DISSENTING OPINION OF JUDGE GARLICKI JOINED BY JUDGE STEINER

1. It is with regret that we cannot accept the majority ’ s position in this case. The majority adopted a position finding that a violation of the applicant ’ s rights had resulted from the legislative framework in which no “paternity procedures” had been directly available to him. However, in Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI , and later in Yousef v. the Netherlands , no. 33711/96, ECHR 2002 ‑ VIII , the Court took a different approach and found that some limitations on paternity claims might be compatible with the Convention. It is not clear to us whether the judgment in the present case is meant to overrule Nylund and Yousef (and, if so, on what grounds) or whether it can be distinguished from those two cases (and, if so, on what basis).

2. Nevertheless, we are inclined to agree that the legislative framework for paternity recognition, as adopted in Poland at the material time, was defective. We do not think, however, that this conclusion can be drawn from any general requirement to provide “direct remedies”; that would not fit with the case law as established in Nylund and Yousef cases . We would rather attach more weight to the fact that, already three years ago, the Polish Constitutional Court declared that legislation unconstitutional (see paragraphs 4 7-52 of our judgment). That finding should be conclusive also for our assessments, and we are glad that the Strasbourg Court decided to follow it. We can only observe that it would be very much in line with the idea of the dialogue between judges if the reasoning of the Polish Constitutional Court were cited also in the “Law” part of our judgment.

That could also be useful because it might encourage our Court to expand its reasoning. While it is true that, under both the European Convention and the Polish Constitution, a putative father should not be deprived of access to the courts to raise his paternity claim, it is also true that such access need not be unlimited. Where there is a loving and loyal union between man and woman, the mother has no reason to refuse consent for recognition of paternity. Refusal of consent presupposes a conflict and it is the child, and not the putative father, who should be protected in such a situation. There is always a risk that paternity claims might be raised in a frivolous or vexatious way and be used to harass mother and child. That could have a disastrous effect upon the psychological development of the child. Hence, the legislature can and should establish such limitations and restrictions as are necessary for protection of the welfare of the child. Those considerations were expounded in the 2003 judgment of the Polish Constitutional Court . We regret that they have not been included in the 2006

judgment of the Strasbourg Court . In its present form, our judgment may appear to be rather one-sided.

3 . We would be more ready to find a violation had the applicant duly exhausted all available remed ies. However, he failed to do so. In January 1995 he lodged a motion with the District Court to have a guardian appointed for the purposes of the paternity proceedings. Almost simultaneously, he requested the Public Prosecutor to institute the paternity proceed ings on his behalf. In May 1995 he was advised by the Prosecutor that i t was un wise to pursue two parallel sets of proceedings in the same matter. Six months later the applicant withdrew his motion before the District Court. Later he focused on futile attempts to institute a criminal investigation against the mother. It must not be forgotten that, in March 1996, another putative father claimed paternity and that his claim was confirmed by the moth er. All those facts lead us to the conclusion that the applicant ’ s paternity request was not a clear and c onvincing one, nor did he show the required degree of diligence in pursuing his case.

We are not sure whether the Court was correct when, in its admissibility decision of 10 March 2005 , it observed that since neither of the above-mentioned procedures had been available to the applicant in that he could not launch them himself, they could not be considered as remedies to be exhausted before bringing the case to the Court. The existing remedies may have not been perfect, but they were in place and did work in the case of the second candidate to paternity, and it is not for the Court to speculate on how they would have worked in the case of the applicant. The applicant was a victim of his own indecisiveness. The State cannot be held responsible for his la ck of action.