DISSENTING OPINION OF JUDGE KALAYDJIEVA

To my regret I am unable to join the conclusions of the majority. In her dissenting opinion in the case before the House of Lords, Baroness Hale of Richmond formulated the major question as “whether it is necessary and proportionate to sever the links with the family of birth if a new (adoptive) family has not yet been identified”.

In my view a reasonable determination of a child ’ s best interests can only be based on a comparison between the current situation of a child and the extent to which it calls for separation from the biological parents – on the one hand and the extent to which these interests would be better met with the candidate-adoptive family (including the future contacts with the biological parents) – on the other.

Looking at the length of the “freeing order” proceedings and the fact that the initiation of adoption proceedings was possible only after their completion, I fail to see how the consequential examination of the current and the future situation of the child better met her urgent needs.

Moreover, the examination of (what I see as) inseparable aspects of the child ’ s interests required the national authorities to assess these aspects as they stood a t different times – regardless of the positive changes in the applicants ’ abilities to take responsible care of their children. By this time the applicants were found eligible for foster care and their ability to take responsible care of their other child was not contested. However at this moment, the national courts were competent to consider these positive changes only for the purposes of determination of the frequency of their contacts with the child N., who was already destined for adoption by virtue of an earlier reached irreversible decision.

While I agree that it is “easier to find adoptive parents after a child had been freed (see § 59)”, in my view a “freeing order” seems to facilitate primarily the authorities ’ search for candidate-adoptive parents but not necessarily the proper assessment of the child ’ s best interests or the applicants ’ rights under Article 8 as to the moment of the decision for adoption.