DISSENTING OPINION OF JUDGE RANZONI, JOINED BY JUDGES HAJIYEV AND VEHABOVIĆ

1. I respectfully disagree with the majority that there has been no violation of Article 8 of the Convention.

2. Since November 2003 the parents have been arguing over the contact rights of the father. He had contact with his daughter, more or less regularly, until the s ummer of 2008. Subsequently these contacts could no longer take place. Thus, at the time of the Court of Appeal ’ s decision in October 2012 to suspend all contact between father and daughter for an indefinite period of time, the applicant had already not seen his daughter for some four years.

3. From the case file it appears that the mother did not want her daughter to have contact with the father. The expert explained that the daughter was in a loyalty conflict with her mother. He also declared that regular contacts between father and daughter would be in the best interests of the child but that in the concrete circumstances and in view of the dilemma of the daughter due to her loyalty conflict with the mother the suspension of the contact would “at present” be in the child ’ s best interests. Therefore, the decision of the Court of Appeal to suspend contact was justified. But to my mind, the domestic courts overstepped their margin of appreciation in suspending the contact without setting a time-limit and without counterbalancing the serious impact of this decision.

4. In paragraph 44 of the present judgment the Court rightly states that the margin of appreciation of domestic authorities when deciding on contact is more limited than when deciding on custody. In Sommerfeld v. Germany (no. 31871/96, 8 July 2003, § 63) the Court noted:

“However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed.”

5. Furthermore, the Court has found that the passage of time could have irremediable consequences for the relationship between the child and the non-resident parent (see Santilli v. Italy , no . 51930/10, 17 December 2013, § 65, and Bondavalli v. Italy , no. 35532/ 12, 17 November 2015, §§ 73 and 83).

6. This judgment also states that the Court of Appeal did not give any explanation as to why the suspension of contact between father and daughter for an indefinite period of time was necessary in the child ’ s best interests. However, the majority are of the opinion that there were procedural safeguards counterbalancing these shortcomings and thus justifying the far-reaching decision to suspend contact without any time ‑ limit. I am not able to share this view.

7. As to the obligation for the domestic courts to review the situation “ ex officio ” (see paragraph 52), the domestic legislation only provides for a review at “reasonable intervals” without being more specific. More importantly, in the present case on 18 July 2014, after the case file had been returned, the competent judge of the Family Court ruled: “1. Seen. Nothing to be done. 2. To be stored” (“ 1. Gesehen. Nichts zu veranlassen. 2. Weglegen ”; see paragraph 22). This happened almost two years after the Court of Appeal ’ s decision and shows quite clearly that the case file was to be “stored” for an unlimited time and that no reassessment was planned for the future. There is no other indication of any such review by the domestic courts, of their own motion, of whether or not the requirements for further suspension of contact were still being met.

8. As to the possibility of proposing a review (see paragraph 53), first, as mentioned in the Chamber judgment, section 24(1) of the Family Matters Act does not give the applicant a right formally to request a review. It is just a proposal to start new proceedings ( Anregung eines neuen Verfahrens ) which does not at all have the same procedural value as a formal application in civil law. Neither does it necessarily entail new proceedings or a judicial decision. The Chamber assumes that proposals for review are taken “very seriously by the courts”. In the case at hand, at least, I cannot see any justification for such an assumption. Secondly, the judgment refers to the fact that the applicant has never even tried to use this procedural avenue. However, in the Court of Appeal the expert stated that further attempts by the father to have contact with his daughter would “at present” – in September 2012 – prejudice ( “abträglich sein ”) the best interests of the child, and that there were “at present” no possibilities for the father to actively and positively work towards such contacts. The applicant even agreed to mediation, whereas the mother refused such steps towards a solution. The problem did not seem primarily to lie with the father but with the mother and her – as worded by the Court of Appeal – “aversion to the father” (“ Abneigung gegen den Vater ”). In this difficult situation, there was very little the father could do. Moreover, the Court of Appeal explicitly demanded that the applicant be “patient” and “understanding”. Besides the fact that this is not at all easy for a father who has not seen his daughter for several years, the court ’ s demand provides a further argument as to why the applicant cannot be blamed for not having proposed new proceedings. Thirdly, the judgment points out that the Court of Appeal, in its decision, “alluded to a possible change of the child ’ s will with advancing age and maturity”. Does that really constitute a counterbalancing factor? In this regard the Court has held that the right of contact is an important element of the duty to preserve the uniting bonds between father and daughter and that the national courts are under a positive and ongoing obligation to reassess the situation and to try to overcome any of the obstacles which might hinder the granting of even very limited contact (see Nekvedavicius v. Germany (dec), no. 46165/99, 19 June 2003). This positive obligation is not fulfilled by simply alluding to a possible change with advancing age and maturity. In addition, a lack of cooperation between parents does not dispense the domestic authorities from their positive obligation (see Bondavalli , cited above, § 82).

9. Against this background, the domestic courts should have set – as Family Courts would normally do – a reasonable time limit for reassessing the situation of their own motion. This would, in the present case, have put a certain “pressure” on the mother, in particular, to work towards regular contacts between daughter and father, in the best interests of the child. The expert emphasised that regular contact should be revived and maintained and that contact should be suspended only “at present” due to the daughter ’ s loyalty conflict with her mother.

10. Accordingly, in my mind it was not justified to suspend contact without a time-limit. The national authorities should have actively taken measures in order for the father to see his daughter and, even more importantly, for the daughter to see her father. Neither the relevant domestic legislation nor the practice in the case at issue afforded the applicant adequate and effective safeguards against the effect of the indefinite suspension of contact, namely the danger of irremediably curtailing the relationship between daughter and father.

11. Bearing in mind the limited margin of appreciation in cases concerning the restriction of contact rights, the concrete circumstances of this case and the best interests of the child concerned, which in principle require regular contact with the father, the suspension of contact without any time-limit, without giving any reasons for it and without any kind of effective counterbalancing measures, was not proportionate and not “necessary” within the meaning of Article 8. Accordingly, in my opinion, there has been a violation of this provision.