APPLICA,TION/REQUÉTE N° 10929/84 Jon NIELSEN v/DENMARK Jon NIELISEN c/DANEMAR K DECIISION of 10 March 1986 on the admissibility of the applicaàon DlCISION du 10 mars 1986 sur la recevabilité de la i-equête Ardcle 5; ptvagraph 1 of the Convention : Is a child placed in a child psychiatric ivard at thé request of a custodial parent deprived of either his hüerry or his'right to securi.ry q/'persan? (Contplaini cteclared admissible) . .lrticle 5, paragraph 4 of the Convsndon : Child placed in a child psychiatric ward at the request of a custodial parent. Question of whether appeals inade by the non: custodial pmrent in ihe chiid's name with a view to terminating the placement comply ivith the requirements of this provision (Complaint declared admissible) . .Article r, paragsaphe 1, de la Convention : L'énfant placé daris un pavillon de psychiatrie infantile sur deniùnde au parent titulaire de l'autorit4 parentàle est-il privé de sa libené, alternat'vement : de son droit à la sRreté?(Grief déclaré ,,ecevable) . Article 5, paragrsphe 4, de la C'onvention : Enfant placé dans un pavillon d'e psychiatrie infantile sur demande du parent titulaire de l'autorité parentale.Question de savoir si les recours-fcrrmés au nom de l'enfanz par le parent non investi aé !'autoritéparentale en vue de mettre fin à ce placement répondent auzexigences a'e cette disposition (Griefdéclaré recevable). - , . THE FA,c7s (français : voir p 16(S) The facts of the case, as submitted Iby thepar[ies, may be summarised a s Pollows . 155 The applicant is a Danish citizen, born in 1971 . When introducing the application he was detained in a State hospital for child psychiatry in Copenhagen . Before the Commission he is represented by his natural father, Mr . Henning Nielsen, and Mr. Jdrgen Jacobsen, a lawyer practising in Copenhagen, Demnark. The parents of the applicant 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 carried out on a gentleman's agreement basis . However, this system did not function well and a specific access right was obtained in 1974 through the competent authorities. 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 detennination on the merits covering the custody of his child and that he thus was treated differently from fathers of legitimate children . During the proceedings before the Commission, the law in Denmark was changed (the Custody and Guardianship of Children Act - Myndighedsloven) . The law, thereafter provided that a court decision niight 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 I 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) . In the meantime, and until the summer of 1979, the father's access rights had continued to function . 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 th ere and returned to the father who, on 6 August 1979, instimted proceedings before the City Court of Ballerup 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 . On 23 October 1979 Henning Nielsen's access right to the applicant was suspended . Henning Nielsen appealed against'the decision to the Ministry of Justice, which, however, upheld the decision on 12 November 1979 . 156 In a letter of 23 November 1979 to the hospital authorities, the Chief Physican at the County Hospital Nordvang wrote : "(The applicant) was admitted to the hospital on 9 10.1979 . The admittance was in accoriance 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 ard have rejected visi:s from suspicious perscns trying fo cantact the boy who hardly knew these persons . 7'o tallc about detention in a psychiatric ward among mental patients or adminislrative deprivation of liberty is thus complete nonsense . . . Wheri admiued the boy was strongly affected by the events in question eind thus in need of child psychiatric treatment. He has improved some during his stay here but is still eonsiderab'y affected by the sittiation and will still need psychiatric treatment . 'rhis could very well be carried out as out-patient treatment but the, mother is presently worried that this would lead to kidiapping attempts by the father . . . An irnpartial child-psyehiatric exami.nation 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 thereforereach :my conclusions . " The applicant disappeai-ed from Nordvang on 11 December 1979 and thereaiRer lived in hiding with his fathEr . The above-mentioned court proceedings before the City Court of Balletvp concerning parental rights ended on 11 July 1980 . The Court did not find a transfer of custodv to the faiher to be in the interest of the child . The applicant's father appealed against this judgment to the Court of Appeal . On 25 November 1980 the parties agreed that the applicant should undergo a childpsychiatric examination by Professor A . This examination resulteA in a statement. by Professor A. of ] 6 February 1981 in which he coneluded inter alia : "After considering rheease, I find it in the best interest of the child that the custody rigtits remain with tie mother . Since tlre boy is developing nervously it is recommended that he ard the mother, after (the applicant) has returned to . .." ' h-r, get child-psychiatric support On 9 March 1981 the Court of Appeal upheld the City Court's judgment . Neverthele,ss the applicant remairied in hîding with his fâther s :aying with various families iri Denrr .ark. In November 1982, after having lived "underground" for appro :cimately 3 years, ttie applicant's fatheragain instituted proceedings before the Ballemp City Court in order te have the r,ustody rights transferred to him . Since he was wanted 157 by the police, suspected of having kidnapped the applicant, the father did not attend during the hearing but the father's lawyer pointed out that the applicant, now 12 years old, had lived with the father for 3 1/2 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 . The applicant's mother maintained that the applicant had been harmed due to the abnormal circumstances under which he had lived with the father . She was therefore determined to accept Professor A .'s offer conceruing support from the State Hospital Chlld-Psychiatric Ward (Rigshospitalets bdrnepsykiatriske afdeling) for a transitional period and to accept the professor's advice concerning the father's access to the applicant. 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 . 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 . 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 Article 215 combined with Article 261 paras. 1 and 2 of the Danish Penal Code (depriving the mother 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 . 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 his mother. 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 . 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 . 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 .158 The Government in particular refer to the following statements submirted lby Professor A. to the Medical Healtli Officer of Coperhagen and ihe Depaimient of Health and Social Security on 6January and 7 March-1984 : , "(The applic .ant) has expressed his dislike to staying here, but at notiité has he attempted to run away . We have not been able to and have not wanted to prevent him from mnning auay, which he could have done, inter alia, when he together with the other children lefi. the ward, for example to visit museunis, to go for a hair cut . Also-in this respect has he been in hospital on the sarne tetms as the other patiemts o1' the ward . . .Thetreatmeritinvolvesenvironmentedtherapyatthewardandregulartalk s with (the applicant) . . . At no time has he been given medical treatment . . . Since 23 October 1983 his niother has visited the ward reularly during the usual visiting, hours on Sundays and Wednesdays . Since 11 November 19$3 (the applicant) has visited his mother at home . The visits viere at first short, but since 10 December 1983 he has been able to spend the weekends there . Cliristmas Eve and Chri stmas Day were spent with his mother and so were New's Day . .. . - , . . ... During the treatment at Yhe child-psychiatric ward since New Year . 1984, including environmental therapy and personal talks, (the applicaùt) has continued to grow more relaxed, more extrovert and spontaneous and is able to show his feelings better . This applied both to his relaiionship, with the stafPand with the other children in theward. During the entire stay at the hospital he has as before, apart frmn the t"irst couple of daye, barn allowed to move about freely just like the other children . In other words, he has g;one to the library on his own, has joined visits to museums in town, been to the swimmin„ pool, skating rink, etc. . . His relationship with hi ;s mother also saw a similar positive clevelopment in the saine period . He saw his mother every weekend and participated in the family life together with his mother, her friend, and his sister . At first hé was a bit shy to leave ]tis home, apparently for fear of being recognisad.- On 2 Pebruary 1984 lie start^d school zigain in his old class, and the ward prepared his return together with the sehool. He has taken up contact with his old school"mates wheri visiting his mother during weekends . In connection with the school's winter holiday he had his longest stay with his mother from FNdaÿ 10 February until Wednesday 15 February 1984. During this holictay the whole family went for a couple of days to his mother's parents in Jutlahd . It was obvious that (the applicant) enjoyed this family outing . :. I wish to adcl that the patients at the ward are not 'compulsorily detained' in the usual sense of the expression as referred to in the Danish MentalHealth Act. 7'he child-psychiatric ward of the Rigshospital is an ordinary hospital war d 159 run principally on the same conditions as the other wards of the Rigshospital . 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 (smækl$s) 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 being a nuisance to the patients in other wards of the hospital or exposing 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, for example 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' ." 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 Officer of Health of Copenhagen (Kdbenhavns Stadslaege) 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 of models ; on the floor is a pair of track shoes . (The applicant) was not at home while I was 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, dining room and 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 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 himsel f 160 or in the company of staff members and/or other children . He has esCtblished rather good contact with a boy of his own age (tiospital-ised on account of anorexia nervosa) . " In its report of 15 February 1984 the National Board of Ilealth coneluded "Dn the present showing the National Board of :Health does not find anv reason f(or not approving Professor (A's) medical evalcation the essence of which was that (the applicant) was trapped in a neurotic shde requiring treatment, a development which the Board views as the rasult of the most unusual circnmstances in which (the agplicant) had been living with his father during the past ifew years . Had these cireumstances continued, the rislc of a further mave towards a personality-stunting, chroriically 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 fm normal human relationships, (cf. the Medicsd Health Officer's report), and included talks at regular intervals with (the applicant) and his mother, since the Board, tiings being what they were, found ir irreconcilable with the welt'are of (the applicant) to deny him relevaurtreatment. Arcordin.g to the informa+:ion available to the Board (the appGcant) is now so well that lie may probably be discharged iy the end of Fe.bruary 1984. By Ihen, his hospital term will not have exceeded the ave:rage term . While hospiialiscA (the applicant) lias been allovied to visit his father regularly at Vestre Fæogsel (prison) . l'o sum up : The National Board of Health sees no reason for criticising F'rofessor (A) or the child psychiatric ward of the Rigshospitalet 1`or their niedical treatment of (the applicant) . " Whilst not repudiating the above statements, the applicant's representative has submitted the following :"Thechild-psychiatric. ward is definitely a closed ward . The door to ihe ward vvas locked and (the applicant) was totally una3le to receive visitors except in agre-ment with and under the surveillance of the slaff at tlie ward . . . In other words : the applicant was unable to leavethe hospital if lie 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, wbo had actually been the active part in the kidnapping . (phe 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 .. ." 'l'he 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 . I-lowever, he disappeared frorn the hospital and lived with various fami lies in Jmland until 8 March 1984 when he was found by the police and brouglrt back to the State Hospind i n l " + 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 . By letter of 23 October 1983 to the Ministry of Justice, the applicant's representatives questioned the applicant's detention at the State Hospital for child psychiatry contrary to his own wish . On 28 December 1983 the Ministry replied that the applicant was not placed there in accordance with law No . 118 of 13 April 1938 on Mentally Deranged Persons' Hospitalisation, but according to a decision by the mother as holder of the custody rights . On 1 January 1984 the applicant's representatives nevertheless petitioned the courts, according to Chapter 43a of the Administration of Justice Act . 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. On 6 January 1984 the Copenhagen City Court decided that since the decision to place the applicant in the hospital was taken by the mother such a stay was not covered by the right to judicial review according to Chapter 43a of the Administration of Justice Act . The applicant's representatives appealed against this decision to the Court of Appeal in particular maintaining 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 Article 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 such an interference that it could only be carried out administratively and thus under the conditions mentioned in Article 71 para . 6 of the Danish Constitution despite the fact that the decision was carried out with the mother's consent. The State Attorney (Kammeradvokaten) maintained that the case did not concern administrative deprivation of liberty and was thus outside the scope of Chapter 43a of the Administration of Justice Act . In the altemative he alleged that if the case disclosed deprivation of liberty within the meaning of Chapter 43a 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 . Rejecting the State Attomey's latter argument, the Court of Appeal wrote in its decision of 15 Febmary 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 43a of the Administration of Justic e 162 Act. Concerning the treatment of inentally deratigedpersons inter alia in public hospitals special mles apply according to law No . 118 of 13 April 1938, cf. Chapter 43a of the Administration of Justice Act . After what has beeri said in titis case (the applicant) does not suffer from any ntental illness and thus this case does not concern admittance for treatment of a ntental illness . Thë decision to admit (the applicant) tothe State Hospital 1?epattment of Child Psychiatry aller the disturbances lie has been tluough and the-decisio-i on his temporary stay there is taken by his mother, wtio has the parental rigtits . The appellant's claim concerning judicial review according to Chapter 4Pla of the Administration of Justice Act c :annot therefore be complied with and the judgment of the C'openhagen City Court to dismiss the case is apheld . " According to Article 371 of the Adlninistration 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 C'ourt . However, orn 14 March 1984 the Ministry refused leave to appeal since the Ministry was of the opinion that ihe judgment would not be ovcrruled by the Supreme Court. The question whether to transfer thie 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 . Eiefore the Supreme Court Professor A. in a statement of 19 June 1984 maintained that it would be in the best interest of the applicant that the parental rights remained with the mottter . This opinion was supported by the Medicp-Legal Council (Rctslaegergdet) in its statement of 9 Aagust 1984,On 21 August1984 the Supreme C,ourt nevertheless overniled the Iower courts' decisions and awarded custody over the applicant to his father. The applicant now lives with his father .COMI'LA INTS The applicant invokes Artiçle 5 of the Convention . He is of the opinion 4hat he was deprived of his liberty within the meaning of Article 5 of the Convention when admitted to the State liospilal Child-Psychiatric Ward on 26 September 1983 and that this deprivation of liberty was illegal . Futthermare he maintains that fie did not have the right to take proceedings by which the hkwfulness of this measure could be decided by a court in accordance with Article 5 para . 4 of the Conventiotï. THE LAW 1 . T'he applicant has complained under Article 5 para . 1 of Ihe Convén,ion that he was illegally deprived of his liberty when admitted to the child-psychiatric ward at the State Hospital (Rigshospitalet) on 26 September 1983 .and that he could no t 163 challenge the lawfulness of this measure before a court of law as secured to him under Article 5 para. 4 of the Convention. Article 5 para. 1 reads : "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." Article 5 para. 4 reads : "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 . " The applicant has in particular pointed out that, although a minor, he has an independent right to protection under the Convention . It may be that the holder of the parental rights has a right to decide over minors, but such a right should be subject to certain restrictions . In the present case, the applicant maintains that the factual circumstances of the case reveal a deprivation of liberty : a totally involuntary detention in a child psychiatric ward . Such a measure should be inapplicable to a minor unless the safeguards set out in the Convention are complied with . Finally, the applicant maintains that although he could bring his case before the courts they did not examine the merits of his case but dismissed it since under Danish law he had no right to judicial review. The Government contend that the application is oartlv incomnatible with the provisions of the Convention ratiorie bersonae as the aonlicant's stav at the hosoitat 16? was not due, to any decision of a public authority, partly manife;:tly ill-foùndedtas a deprivation of liberty within the meaning of Article 5 cf the Convention lias not occurred. They meiintain that nô public authority has resolved to place the applicant away from liome, but the adtnissior to the child-psychiatric ward of the Rigshospital was dore a¢ the express wish of his mother, who then had parental authority over him. The holder o f the parental rights has a duty to provide the recessary ciire and welfare of the child and decisions to that effect will often restrict the child's Heedem of movement withdùt any intervehiion by a public authority . Futtherinoi'e the stay at the hospital in thepresemt case cannot be'considered as depiivatiôn of libeity within the meaning of Article 5 of tlse Conventionsinee the applicant's atotheir could have demanded at any tiute that the applicant be discharged froca the hospi :al and since the cineumstmces in connection with the applicamt's stay in the hospital were such th€R ttie staff neither would nor could have pre .vented him from leaving the hospital . The Government accept tiat should the,applicarrt's stay at thehospital be considered as deprivation of liberty within the meaning of Article 5parai 1,none of the sub-paragraphs (a) -, (t) woald apply. The Commission consiéers that the main issue to bedecided iri respect qfArticle 5 para. 1 of the Convention is whether the applicant's admittance to and stay in the State hospital should be regàrded as a deprivation of liberty within the rr,eaning of the second sentence of thai Article . If this question is ariswered in the affirmative it would have to be determined wheedher the procedure . before the Danish côurts met the requireinents of Article 'i para . 4 of the Convenlion . . Furthe.rmore, the Comrnission considers that should the circumstances of the case not reveal a doprivation of liberty within the meaning iof Article 5 para. 1 secônd sentence, tlre issue arises wliethér in these circumstances the applicant's right to liberty emd security of persori, as set out mtder Articlé 5 para . 1 1irst sentence, was sufficiently protected by the'réspandent State.~ . . Having madea prelimiriary èqaminatïon of the above aspecis theCoinmission considei-s that the applicationi îaises issues of fact and law which are of such complexity ,md importance that tlreir determination should depend upon an examination of the merits . These aspects of the application are therefore admissible, no other ground for declaring them inadmissible having been estaolished, ._ , I For tbese reasons, the Comntission ` , . DECLARES THE APPLICATION ADMISSIBLEwithoüt prejudging the merits of the case. - - : 165