CONCURRING OPINION OF JUDGE MØSE

1. The judgment concludes that the Croatian courts ’ decisions according to which the youngest of the three children should live with her father and not with the mother amount to a violation of Article 8. This is based on an examination of the issues of lawfulness and necessity together (see paragraphs 88-105 of the judgment). I do not fully agree with the reasoning in that part of the judgment.

2. In my view, the domestic courts ’ omission to refer the applicant and her former husband for mandatory mediation before the divorce (which is discussed in paragraphs 90-92 of the judgment) is not a strong argument for finding a violation. In the light of the factual circumstances of the present case, the significance of this statutory requirement – which was not absolute – should not be exaggerated.

3. The judgment then addresses the failure of the domestic courts to stay the divorce and custody proceedings pending the final outcome of the return proceedings (see paragraphs 93-96). The conclusion is that it “would appear” that the domestic courts acted contrary to Croatia ’ s international obligations under Article 16 of the Hague Convention. It is certainly important that States observe the provisions of that Convention but a possible failure to do so in the present case (see paragraphs 66, 95 and 96) is not a decisive argument in favour of finding a violation of Article 8 of the European Convention.

4. According to the judgment, the reasoning of the domestic courts suggests that they examined what was in the best interests of all three children taken as a group without undertaking a separate examination of what was in the best interests of each child (see paragraphs 97-103). In my view this formulation is too general. It does not take into account the fact that the national authorities to some extent took into consideration the specific situation of the youngest child (see paragraphs 25, 26, 35 and 45). Furthermore, the authorities emphasised on several occasions that the children were emotionally attached to each other and that it was not advisable to separate them (see paragraphs 39, 42, 45 and 47). This is a well ‑ known consideration in custody cases, one which has been accepted under the Convention (see paragraph 98).

5. On the other hand, the situation was clearly complex and required particular focus on the interests of the youngest child. It is not clear why the applicant ’ s proposal to obtain a joint expert opinion about the child from a psychiatrist and psychologist was rejected. An expert opinion would also have been in line with the General Comment of the Committee on the Rights of the Child (see paragraphs 100-101). I therefore agree that there was a violation of Article 8.