DISSENTING OPINION OF JUDGE SERGHIDES

1. The case concerns the non-enforcement of a decision of the Athens Court of First Instance of 10 September 2018 granting the applicant contact rights with his under-age son (who was under the custody of his mother, E.K.), contrary to the applicant’s right to respect for his family life under Article 8 of the Convention. That decision became final, as the Court of Appeal rejected the applicant’s and E.K.’s appeals regarding custody (see paragraph 11 of the judgment).

2. I respectfully dissent from the judgment, as I firmly believe that there has been a violation of Article 8 of the Convention; hence, I voted against point 2 of the operative provisions of the judgment. I briefly outline the reasons for my disagreement below.

3. While bearing in mind that member States’ positive obligations under Article 8 of the Convention to restore contact between a parent and a child are ones of means and not of result (see paragraphs 56 and 67 of the judgment), it is evident that any measures taken to that end should be practical, effective and meaningful (see, inter alia , A.V. v. Slovenia , no. 878/13, § 79, 9 April 2019; Hokkanen v. Finland , 23 September 1994, §§ 58-59 and 62, Series A no. 299-A; and Fourkotis v. Greece , no. 74758/11, § 60, 16 June 2016). The lack of cooperation between separated parents is not a factor which by itself exempts the authorities from their positive obligations under Article 8 (see paragraph 58 of the judgment).

4. In the present case, the domestic authorities took a number of steps towards the enforcement of the decision of the Athens Court of First Instance of 2018, focusing, however, on ordering the preparation of social reports (mainly on the child’s living conditions) and a psychiatric evaluation. I do not wish to imply that such measures may not be necessary, but I would expect the domestic authorities to have taken more practical, effective and meaningful measures to restore contact between the father and the child, which they did not do.

The only measure taken by the domestic authorities which, by its nature, could have been effective was the referral of the entire family to the non-governmental organisation GONIS for consultation. This measure, however, did not work, because the applicant did not trust that organisation on grounds of objective impartiality (see paragraph 31 of the judgment), and consequently, as the judgment states (see paragraph 65), the Greek Ombudsman, who acknowledged the applicant’s concerns regarding GONIS, recommended to the parents certain public-law organisations specialising in children’s mental health. However, no proposal was made by the Greek Ombudsman as to counselling and psychological or emotional support for the child and his parents. The judgment does not specify which public-law organisations specialising in children’s mental health were proposed to the parents by the Greek Ombudsman, but in paragraph 66 it states that the applicant refused the recommendation of the Greek Ombudsman to contact organisations specialising in children’s mental health, arguing that his son was mentally healthy.

The judgment criticises this stand taken by the applicant (see paragraphs 66-67), without, regrettably, taking into account, (a) that the psychiatrists of the Hellenic Centre for Mental Health “concluded that the child did not present any symptoms of mental problems or behavioural issues” (see paragraph 30 of the judgment), and (b) that “the mother, whose participation was a prerequisite for the intervention, did not respond to that proposal” (see paragraph 35 of the judgment). The latter point (b) is reiterated in a more general and conclusive way in paragraph 36 of the judgment as follows: “In view of the two parents’ tacit or explicit refusal of his recommendation, the Ombudsman did not interfere further with the case”. Regarding the first point (a), if the child did not present any symptoms of mental problems or behavioural issues, then what he really needed in the first place was counselling and psychological or emotional support, and not to be sent for further examination of his mental health by psychiatrists.

The judgment “considers the involvement of child-psychology experts a step in the right direction to enable the applicant to restore his communication with his child” (see paragraph 66). With that I entirely agree, but the judgment omits to take into account that this step was not taken by the respondent State, even though, by its nature, it could have been a practical, effective and meaningful measure. Since consultation with the non-governmental organisation GONIS did not work, the domestic authorities should have proposed consultation with another organisation, public or private, but they omitted to do so. It should be remembered in this connection that before the referral to GONIS, the applicant requested that the prosecutor hold a joint consultation with both parents, but that request was rejected as the prosecutor instead referred them to GONIS (see paragraph 24 of the judgment).

5. In Hokkanen (cited above, § 58), the Court held that “the reunion of a parent with a child who has lived for some time with other persons may not be able to take place immediately and may require preparatory measures being taken to this effect”. In that case, no such measures were taken, and the Court found a violation of Article 8 of the Convention. The present judgment, citing Ribić v. Croatia (no. 27148/12, § 94, 2 April 2015), also acknowledges that the positive obligations of the State under Article 8 “may require preparatory or phased measures” (see paragraph 56 of the judgment).

In my view, the breadth of “preparatory measures” may embrace a number of child-centred measures, depending on the facts of each case. Some of the most common preparatory measures could be access to counselling and mediation; family assistance or therapy through emotional, psychological or therapeutic support of all parties concerned by the social services and/or by other professionals or experts specialising in child psychology; gradual reintroduction plans or programmes to restore access; visits arranged in playgrounds in the presence of persons whom the child can trust, and so on. As to the last measure, the judgment states that Ms E.K. had informed the applicant that GONIS had proposed that during contact hours the two parents and the child meet together in playgrounds (see paragraph 31). However, that proposal was not followed up, and it is not established whether it was made by GONIS and, if so, why GONIS did not make a similar proposal to the applicant. In any event, GONIS’ involvement did not continue, for the reason explained above.

The list of preparatory measures is not exhaustive, and it is for the professionals and experts and not for the Court to propose in a particular case what measure or combination of measures should be taken and in what order; however, this did not happen in the present case, as no preparatory measures were taken.

If a child steadfastly declines contact with his father, it is judicious for the Court, which disapproves of any measure entailing force, to consider the necessity of preparatory measures aimed at aiding and facilitating the re-establishment of contact between the father and son. The specifics of these preparatory measures should be determined by child professionals and experts. However, it falls to the Court to assess whether the authorities have indeed taken and implemented such preparatory measures. It is my view that in the instant case, the authorities took no preparatory measures other than the unsuccessful effort involving GONIS.

6. In the present case there had been no gradual reintroduction plan or programme with simultaneous counselling and emotional and psychological support for the parents and the child. The aim of a gradual reintroduction plan would have worked as a preparatory measure for the restoration of contact between the father and his son, with the ultimate result the enforcement of the decision of the court. Had it been decided to implement such a plan, the competent professionals or experts would have explained to the parents that the aim of the plan was in no way to modify or annul the decision or order of the court, but only to facilitate its enforcement; so, here again, counselling would have been important.

7. While the judgment acknowledges that the positive obligations of the State under Article 8 may require preparatory or phased measures, it regrettably omits to consider that in the present case no such measures were taken, and yet considers that the respondent State fulfilled its obligations. In other words, it is unfortunate that the judgment is inconsistent: though it refers to the requirement of preparatory measures with approval in the general principles of its assessment, when it deals with the application of those principles it ultimately overlooks this requirement and does not apply it, despite the fact that the present case is a classic instance where such measures should have been taken.

8. The same happens with a number of other principles which the judgment mentions in the general principles of its assessment. For example, the judgment rightly states that the Court’s task consists in examining whether the domestic authorities took all necessary steps that could reasonably be demanded in the specific circumstances to maintain the relationship between the applicant and his son, and that the adequacy of measures is to be judged by the swiftness of their implementation, as the passage of time could have irremediable consequences for relations between the applicant and his son (see paragraph 55 of the judgment). However, even though no preparatory measures were taken, in paragraph 67 of the judgment it is concluded that “the failure to enforce the applicant’s contact rights cannot be attributed to a lack of diligence on the part of the relevant authorities”. Also in the general principles of the judgment, it is stated that “where children resist contact with one parent, Article 8 of the Convention requires States to try to identify the causes of such resistance and address them accordingly” (see paragraph 56). This principle was likewise not applied in the present case. The cause of the child’s resistance to contact with his father could not properly have been identified without a psychological evaluation. Even, however, if we assume that the only cause of the problem was the tense relationship between the parents, the domestic authorities did not address the problem effectively. Lastly, the judgment in its general principles emphasises that “the cooperation and understanding of all concerned will always be an important ingredient” (ibid.) and that the authorities must keep in mind “the best interests of the child as a primary consideration” (ibid.). Again, one can reasonably argue that in the absence of any preparatory measures in the instant case, the best interests of the child were not taken as a primary consideration.

9. Instances such as the present case are exceedingly sensitive and delicate and simultaneously quite sorrowful. As the domestic court held, “the relationship between the parents was very tense and was characterised by mistrust and intense rivalry” (see paragraph 11 of the judgment). The father in the present case accused the mother of trying to alienate the child from him, while the mother contended that it was the father’s behaviour which had made the child not wish to have contact with him.

10. The child, caught in the midst of this dispute between adults, becomes a victim, necessitating intervention by the State for a solution. Hence, the measures taken by the State should be practical, effective, meaningful and child-centred. To use the inspiring words of Albert Camus (also quoted in the foreword by Maud de Boer Buquicchio, former Deputy Secretary General of the Council of Europe, to the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (Council of Europe Publishing, 2011)), “Don’t walk in front of me; I may not follow. Don’t walk behind me; I may not lead. Walk beside me and be my friend.” All parents and society, along with the competent authorities, must walk beside children and be their friends, providing support for all their needs and endeavours.

11. Facilitating the re-establishment of the father’s contact with his son would be pursued not only for the father’s benefit, but primarily for the benefit of his son, as well as for that of his mother and of society at large, which requires healthy relationships among people and relies on the presence of strong interpersonal connections between them.

12. In view of the above, I come to the conclusion that there has been a violation of Article 8 in the present case, and, if I had not been in the minority, I would have proposed that the applicant be awarded just satisfaction under Article 41 of the Convention.