DISSENTING OPINION OF MRS J. LIDDY

JOINED BY SIR NICOLAS BRATZA

As to Article 14 in conjunction with Article 8

The applicant submits that S. 1711 of the Civil Code discriminates against him as an unmarried father. Under S. 1711 he could only have personal contacts with the child if it was in the child’s interests. In the case of a married father S. 1634 provided a right to personal contact unless the child’s welfare otherwise requires.

There was therefore a presumption in law that contact be awarded to a father if he had been married to the mother but merely a possibility of contact if he had not married the mother.

This presumption probably reflected an underlying presumption that parents who had made a marriage commitment had manifested a certain commitment towards the child. It has been replaced by a 1997 reform apparently based on the presumption that it is in the child’s interest to have access to both parents, regardless of marital status.

The Convention issue is not whether S. 1711 made an unjustifiable distinction between married and unmarried fathers such as to be discriminatory within the meaning of Article 14. The issue, rather, is whether its application in the present case led to discriminatory treatment.

The present dispute centres around access rights only under S. 1711. In looking at this aspect the Constitutional Court stated that the ordinary courts had applied the test that the child’s welfare required denial of contact to the father, that is, they had applied the same test as would have been applied to a married father.

This finding is not true of the District Court’s reasoning of 4 December 1992 which clearly required the applicant to prove that contact could be shown to be advantageous to the child. However, its reasoning of 17 December 1993 after hearing the child and both parents was clearly based on the danger to the child’s development if he had to take up contact with the applicant contrary to the will of the mother. In other words, risk to the child’s welfare was the paramount consideration. There is nothing to indicate that similar decisions would not be and have not been taken in comparable conflicts between married parents.

The Regional Court, on appeal, without a hearing, based its decision of 21 January 1994 on the finding that contacts would negatively affect the child. Again, the application of S. 1711 does not appear to have led to a different result than would have ensued in the case of a married couple.

In these circumstances it is not necessary to explore whether, as might be inferred from paragraph 61 of the Report, the Court in the Marckx judgment (13 June 1979, Series A no. 30) can be regarded as indicating that the members of a de facto family can in all circumstances be treated identically with members of the traditional family (see, a contrario , X, Y and Z v. United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997 - II) or whether, as found by the Commission in Application No. 9639/82, B., R. and J. v. Federal Republic of Germany, Dec. 15 March 1984 (D. R. 36, p. 130) and Application No. 11089/84, Lindsay v. the United Kingdom, Dec. 11 November 1986, (D. R. 49, p. 181), differences in treatment and legal regime may be justified.

In sum, while the amendment of German law in 1997 to place more explicit emphasis on the general rights of the child rather than of the parents may have been prompted by inequity in other cases as well as by developments in thinking at international level, it cannot be said that on the facts of the present case the outcome discriminated against the applicant by comparison with what might have happened in the case of a married father. There has accordingly been no violation of Article 14 in conjunction with Article 8.

As to Article 8 taken alone

The only separate issue which arises under Article 8 taken alone is whether the interference with the applicant’s rights can be regarded as necessary when account is taken of the absence of a hearing before the Regional Court and of the refusal of the District Court to obtain a psychological expert opinion as had been recommended by the Youth Office. The District Court itself heard the child on two occasions and the question arises as to whether its experience in family law was such as to render unnecessary such independent expert opinion on the child’s state of mind. The Regional Court decided solely on the basis of the files.

In the W. v. the United Kingdom judgment of 8 July 1987 (Series A no. 121), the Court said “What....has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8”. The same considerations appear to be applicable to disputes between parents as distinct from with a public authority (cf. mutatis mutandis , Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255).

Even if the District Court was in a position to evaluate adequately the child’s state of mind without recourse to an expert independent opinion, an opportunity should have been granted to the applicant to comment on the detailed basis for that Court’s evaluation. In the particular circumstances of this case, the combination of the refusal to order an independent psychological report or to provide details of the basis for the Court’s evaluation and the applicant’s inability to present arguments on any such report or evaluation at a hearing before the Regional Court had a particularly adverse effect on his interests because access had originally been refused to him by reason of the mother’s objections to him which she communicated to the child. In these circumstances, the applicant was not involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests. There has accordingly been a violation of Article 8.

As to Article 6

The foregoing considerations also lead to a finding of a violation of Article 6. Moreover, the special features of the proceedings at issue are not such as to justify the absence of a “hearing” (even one that would be held in camera, if the interests of the child so warranted) at second instance such as to enable the Regional Court to make a direct assessment  of any evidence the applicant wished to give in person. There has therefore been a violation of Article 6  paragraph 1.

(Orig. English)