PARTLY DISSENTING OPINION OF JUDGE ROZAKIS JOINED BY JUDGE TULKENS

With regret, I have to disagree with the majority ' s decision not to find a violation of Article 8 in this case. My position is that in the circumstances of the present case both Article 8 and Article 14 taken in conjunction with Article 8 have been transgressed. The reasons which have led me to take a stance differing from the majority as to the violation of Article 8 (taken alone) are the following.

1. From the facts of the case some elements must be noted which constitute core issues in the determination of the State ' s responsibility under Article 8: the very young age of the child, the good relationship of the child with the father while the parents lived together, and the “passivity” of the courts ' assumption that continuation of contact between the child and her father would be to her detriment, coupled with the courts ' failure to hear the child and to allow the father any further involvement in the proceedings.

Indeed, it should be underlined from the outset that the child was less than 4 years old at the time of the appeal proceedings, and 5 years old at the time of the Regional Court ' s decision. One may easily assume that at that age the child was still open to flexible adaptations to her life, including a new pattern of regular contact with her father in a neutral environment. In this respect the case differs substantially from the situation in Sommerfeld v. Germany , where the young girl was mature enough to determine herself her desiderata as to her relations with her father, a factor requiring serious consideration in the assessment of that situation.

In this connection , it is to be noted that it cannot be inferred from the facts of the case that the child was opposed to having contact with her father. It appears that her relations with him while her parents still lived together as a couple were normal and uneventful, and that the father was attached to her, manifesting his love and genuine affection for her.

It should be underscored that it clearly transpires from the facts of the case that the courts ' decisions were based on the mere hypothesis – which at the first-instance stage was not even corroborated by any scientific findings – that the continuation of the child ' s relationship with her father would be detrimental to the former ' s well being, because of her mother ' s hostile feelings vis-à-vis her former partner and the repercussions that those feelings might have upon the best interests of the child. The courts reached their conclusions without hearing the child at all, without seriously involving the father in the proceedings and, it goes without saying, without making any effort to balance the various interests at stake and to solve the existing difficulties of the triangular relationship by finding and imposing a compromise solution.

2. The prohibition by the national courts on the father ' s access was a radical measure, which not only hindered temporarily the right to family life of the father and the daughter ( vis-à-vis her father) but, in reality, completely destroyed it. It was a measure which created the requisite conditions for the permanent alienation of the daughter from her natural father, which could easily lead, at a later stage, to the child ' s negation of any recognition of emotional ties and of the need for any further contact. So, here, we are not faced with a temporary measure which may be remedied in the future through the lifting of the prohibition, but a measure with permanent effects on the very essence of the right of the persons involved.

3. The right of access of a parent to his or her child is a minimal right. It cannot be equated with custody, where, of course, the margin of appreciation of the national authorities as to the interests of those involved, and as to the interests of the child, is wide. As the Court has correctly stressed in paragraph 65 of the judgment, following its already established case-law, “a stricter scrutiny is called for as regards any further limitations [than that of custody], such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed”. In conclusion, in the balancing of the various factors to be taken into account in determining the necessity of the interference in a democratic society, weight must be given to the radical nature of the measure of prohibition applying in a situation where the parent enjoys a minimum of family life, the aim being in most cases simply to safeguard the continuation of emotional ties between the parent and the child.

4. The position of the national courts, as they themselves explained, with regard to the right of the father to have access to his daughter, was based on domestic law, and more particularly on Article 1711 of the Civil Code concerning access to a child born out of wedlock. The law clearly provides that it is for the person having custody of the child to determine the father ' s right of access to the child (paragraph 1) and that “[i]f it is in the child ' s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact”.

The Court in its judgment considered the impact of these national provisions on the exercise of the right of a parent to a family life as an issue falling within the scope of Article 14 of the Convention taken in conjunction with Article 8, namely as a problem of unjustified discrimination against a father having a child born out of wedlock in comparison with a parent having a child born in wedlock ( Article 1634 of the Civil Code); and rightly so, since the parent of a child born in wedlock, where he or she did not have custody, had the right to personal contact with the child, while in the case of a child born out of wedlock such a right did not exist.

Apart from the question of discrimination, the legal regime existing at the time, which determined parental rights on the basis of marriage, clearly shows that the concern of the law was not the protection of a paramount value of family life, as conceived by the Convention, but simply of its formal expression. I wonder whether such an aim of the law, which attaches particular weight to a ceremonial aspect of family life, and not to the real aspects which constitute the concept of family in a modern society, may be considered legitimate under paragraph 2 of Article 8.

But even assuming that the aim was legitimate, or even that it was wider than simply purporting to serve an institutional aspect of family life, the question which remains is whether we accept as “necessary in a democratic society” the basic premise of the law, as laid down in paragraph 1 of Article 1711, that the person (always the mother) having custody of the child should determine the father ' s right of access to the child, and that the child ' s interest – coupled, of course, with that of the mother – is the only criterion for a court to apply in deciding whether a father has a right to personal contact with his child. The mere fact that a father wishes to exercise his right to family life, under Article 8, in situations which are not detrimental to a child, does not suffice, in the eyes of the law, to allow him to enjoy this elementary privilege of human rights.

As I have said in the above lines, the domestic courts were heavily influenced by that provision of the law and the importance that it attributed to the will of the mother in determining the right of the father to establish or maintain contact with his child. I consider that this legal regulation and the way it has been applied by the domestic courts constitute a violation of Article 8 of the Convention .