PARTLY DISSENTING OPINION OF JUDGE MARUSTE

The Court was called to examine whether the authorities ’ response to the situation for which the first applicant, acting on her own behalf and on behalf of her son, the second applicant, sought their assistance was in line with their positive obligations flowing from Article 8. The help of the relevant authorities was solicited in a situation where both the first applicant and her husband, who had separated and were divorcing, wished to obtain the custody of the ir three-year-old son and seized the boy repeatedly from each other, including by physical force. The first applicant requested interim custody measures and sought assistance on account of her husband ’ s aggressive behaviour. The majority found that the State failed in that respect.

While t here is some room to blame the S tate about its prompt and effective reaction I am nevertheless loath to hold the State responsible when two private persons are hostile to each other and are unable to behave in a reasonable manner. It is clear that both parties contributed to the conflict and did not show good faith in attempting to solve the problem in their private life in a proper manner.

It must be observed that the allegations made by the first applicant as well as all the relevant circumstances regarding the child ’ s situation needed verification, which could not be done without the collection of evidence. Therefore, the applicants could not expect to obtain a decision immediately upon submission of the interim measures application.

It is true that the District Court did not start examining the interim measures application promptly. However, the relevant law and established practice required time to be allowed for reconciliation before any other issue in the divorce proceedings could be examined. The District Court had no reason to deviate from that rule, in particular having regard to the fact that when she appeared before it in June 2000, the first applicant did not raise the issue of interim measures and did not request that her application for such measures be examined first.

I accept that after 11 September 2000, when the first applicant asked for the examination of the interim measures request, certain delays may be imputable to the District Court in that some of the adjournments were not fully justified and that insufficient effort was made to collect all the evidence in one or two hearings. However, the cumulative effect of these delays did not prolong the proceedings by more than three or four months.

Unjustified delays of comparable length may violate Article 8 in certain exceptional circumstances, where there exists a risk of grave consequences for the interests of those concerned. However, it does not seem that this was so in the present case. It should be noted that during part of the relevant period the first applicant lived with her son and that there was only a very limited period during which she was unable to contact him . Therefore, the

impugned delays cannot be said to have resulted in serious consequences such as those that have led the Court to find violations of Article 8 of the Convention in other child custody cases. Those cases concerned lengthy proceedings lasting several years (see Maršálek v. the Czech Republic , no. 8153/04, § 49 , 4 April 2006 ; and Kříž v. the Czech Republic , no. 26634/03, § 72 , 9 January 2007 ). For these reasons I consider that the District Court ’ s handling of the interim measures applica tion cannot be seen as giving r ise to an issue in relation to the authorities ’ positive obligation under Article 8 of the Convention to secure respect for the applicants ’ private and family life.