DISSENTING OPINION OF JUDGE DE GAETANO

1 . I regret that I cannot agree with the decision of the majority of the Court on the question of whether or not there has been a violation of Article 8. To my mind there was in this case such a violation.

2 . This is a child custody case . The relevant period is from 8 April 2008 ‑ when the applicant applied to the District Court to have the order made for the child to be allowed to stay with him ‑ to 15 February 2010 ‑ when the said District Court allowed the request: in all a period of just over one year and ten months, in effect almost two years. This may not be a particularly long period of time for a civil or commercial case involving property rights. Here, however, we are dealing with the continued “uncertainty” as to the custody of a child, an uncertainty which is, of its very nature, an interference in and with the family life of the parties concerned. The longer this uncertainty persists, the more long term harm is caused to the development of the child. In these cases, therefore, justice cannot be administered piecemeal or in fits and starts.

3 . This, one would have thought, is nothing new. When the Committee of Ministers of the Council of Europe, in their Guidelines on Child Friendly Justice (adopted on 17 November 2010 at the 1098 th meeting of the Ministers ' Deputies) stated in para. 50 that “In all proceedings involving children, the urgency principle should be applied to provide a speedy response and protect the best interests of the child, while respecting the rule of law”, they were not inventing rocket science; they were just re-stating the obvious. Likewise, para. 51: “In family law cases (for example parentage, custody, parental abduction), courts should exercise exceptional diligence to avoid any risk of adverse consequences on the family relations.” Sometimes, however, one tends to miss the wood for the trees.

4 . It should have also been patently obvious to anyone with a modicum of practical experience of family court work that the de facto custody which the father had enjoyed should have been confirmed. The child, A, had been with the applicant since 3 August 2003; by the time the request was made on 8 April 2008, A was old enough (11 and a half years) to be able to express his views, as he in fact did to the prosecutor who was conducting the criminal proceedin gs against the applicant (para. 21 of the judgment); he twice ran away from his mother ' s residence (paras. 22 and 23). In short, contrary to what is stated in para. 58, the case presented no particular complexity or difficulty ‑ unless one considers the inevitable conflict between the parents in any custody case as “complexity”. Being a child custody case, the court seized of the application of 8 April 2008 was expected to have all the important facts in hand before or at most by the first hearing, to be able then to deal with the application using “exceptional diligence”. Instead it proceeded to deal with the case as if it were an ordinary case, receiving a little bit of evidence at every hearing (as seems to be the practice in Poland ). Suffice it to point out – and this is what really makes the case almost surreal as to the length of time it took to decide the application of 8 April 2008 – that the court guardian visited the applicant and A on 10 April 2008, but it was not before 27 April 2009 that A was heard by the court, and it was only on 11 August 2009 that the court commissioned an expert opinion. Again, this expert opinion only stated the obvious, even as regards the applicant ' s influence on A ' s views “about t he family and the world” (para. 32). It is also to be observed that, contrary to w hat is recommended in paragraph 52 of the Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice , already mentioned above, the District Court on three occasions refused also t o make an interim order (paras. 26, 29 and 31).

5 . Finally, to s uggest, as is done in paragraph 58, that the case before the Polish courts was somehow complex or difficult because of “the important fact that the applicant had acted in breach of domestic law when he decided to keep A with him” (after the divorce ruling of the 30 June 2006) puts again the whole issue of the need for exceptional diligence in similar cases completely out of focus. Whether or not there has been a violation of the State ' s positive obligations under Article 8 in such cases should not depend in any way on who, as between husband and wife (or father and mother) , has accumulated the most Brownie points.

6 . The Court had, with this case, an opportunity to break a lance on behalf of expeditious proceedings in child custody cases. It has missed that chance.