NIELSEN v. DENMARK



European Commission of Human Rights

 

 

Application No. 10929/84

 

Jon NIELSEN

 

against

 

 

DENMARK

 

REPORT OF THE COMMISSION

 

(adopted on 12 March 1987)

 

 

TABLE OF CONTENTS

 

                                                          Page

 

 

I.      INTRODUCTION

        (paras. 1 - 14) ..................................   1

 

   A.   The application

        (paras. 2 - 3) ...................................   1

 

   B.   The proceedings

        (paras. 4 - 10) ..................................   1

 

   C.   The present Report

        (paras. 11 - 14) .................................   2

 

 

II.     ESTABLISHMENT OF THE FACTS

        (paras. 15 - 61) .................................   3

 

   A.   The particular facts of the case

        (paras. 15 - 44) .................................   3

 

   B.   Relevant domestic law

        (paras. 45 - 61) .................................  11

 

        a) The Danish Constitution

           (paras. 45 - 46) ..............................  11

 

        b) The Custody and Guardianship of Children Act

           (paras. 47 - 50) ..............................  12

 

        c) The Social Aid Act

           (paras. 51 - 56) ..............................  14

 

        d) The Mental Health Act

           (paras. 57 - 59) ..............................  16

 

        e) Extract of the Report on the Principles on

           Involuntary Treatment in the Field of

           Psychiatry, no. 1068/1986 (paras. 60 - 61) ....  18

 

 

III.    SUBMISSIONS OF THE PARTIES

        (paras. 62 - 98) .................................  20

 

   A.   The applicant

        (paras. 63 - 69) .................................  20

 

   B.   The Government

        (paras. 70 - 98) .................................  21

 

IV.     OPINION OF THE COMMISSION

        (paras. 99 - 140) ................................  26

 

   A.   Points at issue

        (para. 99) .......................................  26

 

   B.   Article 5 para. 1 of the Convention

        (paras. 100 - 129) ...............................  26

 

   C.   Article 5 para. 1(a) - (f) of the Convention

        (paras. 130 - 133) ...............................  33

 

   D.   Article 5 para. 4 of the Convention

        (paras. 134 - 139) ...............................  33

 

   E.   Recapitulation

        (para. 140) ......................................  34

 

Partly concurring, partly dissenting opinion of

Mr.  J.A. Frowein .........................................  35

 

Dissenting opinion of Mr.  G. Jörundsson ..................  38

 

 

APPENDIX I          History of the proceedings before

                    the Commission .......................  39

 

APPENDIX II         Decision on the admissibility of

                    the application ......................  41

 

 

I.      INTRODUCTION

 

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

 

A.      The application

 

2.      The applicant, Jon Nielsen, is a Danish citizen.  He was

born out of wedlock in 1971 and resides in Copenhagen.  Before the

Commission he is represented by his father, Mr.  Henning Nielsen,

and by Mr.  Jørgen Jacobsen, a lawyer practising in Copenhagen.

 

        The Government of Denmark are represented by their Agent,

Mr.  Tyge Lehmann, Ministry of Foreign Affairs.

 

3.      The case concerns the applicant who in 1983, after being the

subject of a custody dispute between his parents, was placed in a

child psychiatric ward of a State hospital against his wish but in

accordance with the wishes of the holder of the parental custody.  The

applicant considers that he was deprived of his liberty contrary to

Article 5 para. 1 of the Convention and alleges that he did not have

the possibility of taking proceedings by which the lawfulness of the

detention could be decided by a court as provided by Article 5 para. 4

of the Convention.

 

B.      The proceedings

 

4.      The application was introduced on 15 February 1984 and

registered on 3 May 1984.  The Commission considered the case on

2 October 1984 and on 7 May 1985 and decided on the latter

date to give notice of the application to the respondent Government in

accordance with Rule 42 para. 2 (b) of its Rules of Procedure and to

invite them to present before 19 July 1985 their observations in

writing on the admissibility and merits of the application.

 

        The Government's observations were dated 19 July 1985 and the

applicant's observations in reply were dated 7 October 1985.

 

5.      Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 11 September 1985.

 

6.      On 5 December 1985 the Commission decided to invite the

parties to appear before it at a hearing on the admissibility and

merits of the case.

 

7.      The hearing took place on 10 March 1986.  The applicant, who

was present himself, was represented by his father, Mr.  Henning

Nielsen, by Mr.  Jørgen Jacobsen, and by Mr.  Anders Boelskifte as Adviser.

The Government were represented by Mr.  Tyge Lehmann as Agent,

Mr.  Gunnar Blæhr of the Ministry of Foreign Affairs as Adviser,

Mr.  Torben Melchior of the Ministry of Justice as Counsel and

Mr.  Bo Vesterdorf of the Ministry of Justice as Adviser.

 

8.      Following the hearing, the Commission declared the application

admissible.

 

9.      The parties were then invited to submit any additional

observations on the merits of the case which they wished to make.  The

Government submitted additional observations on 13 June 1986, a copy

of which was transmitted to the applicant.  No further observations

were received from the applicant.

 

10.     After declaring the case admissible the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case.  Consultations with the parties took place between 2 May

and 15 July 1986.  In the light of the parties' reaction, the

Commission now finds that there is no basis upon which such a

settlement can be effected.

 

C.      The present Report

 

11.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following Members being present:

 

              MM. J. A. FROWEIN, Acting President

                  C. A. NØRGAARD

                  G. JÖRUNDSSON

                  B. KIERNAN

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             Mrs.  G. H. THUNE

             Sir  Basil HALL

 

        The text of this Report was adopted on 12 March 1987 and is

now transmitted to the Committee of Ministers of the Council of Europe

in accordance with Article 31 para. 2 of the Convention.

 

12.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

 

(i)     to establish the facts, and

 

(ii)    to state an opinion as to whether the facts found disclose

        a breach by the State concerned of its obligations under

        the Convention.

 

13.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on admissibility of the application as Appendix II.

 

14.     The full text of the pleadings of the parties, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

 

 

II.   ESTABLISHMENT OF THE FACTS

 

 

A.      The particular facts of the case

 

15.     The parents of the applicant, who was born on 7 April 1971,

lived together from 1968 until 1973.  They were not married and

accordingly only the mother had parental rights over the child.  After

the relationship between the parents broke down in 1973, the applicant

remained with the mother and the father's access to him was initially

effected on a "gentlemen's agreement" basis.  However, this system did

not function well and in 1974 the father obtained a specific access

right through the competent authorities.

 

16.     It appears that a closer relationship developed between the

applicant and his father over the next years.  According to Danish

legislation at that time, however, it was not possible to petition the

courts to have the custody rights transferred from the mother to the

father.  Therefore, the applicant's father introduced an application

with the European Commission of Human Rights complaining inter

alia that he had no effective possibility of obtaining from a court

a determination on the merits covering the custody of his child and

that he thus was treated differently from fathers of children born in

wedlock.  During the proceedings before the Commission the Custody

and Guardianship of Children Act was changed.  The Act thereafter

provided that a court decision might vest parental custody in the

father of a child born out of wedlock, when certain specified

conditions were fulfilled (Section 28 para. 2 of the Act).  This

change of the law came into force on 1 October 1978.  The Commission,

therefore, on 5 December 1978 rejected the application since the

applicant's father could no longer claim to be a victim of an alleged

violation of the Convention (No. 7658/76, Dec. 5.12.78, D.R. 15,

p. 128).

 

17.     In the meantime, and until the summer of 1979, the father's

right of access to the applicant had been implemented on a regular

basis.  However, in 1979 the applicant apparently refused to return to

the mother after a two-week holiday with the father.  The social

authorities were contacted and, with the consent of all parties,  it

was decided to place the applicant in a children's home.  However, he

disappeared from there and returned to the father who, on 6 August

1979, instituted proceedings before the City Court of Ballerup

(Ballerup ret) in order to have the custody rights transferred to him

according to the new law.  Father and child furthermore went

"underground" until 8 October 1979, when the father was arrested by

the police.  He was released on 12 October 1979.  With the consent of

the mother, the social authorities, on 9 October 1979, placed the

applicant in the Copenhagen county hospital, Nordvang, Department for

Child Psychiatry.

 

18.     On 23 October 1979 the father's right of access to the

applicant was suspended.  The father appealed against the decision to

the Ministry of Justice, which, however, upheld the decision on 12

November 1979.

 

19.     In a letter of 23 November 1979 to the hospital authorities,

the chief physician at the county hospital Nordvang wrote:

 

        "(the applicant) was admitted to the hospital on 9.10.1979.

        The admittance was in accordance with the wishes of the

        holder of the custody rights and fully supported by the

        child.  (The applicant) has all the time been happy about

        his stay here and has never expressed a wish to leave.

        On the contrary, we have felt obliged to protect the child

        from more kidnapping attempts and have rejected visits from

        suspicious persons trying to contact the boy who hardly knew

        these persons.  To talk about detention in a psychiatric

        ward among mental patients or administrative deprivation of

        liberty is thus complete nonsense ...

 

        When admitted the boy was strongly affected by the

        events in question and thus in need of child psychiatric

        treatment.  He has improved somewhat during his stay here but

        is still considerably affected by the situation and will still

        need psychiatric treatment.  This could very well be carried

        out as out-patient treatment but the mother is at present

        worried that this would lead to kidnapping attempts by the

        father ...

 

        An impartial child psychiatric examination does not

        only involve an examination of the child in question but

        also thorough talks with both parents.  Since this is not

        possible, I have adjourned the case and cannot therefore

        reach any conclusions."

 

20.     The applicant disappeared from Nordvang on 11 December 1979

and hereafter lived in hiding with his father.

 

21.     The above-mentioned court proceedings before the City Court of

Ballerup concerning parental rights ended on 11 July 1980.  The Court

did not find a transfer of custody to the father to be in the interest

of the child.

 

22.     The applicant's father appealed against this judgment to the

Court of Appeal for Eastern Denmark (Østre Landsret).  On

25 November 1980 the parties agreed that the applicant should undergo

a child psychiatric examination by Professor A.  This examination

resulted in a statement by Professor A of 16 February 1981 in which

he concluded inter alia:

 

        "After considering the case, I find it in the best

        interest of the child that the custody rights remain with

        the mother.  Since the boy is developing nervously it is

        recommended that he and the mother, after (the applicant)

        has returned to her, get child psychiatric support. ..."

 

23.     On 9 March 1981 the Court of Appeal upheld the City Court's

judgment.  The applicant nevertheless remained in hiding with his

father, staying with various families in Denmark.

 

24.     In November 1982, after having lived "underground" for

approximately 3 years, the applicant's father again instituted

proceedings before the City Court of Ballerup in order to have the

custody rights transferred to him.  Since he was wanted by the police,

suspected of having kidnapped the applicant, the father did not attend

the hearing but the father's lawyer pointed out that the applicant,

now 12 years old, had lived with his father for 3 ½ years, obviously

according to his own wish.  To normalise the applicant's life it would

be necessary to transfer the custody rights to the father.

 

25.     The applicant's mother maintained that the applicant had been

harmed due to the abnormal circumstances under which he had lived with

his father.  She was therefore determined to accept Professor A's

offer concerning support from the State hospital child psychiatric

ward (Rigshospitalets børnepsykiatriske afdeling) for a

transitional period and to accept the professor's advice concerning

the father's access to the applicant.

 

26.     The City Court decided on 11 April 1983 that the circumstances

of the case did not reveal a need for a transfer of the custody

rights.

 

27.     The applicant's father appealed against this judgment to the

Court of Appeal.  The applicant and his father were present on

22 September 1983 when the Court of Appeal pronounced judgment in

which the City Court judgment was upheld.  Leave was subsequently

granted by the Ministry of Justice to bring the case before the

Supreme Court (Højesteret).  After the hearing in the Court of Appeal

on 22 September 1983 the father was arrested by the police and charged

with acting contrary to Section 215 read in conjunction with Section

261 paras. 1 and 2 of the Danish Penal Code (depriving the mother of

the exercise of her parental rights).  On 27 March 1984, the father,

who had been detained on remand since his arrest, was sentenced to 9

months' imprisonment by the Court of Appeal sitting with a jury.

 

28.     In the meantime the mother requested, advised by the social

authorities of Herlev County and Professor A, that the applicant be

admitted to the State hospital child psychiatric ward since it was

clear that the applicant did not want to stay with her.  After

his father's arrest the applicant was then placed in a children's home

until he was admitted to the ward on 26 September 1983.

 

29.     According to Professor A, who was responsible for the

applicant's treatment at the State hospital, the procedure followed in

connection with the admission was the usual one for the ward in that

the holder of the parental rights requested the admission, the family

doctor provided the entry card and the ward accepted the admission.

 

30.     With regard to the factual circumstances of the applicant's

stay at the State hospital there is a certain discrepancy between the

observations of the Government and those submitted by the applicant's

representative.

 

31.     The Government in particular refer to the following statements

submitted by Professor A to the Medical Health Officer of Copenhagen

(Københavns Stadslæge) and the Department of Health and Social

Security (Social- og Sundhedsforvaltningen) on 6 January and 7 March

1984 respectively:

 

        "(The applicant) has expressed his dislike of staying here,

        but at no time has he attempted to run away.  We have not

        been able to and have not wanted to prevent him from running

        away, which he could have done, inter alia, when he together

        with the other children left the ward e.g. to visit museums,

        to go for a hair cut.  Also in this respect he has been in

        hospital on the same terms as the other patients of the

        ward. ...

 

        The treatment involves environmental therapy at the ward

        and regular talks with (the applicant). ...

 

        At no time has he been given medicamental treatment. ...

 

        Since 23 October 1983 his mother has visited the ward

        regularly during the usual visiting hours on Sundays and

        Wednesdays.  Since 11 November 1983 (the applicant) has

        visited his mother at home.  The visits were at first short,

        but since 10 December 1983 he has been able to spend the

        weekends there.  Christmas Eve and Christmas Day were spent

        with his mother and so was New Year's Day. ...

 

        ...  During the treatment at the child psychiatric ward

        since New Year 1984, including environmental therapy and

        personal talks, (the applicant) has continued to grow more

        relaxed, more extrovert and spontaneous and he is able to

        show his feelings better.  This applied both to his

        relationship with the staff and with the other children in

        the ward.  During the entire stay at the hospital he has as

        before, apart from the first couple of days, been allowed to

        move about freely just like the other children.  In other

        words, he has gone to the library on his own, has joined

        visits to museums in town, been to the swimming pool,

        skating rink, etc.

 

        His relationship with his mother also underwent a similar

        favourable development in the same period.  He saw his

        mother every weekend and participated in the family life

        together with his mother, her friend, and his sister.  At

        first he was a bit shy to leave his home, apparently for

        fear of being recognised.  On 2 February 1984 he started

        school again in his old class, and the ward prepared his

        return together with the school.  He has taken up contact

        with his old school mates when visiting his mother during

        weekends.  In connection with the school's winter holiday

        he had his longest stay with his mother from Friday

        10 February until Wednesday 15 February 1984.  During this

        holiday the whole family went for a couple of days to his

        mother's parents in Jutland.  It was obvious that (the

        applicant) enjoyed this family outing ...

 

        I wish to add that the patients at the ward are not

        'compulsorily detained' in the usual sense of the expression

        as referred to in the Danish Mental Health Act.  The

        child psychiatric ward of the State hospital is an ordinary

        hospital ward run in principle on the same conditions as the

        other wards of the State hospital.  As the ward is placed on

        the seventh floor in a building with a number of somatic

        wards, the main entrance of each block has a latch (smæklås)

        to  prevent the children of the ward, some of whom may be

        inclined to rush around impulsively, from running about in

        the hospital or running into town, and possibly be a

        nuisance to the patients in other wards of the hospital or

        the children might expose themselves to danger.  This

        measure is to be compared with the locked front door in a

        family house.  As mentioned above the children often go out

        with the staff, e.g. to playgrounds, to visit museums.

        During the hospital stay the children are normally not

        confined to bed, and the ward offers many possibilities for

        different activities under familiar conditions.  Thus it is

        entirely misleading ... to talk about 'institutional

        detention'."

 

32.     Due to the special circumstances of the case and due to a

request from the applicant's representative, the National Board of

Health (Sundhedsstyrelsen) carried out an investigation of the case.

The Medical Health Officer of Copenhagen was requested to visit the

ward in which the applicant was placed.  In her report of 8 February

1984 she stated:

 

"The child psychiatric ward currently keeps 18 children in

continuous treatment, the average period of therapy being about

five or six months.  The children are divided by age into three

groups of six, each with its own delimited area. (The applicant)

is placed in the section for adolescents, he has a room of his

own furnished with a plank bed, small table, bulletin board,

chair and desk.  The room clearly reflects his interest in

building models; on the floor there is a pair of track shoes.

(The applicant) is not at home while I am there but in school.

During the past weeks he has been attending the same elementary

school he used to go to and where he apparently feels at ease.

Every day he goes to and from the school by cab, alone.  The

ward has recreational rooms where (the applicant) can spend time

on carpentry work.  There is also a lounge, a dining room and a

kitchen.  The children take turns in helping with the cooking,

setting of tables, etc.  Much is done to make the children feel

at home.  (The applicant) takes swimming lessons together with

other children in the ward accompanied by one of the staff

members.  He has also gone sledge riding and may visit school

friends.  The entrance door to all children's wards is locked,

partly to prevent the young children from running all over the

hospital grounds where they might hurt themselves in lifts or

lose their way.  The entrance door is locked also in order to

minimise the substantial risk of theft.  (The applicant) is

allowed to leave the ward if he asks for permission to go, for

instance to the library.  He moves around unaccompanied on these

occasions.

 

My conclusion is that (the applicant) is staying in an

environment as similar as possible to a real home and that he is

by no means kept there against his will.  On the contrary, he is

allowed to move about outside the ward all by himself or in the

company of staff members and/or other children.  He has

established rather good contacts with a boy of his own age

(hospitalised on account of anorexia nervosa)."

 

33.     In its report of 15 February 1984 the National Board of Health

concluded:

 

"On the present material the National Board of Health

does not find any reason for not approving Professor (A's)

medical evaluation the essence of which was that (the

applicant) was trapped in a neurotic state requiring treatment,

a development which the Board views as the result of the most

unusual circumstances in which (the applicant) had been living

with his father during the past few years.  If these

circumstances had continued, the risk of a further move towards

a personality-stunting, chronically neurotic state of mind

would, in the opinion of the Board, have been extremely likely.

 

Nor does the Board see any reason for criticising the medical

treatment which (the applicant) received while hospitalised

and which was designed to integrate him in normal human

relationships, cf. (the Medical Health Officer's) report, and

included talks at regular intervals with (the applicant) and

his mother, since the Board, things being what they were, would

find it irreconcilable with the welfare of (the applicant)

to deny him relevant treatment.  According to the information

available to the Board (the applicant) is now so well that he

may probably be discharged by the end of February 1984.  By

then, his hospital term will not have exceeded the average term.

While hospitalised (the applicant) has been allowed to visit

his father regularly at Vestre Fængsel (prison).

 

To sum up: The National Board of Health sees no reason for

criticising Professor (A) or the child psychiatric ward of

the State hospital for their medical treatment of (the applicant)."

 

34.     Whilst not repudiating the above statements, the applicant's

representative has submitted the following:

 

        "The child psychiatric ward is definitely a closed ward.

        The door to the ward was locked and (the applicant) was

        totally unable to receive visitors except in agreement

        with and under the surveillance of the staff at the ward

        ...  In other words:  the applicant was unable to leave

        the hospital if he so wished. ...

 

        (He) was not permitted to phone (his father's counsel) or

        his father, who was in prison charged with the kidnapping of

        the applicant, who had actually been the active party in the

        kidnapping.  (The applicant) was under almost constant

        surveillance:  he was unable to make social contacts;

        persons from outside the hospital were unable to get in

        contact with him without special permission ..."

 

35.     The applicant stayed at the child psychiatric ward until

22 February 1984, the day on which he should have been discharged to

his mother's home.  However, he disappeared from the hospital and

lived with various families in Jutland until 8 March 1984 when he was

found by the Police and brought back to the State hospital in

Copenhagen and re-admitted to the ward at the request of his mother.

The applicant was discharged from the hospital on 30 March 1984 and

placed in the care of a family not officially known to the father.

 

 

*     *     *

 

36.     By letter of 23 October 1983 to the Ministry of Justice, the

applicant's representatives questioned the lawfulness of the

applicant's detention at the State hospital for child psychiatry

contrary to his own wish.  They maintained inter alia that the

admission of the applicant to the hospital was unlawful since the

provisions of the Mental Health Act on compulsory admission had not

been observed.  The Ministry of Justice submitted the matter to the

chief psychiatrist at the psychiatric ward of the hospital who inter

alia stated that the applicant had not been admitted to the ward

pursuant to the provisions of the Mental Health Act, but pursuant to a

decision made by the holder of the parental rights.  At no time had

the applicant been considered mentally ill.

 

37.     On 28 December 1983 the Ministry accordingly replied that the

applicant was not placed there in accordance with the Mental Health

Act, but according to a decision by the mother as holder of the

custody rights and therefore the Ministry refused to decide in the

matter.

 

38.     On 1 January 1984 the applicant's representatives nevertheless

petitioned the courts, according to chapter 43 a of the Administration

of Justice Act (retsplejeloven).  They wanted a decision on the

lawfulness of the applicant's placing in the State hospital.  The

defendant in this case was the Ministry of Justice which pleaded

dismissal, maintaining that the applicant had not been subjected to

administrative deprivation of liberty pursuant to the Mental Health

Act.

 

39.     By a court order of 6 January 1984 the Copenhagen City Court

(Københavns byret) upheld the plea for dismissal of the case made by

the Ministry of Justice on the following grounds:

 

"considering that (the applicant) (...) has been admitted to

the child psychiatric ward of the State hospital,

Copenhagen, on the basis of a decision made by (the mother),

who is the holder of parental rights, (the applicant's)

detention at the State hospital is not covered by Act,

No. 118 of 13 April 1938 on the stay in hospital of mentally

ill persons and therefore not subject to judicial review

according to chapter 43 a of the Administration of Justice

Act.  For this very reason the petition shall have to be

dismissed."

 

40.     The applicant's representatives appealed against this decision

to the Court of Appeal maintaining, in particular, that if the applicant

had not been a minor he could have challenged the lawfulness of his

detention in the State hospital before the courts.  Although the

holder of the custody rights according to Section 19 of the Custody

and Guardianship of Children Act had an extensive right to decide over

the child such a right should be subject to certain restrictions.  A

totally involuntary detention ought to be an interference which

could only be carried out administratively and thus under the

conditions mentioned in Art. 71 para. 6 of the Danish Constitution

despite the fact that the decision was carried out with the mother's

consent.

 

41.     The State Attorney (Kammeradvokaten) again maintained that the

case did not concern administrative deprivation of liberty and was

thus outside the scope of chapter 43 a of the Administration of

Justice Act.  In the alternative he alleged that if the case disclosed

deprivation of liberty within the meaning of chapter 43 a the father

would be unable to act on behalf of the child since at that time he

had no, and had never had any, parental rights over the child.

 

42.     Rejecting the State Attorney's latter argument, the Court of

Appeal wrote in its decision of 15 February 1984:

 

        "The question whether a minor should be subjected to

        treatment in a hospital is normally decided by the holder of

        the parental right and such measures cannot be challenged by

        means of chapter 43 a of the Administration of Justice Act.

 

        Concerning the treatment of mentally deranged persons inter

        alia in public hospitals special rules apply according to

        Act No. 118 of 13 April 1938, cf. chapter 43 a of the

        Administration of Justice Act.  From what has been

        established in this case it appears that (the applicant)

        does not suffer from any mental illness and according to the

        above there has been no question of admittance for treatment

        of a mental illness.  The decision to admit (the applicant)

        to the State Hospital Department of Child Psychiatry after

        the disturbances he has been through and the decision on his

        temporary stay there is taken by his mother, who has the

        parental rights over him.  The appellant's claim

        concerning judicial review according to chapter 43 a of the

        Administration of Justice Act cannot therefore be complied

        with and the judgment of the Copenhagen City Court to

        dismiss the case is upheld."

 

43.     According to Section 371 of the Administration of Justice Act

the applicant's representatives asked the Ministry of Justice, who was

the defendant in the case, for leave to appeal to the Supreme Court.

However, on 14 March 1984 the Ministry refused leave to appeal since

the Ministry was of the opinion that the judgment would not be

overruled by the Supreme Court.

 

 

*     *     *

 

 

44.     The question whether to transfer the custody rights from the

mother to the father had, as mentioned above, been brought before the

Supreme Court following the decision of the Court of Appeal on

22 September 1983.  Before the Supreme Court Professor A maintained,

in a statement of 19 June 1984, that it would be in the best interest

of the applicant that the parental rights remained with the mother.

This opinion was supported by the Medico-Legal Council (Retslægerådet)

in its statement of 9 August 1984.  On 21 August 1984 the Supreme

Court overruled the lower courts' decisions and awarded custody over

the applicant to his father.  The applicant now lives with his father.

 

B.      Relevant domestic law

 

a)      Protection of personal liberty according to the

Danish Constitution (Danmarks Riges Grundlov)

 

45.     The right of personal liberty is protected according to

Section 71 of the Danish Constitution, which reads:

 

        "§71 Stk. 1.  Den personlige frihed er ukrænkelig.

        Ingen dansk borger kan på grund af sin politiske eller

        religiøse overbevisning eller sin afstamning underkastes

        nogen form for frihedsberøvelse.

 

        Stk. 2.  Frihedsberøvelse kan kun finde sted med hjemmel i

        loven.

 

        Stk. 3.  Enhver, der anholdes, skal inden 24 timer stilles

        for en dommer.  Hvis den anholdte ikke straks kan sættes på

        fri fod, skal dommeren ved en af grunde ledsaget kendelse,

        der afsiges snarest muligt og senest inden 3 dage, afgøre, om

        han skal fængsles, og, hvis han kan løslades mod sikkerhed,

        bestemme dennes art og størrelse. ......

 

        Stk. 4.  Den kendelse, som dommeren afsiger, kan af

        vedkommende straks særskilt indbringes for højere ret.

 

        Stk. 5.  Ingen kan underkastes varetægtsfængsel for en

        forseelse, som kun kan medføre straf af bøde eller hæfte.

 

        Stk. 6.  Uden for strafferetsplejen skal lovligheden af

        en frihedsberøvelse, der ikke er besluttet af en dømmende

        myndighed og som ikke har hjemmel i lovgivningen om udlændinge,

        på begæring af den, der er berøvet sin frihed, eller den,

        der handler på hans vegne, forelægges de almindelige domstole

        eller anden dømmende myndighed til prøvelse.  Nærmere regler

        herom fastsættes ved lov.

 

        Stk. 7.  Behandlingen af de i stk. 6 nævnte personer undergives

        et af folketinget valgt tilsyn, hvortil de pågældende skal

        have adgang til at rette henvendelse."

 

Translation

 

        "Section 71.  (1) Personal liberty shall be inviolable.

        No Danish subject shall, in any manner whatsoever, be

        deprived of his liberty because of his political or

        religious convictions or because of his descent.

 

        (2) A person shall be deprived of his liberty only where

        this is warranted by law.

 

        (3) Any person who is taken into custody shall be brought

        before a judge within twenty-four hours.  Where the person

        taken into custody cannot be immediately released, the judge

        shall decide, in an order to be given as soon as possible

        and at the latest within three days, stating the grounds,

        whether the person taken into custody shall be committed to

        prison; and in cases where he can be released on bail, shall

        also determine the nature and the amount of such bail ...

 

        (4) The pronouncement of the judge may be at once separately

        appealed against to a higher court of justice by the person

        concerned.

 

        (5) No person shall be remanded in custody for an offence

        which can involve only punishment by fine or light

        detention.

 

        (6) Outside criminal procedure, the legality of deprivation

        of liberty not executed by order of a judicial authority,

        and not warranted by legislation relating to aliens, shall

        at the request of the person so deprived of his liberty, or

        at the request of any person acting on his behalf, be

        brought before the ordinary courts of justice or other

        judicial authority for decision.  Rules governing this

        procedure shall be provided by statute.

 

        (7) The persons referred to in sub-section (6) shall be

        under supervision by a board set up by Parliament, to

        which board the persons concerned shall be permitted to

        apply."

 

46.     The provision forms part of the protection of the citizen

from the State and extends to interventions decided on and effected by

public authorities.

 

b)      The Custody and Guardianship of Children Act (Myndighedsloven)

 

47.     The Danish rules on parental custody which were in force in

1983 are laid down in the Custody and Guardianship of Children Act.

Children and young persons under 18 years of age are under parental

custody unless they have contracted marriage.

 

48.     According to Section 19 of the Custody and Guardianship of

Children Act it is the duty and responsibility of the holder of the

parental custody of a child born out of wedlock to provide for the

care and welfare of the child and the holder of the custody has powers

to decide on the personal conditions of the child.  Section 19 reads

as follows:

 

        "§ 19.  Forældremyndigheden medfører pligt til at sørge

        for barnets person og beføjelse til at træffe bestemmelse om dets

        personlige forhold."

 

Translation

 

        "Section 19.  The holder of the parental custody of the

        child has a duty to provide for the care and welfare of the

        child and has powers to decide on the personal conditions of

        the child."

 

49.     The provisions on parental custody of children born out of

wedlock are laid down in Section 28 of the Custody and Guardianship of

Children Act, reading:

 

        "§ 28.  Forældremyndigheden over børn uden for

        ægteskab tilkommer moderen.

 

        Stk. 2.  Forældremyndigheden over barnet kan ved dom tillægges

        faderen, såfremt det findes påkrævet under særligt hensyn

        til barnets tarv.  Ved afgørelsen skal navnlig lægges vægt på

        faderens hidtidige forbindelse med barnet ..."

 

Translation

 

        "Section 28.  The parental custody of children

        born out of wedlock is vested in the mother.

 

        (2) The parental custody of the child can by a decision of

        the court be vested in the father where required out of

        special regard for the welfare of the child.  In making the

        decision, special importance shall be attached to the

        father's previous relationship with the child ..."

 

50.     On 6 June 1985 the Custody and Guardianship of Children Act

was amended by Act No. 230 of 6 June 1985.  According to Section 26

and Section 33 sub-section 3 of the Act any minor who has attained the

age of 12 is normally heard before a decision on parental custody,

access rights or appointment of guardian is made.  These provisions

now read:

 

        "§ 26. Er et barn fyldt 12 år, skal der, før der

        træffes afgørelse i en sag om forældremyndighed eller

        samværsret, finde en samtale sted med barnet herom.

        Samtalen kan dog undlades, hvis den må antages at være til

        skade for barnet eller uden nogen betydning for

        afgørelsen."

 

        "§ 33 stk. 3. Skal værge beskikkes for en umyndiggjort

        eller for en mindreårig, der er fyldt 12 år, skal der finde

        en samtale sted herom med den pågældende, før afgørelsen

        træffes.  Samtalen kan dog undlades, hvis den må antages

        at være unødvendig eller til skade for den pågældende."

 

Translation

 

        "Section 26.  Where a child has attained the age of 12, a

        conversation with the child shall take place before a decision

        on parental custody or access rights is taken.  The

        conversation may be omitted if it may be assumed that it will

        harm the child or be without importance for the decision."

 

        "Section 33 (3).  Where a guardian is to be appointed

        for a person who has been declared incapable of managing his

        own affairs or a minor who has attained the age of 12,

        a conversation shall take place with the person in question

        before the decision is taken.  The conversation may be

        omitted if it may be assumed to be unnecessary or harmful to

        the person in question."

 

c)      The Social Aid Act (Lov om social bistand)

 

51.     According to Section 20 of the Social Aid Act, any person is

under an obligation to inform the social welfare authorities in case

the health of a child is imperilled.  Section 20 of the Social Aid

Act, Consolidated Act No. 413 of 5 July 1984, reads as follows:

 

        "§ 20.  Den, der får kendskab til, at et barn under 18 år

        fra forældres eller andre opdrageres side udsættes for vanrøgt

        eller nedværdigende behandling eller lever under forhold, der

        bringer dets sundhed eller udvikling i fare, har pligt til at

        underrette det sociale udvalg."

 

Translation

 

        "Section 20.  Any person who becomes aware that a child

        or a young person under 18 years of age is exposed to

        neglect or degrading treatment on the part of the parents or

        other educators or lives under conditions liable to

        imperil his health or development shall be under a duty to

        notify the local social welfare committee."

 

52.     According to Section 32 of the Social Aid Act it shall be the

duty of the local social welfare committee to supervise the conditions

under which the children within its area live and to support their

parents in their upbringing and care.

 

53.     According to Section 32 sub-section 4 it shall be the duty of

the local social welfare committee to give the holder of the parental

rights or the person who in actual fact takes care of the child

special guidance and support if the child has difficulties in relation

to his environment, his school or the community, or if the child is

otherwise living under unsatisfactory conditions.

 

54.     According to Section 123 of the Social Aid Act the social

welfare authorities may, without the consent of the holder of the

parental rights, decide to place the child away from home.  The

provision reads as follows:

 

        "§ 123.  Når det er absolut påkrævet af hensyn til et

        barns velfærd kan det sociale udvalg indtil barnets fyldte 18.

        år uden samtykke fra forældremyndighedens indehaver træffe

        beslutning om

 

        1)  at anbringe barnet uden for hjemmet,

 

        2)  at anbringe barnet i en psykiatrisk hospitalsafdeling

            eller et hospital for sindslidende med tilslutning af

            hospitalets overlæge, selv om de almindelige betingelser i

            henhold til lovgivningen om sindslidende personers

            hospitalsophold ikke er opfyldt,

 

        3)  at nægte hjemgivelse eller ændre anbringelsesstedet,

            uanset at anbringelsen oprindelig er sket med samtykke

            fra forældremyndighedens indehaver.

 

        Stk. 2.  Opretholdelse af hjælpeforanstaltninger efter stk. 1

        udover 1 år forudsætter fornyet behandling af sagen i det

        sociale udvalg.  Er den unge fyldt 18 år, kan

        hjælpeforanstaltningerne kun opretholdes såfremt den

        pågældende giver samtykke hertil."

 

Translation

 

        "Section 123.  Where absolutely necessary in the

        interests of the welfare of the child, the local social

        welfare committee may, until the child attains the age of

        18, without the consent of the person having the parental

        rights over the child, decide -

 

        (i)     to place the child away from home;

 

        (ii)    to commit the child to the psychiatric department of

                a hospital or to a mental hospital with the acceptance

                of the medical superintendent of the hospital, even

                though the general conditions prescribed in the

                legislation on hospitalisation of the mentally ill are

                not satisfied;

 

        (iii)   to refuse to let the child return home or place the

                child elsewhere, notwithstanding the fact that the

                initial care was established with the consent of the

                person having the parental rights over the child.

 

        (2) Where the supportive measures according to

        sub-section 1 may exceed one year, the local social

        welfare committee shall reconsider the case.  Where the

        young person is 18 years of age, the supportive measures can

        only be maintained with his or her consent."

 

55.     According to Section 125 of the Social Aid Act the holder of

the parental rights shall in a case concerning the supportive measures

referred to in Section 123 be offered legal assistance.  Before a

decision is taken, the holder of the parental rights, the guardian,

the child, the attorney and any other legal assistant shall have the

opportunity to make a statement to the local social welfare committee.

 

56.     The right to complain of a decision on removal of

children from their home is dealt with in Sections 128 and 129 of

the Social Aid Act.  These sections read as follows:

 

        "§ 128.  Beslutninger, der er truffet efter § 123, stk. 1

        og § 124 kan indbringes for den sociale ankestyrelse inden 4

        uger efter, at klageren har fået meddelelse om afgørelsen.

 

        Stk. 2.  Berettiget til at indbringe en sag for ankestyrelsen

        er forældremyndighedens indehaver, den der faktisk udøver

        forældremyndigheden, samt, såfremt sagen vedrører en person,

        der ikke står under forældremyndighed, den unge eller

        værgen. ..."

 

        "§ 129. Ankestyrelsens beslutninger efter § 128 kan ved

        henvendelse til ankestyrelsen inden 4 uger efter, at klageren

        har fået meddelelse om afgørelsen, kræves forelagt for

        landsretten. ..."

 

Translation

 

        "Section 128.  There shall lie an appeal from any

        decision made in pursuance of sub-section (1) of Section

        123 and of Section 124 of this Act to the Social Appeals

        Board within a period of four weeks from the date on which

        the appellant received notification of the decision.

 

        (2) Entitled to lodge an appeal with the Social Appeals

        Board shall be the person having the parental rights over

        the child, the person who in actual fact exercises those

        rights and, if the matter relates to a person who is not

        subject to parental authority, the young person himself or

        his guardian. ..."

 

        "Section 129.  Within a period of four weeks from the

        date on which he received notification of the decision, the

        appellant may request a decision made by the Social Appeals

        Board according to Section 128 to be brought before a High

        Court. ..."

 

d)      The Mental Health Act (Lov nr. 118 af 13.4.1938 om

sindssyge personers hospitalsophold)

 

57.     According to Section 3 of the Danish Mental Health Act, Act

No. 118 of 13 April 1938 on Mentally Deranged Persons'

Hospitalisation, as amended by Act No. 225 of 7 June 1972, a patient

can only be committed to a mental hospital on a written medical

recommendation based on a medical examination made within the last

four weeks before the commitment.  Apart from patients who are

admitted at their own request, the medical recommendation shall be

made by a medical practitioner who is not an employee at the mental

hospital.

 

58.     The responsible chief physician shall decide, according to

Section 4 of the Act, whether the conditions for commitment are

fulfilled and whether the patient shall be treated for his illness.

 

59.     The rules on discharge of a patient are laid down in

Sections 8 and 9:

 

        "§ 8. Når den behandlende læge skønner, at udskrivning

        er uforsvarlig, enten fordi patienten er farlig for sig selv

        eller for andre, eller fordi udskrivning væsentlig vil

        forringe udsigterne for patientens helbredelse, skal

        udskrivning nægtes.

 

        Stk. 2.  Uden for de i stk. 1 nævnte tilfælde må den

        behandlende læge ikke nægte at efterkomme en anmodning om

        udskrivning, medmindre den må antages at ville medføre

        væsentlige ulemper for patienten selv, og justitsministeren

        tiltræder nægtelsen."

 

        "§ 9. Udskrivning kan begæres af patienten selv eller af

        følgende personer: Indehaver af forældremyndighed, værge,

        lavværge, tilsynsværge, ægtefælle, myndige børn, forældre

        eller andre nære slægtninge.

 

        Stk. 2.  For så vidt en sådan begæring afslås, skal den

        behandlende læge på forlangende af den, der har fremsat

        begæring om udskrivning, forelægge sagen for justitsministeren,

        der inden 1 måned afgør, om udskrivning skal finde sted.

 

        Stk. 3.  Når justitsministeren har bestemt, at udskrivning

        skal nægtes, skal der gives den, der har begæret udskrivning,

        meddelelse derom.  Samtidig skal vedkommende gøres bekendt med,

        at spørgsmålet om lovligheden af tilbageholdelsen kan

        forelægges retten i overensstemmelse med retsplejelovens

        kapitel 43 a.

 

        Stk. 4.  Er en fremsat begæring afslået af justitsministeren,

        kan spørgsmål om udskrivning ikke med virkning efter denne

        paragraf rejses, forinden der er forløbet 4 måneder efter

        justitsministerens afgørelse.  Forelægges spørgsmålet om

        tilbageholdelsens lovlighed retten, regnes den nævnte frist

        fra rettens afgørelse."

 

Translation

 

        "Section 8.  When the responsible medical officer

        finds that a discharge is unjustifiable either because the

        patient is dangerous to himself or others, or because the

        discharge would reduce the prospects for the patient's

        recovery considerably, discharge shall be refused.

 

        (2) Outside the situations mentioned in sub-section (1)

        the responsible medical officer shall not refuse to

        comply with a request for discharge, unless it must

        be presumed to cause considerable disadvantages for

        the patient himself and the Ministry of Justice

        endorses the refusal."

 

        "Section 9.  An order for discharge may be made by

        the patient himself or the following persons: the holder of

        the parental rights, the guardian, the trustee, the husband

        or wife, a son or daughter if of age, the father or mother,

        or another close relative.

 

        (2) Where an order for discharge is refused, the responsible

        medical officer shall, at the request of the person making

        the order for discharge, bring the case before the Minister

        of Justice who within a period of one month shall decide

        whether the discharge shall come into effect.

 

        (3) Where the Minister of Justice has decided that

        discharge shall be refused, the person who has made the

        order for discharge shall be notified.  On notification the

        person shall be advised that the issue of the lawfulness of

        the detention may be brought before a court according to

        chapter 43 a of the Administration of Justice Act.

 

        (4) Where an order for discharge has been refused by the

        Minister of Justice, the issue of discharge may not be

        raised according to this section within a period of

        four months of the resolution of the Minister of Justice.

        Where the issue of the lawfulness of the detention is

        brought before a court, the time-limit shall be reckoned

        from the date of the decision of the court."

 

e)      Extract of the Report on the Principles on Involuntary

Treatment in the Field of Psychiatry, no. 1068/1986 (Principbetænkning

om tvang i psykiatrien, no. 1068/1986).

 

60.     In 1985 the Ministry of Justice appointed a committee to

consider possible amendments to the Danish Mental Health Act of 1938,

in particular with regard to involuntary treatment of patients.  The

committee was composed of legal and medical experts as well as a

representation of patient organisations.  In April 1986 the committee

published the "Report on the Principles on Involuntary Treatment in

the Field of Psychiatry".

 

61.     As regards the admission to a hospital of minors the report

states inter alia:

 

"As accounted for ... above the holder of the parental rights

shall inter alia provide the required medical treatment for the

child and can in this connection decide where the child shall

stay, if required in a hospital, provided, of course, that the

hospital complies with the request for admission.  Admission to a

hospital of a child for treatment of somatic disorders presents

no problems.  The holder of the parental rights can with the

consent of the medical officer decide on admission to a hospital

and detention there notwithstanding the protests of the child,

and the child has no possibility of having tried whether the

admission to the hospital and detention there were justified

since this decision alone rests with the holder of the parental

rights.  To say that the medical doctor, who admits or receives

the child into the hospital by complying with the request of the

holder of the parental rights, has made a decision which the

child itself may request to be tried in court, would be

meaningless as indirectly it would mean intervention in the

statutory right of the holder of the parental rights within the

scope of the legislation to make decisions on the personal

conditions of the child.  The control required is here exercised

by the medical officer admitting the child to the hospital or by

the hospital doctors, who as we know, will oppose any unnecessary

hospitalisation of minors.  Up till now there have been no

unpleasant experiences in practice which can justify a possible

legal adjustment in the right of parents to have their children

hospitalised for treatment of somatic disorders.

 

Where a child is admitted to a hospital to be treated for psychic

disorders, the legal position is as described in 4 B above

provided that a child is involved here whose opinion will have to

be considered and who is admitted as mentally ill.  This implies

that the exercise of the powers of the parental custody must give

way to the Mental Health Act with the effect that the parents

cannot per se decide that the minor shall be hospitalised

contrary to his wishes, and similarly the parents cannot, on the

other hand, have the minor discharged if the chief psychiatrist

finds that the conditions for compulsory detention have been

fulfilled.

 

The problem arises, however, where the child is hospitalised to

be treated for a psychic disorder of a non-psychotic nature.

Since only mentally ill persons are comprehended by the Mental

Health Act, the Mental Health Act cannot be expected to restrict

the exercise of the parental rights in these cases.  It is

therefore natural to legally compare psychic disorders other than

psychoses with somatic disorders with the consequence that the

decision of the holder of the parental rights shall prevail,

provided that the chief psychiatrist can justify the

hospitalisation of the child for treatment.  The child or other

close relatives, e.g. the parent who may not have any parental

rights, cannot in these instances invoke the protection of the

Mental Health Act.  The latter issue was discussed a great deal

in the media in connection with the much debated Jon case, see

Ugeskrift  for Retsvæsen, 1984, p. 665/The Danish weekly Law

Reports" (pp. 390-392 of the report).

 

"... , it would also be difficult to understand if the same

conditions should not apply to psychic disorders which are not

comprehended by the Mental Health Act as in the case of somatic

disorders where the holder of the parental rights with the

consent of the medical officer can decide to admit the child to a

hospital contrary to its wishes.  Here the protection of the

child - as is the case with somatic disorders - is to be sought

in the fact that the medical officer under professional

responsibility shall assess whether the request made by the

holder of the parental rights for admission to a hospital can be

considered justified" (p. 395 of the report).

 

 

III.    SUBMISSIONS OF THE PARTIES

 

 

62.     The following is a summary of the parties' main arguments

submitted on the merits at the admissibility stage and during the

examination of the merits.

 

A.      The applicant

 

63.     A child has an independent right to protection according to

the Convention.  Article 5 is in its wording particularly clear and

does not allow for an interpretation which excludes minors.  This is

furthermore proven by the fact that Article 5 para. 1 (d) refers to "a

minor".  Reference to minors here would have been superfluous if they

were not included in the protection against attacks on the liberty of

the individual by the provisions of Article 5.  Accordingly, it can be

established that a minor should not be subjected to a deprivation of

liberty save in the cases mentioned in Article 5 para. 1 (a)-(f),

a list of possibilities which, according to the case-law of the

Commission and the Court of Human Rights, is exhaustive.  Of these,

only sub-paragraphs (d) and (e) are of any interest and these sub-

paragraphs do not apply in the present case.

 

64.     It is not in accordance with the actual facts that no action

has been taken by the public authorities considering that the

applicant's mother acted in close co-operation with, and at the

instigation of, these authorities.

 

65.     The facts of the case show that the applicant was deprived of

his liberty within the meaning of Article 5 of the Convention.  The

child psychiatric ward is definitely a closed ward and the applicant

was unable to receive visitors except in agreement with and under the

surveillance of the staff of the ward.  Neither was the applicant

permitted to make telephone calls without special permission.  He was

under almost constant surveillance and was unable to make social

contacts.  Persons from outside the hospital were furthermore unable

to get in contact with him without special permission.

 

66.     It is recognised that children may be so young that they

themselves cannot bring a case before the Commission and that parents

to a certain extent can decide on the personal matters of their

children.  However, children are not subjected completely to the

authority of their parents and under Danish law there are examples

which indicate that.  The Mental Health Act is an example where there

is a certain control by the courts of justice regardless of the age of

the child and of the consent of the parent.  In a case where the child

is of an age where he must be supposed to know and understand what is

meant by deprivation of liberty, he should not be deprived of the

right to bring a case before the Commission.

 

67.     The conclusion is therefore that the applicant, against his

wish, was deprived of his liberty in a way contrary to Article 5

para. 1 when placed in the child psychiatric ward at the State

hospital in question.

 

68.     The other important point is whether the applicant or his

representatives were entitled to take proceedings by which the

lawfulness of the detention could be decided by a court in accordance

with Article 5 para. 4 of the Convention.

 

69.     The applicant brought his case before the Copenhagen City

Court and, on appeal, before the Court of Appeal.  Both courts,

however, dismissed the plea to have the lawfulness of the deprivation

of liberty decided in a court procedure.  The requirements of Article

5 para. 4 have accordingly not been fulfilled.

 

B.      The Government

 

70.     There are two main issues to be considered in this case.  The

first issue is of a factual nature, namely whether the applicant's

stay at the hospital in fact restricted his freedom of movement in

such a way that it amounted to a detention within the meaning of

Article 5 of the Convention.  If this question is answered in the

affirmative, the second - and central - legal issue arises, namely

whether the applicant's stay at the hospital against his wish can be

regarded as a deprivation of liberty considering that it was not a

public authority, but the applicant's mother who decided that he

should be admitted to the hospital.

 

71.     When considering the first question, whether the applicant in

fact was deprived of his liberty, it should be taken into consideration

that the applicant is a child and that children often in their daily

life have restrictions imposed on them which cannot be imposed on

adults.  Naturally, this difference is due to the parent/child

relationship.

 

72.     The applicant stayed in the hospital for a total period of

approximately five and a half months.  To get a picture of his stay

there the Government would refer to the statements of the responsible

doctor at the hospital, the Copenhagen Medical Officer of Health and

the National Board of Health (paras. 31 - 33 above).  From these

statements it follows that the applicant had an extensive freedom of

movement during his stay at the hospital and that he had ample

opportunity to leave the hospital because he quite regularly went to

school in town alone, went visiting friends and family etc.  He stayed

at the hospital under the same conditions as the 17 other children in

the ward and the length of his stay did not go beyond the average

length for children in the child psychiatric ward.

 

73.     In the opinion of the Government this is far from the

deprivation of liberty - arrest and detention - in Article 5 of the

Convention.

 

74.     Regarding the second central issue the Government submit that

the holder of the parental rights has a duty to provide the necessary

care and welfare for the child.  In a number of cases this will

involve decisions to which the child does not agree, and which are

therefore to be carried out against the will of the child.  The holder

of the parental rights decides inter alia where the child shall

stay.  If the child leaves the place where the parents have decided he

shall stay, the parents can, with the support of the authorities,

bring back the child.  Thus the decisions and measures taken by the

parents will often restrict the child's freedom of movement without

being considered as deprivation of liberty within the meaning of

Article 5.

 

75.     Where the child needs medical assistance, it may be necessary

to admit the child to a hospital.  Normally this decision is taken by

the holder of the parental rights and the hospital.  Generally a child

cannot be expected on his own to judge whether for example

hospitalisation is needed, and he will not be able to recognise the

consequences of not having the required medical treatment.  If, as an

exception, there is a risk that the child will avoid any necessary

medical treatment, it can be imperative to take precautions, e.g. by

seeing to it that the child does not leave the hospital.

 

76.     The legal context of the right of a parent to decide over the

child is that a placement in a hospital with the parent's consent is a

voluntary placement according to Danish law, even if the child

disagrees.

 

77.     It is evident, however, that the right of parents to decide on

the personal conditions of their children must terminate at a certain

age.  At what age a child shall be given the right to decide for

itself on personal matters against the wish of the parents must be

decided according to national law.  In the absence of special national

provisions, the national legislation on attaining majority must be

decisive.  In Denmark, the age of majority is 18 years, an age-limit

which is, by the way, in accordance with a Council of Europe

recommendation.

 

78.     If the national age-limit should not be decisive for the

interpretation of Article 5 of the Convention, the question would

arise what age-limit should then prevail.

 

79.     The Convention gives no reply to this question, and it seems

difficult to provide a common criterion for the choice of an age-limit

if one were to depart from the age of majority.  Therefore, the

solution should be left to national law because the national

legislator is in the best position to weigh the different interests

involved and draw the borderline between, on the one hand, parents'

authority and, on the other hand, children's right to decide for

themselves.

 

80.     Thus, it is the Government's opinion that the admittance to a

hospital of a sick child in general and in the present case falls

within the authority of the parent who has the custody.  Consequently,

the parent/child relationship brings the present case outside the

scope of Article 5.

 

81.     This does not mean that the parents' rights are unrestricted.

Protests - for instance a complaint from the child or from a third

party - may lead to action from the social and medical authorities and

they may decide that the child should be discharged from the hospital

when it is absolutely necessary in the interests of the welfare of the

child.  Complaints may also be lodged with the medical authorities who

will control whether hospital treatment is justified.

 

82.     Thus, there are various ways in which the authorities can

check the decisions of the parents and resolve a possible conflict

between the child and the parents.

 

83.     It should be pointed out in this respect that the admission to

the hospital at the request of the holder of the parental rights was

requested on the basis of a clear medical indication.  The family

doctor recommended admission, and the need for medical treatment was

later approved by the National Board of Health, who in a letter of

15 February 1984 inter alia wrote that under the given

circumstances it would be against the welfare of the applicant to

deprive him of proper treatment.

 

84.     Article 5 of the Convention covers deprivation of a child's

liberty decided by a public authority without, or against, the

parents' consent.  Such deprivation can take place only when the

conditions in Article 5 are fulfilled.  The Danish legislation on

the rights of minors vis-à-vis the public authorities, that is the

Constitution and the Social Aid Act, fulfil these conditions.

Thus, in cases where the authorities decide to deprive a person of his

liberty, for instance by placing a child away from home without the

consent of the guardian, the person deprived of his liberty is

entitled to a court hearing.  In this way, Denmark secures to minors

the rights under Article 5, cf.  Article 1 of the Convention.

 

85.     If, on the other hand, the parents themselves request that the

child be placed away from home, this falls outside Article 5.  There

is no liberty of which the child can be deprived because the child is

subject to parental authority.  When outside parental authority,

however, the rights of children are identical with the rights of

adults.  The Government have never considered the admittance to the

psychiatric ward at the State hospital in a situation like the

applicant's as a deprivation of liberty and therefore have never had

any reason for considering what rules, if any, should govern such a

situation.

 

86.     This opinion is confirmed in the provision on judicial control

according to Article 5 para. 4 of the Convention.  Such form of

control is natural in cases where the law provides that deprivation of

liberty may occur when certain specified conditions are fulfilled.

The courts may then control whether the conditions have been

fulfilled.

 

87.     However, restrictions on a minor's freedom of movement, which

are determined by the holder of the parental rights, cannot depend on

certain conditions prescribed by law and are therefore not suitable

for judicial control.  Thus it is difficult to see how a court might

hold that placing a child in a boarding school against its will, but

according to the wishes of his parents, is "unlawful" or that

hospitalisation, found necessary both by the holder of the parental

rights and the hospital, is "unlawful".  In addition, the result of

such a hypothetical court decision, which overruled the judgment of

the parents and the hospital, would be that the child returned to the

parents, who on the contrary, in understanding with the hospital, had

wanted the child to receive medical treatment.

 

88.     It is thus the opinion of the Danish Government that the

applicant has not been deprived of his liberty and that his stay in

the State hospital does not fall within the scope of Article 5 of the

Convention.

 

89.     The Government have furthermore referred to the "Report on the

Principles on Involuntary Treatment in the Field of Psychiatry"

prepared in 1986 by the committee appointed by the Ministry of Justice

(see paras. 60 - 61 above).  In this report the committee also

examined the scope of the Mental Health Act in relation to minors and

the position of minors, who are not suffering from a psychosis -

thereby falling outside the scope of the Act - but from other mental

diseases and admitted to a hospital at the request of the holder of

the custody of the child.  With regard to the latter question the

committee unanimously found the present Danish legislation

satisfactory and did not recommend a limitation of the parental

authority.

 

90.     Having regard inter alia to the European Convention on Human

Rights, the Committee of Ministers of the Council of Europe adopted in

1983 the "Recommendation Concerning the Legal Protection of Persons

Suffering from Mental Disorder Placed as Involuntary Patients" (No.

R (83)2).

 

91.     According to Article 1 the Recommendation concerns the

involuntary placement of persons suffering from mental disorder.

Involuntary placement means the admission and detention in e.g. a

hospital, the placement not being effected at the person's own

request.  The Recommendation provides inter alia that the patient

should be informed of his rights and should have the right of access

to a court.  The Recommendation does not regulate the question whether

placement of a minor against his wish, but in accordance with the

request of the holder of custody, shall be considered to be an

involuntary placement in the meaning of the Recommendation.

 

92.     Article 9 provides that the placement, by itself, cannot

constitute, by operation of law, a reason for the restriction of the

legal capacity of the patient.  In the explanatory memorandum to that

Article it is mentioned that any such restriction must comply with the

principles of ordinary law which generally provides that legal

capacity may be restricted only where the person concerned is unable

to understand or defend his interests.  Thus, it is assumed in the

Recommendation that a certain category of patients under ordinary law

may have a restricted legal capacity.

 

93.     Under ordinary law minors are subject to parental authority.

If a limitation of the parental authority had been intended it would

have been necessary to lay down express provisions on e.g. a - fixed

or flexible - minimum age-limit and on whether the child's consent or

opinion should be asked for in cases where the parents request the

child's placement.  Since the Recommendation is silent on these

essential issues, it is the Government's opinion that Recommendation

No.  R (83)2 must be interpreted in such a way that the question of

legal significance of the minor's own wish is left to the appreciation

of national law.

 

94.     Having regard inter alia to the European Convention on Human

Rights the European Committee on Legal Co-operation (CDCJ) in November

1984 adopted and submitted to the Committee of Ministers a draft

Recommendation on legal duties of doctors vis-à-vis their patients

(addendum to CDCJ (84)55).  According to Article 5 of the draft

Recommendation no medical intervention may be administered without the

free and informed consent of the patient.  Article 6 deals with the

problems of consent of legally incapacitated persons and provides that

the consent of the patient's legal representative shall be required

where the patient is a minor.  Where a minor is capable of

understanding, his opinion shall be asked for and taken into account

as far as possible.  States may fix an age, under the age of full

legal capacity, as from which the patient may express a valid consent

(Article 6 para. 2).

 

95.     The draft Recommendation also covers persons suffering from

mental disorder, but does not, according to Article 12, affect the

special provisions contained in Recommendation No.  R (83)2 mentioned

above.  It follows from the draft Recommendation that consent of the

minor is not required.  The question of whether an age-limit, lower

than the age of majority, should be fixed is left to the appreciation

of the Member States.

 

96.     The Ministers' Deputies, at their 382nd meeting in March 1985,

adopted the Recommendation under reference No.  R (85)3.  However, at

their 383rd meeting in April 1985, the Deputies decided to reopen

their discussion on a specific point, that is Article 3 para. 2 (1)

which, however, has no connection with the questions in the present

case.

 

97.     The draft Recommendation clearly supports the Government's

view that placement in a hospital of a child falls within the parental

authority, even if the child disagrees.

 

98.     Finally, the Government wish ex tuto to state that they intend

to pursue the question of the admissibility of the present case

ratione personae should the proceedings be carried forward to the

Court of Human Rights.

 

 

IV.     OPINION OF THE COMMISSION

 

 

A.      Points at issue

 

99.     The following are the principal points at issue:

 

-       whether the committal of the applicant to the child

        psychiatric ward at the State hospital was a deprivation

        of liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the

        Convention, and if so whether the deprivation of liberty

        was in accordance with the requirements of this provision,

        and

 

-       whether the applicant was entitled to take proceedings by

        which the lawfulness of this committal could be decided

        speedily by a court as guaranteed by Article 5 para. 4 (Art. 5-4) of

        the Convention.

 

B.      Article 5 para. 1 (Art. 5-1) of the Convention

 

100.    Article 5 para. 1  (Art. 5-1)      of the Convention reads as follows:

 

"1.     Everyone has the right to liberty and security of

person.  No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

 

        (a)     the lawful detention of a person after

conviction by a competent court;

 

        (b)     the lawful arrest or detention of a person

for non-compliance with the lawful order of a court or in

order to secure the fulfilment of any obligation prescribed

by law;

 

        (c)     the lawful arrest or detention of a person

effected for the purpose of bringing him before the

competent legal authority on reasonable suspicion of having

committed an offence or when it is reasonably considered

necessary to prevent his committing an offence or fleeing

after having done so;

 

        (d)     the detention of a minor by lawful order for

the purpose of educational supervision or his lawful

detention for the purpose of bringing him before the

competent legal authority;

 

        (e)     the lawful detention of persons for the

prevention of the spreading of infectious diseases, of

persons of unsound mind, alcoholics or drug addicts or

vagrants;

 

        (f)     the lawful arrest or detention of a person

to prevent his effecting an unauthorised entry into the

country or of a person against whom action is being taken

with a view to deportation or extradition."

 

101.    The parties appear to agree on the principle that Article 5 (Art. 5)

applies to minors.  The Government have submitted that Article 5 (Art. 5)

covers deprivation of a child's liberty decided by a public authority without,

or against, the parents' consent and that such deprivation of liberty can take

place only when the conditions in Article 5 (Art. 5) are fulfilled.  It also

follows from the case-law of the Commission that Article 5 (Art. 5) in

principle applies to minors (cf. for example No. 8819/79, Dec. 19.3.81, D.R. 24

p. 158).

 

102.    The Commission considers that the second sentence of Article 5

para. 1 (Art. 5-1), including the enumeration in sub-paras. (a)-(f), only

concerns deprivation of liberty which is ordered by the public

authorities or for which these authorities can otherwise be held

responsible.  Where deprivation of liberty is exclusively the result

of acts by private persons, it falls outside the scope of the second

sentence of Article 5 para. 1 (Art. 5-1), but it remains in such cases to

consider whether the State has failed in its general duty under the

first sentence of Article 5 para. 1 (Art. 5-1) to protect the right of a person

to freedom and security of person.

 

103.    In the present case, the first question which arises is

therefore whether the applicant's stay against his will at the State

hospital was the result of a decision or an act of a public authority,

or whether the applicant's mother has the full responsibility for the

measures taken in regard to the applicant.

 

104.    In this respect, the Commission notes that, although the

applicant was admitted into the State hospital at the request of his

mother, it was the duty of the chief physician at that hospital to

ensure that his admission was reasonable and justified in the

circumstances.  The Commission refers, in this regard, to the Report

on the Principles of Involuntary Treatment in the Field of Psychiatry,

prepared in 1986 by the committee appointed by the Danish Ministry of

Justice to examine the legal position of mentally disordered persons

(paras. 60 - 61 above).  In this report the committee states as follows:

 

        "It is therefore natural to legally compare psychic disorders

        other than psychoses with somatic disorders with the consequence

        that the decision of the holder of the parental rights shall

        prevail, provided that the chief psychiatrist can justify the

        hospitalisation of the child for treatment. ..."

 

        "..., it would also be difficult to understand if the same

        conditions should not apply to psychic disorders which are

        not comprehended by the Mental Health Act as in the case

        of somatic disorders where the holder of the parental rights

        with the consent of the medical officer can decide to admit

        the child to a hospital contrary to its wishes.  Here the

        protection of the child - as in the case with somatic

        disorders - is to be sought in the fact that the medical

        officer under professional responsibility shall assess whether

        the request made by the holder of the parental rights for

        admission to a hospital can be considered justified."

 

105.    The Commission is therefore of the opinion that the consent of

the applicant's mother in the present case did not relieve the chief

physician at the State hospital of his responsibility in taking the

final decision regarding the applicant's admission into the hospital

and regarding the conditions in which he was to be kept at the

hospital.

 

106.    It follows that the application of Article 5 para. 1 (Art. 5-1), second

sentence, is not excluded on the ground that the applicant's stay at

the hospital could be considered to be exclusively based on the acts

of a private person, namely the applicant's mother.

 

107.    It remains to be examined whether the applicant's stay at the

hospital, in view of the restrictions on his movements while he was

kept there and despite the fact that consent had been given by his

mother as his legal guardian, constituted deprivation of liberty

within the meaning of Article 5 para. 1 (Art. 5-1).

 

108.    As regards the first question, i.e. whether the restrictions

on the applicant's movements were such that this amounted to a

deprivation of liberty within the meaning of Article 5 (Art. 5) of the

Convention, the Commission refers to the case-law of the European

Court of Human Rights where it is stated that, in order to determine

whether someone has been deprived of his liberty within the meaning of

Article 5 (Art. 5-1), the starting point must be his concrete situation and

account must be taken of a whole range of criteria such as the type,

duration, effects and manner of implementation of the measure in

question (cf.  Eur.  Court H.R., Engel and others judgment of

8 June 1976, Series A no. 22, p. 24, paras. 58-59 and Guzzardi judgment

of 6 November 1980, Series A no. 39, p. 33, para. 92).

 

109.    In the present case, the Commission accepts that the applicant

was placed against his will in a psychiatric ward at a State hospital.

Next the Commission has considered the specific conditions under

which the applicant was placed in the hospital.  In this respect it is

recalled that the applicant stayed in the hospital from 26 September 1983

to 22 February 1984 and then again from 8 March to 30 March 1984, that

is a total period of approximately six months.  The child psychiatric

ward at which the applicant stayed was locked and he was not allowed

to leave the ward or to receive visitors without permission.

 

110.    In the ward, which at that time housed 18 children, the

applicant was placed in a section for adolescents where he had a room

of his own.  As from 23 October 1983 his mother visited the ward

during the usual visiting hours and as from 11 November 1983 the

applicant was allowed to make short visits to his mother's home,

extended to weekend and holiday visits after 10 December 1983.  On

2 February 1984 the applicant started to go to school and went back

and forth by taxi.  Once during his stay, the applicant disappeared

from the hospital.  He was found by the police and brought back to the

hospital.

 

111.    When examining the specific circumstances under which a person

is kept in a hospital it becomes clear that the process of

classification into either deprivation of or restriction upon liberty is

no easy task.  Obviously special difficulties arise in this connection

with regard to the conditions under which a child is placed in a

hospital because precautions may be necessary for protecting the child

and other patients from the risks it could involve if the child could

move freely within and outside hospital premises.  In the present

case, however, the Commission places considerable weight on the fact

that the case concerns detention in a psychiatric ward of a

12-year-old boy who was not mentally ill and that the applicant, when

he disappeared from the hospital, was found and brought back to the

hospital by the police.  Therefore, despite the possibilities to leave

the premises of the ward, with the permission of the staff, the

involuntary placement of the applicant under the conditions in which

he stayed in the hospital must in principle be considered as being a

deprivation of liberty within the meaning of Article 5 (Art. 5) of the

Convention.

 

112.    The second question now remains, namely whether the fact that

the holder of the parental rights consented to the placement of the

12-year-old applicant in the hospital implies that the stay at the

hospital should not be regarded as a deprivation of liberty within

the meaning of Article 5 (Art. 5) of the Convention.  The Government have

pointed out that the Danish legislation on the rights of minors

vis-à-vis the public authorities fulfils the conditions of Article 5

(Art. 5) of the Convention and that the legal position of the right of a parent

to decide over the child is that a placement in a hospital with such

parental consent is a voluntary placement, even if the child

disagrees.

 

113.    Accordingly the Government maintain that, when the holder of

the parental rights requests that the child be placed away from home,

this falls outside Article 5 (Art. 5).  There is no deprivation of liberty

because the child is subject to parental authority.  When outside

parental authority, however, the rights of children are identical with

the rights of adults.  The Government have never considered the

admittance to the psychiaric ward at the hospital in question in a

situation like the applicant's as a deprivation of liberty and

therefore have never had any reason for considering what rules, if

any, should govern such a situation.

 

114.    The applicant has argued that the holder of the parental

right does not have unlimited power with regard to his or her

offspring.  Children have an independent right to protection according

to the Convention and are not completely subject to the authority of

their parents.  It is recognised that children may be so young that

they have by themselves no possibility of challenging any decision,

but such argument is not valid when they are of an age at which they

must be supposed to know and understand what is meant by a deprivation

of liberty.

 

115.    The Commission acknowledges that the holders of parental

rights are entitled to decide in matters concerning their children.

The rights secured under the Convention and its Protocols also

presuppose this.  In particular Article 2 of Protocol No. 1 (P1-2) to the

Convention confirms that parents have enforceable rights vis-à-vis

their children.

 

116.    The relevance of parental consent also follows from the

Commission's case-law.  In Nos. 3435/67, 3436/67, 3437/67 and 3438/67,

Dec. 19.7.68, Collection 28 p. 109 concerning the possibility for

minors to leave military service entered into by contract, the

Commission stated:

 

"whereas, however, the Commission finds that the young age at

which the applicants entered into the service cannot in itself

attribute the character of 'servitude' to the normal

condition of a soldier;  whereas the applicants refer to the

particular protection of minors provided for in all legal

systems in regard to their own possibly unconsidered

engagements;  whereas in this respect the Commission has

noted that parental consent is required in the United Kingdom

at least for boys entering the armed forces under the age of

17½ years and that in the present cases such consent was in

fact given;  whereas the protection of minors in other fields

of law consists exactly in the requirement of parental consent

and also in the existence of the principle that an

engagement entered into by the minor will be void without such

consent but valid and binding if the consent has been duly

given;  whereas thus the provisions of the United Kingdom

concerning the recruitment of boys under 17½ take into

account the special situation of a minor;  whereas

consequently the terms of service if not amounting to a state

of servitude for adult servicemen, can neither have that

character for boys who enter the services with their parents'

consent;"

 

117.    Nevertheless, the Commission finds that the rights of the

holder of the parental rights vis-à-vis his or her children are not

unlimited and do not involve any unrestricted power of decision over

the child and its personal conditions.  In European countries the

parental rights are to a large extent restricted by legislation and

this view is also expressed in Danish law.  From the Social Aid Act it

follows that a complaint from the child or from a third party may lead

to action from the social and health authorities and they may decide

to intervene on behalf of the child in cases where disagreements arise

between parent and child (paras. 51-56 above).  It also follows from

the new provisions of the Custody and Guardianship of Children Act

according to which any minor who has attained the age of 12 is

normally heard before a decision on parental custody, access rights or

appointment of guardian is made (paras. 47-50 above).

 

118.    Furthermore, it follows from the provisions of the Mental

Health Act that there is a restriction of the powers of the parental

custody where a child, who is justly considered mentally ill, is

admitted to or detained at a psychiatric ward of a hospital contrary

to his wishes.  The power, which the holder of the parental rights

has, to decide where the child shall stay, in the home or outside the

home, does not comprise the power to effect compulsory admission of

the child to a psychiatric ward, but only the power to make a request

in this respect.

 

119.    The Danish Penal Code is another example of restrictions on

the exercise of parental rights (see for example Section 244).

 

120.    Accordingly, the Commission recognises that the holder of the

parental rights has certain rights to decide over the personal matters

of his or her child as long as the child is a minor under national

law.  However, as stated above, this right is not unlimited.  In the

present case the question arises whether the decision to place the

applicant in the psychiatric ward fell within the ambit of the

parental rights leading to the conclusion that the placement cannot be

considered as a deprivation of liberty, or whether a limitation must

be implied in the parental rights of the applicant's mother with the

consequence that the placement in the hospital of the 12-year-old

applicant against his will must be considered as a deprivation of

liberty within the meaning of Article 5 (Art. 5) of the Convention.

 

121.    The Commission recalls that the background for the applicant's

admission to the child psychiatric ward was a year-long controversy

concerning custody rights over him.  The applicant had lived

"underground" together with his father for approximately 3 years and,

apparently, did not want to live with his mother who at that time had

custody over him.  When the applicant's father was arrested on

22 September 1983, charged with depriving the mother of the exercise

of her parental rights, the applicant was admitted to the ward on

26 September 1983 on a recommendation of the family doctor and with

the approval of the chief physician of the ward.

 

122.    In its report on 15 February 1984 the National Board of

Health stated inter alia:

 

"On the present material the National Board of Health does not

find any reason for not approving Professor (A's) medical

evaluation the essence of which was that (the applicant) was

trapped in a neurotic state requiring treatment, a development

which the Board views as the result of the most unusual

circumstances in which (the applicant) had been living with

his father during the past few years.  If these circumstances

had continued, the risk of a further move towards a

personality-stunting, chronically neurotic state of mind

would, in the opinion of the Board, have been extremely

likely."

 

123.    The treatment the applicant received at the ward consisted of

"environmental therapy and regular talks".  From this the Commission

must conclude that the applicant did not suffer from any somatic

disease but rather allegedly suffered from an "abnormality" in the

psychiatric field or, in other words, a "psychic disorder of a

non-psychotic nature" which in the opinion of the chief physician in

charge necessitated the placement in a psychiatric ward.

 

124.    The Commission is not called upon to examine the regrettable

year-long controversy concerning the custody of the applicant and does

not intend to dispute the medical evaluation made concerning him but

will merely recall that the Supreme Court on 21 August 1984 gave

the custody of the applicant to his father.  Subsequent to this

decision there has been no treatment of the applicant and he has not

spent subsequent periods in a psychiatric ward.

 

125.    The Commission is, however, called upon to answer the question

set out in para. 120 above and in doing so the Commission finds that

the result will have to depend on a concrete assessment of the

maturity of the applicant and his ability to understand his situation

and to come to a decision as to the intervention in his personal

liberty, which the admission to a hospital and detention in a

psychiatric ward involve.

 

126.    The Commission does not find it necessary in this case to set

out any fixed age-limit below which the opinion of a minor is of no

importance.  However, it is evident that the wishes of very young

children regarding the question of hospitalisation and treatment in

psychiatric wards cannot be decisive.  On the other hand a system

under which for example a 17-year-old minor could be placed in a

closed ward with the consent of the holder of the parental rights and

against his own wishes could hardly as such be considered a voluntary

placement which would not raise any question of deprivation of

liberty.

 

127.    Applying the above general considerations to the circumstances

of the present case the Commission recalls that the applicant at the

time in question was 12 years old.  As already pointed out above any

specific age should not as such determine a minor's ability to

understand the situation but the Commission nevertheless recalls the

rules referred to above (para. 50) according to which, in other

relations, the will and wishes of a 12-year-old child are important

factors in regard to far less drastic steps than placement in a

psychiatric ward.  Furthermore it has not been alleged in the present

case that the applicant was not normally developed according to his

age or in any way unable to understand his situation.  Nor has it been

established that he suffered from any mental illness.  Regarding the

latter point the Commission also recalls the apparent discrepancy

which follows from the system applicable in Denmark where a child who

is detained in a hospital under the Mental Health Act, allegedly

suffering from a mental disease of a psychotic nature, can challenge

the question of this detention in the ordinary courts of justice

notwithstanding the possible consent of the holder of the parental

rights, whereas a child in the applicant's situation who is not

mentally ill but "only" suffering from so-called "psychic disorders",

which apparently are of a less serious nature, has no such

possibility.

 

128.    The Commission has no doubt that the applicant's mother gave

her consent only having the best interests of the applicant in mind.

However, considering all the relevant facts of this case the

Commission finds that an individual assessment of the applicant leads

to the conclusion that the case concerned a normally developed

12-year-old child who was capable of understanding his situation and

to express his opinion clearly.  As the protection under Article 5 (Art. 5) of

the Convention also applies to minors the consent from the holder of

the parental rights is not decisive in these circumstances.

 

129.    It follows that the applicant was detained in a psychiatric

ward against his will and that this placement amounted to a

deprivation of liberty within the meaning of Article 5 (Art. 5) of the

Convention.

 

C.      Article 5 para. 1 (a) - (f) (Art. 5-1-a, 5-1-f) of the Convention

 

130.    The Government have submitted that, should the applicant's

stay at the hospital be considered as a deprivation of liberty, they would "not

necessarily accept that Article 5 para. 1 (e) (Art. 5-1-e) would not be

applicable".  The Government have not, however, developed this argument

further.

 

131.    The Convention does not state what is to be understood by the

words "persons of unsound mind".  However, it is clear that Article 5 para. 1

(e) (Art. 5-1-e) cannot be taken as permitting the detention of a person simply

because his views or behaviour deviate from the norms prevailing in a

particular society.  The individual concerned should not be deprived of his

liberty unless he has been reliably shown to be of "unsound mind".  The very

nature of what has to be established is a true mental disorder and this calls

for objective medical expertise (cf.  Eur.  Court H.R., Winterwerp judgment of

24 October 1979, Series A No. 33, p. 18, para. 39).

 

132.    The Commission finds no basis in the facts established for the

assumption that the applicant was suffering from a true mental

disorder which could characterise him as a person of unsound mind within

the meaning of Article 5 (Art. 5) of the Convention.  On the contrary, the

Danish courts concluded, when dismissing the applicant's requests for

judicial review, that "after what has been established in this case

(the applicant) does not suffer from any mental illness".  Accordingly,

and since the applicant's placement in the hospital, being a

deprivation of liberty, did not serve any of the purposes enumerated

in the remaining sub-paras. (a) - (d) and (f), the Commission finds

that Article 5 para. 1 (Art. 5-1) has been breached.

 

        Conclusion

 

133.    The Commission concludes, by eleven votes to one, that there

has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.

 

D.      Article 5 para. 4 (Art. 5-4) of the Convention

 

134.    The applicant has also complained that he was not entitled to

take proceedings by which the lawfulness of his placement in the

hospital could be decided by a court.

 

        Article 5 para. 4 (Art. 5-4) of the Convention reads a follows:

 

        "Everyone who is deprived of his liberty by arrest or

        detention shall be entitled to take proceedings by which the

        lawfulness of his detention shall be decided speedily

        by a court and his release ordered if the detention is

        not lawful."

 

135.    This provision secures that everyone who is deprived of his

liberty, lawfully or not, is entitled to supervision by a court.

 

136.    In the present case, the applicant, through his

representatives, challenged the lawfulness of his detention, first in

the Copenhagen City Court and subsequently on appeal in the Court of

Appeal for Eastern Denmark.  Both courts, however, concluded that the

placement of the applicant in the child psychiatric ward at the State

hospital was not covered by the right to judicial review and for this

reason dismissed the case.  It follows that the applicant did not have

any possibility to bring the question of the lawfulness of his

detention before a Danish Court.

 

137.    The Commission notes that, although the applicant was only

12 years old, it would not be impossible to have a system under which

he could have been legally represented in proceedings of this kind.

Many legal systems provide for the appointment of a guardian ad litem

in cases where there is a conflict of interests between a minor and

his ordinary guardian.  Moreover, the Danish Mental Health Act itself,

although it was not applicable in the present case, contains rules

regarding a number of persons who are entitled to act on behalf of a

patient, including a minor, who is detained in a hospital in

accordance with the provisions of this Act.  Under the Mental Health

Act, it would even be possible for the minor himself to bring the

matter before a court.  Other solutions to the problem would also be

possible.

 

138.    Accordingly, the Commission finds that the applicant was not

granted the right under Danish law to take proceedings by which the

lawfulness of his commitment to the State hospital could be decided by

a court in accordance with Article 5 para. 4 (Art. 5-4) of the Convention.

 

        Conclusion

 

139.    The Commission concludes, by ten votes to two, that there has

been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.

 

E.      Recapitulation

 

140.    The Commission concludes, by eleven votes to one, that there

has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention

(para. 133).

 

        The Commission concludes, by ten votes to two, that there has

been a violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 139).

 

 

Secretary to the Commission       Acting President of the Commission

 

 

 

 

      (H. C. KRÜGER)                        (J.A. FROWEIN)

 

 

PARTLY CONCURRING PARTLY DISSENTING OPINION OF

 

MR. J. A. FROWEIN

 

 

        I have voted for a violation of Article 5 para. 1 but not of

Article 5 para. 4.  My reasons are as follows.

 

1.      The detention of Jon Nielsen in the psychiatric ward

amounted to a deprivation of liberty in the normal sense of the word.

The restrictions existing, described in the Report of the Commission,

show that beyond doubt.  The question arising under the Convention

is, however, whether detention based on the lawful decision of the

parent having the right of care and custody over the child can be

called a deprivation in the sense of Article 5 para. 1 for which the

State is responsible.

 

        Article 5 is constructed in a very clear way.  While the first

sentence of para. 1 lays down the positive obligation for the State to

protect the liberty of its citizens by legislation and other action,

the second sentence of para. 1 together with the alternatives (a) to

(f) protect individuals against specific deprivations of liberty

by State action.  It follows from the wording of the different

alternatives that only decisions by public authorities are at issue in

(a) to (f).  The paragraph concerning minors, i.e.  Article 5

para. 1 (d), would certainly have dealt with the decision by parents,

and not only with the order for educational supervision granted by the

competent authority, if this provision should also apply to parents.

 

        The Commission finds the State to be responsible because the

chief physician at the State hospital has accepted Jon Nielsen.

However, the Danish courts have held that under Danish law the

decision by the mother as the parent who had care and custody was

decisive for the legal situation.  I feel bound by that finding which

seems to me quite convincing.

 

        Family law in all European countries gives the parents the

right to decide on the residence of their children.  They may place

them in hospital if necessary.  Their decision is not a decision

which falls under Article 5 para. 1 second sentence (a) to (f).  Of

course, their right to decide on the detention of their children is

not at all unlimited.  But that does not mean that a wrong decision

becomes a decision for which the State has responsibility under

the Convention.  The situation is rather comparable to the case where

people are deprived of their liberty by a criminal act.  Nobody would

come to the conclusion that that could raise an issue under Article 5

para. 1.

 

        This shows that Article 5 para. 1 second sentence is not

applicable to the case.

 

2.      The question arises nevertheless whether there is State

responsibility under Article 5 para. 1 first sentence according to

which everyone has the right to liberty and security of person.  This

applies to minors as well as to adults.  It must be decided whether

the legal possibility for a parent, who has the right to care and

custody, to place a child into a psychiatric ward without specific

judicial or other formal control may amount to a violation of the

guarantee laid down in the first sentence of Article 5 para. 1.

Indeed, some States have introduced specific controls.  For instance,

under the German law parents need the consent of the

"Vormundschaftsgericht" (parental court) for such a decision.

 

        In the present case the mother who had care and custody of the

applicant decided to place him in the psychiatric ward of the

hospital.  Apparently this happened in the context of her dispute with

the father of the child who earlier had gone underground with the boy.

The applicant was admitted by a Professor A. after the family doctor

and the social authorities had co-operated with the mother over the

placement.  It is impossible to say, therefore, that the placement was

just an arbitrary decision by the mother.  Rather, experts and

psychiatrists took part in its implementation.

 

        However, it is not alleged that the applicant suffers from any

mental illness.  It follows that his detention together with children

who are mentally ill must have caused considerable hardship to the

applicant.  This shows the great danger existing where there is no

procedure with sufficient formal safeguards for the placement of

minors in psychiatric hospitals by their parents.  A lack of such a

procedure is not in line with the positive obligation flowing from

Article 5 para. 1 first sentence for the State to protect the liberty

of all citizens including children.  It is for this reason that I find

a violation of Article 5 para. 1 first sentence.

 

3.      As to Article 5 para. 4 no violation can be established since

the deprivation of liberty which has taken place does not fall under

Article 5 para. 1 second sentence.  Paragraph 4 applies only to

deprivations of liberty by a public authority.  This is shown by the

wording "arrest or detention" referring to the formulation used in

Article 5 para. 1 (a) to (f).  Where the holder of the right to care

and custody gives his consent to the placement Article 5 para. 4

cannot be the appropriate safeguard.  The right to care and custody

gives the custodial parent the right to represent the minor in court

proceedings including proceedings under Article 5 para. 4.

 

        The problem to be settled by the legislation for cases of this

sort is how to solve possible conflicts between parent and child.  The

requirement of consent by a court or a special authority for the

placement into a closed institution seems to be the appropriate

procedure in that respect.

 

        The solution favoured by the majority must lead to a legal

procedure which is difficult to reconcile with family law in general.

It would mean that a child of a certain age, without a clear limit

being established, must be able to bring proceedings even against the

will of the holder of the right to care and custody.  It would seem

difficult to make that dependent on the individual development of the

child.  To find a violation of Article 5 para. 4 implies that the

right of the mother, who of course could have brought Article 5

para. 4 proceedings had her child been detained against her will, is

not taken into account.

 

        Especially disputes between parents, which form the difficult

background of this case, are better avoided by appropriate safeguards

for decisions of great importance, such as placement in a mental

hospital, than by creating rights which are supposed to be exercised

individually by very young children.

 

 

DISSENTING OPINION OF MR. G. JÖRUNDSSON

 

        My basic approach to the interpretation of Article 5 is very

much the same as that of Mr.  Frowein in his individual opinion,

although I have come to a different conclusion.

 

        I accept that the detention of the applicant in the

psychiatric ward amounted to a deprivation of liberty and it goes

without saying that minors enjoy in principle the rights guaranteed by

the Convention, including Article 5.  I find, however, the status of

the applicant as a minor to be of a decisive importance for the

question whether he was subjected to deprivation of liberty covered

by Article 5.

 

        It is a common feature of family law in the Contracting

States, that the holders of parental rights have the power and the

duty to decide where the child is to live or stay, often in connection

with measures necessary for the protection of its health and for its

education.  Such traditional and inevitable restrictions on the

liberty of a minor must be taken into consideration in the

interpretation of Article 5.  It is also obvious from the construction

and the wording of Article 5 para. 1 second sentence, that it does

not deal with restrictions, which are the result of the decisions of

parents or those who exercise parental rights.

 

        I think it is clear, having regard to Danish law in this

field, that the consent of the applicant's mother must be seen as the

basic and conclusive decision in the light of the principles which

must be applied in the interpretation of Article 5.  The control of

the need for treatment and the advice given by the relevant

authorities are in this respect only of secondary importance and

cannot as such be considered a deprivation of liberty, engaging State

responsibility under Article 5.

 

        In my opinion, therefore, Article 5 para. 1 second sentence

does not apply in the present case.  This does not mean, however, that

the State has no responsibility regarding the exercise of parental

power in respect of minors.  Such responsibility follows from Article

5 para. 1 first sentence which provides that everyone has the right to

liberty and security of person.  The requirements of this provision

are, however, in my opinion satisfied by the supervision provided for

by the Danish Social Aid Act and by the fact that the applicant's need

for treatment and his admission to the psychiatric ward had been

recommended by the family doctor and approved by the chief physician

of the ward in the exercise of his professional responsibilities.  The

applicant's need for treatment could also be, and was in fact referred

to the National Board of Health.

 

        For these reasons I have come to the conclusion that there has

been no violation of Article 5 para. 1 in the applicant's case and it

follows from that finding that there has been no breach of Article 5

para. 4.

 

&_APPENDIX I&S

 

 

HISTORY OF PROCEEDINGS

 

 

Date                            Item

______________________________________________________________________

 

 

15 February 1984                Introduction of the application

 

3 May 1984                     Registration of the application

 

Examination of admissibility

 

2 October 1984                 Commission's deliberations and decision

                                to adjourn the examination of the case

                                in the light of the Danish Supreme

                                Court judgment of 21 August 1984.

 

7 May 1985                     Commission's deliberations and decision

                                to invite the Government to submit

                                observations on the admissibility

                                and merits of the application

 

19 July 1985                    Submission of Government's observations

 

7 October 1985                 Submission of appliant's observations

 

5 December 1985                Commission's deliberations and decision

                                to hold a hearing on the admissibility

                                and merits of the application

 

10 March 1986                   Hearing on the admissibility and merits

                                of the application, the Commission's

                                deliberations and decision to declare

                                the application admissible.

 

                                The applicant

 

                                MM. Jacobsen

                                    Boelskifte

                                    Nielsen

 

                                The Government

 

                                MM. Lehmann

                                    Blæhr

                                    Melchior

                                    Vesterdorf

 

 

 

 

Date                            Item

______________________________________________________________________

 

Examination on the merits

 

 

13 June 1986                    Submission of Government's additional

                                observations on the merits

 

12 July 1986                    Consideration of the state of

                                proceedings

 

10 December 1986                Consideration of the state of

                                proceedings

 

5 March 1987                   Commission's deliberations on the

                                merits and final votes

 

12 March 1987                   Adoption of the Report

 

 

Full & Egal Universal Law Academy