PARTLY CONCURRING PARTLY DISSENTING OPINION OF

MR. J. A. FROWEIN

        I have voted for a violation of Article 5 para. 1 but not of

Article 5 para. 4.  My reasons are as follows.

1.      The detention of Jon Nielsen in the psychiatric ward

amounted to a deprivation of liberty in the normal sense of the word.

The restrictions existing, described in the Report of the Commission,

show that beyond doubt.  The question arising under the Convention

is, however, whether detention based on the lawful decision of the

parent having the right of care and custody over the child can be

called a deprivation in the sense of Article 5 para. 1 for which the

State is responsible.

        Article 5 is constructed in a very clear way.  While the first

sentence of para. 1 lays down the positive obligation for the State to

protect the liberty of its citizens by legislation and other action,

the second sentence of para. 1 together with the alternatives (a) to

(f) protect individuals against specific deprivations of liberty

by State action.  It follows from the wording of the different

alternatives that only decisions by public authorities are at issue in

(a) to (f).  The paragraph concerning minors, i.e.  Article 5

para. 1 (d), would certainly have dealt with the decision by parents,

and not only with the order for educational supervision granted by the

competent authority, if this provision should also apply to parents.

        The Commission finds the State to be responsible because the

chief physician at the State hospital has accepted Jon Nielsen.

However, the Danish courts have held that under Danish law the

decision by the mother as the parent who had care and custody was

decisive for the legal situation.  I feel bound by that finding which

seems to me quite convincing.

        Family law in all European countries gives the parents the

right to decide on the residence of their children.  They may place

them in hospital if necessary.  Their decision is not a decision

which falls under Article 5 para. 1 second sentence (a) to (f).  Of

course, their right to decide on the detention of their children is

not at all unlimited.  But that does not mean that a wrong decision

becomes a decision for which the State has responsibility under

the Convention.  The situation is rather comparable to the case where

people are deprived of their liberty by a criminal act.  Nobody would

come to the conclusion that that could raise an issue under Article 5

para. 1.

        This shows that Article 5 para. 1 second sentence is not

applicable to the case.

2.      The question arises nevertheless whether there is State

responsibility under Article 5 para. 1 first sentence according to

which everyone has the right to liberty and security of person.  This

applies to minors as well as to adults.  It must be decided whether

the legal possibility for a parent, who has the right to care and

custody, to place a child into a psychiatric ward without specific

judicial or other formal control may amount to a violation of the

guarantee laid down in the first sentence of Article 5 para. 1.

Indeed, some States have introduced specific controls.  For instance,

under the German law parents need the consent of the

"Vormundschaftsgericht" (parental court) for such a decision.

        In the present case the mother who had care and custody of the

applicant decided to place him in the psychiatric ward of the

hospital.  Apparently this happened in the context of her dispute with

the father of the child who earlier had gone underground with the boy.

The applicant was admitted by a Professor A. after the family doctor

and the social authorities had co-operated with the mother over the

placement.  It is impossible to say, therefore, that the placement was

just an arbitrary decision by the mother.  Rather, experts and

psychiatrists took part in its implementation.

        However, it is not alleged that the applicant suffers from any

mental illness.  It follows that his detention together with children

who are mentally ill must have caused considerable hardship to the

applicant.  This shows the great danger existing where there is no

procedure with sufficient formal safeguards for the placement of

minors in psychiatric hospitals by their parents.  A lack of such a

procedure is not in line with the positive obligation flowing from

Article 5 para. 1 first sentence for the State to protect the liberty

of all citizens including children.  It is for this reason that I find

a violation of Article 5 para. 1 first sentence.

3.      As to Article 5 para. 4 no violation can be established since

the deprivation of liberty which has taken place does not fall under

Article 5 para. 1 second sentence.  Paragraph 4 applies only to

deprivations of liberty by a public authority.  This is shown by the

wording "arrest or detention" referring to the formulation used in

Article 5 para. 1 (a) to (f).  Where the holder of the right to care

and custody gives his consent to the placement Article 5 para. 4

cannot be the appropriate safeguard.  The right to care and custody

gives the custodial parent the right to represent the minor in court

proceedings including proceedings under Article 5 para. 4.

        The problem to be settled by the legislation for cases of this

sort is how to solve possible conflicts between parent and child.  The

requirement of consent by a court or a special authority for the

placement into a closed institution seems to be the appropriate

procedure in that respect.

        The solution favoured by the majority must lead to a legal

procedure which is difficult to reconcile with family law in general.

It would mean that a child of a certain age, without a clear limit

being established, must be able to bring proceedings even against the

will of the holder of the right to care and custody.  It would seem

difficult to make that dependent on the individual development of the

child.  To find a violation of Article 5 para. 4 implies that the

right of the mother, who of course could have brought Article 5

para. 4 proceedings had her child been detained against her will, is

not taken into account.

        Especially disputes between parents, which form the difficult

background of this case, are better avoided by appropriate safeguards

for decisions of great importance, such as placement in a mental

hospital, than by creating rights which are supposed to be exercised

individually by very young children.