JOINT DISSENTING OPINION OF JUDGE S TULKENS AND SPIELMANN

(Translation)

For several reasons which we will set out below , we do not share the majority ' s opinion that there has been no violation of Article 8 of the Convention in this sensitive case , which raises the question of adoption without the consent of a child ' s father.

1. From a legal perspective, adoption remains an “essentially consensual institution” in Europe [1] . I t follows that the adoption of a child without the consent of one of his or her biological parents may occur only in exceptional circumstances. The international law texts cited in the judgment are clear on this point and, in our opinion, it is important to draw the appropriate conclusions from them. Thus, the European Convention on the Adoption of Children of 24 April 1967 specifically states that the competent authority may not dispense with consent “ save on exceptional grounds determined by law ” ( A rt. 5 § 2, ( b ) ). Equally, princip l e 15 of the White Paper on p rinciples relating to the e stablishment and legal consequences of parentage, dated 15 January 2002 and drawn up by the Committee of Experts on Family Law, specifies that “the competent authority may overrule the refusal to consent only on exceptional grounds determined by law” (§ 3). In domestic law, the l e gislation of the Council of Europe ' s member States also provides, in exceptional circumstances, for the possibilit y of a child being adopted without the consent of at least one of his or her biological parents. Whilst, in the majority of countries, waiving of the consent requirement is determined on the basis of objective circumstances (d eath, uncertain paternity, deprivation of parental authority , etc.), in other countries subjective circumstances are also taken into consideration when permitting the authorities to overrule a refusal to grant consent . T his is the situation in the instant case in so far as A rticle 181 § 3 of the Austrian Civil Code ( Allgemeines bürgerliches Gesetzbuch ) provides that “ at the request of one of the parties, the court may overrule the refusal of consent by the parent of a minor child, where the person concerned has not given justifiable reasons for his or her refusal ”. Thus, it is the scenario of an unjustified refus al which is at issue here and constitutes a reason for depriving the father and mother of the right to consent to the adoption.

2 . Under the Convention, the right to consent or disagree to the adoption of a child may be considered an element of the father ' s and mother ' s right to respect for private and family life, guaranteed by Article 8 § 1 , and even that of the child itself . Admittedly, this right is not absolute and is subject to limitations. In accordance with Art icle 8 § 2, there may be interference by a public authority justified, inter alia , by the protection of health or morals or the protection of the rights and freedoms of others. The Court must therefore engage in a careful examination of the interests at stake in order to determine whether, exceptionally, a d e cision on adoption taken without the consent of the biological parent may be justified under the Convention.

3. In the present case, the Linz-Land District Court held on 16 October 2002 that it could overrule the applicant ' s refusal to grant consent and authorise his daughter ' s adoption by her mother ' s new part ner . On the one hand, the district court noted that the child had developed a close relationship with her mother ' s new partner and that adoption would secure her position in the family and be a material safeguard. At the same time, it considered that the applicant ' s allegedly close relations hip with his daughter did not correspond to reality. In those circumstances, the refusal of consent was considered unjustified ( paragraph 21). The Linz Regional Court dismissed the applicant ' s appeal on 25 February 2003. The regional court held that it was not necessary to request an expert opinion o r to hear evidence from the social workers concerned. It considered that the reasons given by the lower court were sufficient, particularly in relation to the applicant ' s conduct ; nonetheless, it minimised the argument concerning the adoptive father ' s financially more advantageous position, stating that the fact that A.F. was in a better financial position than the applicant had not been a reason for granting the adoption (paragraph 23 in fine ).

4. We do not find that these reasons were, in the circumstances of th is case, relevant and sufficient to justify the adoption of the applicant ' s daughter against his will.

We note, firstly, that the applicant ' s contacts with his daughter were certainly limited at the time of the adoption. However, this was not due to the applicant ' s lack of interest but a consequence of the fact that, following his aggression towards his former partner, the latter refused him access to the child and the courts subsequently withdrew his visiting rights . Prior to these events, the applicant had been living with his daughter for some two years and had maintained visiting contact for another year and some nine months.

Furthermore, the applicant had constantly expressed his wish to visit his child. He had applied to the courts after his former partner refused him access, had appealed against the withdrawal of his visiting rights and had filed further repeated requests for visiting rights in the subsequent years. The present case, therefore, falls to be distinguished from other cases before the Court (see Söderbäck v. Sweden , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII and Kuijper v. the Netherlands (dec.), no. 64848/01, 3 March 2005) which also concerned the adoption of a child against the biological parent ' s wishes but where the parent in question had accepted the lack of contact with his/her child for several years.

We further observe that the domestic courts referred to the fact that the applicant had repeatedly interfered in the relationship between the child and her mother , causing the child to develop physical and psychological problems . The applicant had threatened and injured the child ' s mother in December 1996. Some two years later, in March 1998, he had insulted the child ' s mother and informed the child that her mother was a n evil witch and a whore, thus causing distress to the child. Whilst we agree with the domestic courts ' finding that in behaving in such a manner the applicant had acted contrary to family values, we nevertheless find it difficult to accept that this conduct must be considered of such seriousness as to justify the severing of the applicant ' s bonds with his child against his will. This opinion is strengthened if we note that, at the time of the adoption, the impugned events dated back more than four years and three years respectively and that a later contact visit in December 2000 had passed without similar incident.

5. While not overlooking the domestic courts ' reasoning that the adoption was in the child ' s best interest, we find that, in view of its far ‑ reaching impact on the relationship between the applicant and his child and its irrevocable character, such a measure presupposed a particularly careful investigation and consideration of other possible solutions.

On the one hand, we cannot find that the procedure applied by the courts in the present case met these requirements. We note, in particular, that the child ' s overriding interest was found to be established on the basis of the above-cited facts without any further investigation into the matter such as, for instance, the taking of an expert opinion on child psychology.

On the other hand, the courts overruled the applicant ' s lack of consent without a prior attempt to reach an agreement between the parties. We do not believe that the child ' s real interests lie in depriving her biological father or mother of their right to consent to her adoption. Such an extreme situation, which may only occur in duly established exceptional circumstances, is one of failure, and potentially a source of deep suffering for the child. In the area of adoption, it is for the State to take all possible measures to ensure a balance, within the adoption triangle, of the rights of the biological parents, the candidates for adoptive parenthood and children themselves.

6. Against this background, we find that the fact of permitting the adoption of the applicant ' s child without his consent represented an interference with his right to family life which has not been shown to be necessary in a democratic society. There has theref ore been a violation of Article 8 of the Convention.

[1] I. Lammerant , L’adoption et les droits de l’homme en droit comparé , Bruxelles, Bruylant, 2001, n° 323, p. 368.