DISSENTING OPINION OF JUDGE MOTOC

I have voted against the majority in this case. I find it very problematical that the Court is attempting to replace the domestic authorities in this case in order to assess the application of Article 13 (b) of the Hague Convention. There seems to be some confusion in its reasoning about the best interests of the child.

In my view, the Court has made a hypothetical indication to the national authorities that they have failed to assess the possibility of the mother travelling with her son to Canada. This indication is not only hypothetical but also utopian. Indeed, the majority indicated that responsibility for raising and educating a child should be shared equally between the parents and the domestic courts. I consider it an impossible task for the domestic courts to assess the possibility of one parent moving to a different country with the child. What a domestic court should assess is the best interests of the child under the conditions which will prevail when a child is returned to live with the relevant parent in the country of origin.

In my opinion, the domestic courts carried out a very careful assessment of the possibility of returning a child, scrutinising all his personal circumstances in the light of the Supreme Court decision of 1999.