Netherlands – 1990

DECISION of the Children’s Judge at ‘s-Hertogenbosch Districtcourt

on the petition under section 12 of Netherlands Bulletin of Acts,
Orders was received by the Registrar at this from:

the Act of 2 May 1990, and Decrees, 202, which Court on 15 October
1990

the International Legal Assistance Division of the Constitutional
and Criminal Law Branch of the Ministry of Justice in The Hague,
in its capacity as Central Authority, acting for itself and on
behalf of:

[Name of minor], born on [date of birth], of or resident at
[place], United Kingdom.

hereinafter referred to as “the Central Authority”,
represented by E.J. Daalder;

and the statement of defence and additional statement of

defence submitted by: [Name of Husband]

hereinafter referred to as “the husband”, represented by T. van
den Akker, solicitor.

The action in the case to date

1. This is apparent from the following:
– the petition made by the Central Authority;
– the statement of defence and additional statement of
defence submitted by the husband;
– the official reports of the hearings held on 25 October
and 13 November 1990;
– the documents submitted;
– correspondence.

The dispute and the judgement

2.1 The following matters of relevance to the case have been
established between the parties.

The parties were married on [date of marriage] in the United
Kingdom. The following minor children were born of this marriage:

– [Name of first child], United Kingdom and [Name of second
child] on 15 Aug 1989.

The parties have been resident in [the Netherlands] since December
1988. On 7 July 1990 [Name of Wife] hereinafter referred to as
“the wife”, left for England with the said minor children to spend
a holiday with her parents. On 6 August 1990 she informed the
husand, who had in the meantime joined the family, that she
regarded their relationship as over and wished to stay in England.
On 7 August 1990 the husband left for London with the minor [Name
of minor] to England at his request to, fetch his father and
sister, who had come to England to provide help and support.

When he returned the wife handed him three decisions of 7 August
1990 from the High Court of Justice, Family Division, Principal
Registry, which in brief made the said minor children temporary
wards of court, gave the wife temporary care and control and
ordered the husband to refrain from removing [Name of Children]
from the jurisdiction of the High Court and the care and control
of the wife and to return the minor to the wife. The husband
returned to the Netherlands the following day leaving [Name of
child] with the wife.

2.2 On 7 September 1990 the husband again travelled to England
and on 8 September he returned to the Netherlands taking [Name of
child] with him. In brief, two decisions of the said High Court of
10 September 1990 subsequently upheld the decision of 7 August
1990 and ordered the husband to relinquish [Name of child]. The
decision of 24 September 1990 established, inter alia, that [Name
of child] was removed unlawfully from the jurisdiction of the High
Court.

3. The Central Authority now requests that:
a. an order be made that [Name of child] should be
relinquished and returned to the wife;
b. in so far as necessary an order be made provisionally
entrusting the minor to the care of the Child Care and
Protection Board;
c. the husband be ordered to pay to the Central Authority
and/or the wife the costs incurred in connection with
the abduction and return of the minor, the order to be
immediately enforceable, and to pay the costs of the
case, since the husband removed the minor [Name of
minor] from the jurisdiction of the High Court and the
care and control of the wife and took the said minor
with him to the Netherlands in contradiction of the
above-mentioned decisions, this constituting improper
removal, and has so far refused to take [Name of minor]
back to England and to comply with the decisions of the
High Court.

4. The husband’s statement of defence is discussed below in so
far as necessary. No defence against the competency of the Central
Authority to act in the case or against the competency of the
Children’s Judge has been entered, so that there has been no
change in this respect.

5. On 1 September 1990 the Act of 2 May 1990, Netherlands
Bulletin of Acts, Orders and Decrees 1990, 202, hereinafter
referred to as the Implementation Act, came into force. The Act
implements two Conventions, namely:

a. the European Convention on recognition and enforcement
of decisions concerning custody of children and on
restoration of custody of children, which was signed in
Luxembourg on 20 May 1980, hereinafter referred to as
the European Convention (Dutch text in Netherlands
Treaty Series 1981, 10; English text in Netherlands
Treaty Series 1980, 134), and
b. the Convention on the Civil Aspects of International
Child Abduction, which was signed on 25 October 1980 in
The Hague, hereinafter referred to as the Hague
Convention (Dutch and English texts in Netherlands
Treaty Series 1987, 139).

The minor [Name of minor] was removed to the Netherlands on 8
September 1990, after the said Act came into force; in principle,
therefore, both Conventions may be taken into account in assessing
the present petition.

6. The husband first contested that the present case concerns
improper removal, claiming that the question of whether his
actions constituted improper removal should be answered on the
basis of section 1c of the Implementation Act, where improper
removal is defined as improperly failing to return a child in
contradiction of rights of custody as defined in article 3 in
conjunction with article 5A of the Hague Convention. According to
the husband this means two things, namely that the broader
definition of “improper removal” used in the European Convention
is not relevant to the case and that, in brief, his actions are
not covered by the definition of “wrongful removal” used in the
Hague Convention either, since it refers inter alia to “… breach
of rights of custody attributed to a …… body, …… under the
law of the State in which the child was habitually resident
immediately before the removal ……”, and no place other than
[Netherlands] can be considered to be the place where the minor
was habitually resident, since, the husband asserts, the four
weeks which [Name of child] spent in England prior to the decision
of the High Court of 7 August 1990 constitute an insufficient
length of time for him to be considerd to be habitually resident
in England.

The husband’s defence as stated is unacceptable. It should first
of all be noted that the definition of the term “improper removal”
given in article 1c of the Implementation Act is intended for use
in cases of international abduction in which no Convention is
applicable, which having regard to the considerations stated in
section 5 above is not the case here; reference should be made to
the Explanatory Memorandum which accompanied the relevant bill.
The definition of improper removal used in the European Convention
is therefore relevant to the case and it must be considered that
the actions of the husband are covered by that definition, which
means that the Convention is applicable here, The Hague Convention
is also applicable, however. Contrary to the husband’s assertion,
it is not the time at which the provisions for the custody of the
minor were made which must be taken into account in this case in
determining the place where [Name of minor] is habitually resident
but the time he was removed, i.e. 8 September 1990. At that moment
the child was resident with the wife, who had informed the husband
on 6 August 1990 that she wished to remain in England. In the view
of the Children’s Judge these circumstances are sufficient grounds
for England to be regarded as having been [Name of minor]’s place
of habitual residence on 8 September 1990. It has also been
established that the husband was aware of the decisions of the
High Court of 7 August 1990 and thus knew he was acting in
contradiction thereof on 8 September 1990. The actions of the
husband are thus also covered by the definition of wrongful
removal used in the Hague Convention, which is thus applicable to
the case pursuant to the provisions of article 4 thereof.

7. Since both the United Kingdom and the Netherlands have
ratified both Conventions it must be established which of the two
Conventions should be applied in this case. The Central Authority
has rightly pointed out in this connection, refering to the
Explanatory Memorandum accompanying the Implementation Act, that
where both Conventions are applicable the aims of the two
Conventions and the provisions which govern the relationship
between them imply that the application of the Convention which is
most likely to bring about the return of the child should take
precedence. The Children’s Judge considers that this should in
this case be taken to mean the Hague Convention. This immediately
means that the husband’s defence, in so far as it is based on the
European Convention, will be passed over. It also means that,
having regard to the provisions of articles 12 and 13 of the Hague
Convention, the immediate return of the minor [Name of minor[
should be ordered. The Court may refuse to do so if, to be brief,
one of the grounds for refusal listed in the Convention is
applicable.

8. In this connection the husband first referred to article 13,
opening words and b, of the Hague Convention, claiming and
submitting evidence to support his claim, that there is a grave
risk that his return would expose the child to physical or
emotional harm, this in view of the medical condition of [Name of
minor] on his arrival in the Netherlands, the serious drinking
problem of the wife’s father, the fact that the wife is very much
under the influence of someone called [Name of person], who has
been convicted several times and was recently dismissed because of
sexual misconduct at a home for girls where he was employed, the
state of neglect and filth in which the husband found the children
on his last visit to England, and that moreover he were to be
taken from his familiar surroundings in [the Netherlands] to
England.

The Children’s Judge will, with reference to article 18 of the
Hague Convention, pass over the evidence of the husband, since she
considers that the circumstances in question, even if evidence
thereof were to be supplied, do not constitute sufficient reason
not to grant the current petition.

The husband also refers to article 20 of the Hague Convention,
claiming that the return of the minor may be refused if it would
not be permitted on the grounds of fundamental principles of the
Netherlands relating to the protection of human rights and
fundamental freedoms, as the husband claims is the case here,
referring to article B of the European Convention for the
Protection of Human Rights and Fundamental Freedoms ([Name] has
the right to respect for the family life he led in [the
Netherlands]) and to article 3.1 of Protocol no. 4 to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, which reads: “No one shall be expelled, by means either
of an individual or of a collective measure, from the territory of
the State of which he is a national.”

However, this defence cannot be supported either. First of all,
article 20 speaks of “…… fundamental principles of the
requested State relating to the protection of human rights ……”
etc. Moreover, it is extremely unlikely that article 20 should
refer to the principles indicated by the husband, particularly the
latter, since this would mean that the primary objective of the
Convention would conflict with the fundamental principles referred
to above.

Whatever else may be said about the defence, what cannot be
contested is that the return of the child can always be ordered
under the provisions of article 18 of the Hague Convention.

9. It may be from the above that the petition may be granted. As
the losing party the husband will be ordered to pay the costs
incurred by the Central Authority in connection with the abduction
and return of the child. Arrangements will be made below for the
payment of the costs in the case of the husband and the wife,
taking into account the wife’s part in the dispute in question and
the fact that the parties are a married couple.

The decision

The Children’s Judge:

orders that that minor child [Name of minor] be returned and
relinquished to the wife;

orders the husband to pay to the Central Authority any costs it
has incurred in connection with the abduction and return of the
said minor child;

declares the judgement thus far to be immediately enforceable;

rejects any further or other petitions;

orders that as far as the costs in the case of the husband and
wife are concerned each-party shall pay his or her own costs.

This judgement was given by R.H.M. Hooymans-van Oerle,
Vice-President and Children’s Judge, and pronounced at the public
sitting of ‘s-Hertogenbosch District Court on 13 February 1991 by
the said R.H.M. Hooymans-van Oerle, in the presence of J. C.
Overmans, Clerk of the Court.

(three signatures)

Stamp: Issued as a true copy
Registrar, ‘s-Hertogenbosch
District Court