JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, PALM AND Sir John FREELAND

1.   We are unable to subscribe to our colleagues ’ conclusion that there has been a violation of Article 8 (art. 8) of the Convention in respect of the first applicant, Mr McMichael (point 5 of the operative provisions of the judgment).

2.   The Court has held that the lack of access to certain documents considered by the competent adjudicatory bodies when determining the care and custody arrangements in regard to the child A. violated the right to respect for family life of both Mr and Mrs McMichael . This conclusion was reached "despite some differences in their [that is, the two applicants ’ ] legal circumstances" (see paragraphs 90 and 92 of the judgment). In our view, however, these differences in legal circumstances cannot be overlooked. They are crucial for the purposes of Article 8 (art. 8), in that it is precisely because of the significant difference in legal status of the two applicants that the incidence of the admitted procedural deficiency in the care proceedings is not the same for each of them.

3.   It is undeniable that even before their marriage in April 1990 (see paragraph 32 of the judgment) the two applicants were leading a joint "family life" and that, at least as from Mrs McMichael ’ s acceptance of Mr McMichael ’ s paternity (18 February 1988 - see paragraph 18 of the judgment), that joint family life included their shared parental relationship with A. To this extent, therefore, Article 8 (art. 8) was applicable to Mr McMichael as well as Mrs McMichael . Where we part company with our colleagues is in relation to the finding that there was an unjustified interference with Mr McMichael ’ s family life as a result of his not being granted access to certain documents submitted in legal proceedings to which he was not a party and had not even asked to be a party.

It is true that, unlike the mother of A., he could not automatically become a party to the care proceedings despite her recognition of him as the father of the child. However, the requirement for natural fathers, even ones in circumstances such as those of Mr McMichael , to obtain recognition of their parental rights before being able to take part in care proceedings has an objective and reasonable justification; the aim of the relevant legislative provisions is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality. These were the Court ’ s conclusions when unanimously rejecting Mr McMichael ’ s claim of discrimination under Article 14 (art. 14) of the Convention (see paragraph 98 of the judgment). Indeed in his case this requirement would not appear to have been onerous. As the judgment points out in the context of his claim under Article 6 para . 1 (art. 6-1), at least as from 18 February 1988 an application by him for an order for parental rights would have been dealt with speedily - and presumably without difficulty - given the mother ’ s consent (see paragraph 77 of the judgment).

4.   The above-mentioned conclusions on the facts must be equally applicable in the context of Article 8 (art. 8). We find it inconsistent and contrary to the logic of the Convention system that the constraints of a legal status which are judged, in terms of possible discrimination under Article 14 (art. 14), to have an objective and reasonable justification should not be similarly justified in relation to enjoyment of the right to respect for family life under Article 8 (art. 8) (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 31, para . 68). Furthermore, as far as access to documents in the care proceedings to which Mrs McMichael was a party are concerned, we do not perceive why, if Mr McMichael chose not to seek recognition of his rights under Scots law as a natural father, as he could have done, he should be more deserving of protection under Article 8 (art. 8) than under Article 6 para . 1 (art. 6-1). Even if the domestic law and practice concerning the procedural position of parents taking part in care proceedings had been in conformity with the standards of the Convention, in the absence of a parental order in his favour Mr McMichael would still have had no entitlement to access to the documents. Article 8 (art. 8) should not be so construed as to prevent the imposition of reasonable conditions, in the interests of the mother and child, on participation by natural fathers, even when recognised as such, in care proceedings with consequent entitlement for them to have access to sensitive material such as social and medical reports.

5.   Even assuming that Mr McMichael can claim to be a victim of a violation of Article 8 (art. 8) in relation to the care proceedings to which he had not sought to become a party or that Article 8 (art. 8) has any application to his claim in that respect, we consider that any interference with the enjoyment of his right to respect for family life resulting from the non-disclosure to him of certain documents in those proceedings was justified on the facts. For the foregoing reasons we have therefore voted against a violation of Article 8 (art. 8) in respect of the first applicant, Mr McMichael .

[1] The case is numbered 51/1993/446/525.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 307-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.