PARTLY DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGES ROZAKIS, FUHRMANN, ZUPANČIČ, PANŢÎRU AND KOVLER

To my great regret I cannot share the majority’s opinion that there has been no violation of Article 8 of the Convention in respect of the emergency care order concerning M.

1. One should recall that on 3 May 1993 K.’s son M. was placed voluntarily in a children’s home for a period of three months after some disorderly behaviour of K. and after M. had shown some aggressive behaviour (see paragraphs 16-20 of the judgment). Even if M.’s behaviour in the children’s home did not immediately show satisfactory progress (see paragraph 21), there was no drastic change which could have justified the decision of 21 June 1993 to place him in emergency care as well (see paragraph 25). Just as for the emergency care order in respect of J., the new-born baby, there were no special circumstances justifying an emergency care order in respect of M.

2. Before public authorities have recourse to emergency measures in such delicate issues as care orders, the imminent danger should be actually established. An imminent danger is the precondition for an emergency care order. If it is still possible to hear the parents of the child and to discuss with them the necessity of the measure, there should be no room for an emergency action.

M. was in no imminent danger since he had already been placed in a children’s home. The whole procedure gives the impression of a coup de force . A procedure by which normal care orders were prepared with the involvement of the parents would, under the circumstances, have been a reasonable and fully satisfactory one.

3. There is no doubt, as the Government have stressed, that M. needed a secure and stable environment for his development but the decision on how to secure this and where to place M. could also have been taken in accordance with the normal procedure involving K. and T., namely the parents. It is true that in obvious cases of danger no involvement of the parents is called for, but in relation to M., where no imminent danger was visible, the involvement of the parents in the decision-making process was necessary, which did not mean that it would be impossible to implement the care order. I cannot see that such a normal procedure in the case of M. would have been detrimental to his protection. The reasons the majority of the Court have advanced not to accept the necessity of the emergency care order in respect of J. (see paragraph 168 of the judgment) apply also in my view a fortiori in relation to M. There were no reasons why the normal procedure for taking children into care could not have been followed. When K. and J. were in hospital and M. in the children’s home, there was no emergency situation. It has further to be taken into account that M. was placed voluntarily by his parents in the children’s home. There was no indication of a change of the parents’ intention to let M. stay in the children’s home or to get special care if needed. The emergency action in respect of M. aggravated the harsh measure which the authorities took in relation to J. and her mother. The fact that M. could have been removed from the safe environment of the children’s home at any time (see paragraph 169) could not justify an emergency measure. It is a danger which had already existed for a long time, since the voluntary placement of M. in the children’s home. I am unable to see under these circumstances why a danger should suddenly be deemed to have arisen and I cannot accept the Court’s reasoning that the lack of association of both T. and K. in the decision-making process was understandable in order not to provoke a crisis in the family before the stressful event of J.’s birth. Both T. and K., as parents, were even more closely associated with the decision-making process after the emergency measures, when they tried to take action against them. So this argument is rather counter-productive. Also, the argument that the order was limited in time to fourteen days does not justify the emergency action, as no danger existed. In fact, it was not an emergency action, it was a preparatory action for the normal care orders, but Finnish law does not foresee such a “preparatory stage” for normal care orders.

4. A more fundamental issue is the review of the interpretation and application of the notion of danger and emergency in relation to care orders. How far is it possible to supervise national courts in this respect under article 8 of the Convention? When it becomes obvious that there was no danger but only a mere “possibility” of revoking the permission to let M. stay in the children’s home and that there was no factual indication of an intent of the parents to reverse their decision, then it becomes rather obvious that there was no sufficient factual basis for the conclusion of the national authorities and courts. That is precisely why the Court of Strasbourg had to fulfil its supervisory function.