PARTLY DISSENTING OPINION OF JUDGE SILVIS, JOINED , AS TO ARTICLE 8, BY JUDGE LÓPEZ GUERRA

1. Poverty is no reason to withdraw parental authority. However, the lack of care, with immediate and very serious consequences for the health and development of the child, may trigger a positive obligation on the part of the State to intervene. In the present case the child was removed from her mother, who had exercised physical and psychological violence in the presence of the child. It was objectively established that the mother, the applicant in this case, was intoxicated by alcohol on the occasion in question. It was established further that the child had been without surveillance for a long time, in an unkempt state and sometimes asking for food. At the scene it was observed that the child lived in unsanitary conditions. The Child Protection Service reported later that the applicant had been warned several times in vain to bring order to her house. It appeared that the child was not enrolled in any pre-school institution. The child was hospitalised immediately after the event, from 22 to 30 September 2011. She was diagnosed with “residual encephalopathy with delayed motor skills, mild leg movement disorder, thyroid gland disease, decreased need for sleep (“hyposomnia”), urinary insufficiency and disorder of the function of the pancreas.” She was prescribed treatment. As to the situation in the home of the applicant, a social worker and another employee from a non ‑ governmental organisation found one day after the incident of 21 September 2011 that the house was in disorder and lacked running water, electricity and gas.

2. On 27 September 2011 the Ciocana Child Protection Committee examined the child ’ s situation. When the applicant appeared before the Committee she was allegedly intoxicated. Based on the findings of this meeting, on 28 September 2011 the Ciocana Child Protection Committee concluded that the child ’ s return to her biological family would put her life and health in danger. The Committee decided to place her in the Municipal Children ’ s Centre and to initiate proceedings to withdraw the applicant ’ s parental authority. The district court decided to withdraw the applicant ’ s parental authority and the appellate court confirmed that judgment. Both judgments were upheld by the Supreme Court. Meanwhile, the situation of the child had improved considerably, as established in a psychological report (see paragraph 14 of the judgment). She was placed in the family of a professional social worker at the beginning of 2013 and afterwards with her aunt. Afterwards, from 26 December 2013 onwards, the mother was allowed to visit the child in the presence of the child ’ s guardian.

3. The majority considers that the domestic authorities did not give sufficient consideration to the best interests of the child (see paragraph 65 of the judgment), and did not focus sufficiently on reuniting mother and child. In my view the domestic authorities gave priority to the child ’ s physical and psychological well-being when there was ample reason to believe that the child was endangered. I think the domestic authorities were in a position to make the right decision as to where the priority should lie. That is what prompts me to dissent from the majority, although I do acknowledge respectfully that there are strong procedural arguments in favour of the majority ’ s position as well. I prefer, however, to lay the emphasis somewhat differently. It may be wise for our Court to display modesty in performing its role when it comes to establishing the facts. The Court rightly recognises that, in making decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Moreover, national authorities will have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them, and it is accordingly not the Court ’ s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities. I observe that there is no indication that the possibilities of reunification have been progressively diminished or destroyed, as the majority feared would be the foreseeable consequence of the domestic approach. On the contrary, the reality shows a different course of events: visiting rights were established after December 2013 and there is a possibility of a reunification in some form in the future. The child is being cared for by an aunt and thus within the wider family. The withdrawal of parental rights is not irreversible either, because reinstatement can be applied for on the ground of an improved situation (Article 70 Family Code of Moldova). Unfortunately, it may be indicative of the applicant ’ s continuing problems regarding the exercise of parental responsibility that shortly after having given birth to a second child she consented to the child ’ s adoption.

4. I think the domestic authorities ’ decision to give priority to the immediate physical and psychological well-being of the child falls within their margin of appreciation. In the circumstances of the case the domestic authorities had convincing reasons for giving secondary importance to the unification of the mother and child. A longer period of recovery for the child could be considered justified. On an overall assessment I cannot share the view that, as regards the withdrawal of parental authority, the applicant ’ s rights under Article 8 of the Convention were violated. On the issue of the restriction of visiting rights, I agree that the decision not to allow any visits for the duration of the court proceedings was disproportionate, dismissing in advance any interim assessment of the possibility of responsible visits.

5. [Judge Silvis only:] I do not think the amount awarded for compensation is justified for the violation of Article 8 when based solely on the visiting restrictions.