DISSENTING OPINION OF JUDGE PELLONPÄÄ JOINED BY JUDGE VAJIĆ

I am unable to subscribe to the opinion of the Chamber that there has been a violation of Article 8, both read  alone and in conjunction with Article 14.

I agree with the general principles put forward in paragraph 40 of the Judgment, namely that “it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned “ and that  “the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues...” Application of these principles to the circumstances of the present case, however,   in my view should not lead to the finding of a violation.

The majority has based the violation of  Article 8  on the narrow ground  that “the German courts' failure to hear the child reveals an insufficient involvement of the applicant in the access proceedings” (paragraph 47). There appears to be  no other criticism of the domestic proceedings.

This is not surprising, as the proceedings prima facie appear to have been  in full conformity with the procedural requirements of Article 8 (and even with the requirements of Article 6 which, as a rule, are stricter).  Thus there were court proceedings involving oral hearings and extensive taking of evidence on two  judicial levels. The first instance court, the Wiesbaden District Court, dismissed the applicant’s access request on 5 September 1991, following a previously held oral hearing at which it heard the Wiesbaden Youth Office, both parties and several witnesses. Considering that the child was  three years old at the relevant time, I do not find  it surprising that she was not heard directly by the court.

The proceedings continued before the Wiesbaden Regional Court to which the applicant had appealed. The Court ordered an expert opinion of a psychologist, and again an oral hearing was held.  Noting that the child had not been heard by the District Court, the Regional Court also considered whether it would be possible to hear her at the appellate level. Before making this procedural decision the court - very correctly, considering that the child was only five years of age - asked the court appointed expert to give her opinion as to whether hearing  the child would put her under psychological strain. After having received that opinion the court decided not to hear the child.

I respectfully  disagree with the majority’s conclusion that this decision violated Article 8 of the Convention. [1] There are obvious reasons for courts to entrust the examination of the wishes of  very small children to experts. In the present case  the Wiesbaden Regional Court proceeded to its decision  not to hear the child  after having specifically sought expert advice. For the European Court of Human Rights  to say that the domestic court should not have based itself on that advice in my view runs counter to the above-mentioned principle “that the Court’s task is not to substitute itself for the domestic authorities”. In the circumstances of the present case the conclusion that  “the national authorities overstepped their margin of appreciation” (paragraph 49) amounts to leaving practically no margin of appreciation at all to the domestic courts which, after all, are in a much better position than this Court to make the type of  sensitive  decisions as the one at issue here.

I also disagree with the conclusion that there has been a violation of Article 14 in conjunction with Article 8. The Chamber attempts to make a distinction between the present case and the case of Elsholz v.Germany (cited in paragraph 34 of the present judgment), in which the application of Section 1711 § 2 of the Civil Code “did not appear to have led to a different approach than would have ensued in the case of a divorced couple” (paragraph 53 of the present judgment).

I am not convinced by the alleged distinguishing features. In paragraph 54 it is emphasized “that in the present  case, both the District Court and the Regional Court expressly stated that access could only be granted if in the interest of the child ...” In so far as this appears to be given as a distinguishing element, I note that similar statements are also to be found in the decisions of the District Court and the Regional Court in the Elsholz case (see paragraphs 13 and 18 of the Elsholz judgment). According to paragraph 55 of the present judgment the “crucial point is that the courts did not regard contacts between child and natural father prima facie as in the child’s interest, a court decision granting access being the exception to the general statutory rule that the mother determined the child’s relations with the father.”  I fail to see that the approach of the domestic courts  on this point was  in any relevant manner different in Elsholz , in which the district court stated, inter alia , that the provisions “concerning the father’s right to personal contact with his child born out of wedlock ...  was conceived as an exemption clause which had to be construed strictly” (paragraph 13 of the Elsholz judgment).

In the Elsholz case the Court, when coming to its conclusion of a non-violation of Article 14 emphasized that the “risk of the child’s welfare was ... the paramount consideration” (paragraph 60) in the national decisions. Therefore it could  not “be said  ... that a divorced father would have been treated more favourably” (paragraph 61). The child’s interests, however, seem to have been an equally paramount consideration in the present case, in which the Regional Court concluded its reasoning by emphasizing the importance of looking at the situation from the point of view of the child (“ Denn massgeblich ist stets eine Betrachtung aus der Sicht des Kindes .”).

Although there may have been some differences between the domestic court decisions in the two cases, those differences in my view were not of such a nature as to justify a violation in one and a non-violation in the other. Like in Elsholz , the present applicant has not shown that, in a parallel situation, a divorced father would have been treated more favourably.

[1] This is not decisive for my opinion, but I find somewhat surprising  the criticism according to which the Regional Court should not have satisfied itself with the expert opinion “without even contemplating the possibility to take arrangements in view of the child’s young age” (paragraph 47). I find it hard to imagine that the court, when addressing the question of whether to hear the child, could have done  this without  specifically considering her age.