JOINT PARTLY DISSENTING OPINION OF JUDGES WILDHABER, PALM, LORENZEN, JUNGWIERT, GREVE, LEVITS AND MULARONI

1. To our regret we are unable to join the majority in their finding of a violation of Article 14 in conjunction with Article 8. We see no reason to depart from the Court’s findings in the Elsholz case, where the Court found no violation of Article 14 in conjunction with Article 8.

2. We have a different understanding of the findings of the national courts. As a basic point we agree with the majority that the national courts when reaching their conclusions appeared to apply a test similar to that which would have been applied to a divorced father (see paragraph 91 of the judgment).

3. The majority then cite the reference in the national courts’ judgments to section 1711 § 2 of the Civil Code and their recourse to the formula of “in the child’s interest” as it appears in that provision.

In our view that is an overly formalistic approach. The Court’s task is not to examine the domestic legislation in the abstract but to examine the manner in which the legislation was applied to the applicant in the particular circumstances (see paragraph 86 of the judgment). That means that the formal reference to a particular provision of the Civil Code and the particular formulas used in the domestic judgments are not decisive. What is decisive is the substance of the national court judgment – namely, whether the treatment of the applicant as the father of a child born out of wedlock was different in comparison with that of a divorced father.

4. In the present case, the German courts found that forcing a thirteen-year-old girl to see the applicant against her will, which had been stated clearly and for a long time, would “seriously disturb her emotional and psychological balance” (paragraph 23). The courts, having regard to the child’s best interest, concluded that the only justifiable decision was not to grant access.

In such circumstances, we are not persuaded that those courts placed a burden on the applicant which was heavier than the one on divorced fathers under section 1634 § 1 of the Civil Code. In both cases access would not be granted. This means that there was no difference in treatment between the applicant and a divorced father.

5. Having regard to the above considerations, we find that the application of section 1711 § 2 of the Civil Code in the instant case did not give rise to a breach of Article 14 of the Convention, taken together with Article 8.

6. On the other hand we agree with the majority that the exclusion of the possibility of a further appeal under section 63a of the Act on Non-Contentious Proceedings amounted to discrimination against the applicant

and was therefore in breach of Article 14, taken together with Article 8 (see paragraphs 95-98 of the judgment).

PARTLY DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGES PASTOR RIDRUEJO AND TÃœRMEN

1. As in the case of Sahin v. Germany , we regret that we cannot agree with the majority’s opinion that there has been no violation of Article 8 in relation to the procedural requirements implicit in this Article of the Convention.

On the other hand, we share the opinion of the Grand Chamber which endorsed the view of the Fourth Section that there was no substantive violation of Article 8. The reasons given by the German courts to justify their decisions refusing access, namely that the then thirteen-year-old girl had expressed the clear wish not to see her father, the applicant, and had done so for several years, so that forcing her to see him would seriously disturb her emotional and psychological balance, are convincing and not arbitrary and, as we agree, the relevant decisions were indeed taken in the interest of the child. It is not for this Court to supervise the national courts’ findings in relation to the interests of a child except in cases where their reasoning is clearly arbitrary and would in the end harm the child’s health and development. We fully agree with the reasoning of the Grand Chamber in paragraphs 57 to 60 of the judgment and we would like to stress that it is completely wrong to assume that the Court has increasingly entered into the material elements of the best interests of children in the field of parental rights of access.

2. The fundamental issue raised by this case under Article 8 concerns the procedural requirements implicit in this Article, requirements which the Court has already developed and clarified on many occasions. It is one of the basic requirements in relation to parents’ rights of access to their children that there exist legal safeguards designed to secure the effective protection of the rights of parents and children to respect for their family life (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII; Kutzner v. Germany , no. 46544/99, §§ 65-66, ECHR 2002-I; and Covezzi and Morselli v. Italy , no. 52763/99, 9 May 2003). A decisive element of these “parental rights of access” resides in the question whether the level of involvement of the applicant in the decision-making process, seen as a whole, provided him with the requisite protection of his interests. The procedural rule should be that first established in Elsholz (cited above), namely that the domestic courts should assess the difficult question of the child’s best interest on the basis of a reasoned and up-to-date psychological report, and that the child, if possible, should be “heard” by the psychological expert and the court.

3. As the Chamber rightly stated, the District Court which heard the child and the parents had only the psychologist’s rather superficial submissions to hand, which had been prepared in the context of the first set of proceedings two years previously; it did not have at its disposal any new psychological

expert evidence in order to evaluate the child’s seemingly firm wishes. The procedural requirement to have up-to-date psychological expert evidence in order to obtain correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child would seem an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake. This procedural requirement is endorsed even more by recent research on the so-called parental alienation syndrome (“PAS”), which has been described by Richard A. Gardner in the American Journal of Forensic Psychology (2001, pp. 61-106) under the title “Should courts order PAS children to visit/reside with the alienated parent? A follow-up study”, and which has received an increasing amount of attention. Courts should therefore address the question whether parental alienation syndrome is present and what specific consequences such a syndrome could have on the child’s development and – as the Chamber put it – on the establishment of “a child’s true wishes”. It is also noteworthy that the psychologist who was heard by the District Court in the first set of proceedings in 1992 had tried to arrange a meeting between the applicant and his child, which, however, had been cancelled by the child’s stepfather (paragraph 16 of the judgment). It is true that the District Court judge, in the second set of proceedings, heard the thirteen-year-old M., who stated that she did not wish to talk to or see the applicant. However, since the last and only psychological expert opinion (a one-page submission) was submitted in April 1992, there was no other opinion about the truthfulness of the wishes expressed by the child and the question how far and how strongly she was influenced by her mother and her stepfather. To give the applicant the chance of effective participation in the proceedings, we would prefer to have adhered to the normal rule taken from Elsholz that an up-to-date psychological expert opinion is necessary to evaluate the child’s statements and to establish whether she is able to make up her own mind. The statements of a ten- or thirteen-year-old girl, whether she is heard in court or not, cannot always be decisive or even indicative of her true wishes. In such a complex situation, where the alienation of the child from her natural father by the strong influence of her mother and her stepfather can be perceived, a more thorough approach has to be taken and an effective and genuine chance of participation has to be given to the natural father.

4. As can be seen from the reasoning of the District Court in its judgment of 1 June 1994 and the Rostock Regional Court’s judgment of 17 June 1994, the law in force in the material time – that is, section 1711 (1) and (2) – strongly influenced the whole reasoning and procedure. Under German law it was the mother, having sole custody, who determined the father’s access. Only if it was in the child’s interest to have personal contact with the father could the guardianship court decide that the father had the right to such contact. It seems that this led both courts, the District Court

and the Regional Court, to place substantial, if not decisive, emphasis from the very beginning on the wishes expressed by the child. This application of section 1711 of the Civil Code placed the whole burden of proof on the applicant, requiring him to show that even against the clearly stated will of his daughter, personal contact with her biological father would be in her interest. Such proof could only be established by a thorough psychological expert opinion, which would have to include the questions whether the child had really expressed her own wishes or more or less those of her mother and her stepfather, and whether a meeting with her biological father, such as the one that the psychologist had tried to arrange in 1992, would be useful for the development of relations between the child and her biological father. The absence of a new psychological expert opinion was a clear result of the disadvantages of the legal situation of children born out of wedlock at the material time. We agree that this legislation violated Article 8 in conjunction with Article 14 of the Convention and we furthermore conclude that this violation had a direct impact on the denial of the applicant’s procedural rights inherent in Article 8 of the Convention itself.