DISSENTING OPINION OF JUDGE ZIEMELE

JOINED BY JUDGE TSOTSORIA

1. I do not share the opinion of the majority in this case. I note that the Court ’ s case-law has crystallised the following principles that the national authorities have to follow in striking a balance between the competing interests of the child and the parents. First of all, in the balancing process particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see Maumousseau and Washington v. France , no. 39388/05, §§ 66 and 67, 6 December 2007, and Sommerfeld v. Germany [GC], no. 3 1871/96, § 64, ECHR 2003 ‑ VIII). Secondly, the observance of the procedural requirements implicitly enshrined in Article 8 of the Convention means that the persons concerned must be guaranteed sufficient involvement in the decision-making process and that the domestic courts must conduct an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature (see Maumousseau and Washington , cited above, paragraph 74, and more recently, Neulinger and Shuruk , [GC], no. 41615/07, § 139, 6 July 2010).

2. I note that while the applicant and the child had moved to Rimini in Italy with the permission of the relevant authorities in San Marino (para graph 28 of the judgment ), problems started to emerge in August 2007 which seem to have led to the adoption of the new order whereby San Marino was made the child ’ s residence (para graph 34). It is unclear how the parents ’ submissions were represented in these proceedings and the majority does not refer to this problem either (para graph 179). In January 2008 Mr X asked for sole custody of the child. It is because of this request that a more extensive expert report on the situation was drawn up, noting also the state of mind of the child (para graph 42). It appears to me that this was a particularly crucial moment in the proceedings. However, the first applicant ’ s legal representation was not ensured since the immediate notification by her lawyer of his inability to attend the extraordinary hearing was not accepted. Furthermore, at that meeting the applicant ’ s submissions were refused without detailed reasoning. In the meantime, Mr X had arbitrarily retained the child in San Marino ( p ara graph s 43, 44 and 48).

3. I do not share the view of the majority that the applicant ’ s involvement in the above - mentioned crucial hearing was effective (para graph 188). In my view, the domestic courts did not conduct an in-depth examination of the entire family situation.

4. Moreover, the child was taken away from the mother on 13 February 2008. When a year later, on 25 February 2009, a report on the child was drawn up, it was noted that her character had deteriorated (paragraph 97), and it continued to deteriorate (paragraph 107). The Court has repeatedly stated in similar cases that the domestic authorities should, above all, keep the best interests of the child in mind. I fail to see – and the medical reports seem to confirm this view – how the course of action taken by the San Marino authorities served the best interests of the child. Certainly, I do not see in the reasoning of the domestic authorities how the principle of the best interests of the child affected one decision or another. It is surprising that Mr X was allowed to effectively kidnap the child and that more in-depth reports on the child ’ s well-being only appeared in the later stages of the proceedings.

5. I believe that the Court ’ s case-law does not merely require abundant activity on the part of the domestic authorities in such sensitive cases. It actually requires that the State take the kind of steps capable of leading to a better appraisal of what is in the best interests of the child. I fail to see that this was the guiding principle behind the actions taken by the authorities in San Marino and for that reason I would have found a violation in this case.