DISSENTING OPINION OF JUDGE S SAJÓ AND MOTOC

We respectfully disagree with the majority ’ s finding that there has been no violation of Article 8 in this case. Our position is that in the circumstances of the present case there has been a violation of Article 8.

The applicant ’ s children were taken away by their father and the authorities did not take the necessary steps to return the children to their mother. In consequence, as recognised by the domestic authorities, the children came under the influence of their father, who turned them against their mother. The preference of the children determined the outcome of the custody issue. While the final judgment ordering that the children reside with their father cannot be considered to violate the Convention, the process itself shows that the domestic authorities failed to satisfy the positive obligations of the State to protect the children ’ s best interests and the interrelated right of the mother and to execute domestic court orders, resulting in an irreversible violation of the applicant ’ s right.

The process of alienation of the children from their mother is due to the failure of the authorities to execute the judgements which gave custody to the mother. We are not convinced by the reasons given by the authorities for not executing the judgments of the Kaunas Regional Court. On the basis of the facts we disagree with the assumption that there was a lack of proper activity on the mother ’ s side. On the contrary, we find that the mother showed due diligence in her efforts to have the judgments executed and to maintain contact with the girls as much as was possible in the circumstances of the case. For instance, she went to their school several times and had a number of discussions with the school authorities about the two girls ’ schooling.

The domestic authorities reached their conclusion without taking into account the main psychological assessment, which shows that the children were suffering from parental alienation syndrome (“PAS”). In this respect the majority in the present case have not followed the case-law of the Court, especially as established in the Grand Chamber judgment of Elsholz v. Germany ( [GC], no. 25735/94, ECHR 2000 ‑ VIII) and applied in Kutzner v. Germany ( 46544/99, ECHR 2002 ‑ I). In this sphere the Court ’ s review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced by the domestic courts were relevant and sufficient (see Olsson v. Sweden (no. 1) , 24 March 1988, § 68, Series A no. 130).

Moreover, in the present case the applicant ’ s daughters did not show a very clear rejection of their mother (compare and contrast Elsholz ). As mentioned in the partly dissenting opinion of Judge Ress in Sommerfeld v. Germany ( [GC], no. 31871/96, ECHR 2003 ‑ VIII (extracts)) “parental alienation syndrome” (“PAS”) is a matter for consideration (see, for example, Richard A. Gardner in the American Journal of Forensic Psychology under the title “Should courts order PAS children to visit/reside with the alienated parent? A follow-up study” (2001, pp. 61 ‑ 106) as referred to by the partly dissenting judges in Sommerfeld v. Germany (ibid. ) . This is a matter that is receiving an increasing amount of attention and the consideration of Gardner ’ s parental alienation syndrome in the domestic proceedings has been considered as relevant and important by this Court in at least a dozen cases. Courts should address the question whether the parental alienation syndrome is present and what specific consequences such a syndrome could have on the child ’ s development. The authorities have a positive obligation to prevent the development of that syndrome and they should not have tolerated the conditions which in the circumstances of the present case led to the development of that syndrome.

By proceeding in the manner in which they did, the members of the Chamber favoured a factual situation created by an illegal state of affairs and therefore gave priority to the facts and not to the law.