SEPARATE OPINION OF JUDGE PETTITI

(Translation)

Further to the joint observations put forward in the preceding opinions, I would make the following additional points.

1.   The Government ’ s implicit assumption that the Nielsen boy ’ s situation could be treated as equivalent to that of a child placed in an ordinary hospital was clearly erroneous. The two situations are in no way comparable. No further explanation is needed. Clearly parents are in the best position to decide what measures to take for the education and health care of their children, but when it comes to measures amounting to internment, the situation is very different.

It is my view that the dispute as to the nature of the establishment where Jon Nielsen was placed and the category of patients could not in any case provide the basis in this instance for the reasoning adopted by the Court.

The hospital had at least a section or a floor set aside for the care of children suffering from psychiatric disorders and there Jon was placed.

Even though the other children were "disturbed" rather than mentally ill, the child was undoubtedly affected by being placed there.

2.   It is clear that the State ’ s responsibility is incurred even under the terms of domestic law.

The child ’ s committal in the first place, even if suggested by the mother or the family doctor, is decided by the administrative authorities. In this case they justified their decision by the need for a psychiatric assessment, but such an assessment is usually of short duration. The Government have supplied no evidence to justify keeping the child in the establishment for a period of several months following the assessment. Throughout this period, the administrative authorities remained responsible.

Moreover, this type of responsibility is referred to in the Council of Europe recommendations in this field, in relation to which Denmark has formulated no reservation.

It is true that, in this case, the intention behind the national authorities ’ action was to provide social assistance and that the hospital in question was an excellent establishment, but the authorities left too much to the mother ’ s initiative and their supervision of the continued hospitalisation was too distant.

The Court ’ s decision of course reflected the specific facts of the case, but its analysis concerned principally the justification for the admission, whereas it was essentially the prolongation of the stay in hospital which was at issue.

It should also be noted that the national authorities contradicted themselves by relying at times on the child ’ s condition and the doctor ’ s diagnosis to justify the measures taken, and, at others, on the responsibility derived from the mother ’ s parental authority to demonstrate that the State was not responsible.

The report of the Danish ministerial committee (see paragraph 52 of the judgment) confirms that the child ’ s situation constituted a deprivation of liberty and that he could not have recourse to the remedy available to the mentally ill.

"The problem arises, however, where the child is hospitalised to be treated for a mental disorder of a non-psychotic nature. Since only mentally ill persons are covered by the [1938 Act], this Act cannot be expected to restrict the exercise of parental rights in these cases. It is therefore natural to treat on the same legal footing as physical disorders, mental disorders other than psychoses, with the consequence that the decision of the holder of the parental rights prevails, provided that the chief physician can justify the hospitalisation of the child for treatment." (pp. 390 - 392 of the report)

...

"Here [i.e. in the case of mental disorders outside the scope of the 1938 Act], the protection of the child - as in the case of physical disorders - is to be sought in the fact that the medical officer under professional responsibility must assess whether the request made by the holder of the parental rights for admission to a hospital can be considered justified." (p. 395 of the report)

The report did not suggest any changes to the existing legal situation described above.

3.   In a field as sensitive as that of psychiatric committal, within the framework of the European Convention, in particular under Article 5 (art. 5) thereof, unremitting vigilance is required to avoid the abuse of legislative systems and hospital structures. The first sentence of Article 5 para. 1 (art. 5-1) is of fundamental importance for the whole Article (art. 5).

In almost all the countries of the Council of Europe, and for a variety of different reasons, the supervision of psychiatric committals gives rise to problems. The judicial authorities are not always in a position to intervene immediately in the event of abuse or errors of diagnosis.

Precisely because of the vulnerability of those who are the subject of committal decisions, the protection of Article 5 (art. 5) must take full effect, even more so than in relation to detention under the ordinary law.

The Nielsen case involved a minor who was already the victim of parental conflict and who could only have been very disturbed by living with the other children in the ward. Furthermore, even for adults, so-called "voluntary" committal may be just as sensitive as "compulsory" committal and must be subject to full supervision.

Contemporary psychiatry has had to confront conflicts of principle when States other than those of the Council of Europe have used deprivations of liberty abusively against "those who thought differently", under the cover of detention in a psychiatric establishment.

The European Convention has the merit of providing a mechanism of protection which can be applied in every type of case, from the least to the most serious, and which takes account of progress made in one or other of the States in the legislative or social field.

The underlying philosophy and direction of the Convention dictate that every deprivation of liberty must be examined with the greatest care in order to afford protection to everyone.