CONCURRING OPINION OF JUDGE Sir Nicolas BRATZA

I am in full agreement with the view and reasoning of the Chamber that there has been a violation of the rights of P. and C. under Article 6 of the Convention and that the removal of S. from her mother shortly after birth gave rise to a violation of her parents' rights under Article 8. Where I have certain hesitations is as to the view of the majority of the Chamber that there was a further violation of Article 8 in respect of the care and freeing for adoption proceedings.

The Chamber, correctly in my view, has not found a substantive breach of Article 8 in relation to the decisions of the national courts to take S. into care or to free her for adoption. In the domestic proceedings Mr Justice Wall had the inestimable advantage not only of a detailed knowledge of the voluminous documentation in the case but of seeing and hearing the witnesses, including P. and C. themselves, as well as the several experts who gave oral evidence. In his two fully and cogently reasoned judgments, he reached the clear conclusion that it was in the best interests of S. that she should be taken into care and freed for adoption with the minimum delay. In the light of these judgments, I can find no basis for concluding that these measures violated the substantive provisions of Article 8 of the Convention.

The majority's finding of a violation is instead founded on the lack of legal representation of the applicant parents during the two sets of proceedings in which, as the judgment states, it was crucial for them to be able to put forward their case effectively and for their viewpoints on the possible alternatives to adoption, as well as on the continuation of contact even after adoption, to be persuasively presented. In the view of the majority, this lack of legal representation, in addition to founding a breach of Article 6 by depriving the applicants of a fair and effective hearing, violated their Article 8 rights by preventing them from being sufficiently involved in the decision-making process.

It is well established by the case-law of the Court that there are inherent in Article 8 of the Convention certain procedural requirements, entitling parents to be involved in any decision-making process concerning the care of their children to a degree sufficient to provide them with the requisite protection of their interests. It is further established that the different purpose pursued by the respective procedural safeguards afforded by Articles 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (see, for example, McMichael v. the United Kingdom , judgment of 24 February 1995, Series A no. 307-B, p. 57, § 91).

In McMichael the facts complained of (the inability of the applicants to have sight of certain documents considered by the children's hearing and the Sheriff Court) were found by the Court to have had repercussions not only on the conduct of judicial proceedings to which the second applicant was a party, but also on a fundamental element of the family life of the two applicants. In these circumstances, the Court considered it appropriate to examine the facts also under Article 8.

In the present case the circumstances are in my view different and it is these differences which have caused me to hesitate. The procedural failings identified by the Court in the present case relate not to the denial of access to documents nor to the failure of the authorities to consult the applicants or involve them fully in the decision-making process, but to the fact that the applicants were not legally represented in the care or freeing for adoption court proceedings. Moreover, in  his judgment in the former proceedings, Mr Justice Wall expressly concluded that, even if P. had been represented by counsel at the hearing, he was entirely satisfied that the result would have been the same. While this conclusion does not affect the question whether the procedural safeguards under Article 6 were complied with, it has in my view some relevance to the question whether the lack of these safeguards may be said also to have had repercussions on the family life of the applicants so as to justify the examination of the case additionally under Article 8.

In the end, however, I have concluded that the lack of legal representation of the applicants can be said to have had such repercussions. In this regard, I attach importance to the fact that, even if a care order was inevitable in the case of S. and even if the legal representation of P. could have made no difference to the result of those proceedings, the same is not necessarily true in the case of the freeing for adoption proceedings, in which effective legal representation could well have had a material influence both on the decision to free S. for adoption and on the decision relating to continuing contacts between S. and her parents prior to and after her adoption.

While, therefore, a finding of a breach of Article 6 in family proceedings should not in my view inevitably lead to a separate finding of a breach of the procedural requirements of Article 8, I consider that in the circumstances of the present case such a separate finding is justified.