DISSENTING OPINION OF JUDGE SCHMITT

1. I am unable to subscribe to the conclusion that there has been a violation of Article 14 in conjunction with Article 8 of the Convention. In consideration of the wide margin of appreciation of the domestic authorities and in the light of the particular circumstances of the case, the interference with the applicant ’ s right to respect for his family life is necessary in a democratic society within the meaning of Article 8 and any unequal treatment in comparison with the mother or a divorced father is justified for the purposes of Article 14.

2. I see that the applicant had no possibility of obtaining joint custody against the will of the mother and that he was excluded by force of law from seeking judicial review. But the Court accords the domestic authorities, and courts in particular, a wide margin of appreciation with regard to decisions concerning the custody of children , unlike in the case of restrictions on parents ’ right of access (see Görgülü v. Germany , no. 74969/01, § 42, 26 February 2004 , and Sommerfeld v. Germany [GC], no. 31871/96, § 63 , ECHR 2003 ‑ VIII ). Contrary to the majority, I think that in the instant case this wide margin of appreciation has not been exceeded by the statutory rules and the court decisions based on them. The reasoning underlying the relevant legal provisions, especially Article 1626a § 2 of the Civil Code, is tenable and can especially not be dismissed in the applicant ’ s case. The German legislature has fully recognised and considered the problems arising for the father from the mother ’ s privileged position and has deliberately decided against so-called “enforced harmony” (which means the legal possibility of joint parental custody by court order). The explanation of the report submitted by the Legal Affairs Committee of the German Federal Parliament following the deliberations on the amended Law on Family Matters makes clear that the interests of the father and the problems of the proposed solution were not only fully considered in the weighing-up-process, but that the legal provisions are based on close examination and a defensible reasoning.

3. The reasoning of the German legislature is mainly based on the notion of legal certainty and the protection of the child ’ s best interests, the latter also being an important factor in the case-law of the Court (see Sahin v. Germany [GC], no. 30943/96, § 94 , ECHR 2003 ‑ VIII ). Parliament could legitimately assume that in the case of children born out of wedlock, joint custody for both parents enforced by a court order against the will of the mother was contrary to the child ’ s best interests. This is especially true when the parents do not live together, as in the present case. This crucial point was emphasised by the Federal Constitutional Court in its judgment of 29 January 2003, which confirmed the legal approach as constitutional. If the parents did not make a joint custody declaration while they were living together (in the present case until the child was aged three and a half), after the parents ’ separation and a custody dispute the assumption of the legislature that joint custody enforced by court order regularly entails more disadvantages than advantages for the child is even more justified. In such a case it is obvious that there is no basis for cooperation between the parents and therefore no basis for joint custody in the child ’ s best interests.

4. This applies in particular because the assumption behind the regulatory approach cannot be dismissed in the applicant ’ s case either. It has to be borne in mind that the Court – as a general rule – does not assess the abstract legal situation but the manner in which the rules are applied to the applicant in the given specific circumstances. With regard to this principle, the following facts have to be considered. Before the Federal Constitutional Court had decided the question of the constitutionality of Article 1626a of the Civil Code the domestic courts additionally examined in the context of the applicant ’ s application for legal aid in respect of his application for custody whether the granting of joint custody would jeopardise the child ’ s welfare and they answered this question in the affirmative. The Cologn e District Court referred in a decision of 29 August 2002 to “a dispute between the parents on fundamental questions”. It further stated explicitly that joint parental custody would not be in the child ’ s interests and the fundamental dispute between the parents would even be a reason to revoke joint custody. The Cologne Court of Appeal made itself even more clear in a decision of 19 July 2002 when it explained that the applicant, “irrespective of section 1626a of the Civil Code”, could not obtain joint parental custody because it was not in the child ’ s interests. In the light of these remarks by the domestic courts – albeit only in the context of the applicant ’ s application for legal aid and not in the main proceedings – I do not agree with the majority, who dismiss the Government ’ s argument that in the circumstances of the present case the ordering of joint custody by a court would be likely to cause conflicts between the parents and would therefore be contrary to the child ’ s best interests. Moreover, it has to be considered in this connection that the applicant exercises a relatively extensive right of access without any problems, namely a good four months a year, giving him the opportunity to play a large part in his daughter ’ s life.

5. Furthermore, I do not agree with the majority that in the present case the Court can overcome the wide margin of appreciation of the authorities with the notion that the Convention is a living instrument which must be interpreted in the light of present-day conditions. Like the majority I do not see a European consensus on this issue. The judgment states correctly that only a limited number of countries explicitly address the issue of a lack of agreement between the parents. Although the majority of the member States may provide for scrutiny by the courts in the event of a conflict between the parents, the provisions and the underlying legal approaches are very different in their details and cannot be compared to each other, as a comparative-law survey on parental authority over a child born out of wedlock shows. Where there is no uniform approach it has to be accepted in my opinion that there are a number of possible ways of solving the conflict between the different interests at stake. Moreover, the common starting-point of the legislation in the member States is, as in Germany , the child ’ s best interests. With regard to this common goal and the non-existent consensus among the member States, I am not convinced that providing the father with the possibility of obtaining joint custody by court order against the will of the mother should be the only legal solution in accordance with the Convention. Besides, it is rather in line with past decisions of the Court that Parliament ’ s evaluation can anticipate the weighing-up process without providing for a weighing-up of interests in every individual case ( see Eva ns v. the United Kingdom , no. 6339/05, § 65 , 7 March 2006). It has additionally to be mentioned that the advantage of such anticipation is a clear law which provides certainty for the persons involved.

6. With reference to the foregoing, especially the interests of the child, I am of the opinion that the applicant has also not been subjected to unjustified discrimination. Furthermore, the mother ’ s and the father ’ s situations are not totally comparable; sole custody of the mother is, at least initially, necessary for reasons of legal certainty, as the majority concede. The fact that the father cannot enforce joint custody later on is justified, as mentioned above, especially in the event of a separation, by the notion of the child ’ s well-being, with a view to avoiding painful disputes between the parents at the child ’ s expense. The statutory rules legitimately proceed from the idea that parents who are unable to agree on joint custody are also unable to solve the difficult problems arising in the exercise of joint custody. Moreover, the situation of the applicant is not totally comparable to that of divorced fathers and unmarried fathers who have exercised joint custody based on joint declarations. In the case of married parents joint custody is founded on joint declarations manifesting themselves in the marital vows. The right of a divorced father is therefore based on a continuation of his legal position which was established beforehand by both parents. This is equally true for parents who are not married to each other if they have previously exercised joint custody by means of a joint declaration. Besides, in both cases joint custody is linked to the consent of the mother. On the contrary, the legislature could legitimately assume that parents do not wish to exercise joint parental custody if they are not married to each other and do not make joint declarations.

7. In the final analysis I think that there is a reasonable relationship of proportionality between the exclusion of judicial review of the initial granting of sole custody to the mother and the aim pursued, namely the protection of the child ’ s well-being. This is especially true in the present case, where the German courts involved in the above-mentioned decisions ascertained that joint custody would be against the child ’ s interests and would on that account have even had to be revoked had it been established previously. This underlines the validity of the argument of the Federal Constitutional Court in its judgment of 29 January 2003, concerning another case, where it stated that the applicable law, especially Article 1626a § 2 of the Civil Code, did not infringe the father ’ s right to respect for his family life by not providing for judicial review, because in the event of a serious dispute between the parents it could not be expected that the courts would consider joint custody to be in the child ’ s best interests. However, in the end the different assessment by the majority in this case means that the domestic legislature is left with hardly any margin of appreciation with regard to the details of regulating parental custody for children born out of wedlock. I consider this to be a too far-reaching consequence of the judgment and would have preferred a more cautious approach in this difficult area. For the foregoing reasons I have therefore voted against finding a violation of Article 14 in conjunction with Article 8 of the Convention.