CONCURRING OPINION OF JUDGE PELLONPÄÄ

I have voted for the finding of a violation of Article 8 in this case. I, however, disagree with the majority as to the reasons for this finding. In my view the taking of the children into public care did not per se violate Article 8, but I agree that the developments following the care decisions disclose an attitude not compatible with the applicants’ right to respect for their family life guaranteed by that Article. In short, I do not share the conclusion drawn in § 146, whereas I subscribe to what is said in § 164.

I note that the care decisions of 15 July 1993 were essentially based on the mother’s serious illness, her occasionally uncontrolled emotional reactions which could be traumatic for the children, the economic and other difficulties of the family and T’s inability to take care for the mother and the children at the same time. It was added that the mother was incapable of receiving advice and guidance, and that open-care measures could not be provided to the extent necessary. The emergency care orders issued on 18 and 21 June 1993 had been based on similar grounds.

The question is whether these reasons were, in the circumstances of the case, relevant and sufficient, taking into account the margin of appreciation which must be accorded to the national authorities. As recalled by the Court, those authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into public care, whereas stricter scrutiny is called for in respect of any further limitations (§ 135).

Basing myself on the facts as presented in the judgment, I note that K. had been hospitalised on the ground of her mental problems on several occasions, including a period of compulsory mental care a little more than a year before the decisions at issue. On 19 March 1993 K’s mother had expressed her dissatisfaction with what she regarded as a lack of support by the mental health authorities and her fear that something might happen if her daughter is not admitted to care. Soon thereafter, on 24 March 1993, K. was in fact placed under observation with a view to determining whether she should be placed in compulsory psychiatric care, but the conditions for such care were not considered to be met ( see § 14). On 7 June 1993 T. had said that M. was in need of hospital care (§ 16). A few days later, on 11 June 1993, a social welfare official acquainted with the situation of the family expressed her concern about the health of K. and her forthcoming baby (§ 20).

As regards the allegedly uncontrolled behaviour of K. and its traumatic effects on the children, I note that the file indeed contains references to incidents showing such behaviour (§§ 14, 17), as well as evidence of disturbing signs in the development of M. (§ 16).             

I further note that the authorities do not seem to have proceeded to the care decisions hastily. Apparently since 1989 there had been contacts between the family and the social and welfare authorities, who had taken various measures in view of the family’s economic and social difficulties. Also the applicants’ relatives had been in contact with the social workers but, it seems, had not been able to offer any decisive help (see § 18).

It appears that the possibility of resorting to public care measures was raised for the first time in late March 1993 (see § 17). Before the actual care decisions, the Social Welfare Board obtained the opinion of two doctors who had treated K. during various periods she had spent in hospital. In their opinion of 12 May 1993 the doctors considered that, while K’s mental state should not be regarded as preventing her from permanently caring for M., she was at that time unable to care for him.

In view of these circumstances, I consider that the reasons for taking the two children into care were both relevant and sufficient and thus cannot be characterised as arbitrary. This in my view applies not only to the care orders of 15 July 1993 but also to the emergency care orders of 18 and 21 June of the same year. Within their margin of appreciation the national authorities, who had the benefit of direct contact with those involved, were reasonably entitled to consider that in the circumstances the interests of the children required an interference going beyond the open-care measures so far applied. That the method of implementing the emergency care decision with regard to J. can be criticised is another matter to which I will return below.

I am also satisfied that the decision-making process leading to taking the children into public care did not fail to involve the applicants to a degree sufficient to provide them with the requisite protection of their interests. While the applicants do not seem to have been informed of the plan to take the children into care as a temporary measure as soon as the baby was born, I accept that in the circumstances of the case the authorities may have had legitimate reasons for acting as they did. In my view they did not exceed their margin of appreciation in this respect either. In any case, the applicants were given sufficient opportunity to be heard and make representations before the Board’s care decisions of 15 July 1993. They also could appeal and did appeal on two court levels.

Having said this, I do agree that the manner of implementing the emergency care order concerning J. appears harsh even considering the difficult circumstances of the moment. This, however, does not render the emergency care order itself and the reasons given for it arbitrary and incompatible with Article 8 of the Convention. While the way of implementing the emergency care order of J. could arguably be regarded as a human rights violation of its own, I consider it proper to look upon that aspect of the case in the context of the other developments regarding the modalities of implementing the public care decisions at issue. The restrictions applied immediately after J. was born, which are very aptly described by the Court as “not conducive to facilitating a normal bond with the mother and the child” (§ 159), can thus be regarded as one sign of the firm attitude of the authorities against the reunification of the family. The manner of implementing that emergency care order together with the other reasons elaborated in §§ 156-164 of the judgment justify the conclusion that there has been a violation of Article 8.