JOINT SEPARATE OPINION OF JUDGES LAGERGREN, PINHEIRO FARINHA, PETTITI, MACDONALD, DE MEYER AND VALTICOS

As far as Article 6 § 1 (art. 6-1) of the Convention is concerned, we feel that the Court should not have repeated once again that this provision "extends only to ‘ contestations ’ (disputes) over (civil) ‘ rights and obligations ’ which can be said, at least on arguable grounds, to be recognised under domestic law" [1] .

This dictum is unnecessarily restrictive and might have the result of emptying of all content what the Court has previously said about the "autonomous" interpretation of the notion of "civil rights and obligations". In our view, it is self-evident that, merely by deciding not or no longer to recognise a certain right, a State cannot avoid, as regards that right, the application of the principles enshrined in Article 6 § 1 (art. 6-1) [2] .

JOINT SEPARATE OPINION OF JUDGES PINHEIRO FARINHA, PETTITI , DE MEYER AND VALTICOS

I.   As far as Article 6 § 1 (art. 6-1) of the Convention is concerned, the important thing, in the present case, was simply to state that the applicant was invoking rights essentially inherent in the position of a father or a mother.

II. As far as Article 8 (art. 8) of the Convention is concerned, the Court might have stated more explicitly:

(1) that, at every stage of a procedure concerning their parental rights, and in particular access to their children, a father and a mother have the right to be effectively consulted, heard and informed, and to have their observations duly taken into account;

(2) that that right may not be disregarded on account of the "practicalities of the matter" and their requirements, and may be the subject of derogation only when its exercise is really impossible.

JOINT SEPARATE OPINION OF JUDGES PINHEIRO FARINHA AND DE MEYER

I.   Having found that Article 8 (art. 8) of the Convention was violated in the applicant ’ s case since he was not sufficiently involved in the taking of the local authority ’ s decisions [3] and on account of the length of the judicial proceedings [4] , the Court did not find it necessary also to consider under that Article (art. 8) the question of the reme dies available to the applicant [5] .

Again, the Court found that there was, in the applicant ’ s case, a violation of the entitlement to a hearing by a tribunal within the meaning of Article 6 § 1 (art. 6-1) of the Convention [6] , but did not find that it was necessary also to consider under that provision the length of the judicial proceedings, since it had already taken that matter into acco unt under Article 8 (art. 8) [7] .

We feel that a finding that a provision of the Convention has been violated in one particular respect does not dispense the Court from examining whether that provision has also been violated in some other respect. We also feel that a finding that a certain fact amounts to a violation of one particular provision of the Convention does not dispense the Court from examining whether that fact also amounts to a violation of some other provision of the Convention.

In the present case, it was, in our view, necessary to examine each of the questions mentioned in paragraph 58 and paragraph 71 of the judgment: since each of them, with the possible exception of the one concerning the procedures followed by the local authority, fell within the ambit of both Article 6 § 1 and Article 8 (art. 6-1, art. 8), it was necessary to examine all of them, perhaps with that single exception, under each of these provisions.

II. As regards cases like the applicant ’ s, the judgment may, particularly in paragraph 79, give the impression of leaving too much discretion to the local authorities and of not making their decisions sufficiently subject to judicial review.

In our view, the courts should have power to determine any disputes that may arise in this field.

III. It was only with some hesitation that we concurred in the decision that it was not necessary to examine the case under Article 13 (art. 13) of the Convention [8] .

We are not quite sure that such examination was made superfluous by the finding of a violation, in the case of the applicant, of the entitlement to a hearing by a tribunal within the meaning of Article 6 § 1 (art. 6-1) [9] .

Are the "less strict" requirements of Article 13 (art. 13) truly "absorbed" by those of Article 6 § 1 (art. 6-1) [10] ? Do these provisions really "overlap" [11] ?

It appears to us that the relationship between the right to be heard by a tribunal, within the meaning of Article 6 § 1 (art. 6-1), and the right to an effective remedy before a national authority, within the meaning of Article 13 (art. 13), should be considered more thoroughly.