DISSENTING OPINION OF JUDGE SERGHIDES

1. While I voted for the finding that there had been no violation of Article 8 of the Convention in respect of taking the applicants ’ three children into public care (in a foster family), I regret to say that I was unable to join my distinguished colleagues in finding that there had been no violation of Article 8 of the Convention in respect of the absolute and complete contact restrictions imposed on the applicants and their children. I will thus explain below the reasons for my disagreement.

2. In paragraph 112 of the judgment it is admitted that there had been complete contact restrictions for a period between May 2009 until December 2010, thus for a period of more than a year and a half:

“The Court notes that, in December 2010, the applicants were granted limited contact rights, consisting of meeting with the children twice for the first applicant and once for the second applicant, between January and June 2011. Before that, from May 2009, when the children were taken into public care, until December 2010, there was a complete prohibition on contact rights for the applicants. Such complete prohibition on contact should only be applied in exceptional circumstances and could only be justified by an overriding requirement pertaining to the child ’ s best interests (see Johansen , cited above, § 78).”

3. For the sake of precision, the contact restrictions between May 2009 until December 2010 were, by their nature, not only complete but also absolute prohibitions. The difference between these two characteristics of contact restrictions or prohibitions, namely being “complete” and “absolute”, is that the former refers to all kinds or aspects of contact between the applicants and their children (even telephone or internet communications), while the latter refers to the lack of any exceptions or instances in which the applicants could see their children The latter can also be characterised as a “blanket” ban. Without doubt, such complete and absolute contact prohibitions can be described as particularly far-reaching, strict and harsh measures. All the above characteristics were present in the contact restrictions imposed on the applicants and their children. The children were kept in an unknown place, kept secret from the applicants (see paragraph 35 of the judgment), in a foster family, and the applicants were in absolute and complete isolation from their children for a period of time exceeding a year and a half.

4. However, even after December 2010, for the following six months, as the judgment states (see paragraphs 45 and 112), the contact that the first applicant and second applicant had with their children consisted only in two and one isolated occasions, respectively, since the first applicant had a meeting with the children only twice and the second applicant only once. The Court was, nevertheless, not provided by the Government with information as to the exact dates of these one-off meetings, but was only informed that they had taken place sometime between January and June 2011. On the other hand, the applicants, at page 4 of their observations on the merits (4 May 2015), alleged that they did not see their children for two years. It is also stated in paragraph 81 of the judgment that “[c]oncerning their restricted contact rights, the applicants emphasised that it took two years from the immediate public care decision before they were both allowed to meet with their children”.

It is to be noted that the Government, in order to challenge the applicants ’ allegation that they did not have any contact with their children for the period between January and June 2011, should be in a position to say when these isolated communications took place and for how long. Even after June 2011, the frequency of contacts, as provided for by the Social Council ’ s decision, was very scant, as contact was to be once every three months until the judgment of 20 March of 2012 of the Administrative Court of Appeal, which extended the contact visits to once every other month (see paragraph 117 of the judgment).

It was also very harsh for the Social Council to decide, not only on 29 June 2011 but also on 4 September 2013, to allow telephone contact between the applicants and their children twice a year, for no more than 20 minutes each time and in a controlled setting (see paragraphs 46 and 55 of the judgment).

However, it suffices for me to confine my dissenting opinion to the period from May 2009 until December 2010, for which it is admitted by both parties that there was no contact or communication at all between the applicants and their children.

5. With due respect, although the majority rightly stated the principle, namely that a complete prohibition on contact should only be applied in exceptional circumstances and could only be justified by an overriding requirement pertaining to the child ’ s best interests (see paragraph 112 of the judgment), they, nevertheless, erred in their interpretation of “exceptionally strong circumstances”. In the present case, neither the life, nor the physical integrity, nor the morality of the children, were at stake. There was a sufficient reason in the best interests of the children for them to be taken into public care, namely the lack of the applicants ’ ability to provide for their children ’ s care (simply, the lack of proper care), but there were no “exceptionally strong reasons” for the children to be deprived of any contact or communication with their parents.

As to whether the physical integrity of the children was at stake, one cannot but note some contrary allegations from children A and B. In paragraph 23 of the judgment it is stated as follows:

“During a meeting with the children, A had declared that he wanted to live with his parents and siblings and that there were too many rules where he now lived. He had stated that the second applicant had sometimes beaten him and had sometimes been kind. B had told her foster home parents that the second applicant had beaten her.”

However, the applicants “denied that either of them had ever hurt the children” and, “moreover”, they argued that “there was no medical evidence substantiating any accusations of physical violence” (see paragraph 21 of the judgment). The majority, in their assessment regarding the “contact rights”, neither referred to the above allegations of children A and B, nor invoked such allegations as an “exceptionally strong reason” for absolutely restricting contact rights in the present case. Besides, the applicants were willing to accept contact rights “in the presence of representatives of the Social Council” and “were also willing to hand over their passports to the authorities” (see paragraph 37 of the judgment). That was said by the applicants in denying that they had previously tried to evade the social authorities and in emphasising that, even if the authorities believed that there was such a risk, then, were their proposal for supervisory contact to be adopted, any such concern of the authorities would immediately be removed (ibid).

It is also my view that, were such proposal for supervisory contact to be adopted, then any other concern of the authorities, including domestic violence, would be removed. But, as has been said, no issue of domestic violence was raised as regards contact rights, and the subsequent facts, when the contact rights of the applicants were restored to some extent, show that such an issue was not serious.

6. What the majority considered to be “exceptionally strong reasons” in the present case is stated in paragraph 113-15 of the judgment. From what is said in paragraph 113, it is apparent that the decisive factor which led the Swedish authorities to impose absolute and complete contact restrictions was the settlement and stability of the children in the foster family. In this connection, it is also stated in the judgment (paragraph 113) as follows:

“ ... if the applicants were granted contact rights to visit the children, there was a real risk that the second applicant, in particular, would intervene in the public care to the detriment of the children. Moreover, there was a risk that the addresses of the children ’ s foster homes would be disclosed, even if the first applicant visited the children alone, for which reason the courts considered that she could not be allowed any contact rights by herself either.”

7. But the above could in no way be considered, in my humble view, as constituting “exceptionally good reasons”. Furthermore, as will be seen later on, according to the case-law of the Court (see extracts from Johansen v. Norway, no. 17383/90, § 78, 7 August 1996, and Margareta and Roger Andersson v. Sweden, no. 12963/87, § 95, 25 February 1992 , quoted below), the measures taken to restrict contact must be compatible with the aim of reuniting the applicants with their children and not deprive them of any conduct or relations or isolate them completely such that the family bonds are lost. However, the measures taken in the present case were of such an absolute or blanket character that they were not conducive to the reuniting of the family, but on the contrary risked causing a complete and permanent break-up. In this connection, a complaint of one of the applicants was “that the social authorities had made no efforts to work towards reuniting the family” (see paragraph 80 of the judgment).

Furthermore, the fact that the applicants, after about two years, had some contact with their children (albeit very scant), does not invalidate the argument that these absolute measures, which lasted for so long, were inconsistent with the aim of reuniting the applicants with their children.

It should be noted that in family matters the passage of time can have irremediable and irreparable consequences for relations between children and parents, and a period in which there is no communication between them can never be compensated for by anything.

8. In paragraph 114 of the judgment it is stated that the domestic court :

“ shared the applicants ’ concern that the complete contact restrictions could harm the children and noted that the Social Council had a great responsibility to ensure that the children ’ s need for contact with their parents was met. However, for this to be possible, the parents had to cooperate, which they did not fully do [emphasis added]”

But the fact that the parents did not fully cooperate with the Social Council, could not be considered as an “exceptionally strong reason” to deprive the applicants and their children from any contact or relationship for such a long time. Cooperation with the Social Council would not be an end in itself, but a means to improve the relations between parents and children.

In paragraph 115 of the judgment, the majority refer to “the applicants ’ constant reluctance to cooperate with the social services and to understand the needs of their children” as an exceptional circumstance to justify the complete contact restrictions. The “constant reluctance to cooperate”, mentioned in paragraph 115, would seem to be at odds with a “lack of full cooperation” (see the exact wording above), mentioned in paragraph 114, unless one is to understand that the Court meant “continuous” but not full cooperation of the applicants with the Social Council.

9. In any event, what is stated in paragraph 115 (quoted in the previous paragraph of my opinion), as well as in other paragraphs of the judgment, as to the cooperation required of the applicants by the social services in order for the applicants to understand their children ’ s needs, could be a relevant reason regarding the issue of the public care order, but not an “exceptionally strong reason” to impose on the applicants and the children such absolute and complete contact restrictions.

10. No complete and absolute contact prohibitions should be used, as they have been used in the present case, as a means of disciplining or punishing the parents or coercing them to cooperate fully with the Social Council. It is important to note from the wording of the judgment, namely “which they did not fully do” (emphasis added), that the parents ’ cooperation with the Social Council was partial and not full. On the other hand, the applicants at page 4 of their observations on the merits (4 May 2005), alleged that their cooperation with the social services had been good and they gave details of it. This position of the applicants, regarding their good cooperation with the social services, is also referred to in paragraph 80 of the judgment, where it is stated that the applicants further argued that the social authorities had made no efforts to work towards reuniting the family. But even assuming that the applicants ’ cooperation with the social services was only partial, that was not an “exceptionally strong reason” for the imposition on them of absolute and complete contact prohibitions, so as to make such cooperation “full”.

11. Indeed, the measures and attitude of the Swedish authorities in the present case, even if they were adopted for pedagogical reasons, were very harsh and inflexible, and were not compatible with the nature of a family relationship, which requires understanding and sensitivity by the authorities and by all parties concerned. With all due respect, when the Social Council, which is a non-judicial body, and other national authorities, treat parents and children with such an imperium, it could be catastrophic for family relationships.

It can be acknowledged that the access restrictions and secrecy of the children ’ s location were subject to review by the Social Council at least every three months, as provided by law (see paragraphs 68, 116 and 118 of the judgment), but again, in so far as, without any “exceptionally strong reasons”, the decision of the Social Council in the present case was always for the absolute and complete contact prohibitions to be continued – ultimately lasting for at least a year and a half – the end result was the same. Therefore, there could be no valid argument on the basis of this “three-monthly review”, for finding no violation of the applicants ’ right under Article 8 in spite of the absolute contact restrictions.

12. Unless there are “exceptionally strong reasons”, which did not obtain in the present case, such complete and absolute restrictions, as imposed on the family in question , run counter to the core or essence of the best interests of the applicants ’ three children as well as to the core or essence of the applicants ’ right to respect for their family life. This, in the context of the provisions of Article 8 §§ 1 and 2, would mean: (a) that the complete and absolute restrictions could not be used for a legitimate aim in relation to “the protection of the rights and freedoms of others” (see paragraph 2 of the said Article), because such measures could be detrimental or harmful to the best interests of the “others”, in the present case, the applicants ’ three children, and (b) that those measures could violate the applicants ’ right to respect for their family life under paragraph 1 of the said Article, in terms of their right to be able to have contact and communicate with their children.

Despite the public care order, this aspect of the applicants ’ right under Article 8 § 1, to have contact with their children, has a dual function or character, because it could offer protection to the parents ’ own interests as well as to the best interests of their children. In this connection, it must be remembered that, according to the case-law of the Court, in balancing the human rights involved, “the child ’ s best interests must be the primary consideration” (see, inter alia , Neulinger and Shuruk v. Switzerland , [GC], no. 41615/07, § 134, ECHR 2010, emphasis added) [1] . And it is a requirement of the best interests of the children, especially for their proper development in every aspect, for them to have contact with their parents. Besides, the wishes of the children should always be taken into account.

13. To impose complete and absolute or blanket restrictions on contact rights between parents and children, as the restrictions can be characterised in the present case, without there being “exceptionally strong reasons” – and there were none in the present case – amounted, in my humble view, to applying the principle of proportionality wrongly, or, more precisely to not applying it at all. That was so, because there was no legitimate aim to be pursued by the restrictions, since they were not serving the best interests of the children – which require that children have contact with their parents – but ran counter to those interests.

However, even assuming that the restrictions had a legitimate aim in so far as they had been imposed in the name of the children ’ s best interests, they were, nevertheless, extremely disproportionate to that aim, and, therefore, not “necessary in a democratic society”, not being capable of meeting a “pressing social need”. For the same reasons for which the measures were not necessary or proportionate, they were also not relevant, suitable or adequate to achieve the legitimate aim pursued, namely the best interests of the children.

14. As in Margareta and Roger Andersson v. Sweden (cited above, § 96, quoted below), the reasons adduced by the Government in the present case to justify the interference at issue were of a general nature and were not “relevant and sufficient”, nor did they specifically address the need to prevent any misconduct between the applicants and their children. The Swedish authorities could, in the present case, have opted for a measure that was less intrusive or less injurious in relation to the right affected (that of the applicant s), while pursing the same limitation aim, such as, for instance, regular meetings between the applicants and their children supervised by the social services, as was also suggested by the applicants.

The principle of proportionality, prohibiting a measure from being disproportionate to its object, requires avoiding exaggeration when adopting restrictions on individual rights. On the contrary, it requires what is “proportionate”. Something disproportionate goes beyond what is necessary, analogous or proportionate.

15. A relevant theoretical but also practical question may arise in the present case regarding the application of the principle of proportionality: what is the relationship or affinity of the third step of the proportionality principle, namely that the means must be proportionate to their object (i.e. the proportionality test), with the “fair balancing test” made between the limitation and the right, given that the first refers to the balance between the means employed and the purpose pursed, while the latter refers to the balance between a public interest (general interest of the community) and a private (individual) interest, or between two private (individual) interests [2] . In the present case, “the best interests” of the children, represented, in my view, both a private and a public interest. It was a public interest because the applicants ’ children were in public care, and the State or community had an interest in protecting them; and the children ’ s interest, being a private and public interest, had to be weighed in the balance against the private interest of the applicants under Article 8. In the context of this question, some more specific questions may also arise: is the “proportionality test” the same thing as the “fair balancing test”; is it part of the latter; or is it something different, and, if so, when does it take place before or after the “fair balancing test”?

It is submitted – and I believe this is a matter of logic – that the “proportionality test”, i.e. the balancing of the means against their aim, is not an independent balancing exclusively between these two variables, i.e. “the means” and “the object”, but is part of a wider balancing exercise, what is known as the “fair balancing test”, i.e., the weighing up and balancing of “the limitation” and “the right affected” [3] . Thus, in examining and deciding, as I tried to do in the present case, whether the means are proportionate to their aim, this is done not in isolation, but (a) by taking into account, at the same time, the right engaged by the measure – in the present case the applicants ’ right – in the context of the wider balancing exercise between the limitation and the right affected [4] , and (b) with a view to finding out whether there are any means or alternatives that would be less intrusive or injurious in relation to the right affected, while pursing the same limitation aim. My finding in the present case is that there could have been a less intrusive means, for example supervisory contacts, to pursue the same legitimate aim and surely in such a way as the rights of the parents and the children would be effectively protected.

If it is ascertained that the limitation completely destroys the core or essence of a right, without there being exceptionally strong reasons, while, at the same time, there were less restrictive alternative measures available, then one should proceed immediately to find a violation of that right. That was what, in my view, happened in the present case to the applicants ’ right. In such circumstances, one cannot but conclude that the measures taken, (a) had extremely disproportionate effects on the exercise of the applicants ’ right, and (b) were also similarly disproportionate to their aim, and, therefore violated Article 8 of the Convention.

16. In the present case, all the elements of the legitimacy of an interference under Article 8 § 2 were absent: (a) legitimate aim of the interference or limitation: “protection of the rights and freedoms of the others”, and (b) all steps of the principle of proportionality lato sensu : thus, (i) suitability or adequacy of the means, (ii) necessity of the means, and (iii) proportionality stricto senso , a “fair balancing test” between the limitation and the right.

17. A lack of or defect in any of the elements of legitimacy of a limitation or restriction required by Article 8 § 2 leads automatically to the conclusion that the principle of proportionality was not complied with properly, or at all, by the national authorities, and, therefore, that the entire proportionality procedure was defective.

I regret to say that in the present case there was no “proportionality test” by the national authorities, contrary to their allegation – and one that the Court accepted (see paragraph 115 of the judgment) – but rather arbitrariness on the part of the national authorities, which cannot fall within their margin of appreciation. Stated otherwise, with due respect, the Swedish authorities seem to have overstepped or transgressed their margin of appreciation.

18. In my view, the principle of effectiveness, which is inherent in the Convention, together with the scope of Article 8 of the Convention on which this principle is based, was not respected in the present case by the national authorities, not only regarding the applicants ’ right under Article 8 § 1, but also regarding the “the protection of rights and freedoms of others”, i.e. the rights of the applicants ’ children under a relevant limitation aim provided for in paragraph 2 of this Article, as well as directly under paragraph 1 of the same Article. More precisely, on the one hand, the applicants ’ right could not be practical and effective if the interference imposed was, as has been said above, prone to destroying or negating that right; on the other hand, the rights of the applicants ’ children could not be practical and effective, in the context of either paragraph 2 or paragraph 1 of Article 8, if the interference imposed was capable of undermining or negating these rights as well. Moreover, as already stated (see paragraph 15 above), the community ’ s interest could not be satisfied if the measures taken ran counter to the best interests of the applicants ’ children.

It is a very rare phenomenon for a limitation measure to have, in fact, two arrows, one directed against its own aim and the other against the right on which it is imposed. But, again, metaphorically speaking, I cannot put it more vividly than to say this: such a phenomenon may resemble, in terms of the consequences of a limitation on the right engaged by the limitation and the limitation itself, to the simultaneous committing of a murder and a suicide by the same aggressor.

Thus, in such cases, one cannot speak of a real or genuine conflict (but of a fake or imaginary conflict, or no conflict at all), between the rights protected under the limitation and the right engaged by the limitation, because ultimately both these rights are negatively affected by the limitation and neither of them is in fact protected.

There would be no conflict of rights at all if the measure had provided, at the outset, for regular supervised contacts. In such a case, both the applicants ’ right and the children ’ s right would have been practically and effectively exercised and protected.

19. The national authorities not only had a negative obligation to abstain from violating the applicants ’ right, as well as the children ’ s right, under Article 8, but also a positive obligation, under the same Article, and under Article 1 of the Convention, to secure, protect and make practical and effective these rights, not by isolating the parents from their children for so long, as they did in the present case, but by finding ways to preserve regular contacts between parents and children without any interruption and with a view to reuniting the family. In Kosmopoulou v. Greece (no. 60457/00, § 44, 5 February 2004) the Court pertinently held as follows:

“As to the State ’ s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children ’ s family ( Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299, p. 20, § 55).”

20. Under no circumstances may a limitation on a right lead: (a) to an abuse of this right, or (b) to limiting the “rights and freedoms of others”, thus, also, to an abuse of the limitation itself. As rightly expressed by Steven Greer [5] :

“The principles of non-abuse of rights and non-abuse of limitations found in Articles 17 and 18 also derive from the principle of effective protection since they prohibit states and others from undermining the protection of rights by abusing either the rights themselves or their limitations.” [6]

21. Though the majority in the judgment, when dealing with “the contact rights”, rightly refer to Johansen v. Norway (cited above, § 78), on the issue that complete prohibition should only be applied in exceptional circumstances, they, nevertheless, did not refer to what was also mentioned in the same paragraph 78, as well as in paragraphs 80 and 84 of Johansen , which were very relevant to the present case and should be taken into account:

“78 ... In the present case the applicant had been deprived of her parental rights and access in the context of a permanent placement of her daughter in a foster home with a view to adoption by the foster parents ... These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them. Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child ’ s best interests (see, mutatis mutandis , the Margareta and Roger Andersson judgment ... ).

...

80. It is also relevant that it was in the child ’ s interest to ensure that the process of establishing bonds with her foster parents was not disrupted ...

...

84. Against this background, the Court does not consider that the decision of 3 May 1990, in so far as it deprived the applicant of her access and parental rights in respect of her daughter, was sufficiently justified for the purposes of Article 8 para. 2, it not having been shown that the measure corresponded to any overriding requirement in the child ’ s best interests (see paragraph 78 above).

Therefore the Court reaches the conclusion that the national authorities overstepped their margin of appreciation, thereby violating the applicant ’ s rights under Article 8 of the Convention.”

22. Regrettably, the majority omitted to refer to and discuss a very relevant judgment of the Court, which was mentioned at page 5 of the applicants ’ observations on the merits (4 May 2015), namely Margareta and Roger Andersson v. Sweden (cited above). Unfortunately, the majority departed from the principles of that judgment while my proposed approach, I humbly suggest, is in line with these principles. In that case, the Court held as follows, and this holding should also have been applied in the present case:

“95. In the circumstances of the case the restrictions on meetings between the applicants should however be considered in the broader context of the restrictions on access as a whole. Indeed, besides the fact that the applicants ’ right to visits was severely restricted, they were also prohibited from having any contact by mail or telephone during the period from 6 August 1986 to 5 February 1988. As of the latter date, the prohibition was revoked, except that it was for Roger to take the initiative of telephone communications. In the Court ’ s view the measures relating to this period were particularly far-reaching. They had to be supported by strong reasons and to be consistent with the ultimate aim of reuniting the Andersson family, in order to be justified under Article 8 para. 2.

96. The reasons adduced by the Government are of a general nature and do not specifically address the necessity of prohibiting contact by correspondence and telephone. The Court does not doubt that these reasons were relevant. However, they do not sufficiently show that it was necessary to deprive the applicants of almost every means of maintaining contact with each other for a period of approximately one and a half years. Indeed, it is questionable whether the measures were compatible with the aim of reuniting the applicants.

97. Having regard to all the circumstances of the case, the Court considers that the aggregate of the restrictions imposed by the social welfare authorities on meetings and communications by correspondence and telephone between the applicants was disproportionate to the legitimate aims pursued and, therefore, not ‘ necessary in a democratic society ’ . There has accordingly been a breach of Article 8.”

23. In view of the above, the interference was made neither in accordance with the requirements of the provisions of Article 8 § 2 of the Convention nor in accordance with the existing case-law of the Court, and, therefore, the measure taken should not have prevented the applicants from exercising their right to respect for their family life. Consequently, there has been, in my view, a breach of Article 8 of the Convention.

24. I would have made an award to the applicants in respect of non-pecuniary damage, plus costs, for the violation of their right to respect for their family life under Article 8, but being in the minority, it is unnecessary to determine the amount of such damage and costs.

[1] See, also, Stijn Smet, Resolving Conflict between Human Rights, London, 2017, at pp. 145, 165 and 169-171 , and Gernard van der Schyff, Limitation of Rights – A Study of the European Convention and South African Bill of Rights, Tilburg, The Netherlands, 2005, § 156, at p. 194.

[2] Though the facts in Phinikaridou v. Cyprus ( no. 23890/02, § 53, 20 December 2007 ) were different from the facts of the present case, the following extract from that case can present a good example of the balancing test the Court makes of the different interests involved:

“53. When deciding whether or not there has been compliance with Article 8 of the Convention, the Court must determine whether on the facts of the case a fair balance was struck by the State between the competing rights and interests at stake ... Apart from weighing the interests of the individual vis-à-vis the general interest of the community as a whole, a balancing exercise is also required with regard to competing private interests.”

[3] Sometimes, however, the “proportionality test” is used in a wider sense so as to describe the “fair balancing test”, but sometimes also the balancing exercise is used in a stricter sense for the purpose of examining whether the interference answered a pressing social need and was proportionate to the legitimate aims pursued, that is, whether it amounted to a justifiable limitation of the rights in question (see C.G. and Others v. Bulgaria , no. 1365/07, § 62 , 24 April 2008 ).

[4] It is to be noted, that unlike the last stage of the principle of proportionality, i.e. the proportionality stricto sensu, its other stages are assessed independently from the balancing of the measure against the right, rather dealing with the rationality of the measure (see Francisco J. Urbina, A Critique of Proportionality and Balancing, Cambridge, 2017, at p. 37; Aharon Barak, Proportionality – Constitutional Rights and their Limitations , Cambridge, 2012, at pp. 344-5; and J. Rivers, “Proportionality and Variable Intensity of Review”, 65 Cambridge L. J. 174, at p. 200).

[5] See Steven Greer, The European Convention on Human Rights – Achievements, Problems and Prospects, Cambridge, 2006.

[6] Ibid., at p. 198.