DISSENTING OPINION OF JUDGES ZUPANČIČ AND YUDKIVSKA

We are sorry not to be able to agree with the majority judgment in this case. We feel that the substance of the judgment interferes with the expert medical considerations, which is something that the Court is not equipped to do.

This is clear from the facts of the case. Fortunately, the newborn child was healthy and remained healthy despite the fact that he was removed from immediate medical care, such as would have been available for the newborn had the mother stayed in the hospital for the recommended 72 hours.

In paragraph 38 the majority judgment lists the problems which, according to the ministerial medical expert report cited by the Government, could have arisen within the first 72 hours after the delivery. The problems referred to are dehydration, hypernatremia and a risk of cerebral haemorrhage, other disorders that would be difficult to diagnose , development of neonatal jaundice , proper healing of the severed umbilical cord, and so on . The first applicant, who was perfectly aware of Czech medical procedures and had agreed to abide by the rules of the hospital on being admitted to it, could not reasonably expect that her escape would be tolerated in view of the above ‑ mentioned risks.

The problem we perceive is that the mother ’ s departure from the hospital, whatever her personal reasons for doing so, did not affect simply or even primarily her own well-being. The mother is of course entitled to put her own health in jeopardy if she freely decides to do so, namely, after signing the required consent form discharging the hospital and the doctors from further legal responsibility concerning her personal well-being.

However, the mother ’ s unexpected departure after the delivery affected the well-being of another person. We do not believe that a woman, simply by virtue of being the newborn ’ s mother, has the automatic right – despite clear medical contraindications – to put at risk the well-being, and perhaps even the survival, of the newborn child. The moment the child is born, he or she has his own personal and legal subjectivity. He or she cannot be captive to his or her mother ’ s preferences.

Therefore, the conclusion in paragraph 67 that the decision to bring the newborn back to the hospital interfered with both applicants ’ right to respect for their private life, to our point of view, is incorrect. In the case of Glass v. the UK , referred to by the majority, the Court concluded that the decision to impose treatment on the handicapped child in defiance of his mother ’ s objections gave rise to an interference with the child ’ s right to respect for his private life, but not with the mother ’ s one.

In paragraph 76 of the majority judgment the Court refers to a “ general risk ” . We do not feel that there is anything abstract, theoretical or general about the above-mentioned contraindications, since post-natal complications may in fact arise unexpectedly and medical intervention is necessary because only trained professionals are equipped to diagnose them and respond to them in good time. In this critical initial period of 72 hours it is important to bear in mind that the paediatrician who was to take charge of the child was not available.

We do n o t believe that the Court is in a position to assess these potential medical problems and therefore in a position to decide whether the order to return the second applicant to the hospital to protect his well-being “ [was] disproportionate in [its] effects on the applicants ’ potential for enjoying a family life as from the the birth of the second applicant ” (see paragraph 79) . The reaction of the authorities, especially in view of the false address given to them, was responsible although it might have seemed harsh at the time. We disagree with the conclusion that less intrusive measures were available, such as, for instance, further examination of the baby by an expert (see paragraph 76). A o ne- off medical examination is not sufficient to exclude completely risks which could develop at any time within the first 72 hours after delivery.

An example of t he reverse problem to the one in th e present case can be seen in the case of Calvelli and Ciglio ( [GC] (no. 32967/96, ECHR 2002 ‑ I) ) , where the doctor was convicted because he had not been present, as he ought to have been, at the delivery of a child of a diabetic woman who had been under his care and observation during the pregnancy.

In other words, the question arises as to what the reaction of this Court would have been if the child had developed certain post-natal problems such as those listed above while far away from the hospital and emergency intensive care.

By contrast, one must also consider the situation in which the mother is permitted to give birth at home – with the help of a trained and licensed midwife (see the judgment in the case of Dubská and Krejzová v. the Czech Republic , nos. 28859/11 and 28473/12, adopted at the same time as the present case ) . It would be fallacious to maintain now that premature departure from the obstetrics department of a hospital is, argumento a maiori ad minus , permissible since a home birth with the help of a midwife is in any event also permissible. For obvious reasons, the two situations are incomparable. The role of the trained obstetrics nurse (the midwife) is not over with the delivery as such. She accompanies the mother and child for a few days after the delivery and is trained to recognise the immediate need for the help of a neonatal paediatrician and the need for a transfer to hospital. Such eventualities were not provided for in this case, at least not until the delayed arrival of the paediatrician who had agreed to take charge of the baby.

Given the above considerations, we believe that since the first applicant had failed to organise her early departure from the hospital in an appropriate way to ensure the well-being of the newborn child , which was entirely possible under the Czech legislation and practice, the measure complained of in the present case was the only possible means for the authorities to take urgent act ion to protect the best interest s of the chi l d.

In view of our finding under Article 8, we find that the applicants have no arguable claim under Article 13 .