concurRing OPINION OF JUDGE Zupančič

I fully agree with the judgment in this case. I thought it might be useful, however, to make a few general observations concerning the procedurally idiosyncratic nature of cases such as the one we have decided today.

Cases such as Scozzari and Giunta v. Italy are not paradigmatic legal disputes. They generate specific problems relating to our own doctrine of access to court and to the rule of law itself. Since the Olsson v. Sweden (no. 1) judgment of 24 March 1988 (Series A no. 130) and up to the recent case of Nuutinen v. Finland (no. 32842/96, ECHR 2000-VIII), the whole series of Article 8, that is, family law, cases have raised specific procedural difficulties. These difficulties are offset mostly, as we shall see, by the non-retrospective nature of judgments in family law disputes. For example, difficult last-minute developments in the evolving fact patterns oblige the Court to engage in first-instance fact-finding and even in probability assessments.

Legal theory has, to the best of my knowledge, not offered any ready-made solutions to the recurring questions outlined below.

A classic legal dispute has certain procedural characteristics. First, right and remedy are usually interdependent; second, the lawsuit is retrospective, that is, it usually concerns only past events (facts); third, the polarities of the legal aspects of the dispute must be monocentric , that is, ultimately there is one question to be decided; fourth, there is a deontological tension between the legally relevant facts and the applicable norm.

The so-called “best interests of the child”, for example, are not specific enough to establish the usual judicial aut-aut monocentric polarity. This, in turn, obliges the court to become involved in polycentric choices, that is, to assume an active parens patriae role. Moreover, this active involvement of the court is a continuing one, sometimes until the child reaches maturity.

The impartiality, that is, the passive non-involvement of the court, as well as the respective roles of the parties to the dispute are also predetermined by specific characteristics of family law cases. For example, the passive impartiality of the courts clearly results from the interaction of the two polarised partialities of the parties. In turn, the case is in this sense ripe – I am referring to the ripeness aspect of the justiciability doctrine – once it is focused on one or two essential issues. This focus, while shifting as a mirror image of the burden of proof, is nevertheless fixed in the past, i.e. it is entirely retrospective. The finality of the judgment , which is irrebuttably presumed to be valid ( res judicata pro veritate habetur ), depends on the pre-existent finality of the facts, that is, on the judicial retrospective. In the end, implementation, enforcement and execution of the judgment , too, as I pointed out in my dissenting opinion in Nuutinen , may be adversely affected.

Furthermore, the choice of the applicable norm hinges on the legally relevant facts (past events) and, vice versa, what facts are legally relevant depends in turn on the choice of the norm. This dialectical process implies a fact pattern that has crystallised in the past, not one that is constantly changing. The normal truth-finding function of the courts of law is to consider and assess such crystallised facts, rather than to pronounce on people's future suitability and fitness to perform parental functions, for example. Epistemologically, the law of evidence is predicated on the historical method, not on the assessment of future probabilities.

In both national and international appellate jurisdictions these complications are even more critical. In such cases, the appellate court is faced with more recent events, that is, events that are subsequent to the decisions of their lower courts. The appellate courts, in other words, are faced with the continuous evolution – improvement or deterioration – of the disrupted family relationship. The appellate court is therefore volens nolens involved in a fresh appraisal of new facts ( questiones facti ). It cannot limit itself, as it would normally do, to the fact pattern as established by the lower courts and recorded in the case file but must, on the contrary, remain receptive to the latest developments. This makes it difficult for an appellate court to limit itself to questions of law ( questiones juris ).

This puts even the international court of last appeal, although further removed from the direct factual assessment of sensitive relational issues, into the uncomfortable – but inevitable – role of a direct fact-finder. Consequently, the principle of immediacy of fact-finding is affected. Inevitably then, since the appellate court must reach a definable aspect of the case's complex and continuously evolving fact pattern, there arises the need for a thoroughly reductive, namely minimalist, judicial approach.

Also, the right to non-disruption of family life and our own remedy of just satisfaction cannot be in any meaningful sense interdependent. In paragraph 249 of the judgment we outlined our hope that the Italian State will choose one of the options consistent with our judgment and attempt to remedy, in so far as possible, the tragic situation of the Scozzari family. However, while there are in fact several obvious options at the disposal of the Italian State, none of them has the clear meaning of the usual quid pro quo of the classical restitutio in integrum . The passage of time, when dealing with small children is, irreversible and irremediable.

In the past, I think, the Court has performed a formidable service both in finding wise solutions to individual cases and in establishing general principles and doctrines governing certain aspects of European family law. By virtue of the case-law, it is now largely clear what the rights and obligations of the Contracting States under the European Convention on Human Rights are, or more specifically, what the limits on proportional interference in disrupted family relationships are.

To summarise these principles and doctrines, the ultimum remedium of interference is justified if (a) it is objectively in the best interest of the child, (b) it balances the rights of the parents (and other close relatives) against the best interests of the child and (c) it demonstrably strives to re-establish the parent-child relationship. Needless to say, (d) the right to speedy decisions by the family courts, which derives more from Article 8 of the Convention than from Article 6 § 1 [3] , is here especially prominent.

The case before us, however, raises two additional issues. The first issue concerns the intensity as well as the continuity of the control which the State authorities are required to exercise over the implementation of their decisions by those to whom they have entrusted the care of the child. The second issue concerns the parents' and children's right to the provision of alternative care that is beyond reproach.

As to the latter issue, it is understood that such an exceedingly grave interference in family life cannot be proportionate unless the alternative care facility imposed by the State is beyond reproach .

Moreover, since the question of the nature of alternative care is usually the subject matter of a secondary dispute between the parents and the State – arising from the primary judicial decision to interfere in the family life – this issue merges with the question of continuous access to the courts for parents, children and close relatives.

A State cannot justifiably disrupt the most fundamental human relationship, which is that between parent and child, unless it is willing and able to continue to render judicial decisions going beyond the retrospective res judicata of balanced interference in the life of the family. In a simple divorce case involving a childless couple, the State's courts may simply establish and declare an end to the relationship and perhaps draw the necessary consequences concerning the dividing up of property accumulated during its subsistence. If there are children, however, extremely grave and prospective long-term decisions must continually be made concerning their custody. Even if the child is entrusted to one of the two parents, this is already a sphere in which the judgment has no immutable finality.

A fortiori , in a case in which the behaviour of both parents has proved detrimental to the child, the decision cannot be simply to break up the family. An initial alternative care arrangement followed by continuous judicial commitment is required of the court. Again, this function of the family court is idiosyncratic, because a dispute of this kind cannot in any sense be deemed as finally resolved – at least not until the child has attained legal maturity. Therefore, if the State does decide to interfere in the natural long-term relationship between parent and child, it must accept that it will have continuing future parens patriae duties and responsibilities.

Historically, the parens patriae legal doctrine was based on the (wrong) assumption that in family-law, civil-commitment and juvenile-delinquency cases the State acts in loco parentis and that, therefore, the conflicting “hostile attitudes”, typical of criminal and even private law, are here replaced by a “friendly attitude” of the State in loco parentis . Legally speaking, there was an irrebuttable presumption of “friendly attitude”. This presumption effectively blocked all further access to the courts.

About thirty years ago, however, the parens patriae doctrine collapsed in a series of constitutional cases in different national jurisdictions. It became legally clear that these wards of the State (children entrusted to State agencies, committed mental patients and juvenile delinquents) found themselves in the worst of both worlds. Due to the “friendly-attitude” presumption, children, mental patients and juvenile delinquents lost the procedural and the substantive guarantees of the law – but did not really receive the treatment and the care of the State. The consequence of that was the resurgence of strict judicial protection – “access to court” in the language of our own case-law – and the departure from the naïve parens patriae ideology.

The case of Scozzari and Giunta v. Italy clearly demonstrates that the State must balance its initial decision to interfere in the family life against future parens patriae responsibilities it has thus assumed.

These responsibilities, more specifically, imply, first, the balancing duty of the family courts. When they consider the possible legal interference in the family relationship, they must be certain that the care imposed by the State will be clearly and demonstrably better than the troubled situation the court is seeking to redress. Second, these ex officio responsibilities of the family courts continue for so long as the basic child-parent relationship, which should be the purpose of the interference, is not re-established. Third, the aggrieved parties must continue to have access to court, that is, the courts must continue to resolve secondary disputes arising from the primary judicial decision that had interfered with the relationship between parents and children.

In other words, if the State's courts are, legally or otherwise unable to assume such long-term commitments, they should not interfere.

On the other hand, the courts cannot themselves provide the day-to-day care for the children. This is usually entrusted to social services. However, the social services department to which the courts have entrusted the child, must be under the court's continuous ex officio supervision.

The strictly judicial power of conflict resolution – i.e. the power to resolve further disputes arising out of the initial alternative care arrangements – must not be left to psychiatrists, psychologists, social workers, managers of alternative care institutions, etc. The alternative custody and care arrangements, while in place, will often generate a series of new conflicts between parents and the welfare authorities. In many other cases decided by this Court it was apparent that welfare authorities have a tendency to arrogate to themselves an arbitrary decision-making power far exceeding their judicially granted authority. Undoubtedly, this problem derives from the non- retrospectivity and other idiosyncrasies of child custody and care cases outlined above. However, the fundamental principle of the rule of law requires that the parents' and children's access to court be strictly and continuously maintained.

Too much is at stake here for these grievances to be arbitrarily decided by those authorised only to provide the alternative care. The presumption of their bona fides must remain a rebuttable one, i.e. subject to subsequent legal challenge and uninterrupted access to court. Since this would amount to the so-called khadi -justice, foster parents, social workers, psychologists, psychiatrists, alternative care institutions, etc., cannot be arbiters in situations in which their own decisions are the target of parents' criticism and grievance.

Procedurally, such disputes are prima facie admissible, if the issues they raise transcend the strictures of judicial decisions establishing the alternative care arrangements.

This issue goes to the core of the rule of law. The doors of the family court should remain wide open.

[1] 1. Note by the Registry. Protocol No. 11 came into force on 1 November 1998.

[2] 1. Note by the Registry . The report is obtainable from the Registry.

[3] 1. See the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, opinion of the Commission, pp. 1023-24, §§ 106-12.