FIFTH SECTION
CASE OF HANZELKOVI v. THE CZECH REPUBLIC
(Application no. 43643/10)
JUDGMENT
(Extracts)
STRASBOURG
11 December 2014
FINAL
11/03/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Hanzelkovi v. the Czech Republic,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
Vincent A. de Gaetano,
André Potocki,
Aleš Pejchal, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 7 October and 4 November 2014,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 43643/10) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Czech nationals, Ms Eva Nolčová (née Hanzelková) and Mr Miroslav Hanzelka (“the applicants”), on 23 July 2010.
2. The applicants were represented by Ms R. Korbelová Dohnalová, a member of the Czech Bar, and Mr D. Zahumenský, a member of the Czech Bar and Chairman of the Human Rights League, whose headquarters are in Brno.
The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm.
3. The applicants alleged, in particular, that the measure ordering the return of the second applicant to hospital a few hours after his birth had infringed their right to respect for their private and family life and that they had not had an effective remedy in that respect.
4. The application was communicated to the Government on 17 December 2012.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1977 and 2007 respectively and live in Svinaře.
A. Circumstances surrounding the second applicant’s birth
6. The first applicant is the mother of the second applicant. During her pregnancy she had regular check-ups with a doctor and attended ante-natal classes at Hořovice Hospital. Prior to giving birth she had expressed, among other things, her wish to leave the maternity ward as soon as possible provided that there were no complications.
7. On 24 October 2007 the first applicant contacted a pediatrician, S., who agreed to take charge of her future child and to come and see them both at their home as soon as they were discharged from the maternity ward. She informed the first applicant that she would, however, be away the following weekend. The applicant then told her that she intended to leave the hospital “earlier”, without enlarging on that statement. S. subsequently stated that it had not been her understanding that the applicant wanted to leave the hospital a few hours after the birth.
8. The second applicant was born on Friday 26 October 2007 at Hořovice Hospital. It was a natural and spontaneous delivery with no complications. The applicants were found to have no health problems, the Apgar score for newborns (recording the pulse rate, respiration, complexion, muscular activity and reflex irritability) was the highest possible, according to the medical team’s assessment. In these circumstances, the first applicant decided to leave the hospital the same day, which she did at about noon despite meeting opposition from the medical team.
9. According to a statement issued by the hospital on 29 October 2007 following extensive media coverage of the case, the hospital staff had suggested that the applicants remain at the hospital for at least 48 hours and had warned the first applicant of the possible risks to the child’s health, but the first applicant had indicated that a pediatrician would be taking charge of the child. After the applicants had left, the hospital staff informed the police, which was standard practice in situations where a patient left hospital prematurely without the doctor’s consent and this could have repercussions on his or her health. The social welfare authority was not informed until after the pediatrician S. had contacted the hospital (see below). The hospital found it regrettable that the first applicant had not expressed her wish to leave the hospital only hours after the birth during the ante-natal classes. Had she done so, the staff would have recommended that she obtain a personal care plan for the newborn baby and secure written agreement from the pediatrician (who would thus have had proper advance notice), whereupon her decision would have been accepted. The first applicant had accepted, moreover, that the events in question might have arisen as a result of a misunderstanding regarding the care arrangements for her newborn baby.
10. According to the explanations given by the pediatrician S., on 26 October 2007 at about 2 p.m. she had been informed by the nurse from her surgery, who had received a call from the first applicant, that the latter had given birth that very morning and returned home. As it was an unusual situation, the pediatrician, who had been preparing to leave for the weekend and could not visit the applicants until Monday afternoon, informed the staff at Hořovice Hospital accordingly. D., the hospital doctor, decided to contact the social welfare authority, namely, the Černošice municipal office. In the meantime S. had informed the first applicant by telephone that she would be able to see her and her child until Monday afternoon, which the applicant had accepted. Shortly afterwards the pediatrician was contacted by a social worker. She told her about the situation and gave her the first applicant’s telephone number.
11. According to the note sent by the Černošice Municipal Office to the Beroun Municipal Office (hereafter “the social welfare authority”), on 26 October 2007 the first applicant had left the hospital at noon on that day without informing the doctors; she had not been living at the address she had given the hospital for three years and the village where she was staying and her telephone number had been provided by the pediatrician contacted by the Černošice authority. The social worker had succeeded in contacting the child’s father on that number. Although he had been informed that an interim measure under Article 76a of the Code of Civil Procedure might be applied, he had stated that the applicants would not return to the hospital and had refused to provide the family’s exact address.
12. At the request of the social welfare authority, Dr D. drew up a note observing that “given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care”.
13. Also on 26 October 2007 the social welfare authority requested the Beroun District Court to apply an interim measure pursuant to Article 76a of the Code of Civil Procedure, with a view to entrusting the second applicant to the care of the gynaecology-obstetrics department of Hořovice Hospital. The above-mentioned notes drawn up by the Černošice Municipal Office and Dr D. were annexed to the request.
14. On the same day the court granted the request, reiterating the terms of the note drawn up by Dr D. The decision stated that any interim measure was served on the parties at the time of execution, which had to be immediate.
15. At 4.30 p.m. on 26 October 2007 a court bailiff and a social worker, accompanied by police officers, went to the applicants’ house. Although they explained to the child’s father that the first applicant could go to the hospital with the second applicant, he refused to take them to there of his own free will. An emergency medical team was therefore summoned. After examining the newborn baby, the doctor present observed that he had no health problems but agreed with the others that for the purposes of implementing the interim measure the mother and child would be taken back to the hospital in the ambulance. The father, police officers, social worker and court bailiff followed the ambulance. Once at the hospital, the second applicant was examined again and found not to have any health problems.
16. The applicants were made to remain at the hospital for two days and allege that no medical act was carried out during that time. According to the hospital report, the first applicant had refused neonatal screening and vaccination of the second applicant. At the express request of the first applicant, who accordingly signed the form refusing further medical treatment (negativní revers), the applicants were discharged from the hospital on 28 October 2007, approximately 50 hours after the birth.
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II. RELEVANT DOMESTIC LAW AND PRACTICE
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E. Ministry of Health bulletins
37. Bulletin no. 7/2005 published in July 2005 sets out guidelines issued by the Ministry to doctors with a view to minimising their doubts and harmonising their approach. According to the bulletin, newborn babies could usually leave hospital where, inter alia, more than 72 hours had elapsed since the delivery.
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
42. The applicants complained of a violation of the right to respect for their private and family life guaranteed by Article 8 of the Convention, alleging that the measure ordering the second applicant’s return to hospital a few hours after his birth had been neither lawful nor necessary. They also complained that the interim measure, which had had the effect of a decision on the merits in the present case, had been applied in violation of the principles of fairness enshrined in Article 6 § 1 of the Convention. In particular, the court had not examined whether the statutory conditions for application of the measure in question had been satisfied and neither the first applicant nor her partner had in any way been included in the decision‑making process.
43. The Court, as master of the characterisation to be given in law to the facts of the case, considers it appropriate to examine these complaints solely from the standpoint of Article 8, which requires that the decision-making process involved in measures of interference be fair and such as to afford due respect to the interests safeguarded by this provision (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 47, 26 October 2006). The relevant parts of Article 8 provide:
“1. Everyone has the right to respect for his private and family life ... .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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B. Merits
1. The parties’ submissions
a) The applicants
56. According to the applicants, their case illustrated a general problem of obstetrical practice in the Czech Republic – which placed the emphasis on hospital care – and the prevalence of an authoritarian attitude on the part of doctors. They noted that whilst there was no statutory requirement that newborn babies or their parents remain in hospital for a certain period of time after the birth, the guideline issued by the Ministry of Health in 2005 – which the applicants deemed obsolete and ill-founded as it had not been shown that the risks run by newborn babies decreased when they were placed in hospital – had indicated at the time that newborn babies could usually leave the hospital 72 hours after the birth. In their view, the problem lay in the fact that, like Doctor D. in the present case, doctors regarded the fact of remaining in hospital for 72 hours after the birth as an obligation, and not a recommendation.
57. The applicants stated that the main objective of the measure in question had been to impose the 72-hour rule on them. The authorities had thus twisted the real purpose of Article 76a of the Code of Civil Procedure in order to settle a conflict of opinion between parents and doctors, which could not be deemed to be in conformity with the law. Accordingly, the second applicant’s return to the hospital had been ordered unnecessarily and without the conditions of Article 76a having been met since he had been in good health and in no danger. Doctor D.’s note appeared too vague in that respect and could not be regarded as prima facie credible. The applicants argued that had there been an imminent danger in the present case, the doctor could have acted without the court’s authorisation. As that had not been the case, the court should have taken a critical view of the doctor’s observation in order to prevent unjustified and unnecessary interference in their rights. In their submission, the measure of 26 October 2007 had been based on a general supposition and the court had not examined whether there was any actual risk to the life or health of the second applicant. Furthermore, neither the first applicant nor her partner had in any way been involved in the decision-making process.
58. The applicants observed that at the relevant time the only situation in which doctors could act against the parents’ wishes had been pursuant to section 23(3) of Law no. 20/1966, in a situation where emergency examination or medical intervention were necessary to save the life or protect the health of the child. That had not been the case here since the second applicant had not had any health problem either at the time or subsequently. They also pointed out, referring to section 23(2) of Law no. 20/1966, that where a person did not sign a form refusing treatment this did not mean that he or she could be compulsorily admitted to hospital. The first applicant had also submitted before the national courts that she had wanted to sign the form refusing treatment but the hospital had not wanted to get her to sign it on the day she gave birth. The hospital had, moreover, conceded in its statement that where a form refusing treatment was signed a few hours after the birth complications could arise because the mother’s faculties might be affected at that time.
59. Referring to Glass v. the United Kingdom (no. 61827/00, ECHR 2004‑II), the applicants also submitted that their situation unquestionably fell within Article 8, given that the second applicant had been admitted to hospital against the wishes of his legal representatives and that, accordingly, the first applicant had had to return to the hospital at a critical time in their lives. Although they had not therefore been physically separated, this had been because the first applicant had decided to follow the second applicant, and not because of any positive action on the part of the State. Furthermore, admission to hospital could in itself be regarded as medical intervention even though they had not undergone any medical act since they had nonetheless been subject to supervision by the medical staff. Moreover, the right to respect for private life included the right to respect for both the decisions to become and not to become a parent and the right concerning the decision to become a parent included the right of choosing the circumstances of becoming a parent (Ternovszky v. Hungary, no. 67545/09, § 22, 14 December 2010), including the place of giving birth and the medical treatment administered to the newborn baby. Newborns were also entitled to benefit from the presence and care of their father and wider family.
60. Lastly, the applicants disputed the proportionality of the measure and criticised the authorities for failing to envisage alternative, less intrusive, measures or to take into account treatment available outside hospital. They considered absurd the argument that they had been treated with respect and submitted that the interests of the second applicant had been sufficiently protected even if they had left hospital quickly. As the second applicant had not been found to have any health problem after the birth, he had not required medical treatment prior to the visit by the paediatrician S. on Monday 29 October 2007. Had there been an urgent problem an emergency doctor would have been on hand. Lastly, the first applicant had followed standard practice when she had given two addresses, one being her permanent residence and the other her current residence. In any event the court bailiff and the police had been able to find her.
b) The Government
61. The Government observed that the Czech legal system did not impose an obligation on mothers and their newborn babies to remain in hospital for 72 hours after the birth. That was merely a recommendation expressed, on the basis of expert opinion, in a guideline issued by the Ministry of Health for the protection of the health and lives of citizens. It followed that women who had given birth always had the possibility of signing a statement refusing treatment. Like many hospitals in the Czech Republic, Hořovice Hospital allowed women who had given birth to leave the hospital earlier if they wished, on condition that they had signed the form refusing treatment and had been informed of the attendant risks. It was customary for the medical staff to enquire as to arrangements for the child’s care after he or she left hospital. The Government observed in that regard, citing statistics, that the Czech Republic had a very low perinatal mortality rate.
62. Examining the case from the standpoint of negative obligations, the Government submitted first of all that the situation complained of did not fall within Article 8 and was therefore incompatible ratione materiae with that provision. Indeed the applicants had never been physically separated, had been treated with respect, had not been subjected to any medical intervention after returning to the hospital, and nothing had prevented their relatives from visiting them.
63. The Government submitted that Doctor D.’s note had clearly indicated that the child was at risk, that the circumstances appeared plausible and that the court had had no reason to doubt the matter. The social welfare authority had accordingly acted in conformity with section 16 of Law no. 359/1999 and all the conditions for application of the interim measure under Article 76a § 1 of the Code of Civil Procedure had been satisfied. Accordingly, the interference had pursued the legitimate aim of protecting the health and rights of the applicants. With regard to proportionality, the Government argued that regard had to be had to the fact that it had been an emergency measure in the present case (K. and T. v. Finland [GC], no. 25702/94, § 165, ECHR 2001‑VII), which gave the State a wide margin of appreciation (Haase v. Germany, no. 11057/02, § 90, ECHR 2004‑III (extracts)); that the second applicant had not been separated from the first applicant (they cited, by converse implication, Kutzner v. Germany, no. 46544/99, ECHR 2002‑I) and that he had not even been in a position to know whether he was at his parents’ house or at hospital; and that the general interest called for particular protection of the health of children, who had only limited means of protecting their rights (no. 22398/93, dec. 5.4.95, DR 81, p. 61). Furthermore, while there had been possible alternatives in the present case, such as signing a statement refusing treatment, the possibility of finding a paediatrician outside the hospital able to take immediate charge of the child or prior consultation at the hospital, the first applicant had deprived herself of those possibilities by her failure to act. Lastly, the measure in question had been a temporary one in that the applicants had left the hospital two days after it had been applied and it had been lifted the day after they had left the hospital.
64. With regard to the fairness of the decision-making process leading to the measure in question, the Government pointed out that questions of emergency care were, by their nature, decided on a highly provisional basis and on an assessment of risk to the child reached on the basis of inevitably incomplete information (they referred to the case of P., C. and S. v. the United Kingdom, no. 56547/00, § 128, ECHR 2002‑VI). Furthermore, regard should be had to the problems facing the national authorities in such situations (Haase, cited above, § 101); moreover, their decisions could only be examined in the light of the situation such as it presented itself to the domestic authorities at the time those decisions were taken (B.B. and F.B. v. Germany, nos. 18734/09 and 9424/11, § 48, 14 March 2013). The Court had also accepted that, when an emergency care order had to be made, it might not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. It had to be satisfied, however, that the national authorities were entitled to consider that there existed circumstances justifying the removal of the children from the care of the parents without any prior contact or consultation (K. and T., cited above, § 166).
65. In the present case Dr D.’s note had clearly indicated the existence of an imminent risk to the life and health of the second applicant, which was why the District Court had deemed it necessary and justified to apply the requested measure urgently. In the Government’s submission, the court could not be criticised for basing its decision on the prima facie credible statement of the doctor, whose expertise was not in doubt, and not taking further evidence. Even if the doctor’s opinion had turned out to be mistaken, that would not per se have rendered the court’s decision incompatible with Article 8 (R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008). Furthermore, the social welfare authority had endeavoured to contact the first applicant but had only been able to reach her partner, who had refused to disclose the family’s address. Given the urgent nature of the situation, it had been impossible to involve the parents further. Moreover, they could have put forward their arguments by bringing proceedings for the protection of their personality rights.
2. The Court’s assessment
a) Whether there was an interference
66. The Court observes that, in the Government’s submission, the applicants had not suffered any interference with their rights guaranteed under Article 8 particularly as they had never been physically separated and had not been subjected to any medical intervention. The applicants disputed this, alleging that they had been admitted to hospital against their will at a critical time in their lives and that the first applicant had thus been prevented from choosing her post-natal conditions and treatment. Furthermore, the fact that they had not been separated had not been the result of positive action by the State.
67. The Court is of the view that the facts of which the applicants complain fall within Article 8 in that the decision to admit the second applicant to hospital against the express will of his parents, resulting in the admission to hospital of the first applicant, who did not want to leave her baby alone, concerns their private and family life. These concepts also include a mother’s right to decide which medical treatment her child should receive and, accordingly, whether the child should be admitted to hospital (see Glass v. the United Kingdom, no. 61827/00, § 70, ECHR 2004‑II). The Court considers that neither the brief length of the stay in hospital nor the fact that the applicants were not subjected to any medical intervention there should affect its finding that the situation of which they complain amounted to an interference with their right to respect for their private and family life.
68. Such interference will infringe Article 8 unless it is “in accordance with the law”, pursues one or more legitimate aims under the second paragraph of that provision and is “necessary in a democratic society”, to achieve those aims. The notion of “necessity” implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, Couillard Maugery v. France, no. 64796/01, § 237, 1 July 2004).
b) Justification for the interference
i. In accordance with the law
69. The Court observes that the applicants were brought back to the hospital in implementation of an interim measure applied by the Beroun District Court under Article 76a of the Code of Civil Procedure. According to the applicants, that provision had been wrongfully applied in the present case and its purpose twisted because the second applicant had not been suffering from a health problem and had been in the safe hands of his parents. The Government submitted that the court had not had any reason to consider that the conditions of Article 76a § 1 were not met because the note signed by Dr D. clearly indicated that the child was at risk.
70. The Court observes that Article 76a of the Czech Code of Civil Procedure refers to emergency situations in which a child is deprived of care or where its life or healthy development is at risk. Since it is not for the Court to substitute its own opinion for that of the domestic authorities in assessing the risk incurred by the second applicant in the present case and accordingly to decider whether the situation in question fell within the above-mentioned provision, the Court considers that the condition of a legal basis can be regarded as having been met in the present case.
ii. Legitimate aim
71. In the Court’s opinion, the interference in question can in principle be deemed to have been guided by a legitimate aim within the meaning of Article 8 § 2 of the Convention, namely, the protection of the health and rights of others, in the instant case the second applicant as a newborn baby.
iii. Necessary in a democratic society
72. The Court reiterates that, in order to be justified, any interference must be based on relevant and sufficient reasons. According to the case-law, while the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the particular case that there existed circumstances justifying the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking the child into care, was carried out prior to implementation of such a measure (see Kutzner, cited above, § 67; P., C. and S., cited above, § 116; and Covezzi and Morselli v. Italy, no. 52763/99, § 108, 9 May 2003). Furthermore, the taking of a newborn baby into care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved (see K. and T., cited above, § 168, and Haase, cited above, § 91).
73. The Court has accepted that questions of emergency care are, by their nature, decided on a highly provisional basis and on an assessment of risk to the child reached on the basis of the information, inevitably incomplete, available to the authorities at the time (see P., C. and S., cited above, § 128). Nevertheless, before public authorities have recourse to emergency measures in connection with such delicate matters, the imminent danger should be actually established. In obvious cases of danger no involvement in the decision-making process of those having custody of the child is called for. However, if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action (see Haase, cited above, § 99).
74. It should be noted that this is not a classic case of taking a child into care in so far as the measure complained of lasted only three days and the applicants were not separated because the first applicant was able to accompany her son, who was the only one concerned by the measure, to the hospital. In the Court’s view, that did not however relieve the authorities, and in particular the court, of their obligation to seek to establish the risks actually incurred by the child and determine whether his health could be protected by less intrusive measures.
75. The Court acknowledges that in the present case the conduct of the first applicant – who does not appear to have clearly indicated her desire to leave the hospital very quickly or to have attempted to follow the recommended procedure by signing a statement refusing treatment or providing a paediatrician’s written agreement to take charge of her child, and who did not clearly indicate her address to the hospital – could have aroused concern among the hospital staff responsible. Accordingly, Doctor D., who had been informed by the paediatrician S. that she was away for the weekend, cannot be criticised for having alerted the social welfare authority, which in turn brought the matter before the court. The Court must, however, be satisfied that in the present case the court was entitled to consider that there were circumstances justifying an order for the second applicant’s immediate return to the hospital without a real and concrete risk to the child’s health being established by a health professional. In particular, it is incumbent on the respondent State to establish that the court carefully assessed the effect of the planned measure on the applicants, and considered alternative possibilities to taking the second applicant into care, before implementing it.
76. The Court observes in that connection that the reasoning set out in the interim measure of 26 October 2007 is very brief and merely refers to the short note drafted by Doctor D., which simply stated, without any further details, that “given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care” (see paragraph 12 above). In the light of that finding, the Court cannot but observe that the recommendation made by the Ministry of Health in July 2005 (see paragraph 37 above) was interpreted as a binding rule by the doctor concerned. The doctor thus alluded to a general risk, without referring to concrete factors specific to the applicants’ situation. However, it does not appear from the interim measure that the court sought to ascertain further details about the case in question by, for example, ordering that the child be examined by an expert or carefully assessing all the relevant circumstances, or that he considered the possibility of less intrusive interference in the applicants’ family life.
77. It also transpires from the notes on which the court based its decision (see paragraphs 11-13 above) that it was not informed of the fact that the first applicant had contacted a paediatrician before giving birth and that at the time of its decision an appointment had already been made with that paediatrician. The Court considers that it has not been established in the present case that the parents could not have been consulted beforehand, if only of the possible risks or to obtain a signed statement from the first applicant refusing treatment. Furthermore, it would appear that when the court bailiff and the social worker went to the applicants’ home accompanied by police officers and an emergency doctor and the latter was able to establish that the child had no health problems, it was then no longer possible to reassess the situation.
78. In the present case the Court is not satisfied that there were extraordinarily compelling reasons justifying the physical removal of the baby from his mother’s care, against her will (see paragraph 72 above). Admittedly, it is not the Court’s task to take the place of the national authorities and speculate as to the most appropriate child-care measures in the particular case. However, it is satisfied that where such a drastic measure as to admit the second applicant to hospital with the assistance of the police and a court bailiff – which was of automatic application – was contemplated, the court should have examined whether some less intrusive interference in the applicants’ family life, at such a critical point in their lives, was not possible.
79. Accordingly, the Court considers that this serious intervention in the family life of the applicants and the methods used in implementing it exceeded the national margin of appreciation afforded to the respondent State and were disproportionate in their effects on the applicants’ potential for enjoying a family life as from the birth of the second applicant. Whilst there may have been a “necessity” to take some precautionary measures to protect the newborn child’s health, the interference in the applicants’ family life entailed by the interim measure ordering the second applicant’s return to hospital cannot be regarded as having been “necessary” in a democratic society.
80. Accordingly, there has been a violation of Article 8 of the Convention in the present case.
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FOR THESE REASONS, THE COURT
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2. Holds, by five votes to two, that there has been a violation of Article 8 of the Convention;
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Done in French, and notified in writing on 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsMark Villiger
RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Zupančič and Yudkivska is annexed to this judgment.
M.V.
J.S.P.
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 not 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 one-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 the reverse problem to the one in the 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 action to protect the best interests of the child.
In view of our finding under Article 8, we find that the applicants have no arguable claim under Article 13.
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