DISSENTING OPINION OF JUDGE SICILIANOS, JOINED BY JUDGE LAZAROVA TRAJKOVSKA

1. We have been unable to join the majority in this case, especially in view of the Nunez v. Norway judgment (application no. 55597/09, 28 June 2011) and the necessity of a coherent interpretation and implementation of the principle of the best interests of the child.

The “best interests of the child” as a guiding principle

2. As it is well-known, such principle is embodied in Article 3 of the United Nations Convention on the Rights of the Child (see generally P. Alston (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights (1994); L. LaFave , “ Origins of the Evolution of the ‘ Best Interests of the Child ’ Standard ” , 34 South Dakota Law Review (1989), pp. 459 ff.; S. Detrick , A Commentary on the United Nations Convention on the Rights of the Child (1999), pp. 85 ff.; P. Naskou-Perraki , K. Chrysogonos , X. Anthopoulos (ed.), The International Convention on the Rights of the Child and the Domestic Legal Order (2002), pp. 45 ff. (in Greek)). According to paragraph 1 of this provision: “ In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities and legislative bodies, the best interests of the child shall be a primary consideration ” . The reference to “ private social welfare institutions ” suggests that the principle of the best interests of the child is relevant in relation to actions of private bodies. However, the emphasis of the above quoted provision is on public institutions, including courts of law and administrative authorities. To put it with a well-known commentator, “ the principle of the best interests of the child is primarily concerned with acts of public officials ” (S. Detrick , op. cit. , p. 90). As underlined by the Committee on the Rights of the Child: “ The principle requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children ’ s rights and interests are or will be affected by their decisions and actions - by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children ” (General Comment No. 5 (2003), “ General Measures of Implementation of the Convention on the Rights of the Child ” , CRC/GC/2003/5).

3. The notion of “ best interests ” is broad enough to encompass different aspects of the well-being of a child. As observed by the UN High Commissioner for Refugees: “ Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child ’ s environment and experiences ” (UNHCR, Guidelines on Determining the Best Interests of the Child , May 2008). Furthermore, the principle of the best interests of the child is of particular significance because it provides a general standard to be applied “ in all actions concerning children ” . Such principle is relevant in respect to most if not all substantive provisions of the Convention on the Rights of the Child (R. Hodgkin, P. Newell, Implementation Handbook for the Convention on the rights of the child , UNICEF (1998), p. 40). It constitutes a general principle of interpretation of this Convention as a whole. It is true that Article 3, § 1 quoted above uses the expression “ a primary consideration ” instead of “ the primary consideration ” . As it results from the travaux préparatoires , the aim of the Convention ’ s drafters implicit in choosing the word “ a ” was to ensure a certain degree of flexibility, at least in extreme cases, to permit the interests of people other than the child to prevail (S. Detrick , op. cit. , p. 91). However, the formulation adopted seems to impose a burden of proof on those seeking to put the interests of the child aside to demonstrate that, under the circumstances, other feasible and acceptable alternatives do not exist (P. Alston, “ The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights ” , in P. Alston (ed. ), op. cit. , pp. 1-25, at 13).

4. The principle of the best interests of the child appears either explicitly or implicitly in a number of other international and European instruments (cf. for instance Principles 2 and 7 of the 1959 UN Declaration of the Rights of the Child; Article s 5 (b) and 16 (1) (d) of the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women; preamble, § 1 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 November 1980; Article s 4 (1), 6, 9, 14 and 19 of the European Convention on the Adoption of Children (revised), 27 November 2008; Article 24 of the EU Charter on Fundamental Rights), as well as in national legislations (see for example P. Naskou-Perraki , K. Chrysogonos , X. Anthopoulos (ed.), op. cit. , pp. 48 ff.; cf. also the judgments by national courts cited in Neulinger and Shuruk v. Switzerland , no. 41615/07 (GC), §§ 61-64, 6 July 2010). It is also to be noted that in some such cases the relevant provisions go beyond the aforementioned formulation of the Convention on the Rights of the Child ( “ a primary consideration ” ) by stipulating that “ the best interests of the child shall always be the paramount consideration ” ( Article 14, § 1 of the European Convention on the Adoption of Children, italics added; cf. also Article 5 b) of the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women). Given its broad acceptance, it seems that the principle of the best interests of the child has become a general principle of (international) law.

5. This approach is corroborated by the repeated references to such principle in the case law of the Court, especially in relation to Article 8 of the Convention. To resume this important jurisprudence goes far beyond the object and purpose of the present opinion. Suffice it to recall in this respect the terms of the Grand Chamber, according to which: “ The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount ” ( Neulinger and Shuruk v. Switzerland , cited above, § 135). In this context, the Court has repeatedly underlined that: “ The child ’ s interest ( ... ) dictates that the child ’ s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties must only be severed in very exceptional circumstances and that everything must be done to preserve personal relations ... ” ( ibid. , § 136; Gnahoré v. France , no. 40031/98, § 59, ECHR 2000-IX). It is also important to note that, although the landmark case of Neulinger and Shuruk concerned the abduction of a child, the Grand Chamber took the view that guidance on this point may be found mutatis mutandis in the case - law of the Court on the expulsion of aliens (see also, for instance, Emre v. Switzerland , no. 42034/04, § 68, 22 May 2008), “ according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child ’ s best interests and well-being ” ( Neulinger and Shuruk , cited above, § 146. See also Üner v. the Netherlands [GC], no. 46410/99, § 57, ECHR 2006-XII). Finally, the Court has stressed that “ the passage of time can have irremediable consequences for relations between the child and the parent with whom he or she does not live ” ( Macready v. the Czech Republic , nos 4824/06 and 15512/08, 22 April 2010; Maumousseau and Washington v. France , no. 39388/05, § 83, ECHR 2007-XIII).

Application of the principle in the present case

6. The application of the principle of the best interests of the child in the present case raises a number of questions. The Norwegian authorities themselves have been somehow divided over the issue. It is recalled that in its judgment of 28 March 2008, the Oslo City Court quashed the Immigration Appeals Board ’ s decision to expel the first applicant, noting that to deprive the third applicant of her relationship with her father would be a serious measure and could have disturbing effects on the child ’ s development. According to the City Court, such a measure would be disproportionate vis-à-vis the first applicant ’ s daughter ( supra , § 28 of the judgment). In the same vein, the minority of the High Court was of the view that the imposition of a five-year re-entry ban would be too severe and disproportionate a measure and that a two-year ban would have been preferable. The minority took especially into account the age of the third applicant and her close relationship with her father, noting that since birth the first applicant had taken special care of his daughter, following her up in her recreational activities and through extensive contacts with her school. In relation to the first applicant ’ s offences under the Immigration Act, the minority of the High Court rightly observed that they had been comparable to those committed by the applicant in the Nunez case, though less aggravated bearing in mind that he had not committed other offenses in Norway and had not defied any prohibition of re-entry ( supra , §§ 46-48).

7. Furthermore, it is striking that the majority of the High Court explicitly acknowledged that the consequences of the first applicant ’ s expulsion would “ clearly not ” be in the best interests of the daughter, who was born and had grown up in Norway and was very attached to her father ( supra , § 38). However, the High Court concluded that the interests of the child should not be a decisive consideration in assessing whether an expulsion measure should be implemented and that the five-year ban was not a disproportionate measure ( supra , §§ 40-41).

8. In view of the above elements, we have serious difficulties to follow the majority when stating that: “ the Court is satisfied that sufficient weight has been attached to the best interests of the child in ordering the first applicant ’ s expulsion ” ( supra , § 103). Admit that the impugned measure was “ clearly not ” in – i.e. against - the best interests of the third applicant, while at the same time affirming that such interests have been duly taken into account seems to pay lip service to a guiding human rights principle. All the more so that, taking into account the normal processing time for a request for family reunification, the daughter – who is today eleven years old – would be about eighteen years before the family could resume cohabitation in Norway. As rightly observed by the minority of the High Court, the years in between would be important years ( supra , § 48). To put it otherwise, the expulsion order, combined with the five-year re-entry ban could entail a serious disruption of the third applicant ’ s adolescence.

9. This result seems to us to be in contradiction to the Court ’ s judgment in the Nunez case , cited above. Contrary to the opinion of the majority, the present case is very similar to Nunez . In this last case, the Court noted the “ aggravated character ” of the breaches under the Immigration Act, as well as other criminal offen c es by the applicant ( Nunez , cited above, §§ 67, 72 ) . For another comparable case under Article 8, involving serious breaches of the relevant immigration legislation, as well as other criminal offen c es ( see Konstatinov v. the Netherlands , no. 16351/03, §§ 9-12, 49 ff., 26 April 2007). As observed by the minority of the High Court, the (administrative) offen c es of the first applicant in the present case were “ less aggravated ” than those of the applicant in the Nunez case. Furthermore, in the Nunez case, the Court took note of the rationale of the Norwegian legislation in authorizing the imposition of expulsion with a re-entry ban as an administrative sanction ( ibid. , § 71). Such possibility would indeed constitute an important means of general deterrence against gross or repeated violations of the Immigration Act. Under those circumstances, the Court considered that “ the public interest in favour of ordering the applicant ’ s expulsion weighted heavily in the balance when assessing the issue of proportionality under Article 8 of the Convention ” ( ibid. , § 73). However, taking mainly into account the age of the applicant ’ s children and their close bonds to their mother, the Court concluded that the expulsion order with a two-year re-entry ban – “ a very long period for children of the ages in question ” (nine and eight years old respectively) – would entail a violation of Article 8 of the Convention ( ibid. , §§ 81-85).

10. Those considerations also apply in the present case. All the more so that in Nunez the re-entry ban was much shorter (two years instead of five). Furthermore, since May 2007 and until the adoption of the Nunez judgment in June 2011, i.e. for more than four years, the applicant did not have the daily care of her children and the relevant parental responsibilities, which had been granted exclusively to the father following the separation of the couple. In other words, the bonds of the applicant with her children in the Nunez case were in fact (and in law) much less close than those of the first applicant with his daughter in the present case. To put it otherwise: if there is indeed a difference between Nunez and the present case, this lies in the fact that the latter is even more striking than the former. Consequently, the solution in Nunez should have been applied in the present case a fortiori .

11. In conclusion, the decision to expel the first applicant from Norway with a five-year re-entry ban would entail, in o ur view, a violation of Article 8 of the Convention in respect of his daughter, the third applicant.