JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND LOUCAIDES

(Translation)

We regret that we are unable to agree with the majority on two points for the reasons set out below.

1. The applicant complained under Article 6 § 1 that the Legal Aid Office of the Court of Cassation and the President of that court had dismissed his application for legal aid on the ground that “no arguable ground of appeal on points of law could be made out”, despite accepting that he was eligible for legal aid on a means test. The Court held that there has been no violation of the Convention for three reasons: legal-aid systems cannot function unless there is a means of selecting the cases that should qualify for legal aid; the system set up by the French legislature affords substantial guarantees; lastly, in the Aerts v. Belgium judgment of 30 July 1998 ( Reports of Judgments and Decisions 1998-V), the fact that the applicant had to be represented by a member of the Court of Cassation Bar was held to be decisive (see paragraph 41 of the present judgment).

We consider it necessary for the issues to be clearly identified. There can be no question of indirectly raising the pertinent issue of access to the Court of Cassation. Further, there is no issue over the principles established by the Court in its case-law (see, among other authorities, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 78-79, § 59, and the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26) or the principles governing representation before the Court of Cassation in France and grants of legal aid as such. The sole point at issue is the reason given by the Legal Aid Office and the President of the Court of Cassation for refusing legal aid: the lack of an arguable ground of appeal.

Admittedly, that is one of the reasons expressly set out in Law no. 91 ‑ 647 of 10 July 1991 for refusing legal aid and it undoubtedly reflects the legitimate concern of ensuring that public money should only be allocated to appellants having a reasonable prospect of success. The fact remains, however, that the system may be perceived as being inherently unfair by the least well-off appellants, as they are the only ones who have to show that they have a prima facie case on appeal. Further, those appellants who are able to pursue appeals on points of law despite being refused legal aid will be disadvantaged in comparison to appellants who have not applied for legal aid, as a “negative inference” will inevitably arise regarding the strength of the grounds relied on.

Conversely, it was no doubt to avoid discrimination of that sort that, paradoxically, the Court dismissed the Government's preliminary objection regarding the applicant's failure – by not pursuing the appeal when legally entitled to do so – to exhaust domestic remedies in the instant case (see paragraphs 46 et seq. of the judgment). That decision obviously diminishes the scope of the assertion – “ there is no doubt that the fact that Mr Aerts was required to have legal representation was decisive ” – which the Court uses (see paragraph 41 in fine of the judgment) to distinguish the present case from Aerts cited above. It is also liable to have unexpected repercussions and undesirable consequences: although the Legal Aid Office's refusal to grant legal aid on the ground that “no arguable ground of appeal on points of law can be made out against the impugned decision” (a refusal that was upheld by the President) may henceforth exempt impoverished appellants from the need to exhaust domestic remedies, there is a danger that the nature of the Court of Cassation's powers on appeal may be drastically reduced. However, as the Court rightly reiterates, the purpose of Article 35 of the Convention is to “afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court” (see paragraph 46 in fine of the judgment) and appeals on points of law are in that regard of crucial importance (see Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). In the present case, the point of law in issue was all the more important in that it concerned a Convention provision.

In an approach that we regard as perhaps too casuistic, the Court has created a new distinction which will no doubt be tested in future cases, a factor which will not fail to fuel a debate which it has itself helped, at least in part, to create. If the fact that Mr Gnahoré was not required to be represented by a member of the Conseil d'Etat and Court of Cassation Bar was decisive in the instant case, it is reasonable to suppose that in other cases in which, like Aerts, specialised legal representation is compulsory, a refusal of legal aid for want of an arguable ground of appeal on points of law would not be compatible with Article 6 § 1 of the Convention.

Lastly, the Court rightly points out that in France , and, for that matter, Belgium , decisions of legal aid offices, which are judicial, not administrative bodies, are underpinned by guarantees (see paragraph 41 of the judgment). However, as a result of these guarantees, the aim of cost-saving, which is the primary reason for establishing the “filter” mechanism, is only achieved in part, if at all, as the legal aid office carries out a careful and thorough examination to determine whether the complaint is arguable. Would it not therefore be better for that examination to take place when the appeal on points of law itself, rather than the application for legal aid, is considered?

Ultimately, while it is obvious that legal-aid systems cannot function unless machinery exists enabling the cases for which legal aid should be available to be determined, the least well-off members of society should not thereby be denied access to justice and a category of litigants forfeit the substance of their right to access to a court, as guaranteed by Article 6 of the Convention. Legal aid is an issue in all member States of the Council of Europe and different proposals are currently under discussion (such as legal insurance and risk sharing). A detailed comparative-law examination could prove particularly helpful here.

2. On the basis of Article 8 of the Convention, the applicant complained, inter alia , of the severe restrictions imposed on his right to contact after the discharge order of 26 May 1993 . More than seven years have elapsed since that order was made. During that period the applicant and his son have seen each other only three times. Moreover, in a letter of 5 July 1999 the applicant indicated that he had had no news of his son since his last visit on 3 March 1997 . The Court nonetheless held that there has been no violation of the Convention.

We of course agree with the general principles reiterated by the Court concerning the necessity of a family life, the scope of the obligations and particularly the positive obligations on the States, the balance to be achieved between the competing interests and the existence of a certain margin of appreciation (see paragraphs 50-52 of the judgment). We concur too on the parameters of the examination of the “necessity” for the measures in issue and the need for stricter supervision of additional restrictions such as those on the right to contact (see paragraph 54 of the judgment). We also fully agree with the considerations concerning the dual aspect of the interest of the child and the ultimate aim of any care order, which must be the reunion of parent and child (see paragraph 59 of the judgment). We do not, however, reach the same conclusions regarding their application.

Article 8 of the Convention lays down two requirements. Firstly, only very exceptional circumstances may lead to the break-up of a family. Secondly, everything must be done to maintain contact between fathers and sons and to ensure their right (the rights of both parties are in issue) to respect for their family life, which includes the right to personal relations, especially when, as in the present case, the aim of “reuniting” the family is no longer pursued.

(a) A careful examination of the actual reasons given by the courts in their successive decisions from 1992 to date for suspending or prohibiting contact by the applicant or staying consideration of that issue does not disclose any decisive or compelling evidence that the circumstances were exceptional (see paragraphs 16 in fine , 21, 22, 23, 24, 25, 26, 27, 29, 30, 32 and 33 of the judgment).

Initially, the reasons relied on by the judicial authorities are to be found in the first judgment of the children's judge of the Lyons tribunal de grande instance of 12 February 1992, which, after the applicant had been reported to the public prosecutor's office and during the criminal investigation, made a care order and suspended contact indicating, in very general terms: “... the domestic situation is difficult and the children are in danger ;... their removal from home is necessary to enable relations with the father to become less conflictual and to make the children feel more secure by helping them to resolve their personal difficulties.” The Special Minors' Division of the Lyons Court of Appeal upheld that judgment on 23 March 1992 in these succinct terms: “... whatever the origin of the injuries, it does not appear that Mr Gnahoré offers the material and educative guarantees necessary to ensure the child's health and safety” (see paragraph 12 of the judgment). Suspected ill-treatment and inadequate care combine in the reasoning to justify denying contact between the applicant and his son.

From that point on, a process is set in motion that is marked by incomprehension, hostility and resistance to the measures taken. To a certain degree that process is self-sustaining. Incidentally, for whatever reason, there has clearly been a blockage in this case as is confirmed notably by the actions of the doctor who originally reported the suspected ill-treatment. He subsequently wrote to the judicial authorities on 25 May 1992 to qualify his initial findings (see paragraph 13 of the judgment) before, on 13 November 1993, taking the initiative of writing a letter to the Minister of Justice in which he said that he was “alarmed by the dramatic consequences of [his] report” and expressed the hope that “a situation that has become completely blocked to the detriment of the child” could be resolved. He also said that he found it hard to understand “how one can deal with possible relational difficulties between parents and children by a forced separation”.

The fact that the applicant's son was very perturbed at the idea of meeting his father and even opposed the idea in 1993 (see paragraphs 19-20 of the judgment) may admittedly be an important factor. It is not, however, in our view sufficient by itself to justify the continued prohibition on contact since, as he becomes gradually more distant from his family of origin, it is understandable that the child should develop notions adapted to his new home. In addition, that situation may have put the foster home where the child was placed in a difficult position, since under the foster system the foster parents are not substitute parents, but short-term auxiliary parents. Therefore, maintaining links between the child and the family of origin plays an integral role in this form of placement, which must cope with the triangular relationship between the child and both his families, with equal rights for all. Severing those links may amount to a form of “social ill-treatment” for the child. That consideration obviously also applies, albeit in a different form, when children are placed in institutional care.

More particularly, we are unable to accept the two main considerations that led the Court to reach its decision, namely the conduct of the applicant in refusing the therapy ordered by the judicial authorities as a condition for the resumption of contact and his reticence to cooperate with the social services (see paragraph 62 of the judgment). The effectiveness of an “order to undergo therapy” and especially the legitimacy of making compliance with the order a condition for contact when the effect, in the present case, was for a right guaranteed by the Convention to be suspended, is questionable. Furthermore, the case-law of the Court indicates that the attitude of the person concerned is not wholly decisive (see the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 36-37, §§ 81 and 83). The fact that in the instant case the judicial authorities knew that the applicant could not come to terms with the separation and that, in such circumstances, the very idea of co-operation was illusory, made it that much less decisive.

(b) As to whether the authorities took all the measures that could reasonably be demanded of them in order to maintain contact between the father and the son (see the following judgments: Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250, pp. 35-36, § 90; Hokkanen v. Finland, 23 September 1994, Series A no. 299-A, p. 22, § 58; and Ignaccolo-Zenide v. Romania , no. 31679/96, § 96, ECHR 2000-I), we do not agree with the majority's opinion that the relevant authorities “made genuine efforts” or that the failure of the measures “was due solely to the applicant's behaviour” (see paragraph 63 of the judgment). In the present case, the efforts to which the Court refers are the measures described in paragraph 61 of the judgment, that is to say, an invitation to undergo psychotherapy in 1994 and the organisation of three visits at a neutral location in December 1996, January 1997 and March 1997. That, in our view, is very little indeed for a period of more than seven years.

The Court held that the fact that the measures taken by the judicial authorities were confined to the above did not suffice to justify a finding of an infringement of the rights guaranteed by Article 8 and it invoked, in that regard, the domestic margin of appreciation. While the Court is obviously precluded from substituting its own assessment for that of the relevant national authorities – which are best placed to assess the situation – it is nonetheless under an obligation under paragraph 2 of Article 8 to assess the relevance and adequacy of the reasons asserted for the interference and whether due weight has been given to the respective interests. It cannot avoid that assessment merely by invoking the margin of appreciation, just as a reference to the interest of the child can be no substitute for proper argument. As the Court has recently reiterated, it has a duty to examine in the light of the Convention decisions taken by the national judicial authorities in the exercise of their discretion (see Glaser v. the United Kingdom , no. 32346/96, § 64, 19 September 2000, unreported).

[1] . Note by the Registry . The Court’s decision is obtainable from the Registry.