PARTLY DISSENTING OPINION OF JUDGE BAKA

I share the opinion of the majority that there has been a breach as far as the fairness of the procedure is concerned under Article 6 § 1 and also that there has been a violation of Article 8 in respect of the applicants P. and C. as regards the removal of S. at birth. My reasoning under Article 6 § 1 is different, however, from that of the majority of the Court and I am not convinced that there has been a violation of Article 8 of the Convention concerning all the applicants as far as the subsequent procedures are concerned.

The majority was of the opinion that the procedural shortcomings in the case – on which basis the Court has found a violation of Article 6 § 1 of the Convention – “deprived the applicants of a fair and effective hearing in court” and that this “placed [them] at a serious disadvantage” in protecting their interests (see paragraph 137 of the judgment)

My approach is different. I, too, think that there has been a procedural violation of Article 6 in not granting the applicants time enough to find adequate legal representation. This in my view gave the appearance of unfairness , which should be avoided in a serious case like the present one. On this basis and on this basis only, I found a breach of the relevant Article. I am not, however, convinced that the applicants, even without legal representation, were completely helpless or that they were prevented in any way from putting forward their arguments effectively. The applicants, from the beginning of the procedure until the hearing, had had the benefit of legal advice and legal assistance in a case which was primarily based on expert opinions. Moreover, all the other participants in the proceedings (including counsel for the guardian ad litem ) were in agreement that there had been a fair hearing without any identifiable irregularities or shortcomings.

I do think that, as Article 8 requires, the subsequent care and freeing for adoption proceedings served the best interests of the child and were intended to strike a balance between the interests of S. and her parents. Consequently, the interference of the national authorities served a legitimate aim and was based on the applicable domestic provisions and practice. In these respects, there is no serious disagreement between my view and that of the majority. On the other hand, the question whether the interference was necessary in a democratic society raises more complex issues.

According to the majority of the Court, the procedural violation was so serious that they took it into account again when they examined the necessity requirements under Article 8.

I admit that the above approach has its basis in the case-law of the Court (see McMichael v. the United Kingdom , judgment of 24 February 1995 , Series A no. 307-B). In W. v. United Kingdom (judgment of 8 July 1987 , Series A no. 121 – cited in paragraph 119 of the present judgment) the Court extended the interpretation of Article 8 by deciding that the lengthy duration of the proceedings resulted in a decision which could not be regarded as necessary in a democratic society within the meaning of Article 8.

In the present case, however, I am rather against this extensive interpretation of Article 8. I believe that the lack of legal representation disclosed a procedural violation of Article 6 § 1. The appearance of unfairness gave rise to a violation of Article 6 § 1 but – not being decisive for the outcome of the relevant procedures – it did not amount to a violation of Article 8.