JOINT DISSENTING OPINION OF JUDGES KARAKAÅž, LEMMENS AND RAVARANI

1. To our regret, we cannot share the Court ’ s conclusion that there has been a violation of Article 8 of the Convention.

2. The case originated in a conflict between the parents of two boys. Between April 2009 and June 2010 the boys stayed with the applicant, their mother; after having spent the summer of 2010 with their father, they refused to return to the applicant, and even vehemently opposed visits by her. The applicant complains that the authorities failed in their positive obligation to secure regular contacts with her and her sons, notwithstanding court decisions granting her contact rights.

As stated in the judgment, in a case like the present one it is the Court ’ s task to examine whether the domestic authorities took all the necessary steps to facilitate contact that could reasonably be demanded in the specific circumstances of the case (see paragraph 142 of the judgment, and, among other authorities, Nuutinen v. Finland , no. 32842/96, § 128, ECHR 2000 ‑ VIII; Ball v. Andorra , no. 40628/10, § 49, 11 December 2012; Kuppinger v. Germany , no. 62198/11, § 101, 15 January 2015; and Ribić v. Croatia , no. 27148/12, § 93, 2 April 2015).

3. The majority consider that the authorities had a duty to identify the causes of the children ’ s resistance towards their mother, and to address them accordingly (paragraph 144 of the judgment). They suggest that in the given circumstances this implied that the authorities had to ensure that the children underwent professional treatment by psychiatrists or psychologists (see paragraph 151 of the judgment).

We find it difficult to read such a strict obligation into the Convention.

4. We note that the authorities, considered globally, were well aware of the problems encountered by the applicant in establishing contact with her children. They did not sit idle. After several hearings and the submission of an expert report on the father, the Split Municipal Court on 7 April 2011 awarded custody to the latter and granted the applicant the right to be visited by her children in her home (see paragraph 50 of the judgment). On 30 May 2011, the Split Social Welfare Centre imposed a “supervision” measure geared to establishing unhindered contacts between the applicant and her children (see paragraph 52 of the judgment). After various unsuccessful attempts at a meeting, and upon the advice of the supervising officer, the Municipal Court on 28 December 2011 decided not to order enforcement of its earlier decision (see paragraph 59 of the judgment). After some further unsuccessful attempts at a meeting, and upon reports of the supervising officer and the Split Social Welfare Centre, the Municipal Court on 6 August 2012 changed the contact arrangement, specifying that the applicant would have the right to see her children near the place where they stayed with their father (see paragraph 69 of the judgment). During new proceedings, instituted by the applicant in order to obtain a change in the contact arrangement, upon the recommendation of the Split Social Welfare Centre (see paragraph 77 of the judgment), the Municipal Court on 11 November 2013 appointed experts to determine the causes of the children ’ s refusal to have contact with their mother (see paragraph 80 of the judgment). It is true that these experts criticised the way in which the welfare and judicial authorities had handled the situation up until then, and therefore asked to be relieved of further cooperation with the court (see paragraph 84 of the judgment). Faced with this reaction, the Municipal Court appointed new experts, and on 31 August 2015, after having received their report, referred the father to psychotherapy, instructed the supervising officer to work with him on changing his negative attitude toward the applicant, and ordered the Split Social Welfare Centre to appoint a special guardian “ ad litem ” for the children (see paragraph 90 of the judgment). After the father had undergone six months ’ therapy, his psychiatrist stated in a report of 18 July 2016 that she had managed to achieve a situation whereby at the conscious level the father would not resist contact between the mother and the sons, but that she was unable to influence the subconscious processes, and that it was pointless continuing with the psychotherapy (see paragraph 94 of the judgment).

Moreover, it should also be noted that the children were not left without treatment. The father first sent the children to Dr J.Å ., a clinical psychiatrist, who submitted reports on 27 August 2010, 23 September 2010, 11 January 2011 and 22 August 2011 (see paragraphs 37, 43, 45 and 57 of the judgment). Soon after 27 April 2012, at the suggestion of the supervising officer, the father started to take the children to Dr D.B., another psychiatrist, with the specific aim of overcoming their emotional and psychological difficulties and easing their resistance towards their mother (see paragraph 63 of the judgment). That psychiatrist submitted reports on 17 July 2012 and 10 September 2012 (see paragraphs 68 and 70 of the judgment). In March 2013, the father stopped taking the children regularly to Dr D.B., apparently because the children cried during the therapy sessions and Dr D.B. herself was of the opinion that she could not achieve anything (see paragraphs 73, 74 and 79 of the judgment). As of 4 December 2014 the father took the children for family therapy to a family counselling centre, which counselling was monitored by the Split Social Welfare Centre (see paragraph 85 of the judgment).

This short summary discloses a series of unsuccessful attempts at arranging meetings between the applicant and her children, and various measures to achieve a better outcome. All in vain.

5. We consider that the social welfare authorities and the courts are not necessarily able to solve all inter-personal problems. In this case, they were confronted with a family drama, involving a great deal of hysteria on the part of the children. Conscious of the fact that the application of coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the children (see, among other authorities, Nuutinen , cited above, § 128; Ball , cited above, § 48; and Ribić , cited above, § 95), the authorities opted for a “soft” approach, exploring ways to improve the boys ’ attitude. There is, in our opinion, nothing intrinsically wrong with such an approach.

The competent authorities enjoyed a margin of appreciation with regard to the measures to be taken. They were almost constantly searching for solutions. It is true that some delays occurred. However, these delays seem to be at least partly the result of the absence of an obvious solution that would be effective and at the same time acceptable to all concerned. The conduct of the authorities closely resembled a trial-and-error scenario.

As the majority note, there may be situations where maintaining a child ’ s ties with its family is not in the child ’ s best interests, as this would harm its health and development (see paragraph 143 of the judgment). It was, in our opinion, within the authorities ’ discretion to consider that it was at no point in the children ’ s best interests to force them, through a therapy or otherwise, to adopt a different attitude towards their mother.

We should be careful not to judge with the benefit of hindsight. We believe that even now it is impossible to say what the authorities should have done to get out of the deadlock. We therefore cannot conclude that they failed to adopt all the measures that could reasonably be expected of them.

[1] That is almost a four-hour ride by car.