JOINT DISSENTING OPINION OF JUDGES SERGHIDES AND ZÃœND

1. This opinion contains a statement of disagreement with paragraph 101 of the judgment and point 2 of its operative provisions, holding that there has been no violation of Article 8 of the Convention. It also contains a brief reasoning of our disagreement.

2. The impugned measure, namely the placement of the child (the second applicant) by the domestic authorities on the Register for adoption, against the will and without the consent of her biological mother (the first applicant), resulting ultimately in the adoption of the child in December 2020 (see paragraph 36 of the judgment), was not necessary in a democratic society and was a very drastic, harsh, inflexible, permanent and irreversible measure which was disproportionate to the alleged legitimate aims pursued. Other less intrusive measures could have been taken by the domestic authorities, such as placing the child in a foster family while allowing the mother and the child to maintain some contact with each other.

3. The respondent State could thus have found ways to preserve the family tie or bond between the mother and the child, and it had a positive obligation under Articles 1 and 8 § 1 of the Convention to take appropriate and effective steps to assist the mother in improving her parental capacity and her relationship with her child. By arranging for the adoption of the child, in breach of this obligation, the respondent State put an end irretrievably to the legal and actual relationship between the mother and the child and to any future prospect or hope for improving that relationship, thereby infringing the right to respect for family life of both applicants, the child and the mother. Stated otherwise, instead of the domestic courts and the present judgment interpreting and applying Article 8 § 1 of the Convention according to the principle of effectiveness as a norm of international law and as a method of interpretation, so as to render the applicants’ exercise of the right to respect for family life under Article 8 § 1 practical and effective, they entirely extinguished its core or very essence.

4. Regrettably, the judgment concludes that the domestic courts did not overstep their margin of appreciation (see paragraphs 33-34 and 95-96 of the judgment), apparently finding sufficient the mere reference to some relevant factors or considerations. However, neither the domestic courts nor the Court engaged in any genuine proportionality test stricto sensu , balancing the interference and the applicants’ rights under Article 8 § 1 (see similar arguments advanced in more detail in Judge Serghides’ dissenting opinion in S.J.P. and E.S. v. Sweden (no. 8610/11, 28 August 2018), and especially paragraph 15 thereof). We therefore consider that the decision-making process leading to the impugned decision to place the child on the Register for adoption was problematic from the standpoint of the Convention. In our view, a fair balancing test between all the interests concerned would lead to the conclusion that the scales should tip in favour of not placing the child on the Register for adoption, and thus to a conclusion that would give precedence to the interests of the two applicants, primarily those of the child. The following findings of the Court in Abdi Ibrahim v. Norway ([GC], no. 15379/16, § 162, 10 December 2021) can lend support, by analogy, to the proposed approach advanced in the present dissenting opinion:

“The reasons advanced in support of the decision were not sufficient to demonstrate that the circumstances of the case were so exceptional as to justify a complete and definite severance of the ties between X and the applicant, or that the decision to that effect was motivated by an overriding requirement pertaining to X’s best interests. Emphasising the gravity of the interference and the seriousness of the interests at stake, the Court also considers that the decision-making process leading to the applicant’s ties with X being definitively cut off, was not conducted in such a way as to ensure that all of her views and interests were duly taken into account. There has accordingly been a violation of Article 8.”

In this connection see also, mutatis mutandis , Strand Lobben and Others v. Norway ([GC], no. 37283/13, § 225, 10 September 2019).

5. For these reasons, we find that there has been a violation of Article 8 § 1 of the Convention and we would make an award to the applicants in respect of non-pecuniary damage as well as legal costs and expenses. However, since we are in the minority, there is no need to estimate the extent of these issues.