PARTLY DISSENTING OPINION OF JUDGE BONELLO

1. Among other issues, the Court had two things to determine: firstly, whether the making of the emergency order at the birth of the applicants’ infant violated their right to family life; secondly, whether the (later) failure of the authorities to take proper steps to reunite the family amounted to another violation. It found unanimously that Finland had violated the applicants’ right to family life in respect of the second issue. I voted in favour of that finding. I could, however, detect no violation either in respect of the making of an emergency order to remove the new-born child from the mother or of the methods used in implementing that decision.

2. The Finnish child care authorities faced a distressing dilemma: whether to act in a way which would injure the mother, or in a way which could injure her baby. Theirs were agonising options. It is less painful to choose between good and bad than between bad and worse.

3. The applicant mother had amassed dreadful records of mental illness. Repeatedly hospitalised since 1989, compulsorily or at her own request, she was diagnosed as suffering from schizophrenia and “atypical and indefinable psychosis”; subsequent psychiatric reports also certified her as paranoid and psychotic.

4. The applicant’s mother described her daughter’s mental health as “really bad”; she destroyed family mementoes and had “pierced the eyes” of all those appearing in her mother’s wedding photo. The record is heavy with episodes of aberrant aggression.

5. At birth, the health assistants took the infant to the children’s ward. An emergency care order was concurrently served on the hospital on the following grounds: the applicant’s “mental state had been unstable during the last stages of her pregnancy”; “the baby’s health would be endangered since (the applicant mother) had found out about the plan to place the baby in public care”; “the baby’s father … could not guarantee its development and safety”; and, finally, the applicant mother’s “serious illness and occasionally uncontrolled emotional reactions … could be traumatic for the children”.

6. Even after the birth of the infant, the applicant mother experienced various psychotic relapses and suffered from “aggressive and uncontrolled emotional moods”.

7. At the relevant time, the applicant mother had three children, each by a different father (P., a daughter, M., a son, and J., another daughter). She lost custody of P. by court order in 1992; her son M. succumbed to very grave mental disturbances, harbouring “immense hatred” and “threatening to kill everybody” and was also committed to care. The present opinion refers solely to the youngest child J., taken away by the authorities at birth.

8. I would not care to query the majority’s view that taking the infant from the mother at birth constituted a “drastic” measure. I find it difficult to envisage, for a mother, a more shattering emotional calamity. But surely the question is not whether that measure was drastic, but whether it was avoidable.

9. Time and time again, this Court has underwritten the dogma that, in situations of conflicting rights, it is the child’s best interests that should be paramount.

10. The Finnish authorities were confronted with a situation in which a vulnerable new-born infant would be at the mercy of someone in relentless captivity to recurrent psychosis, a person about whom the only predictable thing was her unpredictability. A person from whom uncontrollable reactions were as inseparable as was the resort to destructive violence. The infant’s best interests, if that article of faith were to retain any meaning, would have been poorly served by making her the responsibility of the irresponsible. Perfectly “normal” mothers, in the embrace of post-natal trauma, have turned the best-honed maternal instincts to the destruction of their offspring. Why that possibility is factored in when dealing with normal mothers, but discounted when dealing with guaranteed psychopaths, still, I believe, calls for explanation.

11. The majority found a violation because “it was incumbent on the competent national authorities to examine whether some less intrusive interference into family life, at such a critical point in the lives of the parents and the child, was not possible”. In other words, the authorities should have had recourse to other options. It would have been helpful had the majority specified which.

12. In my view, the Finnish care services, faced with harrowing alternatives, acted soundly, in the only rational and accountable manner open to them, achieving a fair balance between wrong inflicted and wrong prevented. They who preferred to place a child beyond the reach of harm have now been branded violators of human rights. I enquire what the majority would have styled them had the infant, left with the applicant mother, suffered mischief. Had I, like the Finnish authorities, been faced with choosing whether to be cruel to the mother or to the child, I know which way I would have looked.