JOINT DISSENTING OPINION OF JUDGE S B ÃŽ RSAN, GARLICKI AND MYJER

1. The majority found in the present case that the Polish authorities had failed in their positive obligation under Article 8 of the Convention to provide the applicant with assistance which would make it possible for him to effectively enforce his parental rights. We disagree with that decision for the following reasons.

2. It is true that the Court has consistently held that Article 8 enshrines a right for a parent to have measures taken with a view to his or her being reunited with the child, and an obligation for the national authorities to take such measures. In paragraphs 53-56 the majority rightly quote the relevant case-law of the Court in this respect. However, they then proceed down a path which we cannot follow. In our view, the Court should be extremely reluctant to second-guess, with hindsight, the assessment made by the domestic authorities in matters of parental custody and access rights, given its subsidiary role under Article 19 of the Convention. It should also be borne in mind that the national authorities have the benefit of direct contact with the person s concerned. This particular application presents the added difficulty that the case file before the Court is in a way “incomplete”: whilst it contains the version of the facts as seen by the applicant and the Government, it does not contain the version of the other principal party at domestic level, namely the mother. The majority finally conclude that there has been a violation of Article 8 on four grounds: the unpersuasive/ insufficient reasoning of the national courts, the far-reaching limitation of the applicant ' s parental rights, the unexplained refusal of assistance in obtaining effective compliance with judicial orders on access arrangements, and the failure to weigh up carefully the interests involved in the case so as to strike a fair balance between the mother ' s right to travel and the applicant ' s right of access to his child. We are not convinced by these reasons.

3. This case is an example of what can happen when a relationship between a mother and a father has irretrievably broken down. One begrudges the other the slightest happiness or comfort, let alone the enjoyment of the child ' s company. What makes this case different from cases such as Hokkanen v. Finland (judgment of 23 September 1994, Series A no. 229) or Ignaccolo-Zenide v. Romania (no. 31679/96, ECHR 2000-I) is that the applicant himself cannot be regarded as entirely blameless for the situation complained of before the Court. It was the applicant who twice took the small child away from the mother, the second time for a period of almost 15 months. He did not even comply with repeated court orders to reveal the child ' s place of residence. It was only after several warnings had been given in vain that the court finally deprived him of all parental rights

beause he had abused his rights by making it impossible for the child to have contact with his mother, whereas the mother ' s care – at that stage of the child ' s development – was indispensable. In our opinion, taking into account all the relevant circumstances, this far-reaching limitation of the applicant ' s parental rights was justified as he had shown a complete disregard for the child ' s well-being and health. It was only after this decision that the police removed the child from the applicant. In these circumstances it is quite understandable – although not justified – that the mother was not immediately prepared to restore the applicant ' s access rights as determined by the court during the time when the applicant had abducted his child (one visit on the third Saturday of each month at the mother ' s home from 10 a.m. to 4 p.m. without the possibility of taking the child anywhere outside). Given that the parents were apparently unable or unwilling to communicate with each other in a rational manner about, for instance, parental issues and that the child ' s welfare obviously required that he should not be exposed to a bitter parental dispute, we feel that the domestic authorities would have been irresponsible in imposing stringent coercive measures on the mother, at least during the initial period in which she was reunited with the child.

4. The only point on which we agree with the majority is that there is something strange in the facts as set out in paragraph 36 of the judgment, namely that none of the court guardians had agreed to be present when the applicant exercised his right of access to his child. But to infer from that mere fact a failure by the State to comply with its positive obligations under Article 8 is one bridge too far. To reach that conclusion, we would need more clarification as to the reasons why no one agreed to provide such assistance.

5. As far as the travelling abroad is concerned, within ten days of the child ' s return to the mother on 8 August 1998 the applicant requested the court to prevent a passport from being issued for the child, submitting that the mother intended to abduct the child and take him abroad. To us such an assertion, by its nature and timing, can only be regarded as the next move on the legal chessboard. The answer given to the applicant was that, until the date on which the judgment removing his parental rights obtained legal force, the passport would not be issued without his approval. That stands to reason. But as soon as that judgment did become final and only the mother held parental rights, there were no further legal obstacles to the issuing of a passport for the child. The mother ' s right to travel with her child, if need be abroad, is also a fundamental right (Article 8 in conjunc tion with Article 2 §§ 1 and 2 of Protocol No. 4). She merely availed herself of that right. Can one really argue that the national authorities were under a legal (or moral) obligation to warn the applicant, who had lost his parental rights, that the mother, who did have parental rights, was going abroad on 30 May 2000 ? And can one blame the State for the fact that the mother apparently wanted to start a new life with the child abroad and broke off all contact with the applicant? One cannot expect the impossible from the national authorities.

6. This case is not only about the margin of appreciation; it is also about the limits of positive obligations. Can the national authorities be blamed for situations where both parents have demonstrated that they are not willing to comply with court orders and where they each try everything to prevent the other parent from seeing the child?

7. We voted with the majority not to award any compensation to the applicant for non-pecuniary damage, albeit on the basis of different considerations.

8. One last remark: we were struck by the facts as set out in paragraph 35 of the judgment. The fact that the Office of the Prime Minister expressed certain doubts as to the court ' s decision to restrict the applicant ' s parental responsibility reminds us of something we had almost forgotten.