JOINT DISSENTING OPINION OF JUDGES BIANKU AND SPANO

1. Ms Mitrova, the first applicant, gave birth to her daughter, the second applicant, on 11 February 2007. When the second applicant was only three months old, her parents divorced and custody was given to the mother, the first applicant. The Gevgelija Social Welfare Centre, on 2 June 2007, ordered arrangements for contact between the second applicant and her father.

2. The first applicant refused to allow the father to have contact with the second applicant at four scheduled meetings between 8 and 29 June 2007. Following these refusals the first-instance court convicted her pursuant to Article 198 of the Criminal Code, apparently for preventing the child from being with an authorised person. She was sentenced to six months ’ imprisonment, suspended for one year.

3 . The first applicant was convicted a second time and given another suspended prison sentence of eight months, suspended for two years, for refusing to comply with the Gevgelija Social Welfare Centre ’ s order and not allowing the second applicant to contact her father between July and October 2007. The domestic court specified that, in case of non-compliance, the suspension would be revoked and the prison sentence would be enforced.

4 . In view of the fact that the first applicant had failed to take the child to four of the scheduled meetings, on 28 May 2008 the Gevgelija Social Welfare Centre issued a separate order by which the first applicant was ordered to take the second applicant to the Centre on 2 June 2008 or risk being prosecuted for child abduction under Article 198 of the Criminal Code.

5 . The first applicant appealed. However the first-instance court, on 10 July 2008, found her guilty for failing to allow the meeting scheduled for 2 June 2008 to take place, as required by the Centre ’ s orders of 29 April and 28 May 2008. The court sentenced her to three months in prison. In assessing the sentence, the first-instance court “... relied on the oral and documentary evidence admitted at the trial, including the Centre ’ s orders of 29 April and 28 May 2008, which had provided explicitly for the need of the child to ‘ strengthen the emotional bond with the [father] and to protect [her] right to have contact with [him] ’ as being ‘ in [the child ’ s] absolute interest ’ .” (see paragraph 21).

6 . The reasons for which we do not agree with the conclusions and the reasoning of the majority are the following.

7 . First , it follows from the case-law of the Court, as cited in paragraph 77 of the present judgment, that the use of measures involving the deprivation of liberty of parents engaged in disputes over custody or contact rights, although not excluded, must, in the assessment of proportionality

under Article 8 § 2 of the Convention, be considered an exceptional measure and only be contemplated where the utility of all other possible means available under domestic law has been assessed.

8 . On this basis, it is in our view highly problematic that the criminal law sanctions in the present case were imposed against the first applicant without any meaningful assessment as to whether other available legal measures would have been capable of deterring her from refusing to abide by the Social Welfare Centre ’ s contact orders. For example, it does not appear from the facts that the authorities contemplated the imposition of a temporary custody order under the Family Act (see paragraph 54 of the judgment) before resorting to criminal measures against the first applicant, imposing first a suspended sentence and then depriving her of her liberty. It was only on 9 July 2009, more than two years after the District Court had imposed on the first applicant the first criminal sentence, that the Centre gave custody of the second applicant to the father for fifteen days.

9 . Second , the same conclusion can be drawn when analysing the nature of the criminal sanctions imposed on the first applicant. While it is true that she was at the outset given a suspended prison sentence, it does not appear that other more lenient criminal measures, such as a fine (see Article 198 of the Criminal Code in paragraph 44 of the judgment) were ever taken into consideration as a possibility by the domestic authorities.

10 . Third , and most importantly, we would refer to the settled case-law of the Court under Article 8 of the Convention in matters relating to the domestic assessment of the best interests of the child, as set out in the Grand Chamber judgment in X v. Latvia ([GC], no. 27853/09, §§ 95-96, ECHR 2013), where the Court stated as follows:

“The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters ..., taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of ‘ the best interests of the child ’ ... The Court reiterates that there is a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount ...”

11 . We note that the proceedings in the present case did not relate to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, or to custody proceedings as such, but to contact rights of the father (see M.R. and L.R. v. Estonia (de c.), no. 13420/12, §§ 47-48, 15 May 2012, and Tarkhova v. Ukraine ( dec.), no. 8984/11, 6 September 2011). While contact-related proceedings are also extremely important for the best interests of the child, and the authorities have to react promptly in enforcing contact orders, recourse to criminal law sanctions, especially custodial sentences, without assessing the effectiveness of other instruments, in the light of the child ’ s best interests, might be counterproductive.

12 . In the light of these general principles, we note that in July 2008, when deciding to send the first applicant to prison for three months, the reasoning of the first-instance court did not explicitly or in substance refer to any consideration as to whether separating a young mother from her baby of only 15 months was in conformity with the best interests of the child. We would point out that at that time the first applicant still had custody of her daughter, temporary custody only having being given to the father on 30 July 2009, the date when the first applicant started to serve her sentence. In sum, while aiming to guarantee the contact rights of the father, the national authorities sent the mother to prison and practically separated the child from the parent who had custody of her for a period of 7 months and 19 days, from 30 July 2009 to 19 February 2010 (see paragraphs 26 and 31 of the judgment).

13 . In this regard, we find paragraph 91 of the judgment particularly problematic.

Firstly, the majority consider that “...it is reasonable that the trial court implicitly accepted and was guided by the best interests of the child...” in imposing the custodial sentence on the first applicant. In our view, this is a clear departure from previously established case-law of the Court to the effect that a margin of appreciation in these types of cases will only be granted if it is clear from the reasoning of decisions taken by the domestic authorities that they made an informed and reasonable assessment of the best interests of the child in proceedings of this nature. It goes without saying that this Court cannot accept that such deference be afforded to national authorities on the basis of the kind of “implicit acceptance” test endorsed by the majority, as such a test does not comply in our view with the overriding character of the principle of the best interests of children. We consider it clear from the facts that the main concern of the national authorities in imposing a prison sentence on the first applicant was, as the first instance-court stated, to “deter her from reoffending in the future and [to] [help crime prevention as a whole]” (see paragraph 21 of the judgment in fine ). The first two suspended sentences against the first applicant were imposed when the young child was an infant, respectively five months and ten months old. When deciding on the third sentence in July 2008, the first-instance court was, in accordance with the Court ’ s case-law, required to assess, clearly and directly, to what extent a prison sentence would affect the psychological well-being of the young child and the emotional ties between her and her mother. A fresh assessment of the family ’ s situation was needed, and in particular of the best interests of the child, at the time when it was being decided to impose a prison sentence on the first applicant, depriving her of her liberty and thus limiting the paramount right of the young child to be with her mother. A mere reference to the assessment that had been made the previous year was not in conformity with the requirement to consider the best interests of the child for the purposes of Article 8 of the Convention. Therefore, we conclude that it has not been demonstrated by the Government that the national authorities duly took into consideration the child ’ s best interests in the proportionality assessment of the measures taken against the first applicant.

Secondly, we note that in paragraph 91 the majority state: “Whereas such a measure [i.e. the first applicant ’ s imprisonment] had short-term effects on the applicants ’ rights under this head, it had in the long run the child ’ s best interests, namely to benefit from the company of both parents, as a primary consideration”. With all due respect, we note that nowhere do the domestic authorities refer to such arguments or considerations in their assessment of the facts. It is simply inconsistent with the whole notion of the subsidiary nature of the Court ’ s role for it to step in and assume that considerations of this nature have been taken into account at domestic level when they do not have any basis in the record.

14 . For the above reasons, we conclude there has been a violation of Article 8 in the present case in respect of both applicants.