the purpose of child protection.

I t was in those circumstances, that is, in the context of choosing one of the parents, that the Court of Appeal consider ed the adverse consequences on her children of the mother ' s religious convictions.

In my opinion, this distinction between the mother and father, made by the Court of Appeal on the basis of the effects of the mother ' s religion, does not amount to discrimination contrary to Article 14.

On the other hand, I consider that the Court of Appeal ' s decision is open to criticism for another reason.

After the father had left the mother and her family, the mother looked after the children by herself for three and a half years , on the basis of a court decision . The father ignored this decision by preventing the children from rejoining their mother in Spain after the holidays.

In my opinion, endorsement of this unlawful act, which deprived the mother of her right to a family life with her children, could not be justified without having hear d the children and/or ordering a social inquiry report t o establish whether it was indeed in the latter ' s interest s to stop living with their mother.

Given the circumstances of this case, the lack of any such report on the relationship between the mother and children infringed the mother ' s right to a family life with her children. The same would have been true had the Court of Appeal based its decision on considerations relating to prohibitions and constraints imposed on the children by their mother without reference to any religious convictions.

I consider that the applicant has been deprived of adequate participation in the decision-making process, thus render ing arbitrary the Court of Appeal ' s decision and amount ing to a violation of Article 8 in her regard .