Parental Abduction in The Netherlands

144 Pages·2012·0.71 MB·English

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PPaarreennttaall AAbbdduuccttiioonn iinn TThhee NNeetthheerrllaannddss

DDoo wwee rreeqquueesstt aa CChhaannggee??

Nathalie L. Swinkels
S525727
Tilburg University, Faculty of Law
Master International and European Public Law (accent Union Law Programme)
Examination Committee: Mr. Dr. A.K. Meijknecht (Supervisor)
Prof. Mr. P. Vlaardingerbroek

Tilburg, 14 January 2011
Table of Contents
Preface 5
List of abbreviations 6
Introduction 7
Chapter 1: The Hawaii Case and The Netherlands 9
Introduction 9
1.1. The Hawaii Case 9
1.1.1. The outline of the Hawaii Case 9
1.1.2. The four problems raised 10
1.1.3. Conclusion 10
1.2. The Dutch legal path of solving (international) parental abduction cases 11
1.2.1. Parental responsibility 11
1.2.2. Description of (international) parental abduction 13
1.2.3. The attempt to broaden the scope of art. 279 (2) Dutch Criminal Code 15
1.2.4. Dutch asylum for international parental abductors 15
1.2.5 Conclusion 16
1.3. The Dutch Court 17
1.3.1. The Dutch Central Authority 17
1.3.2. The Dutch Court Procedure 17
1.3.3. Conclusion 18
1.4. Approved Solutions 19
1.4.1. The Dutch International Child Abduction Centre 19
1.4.2. The Dutch Liaison Judge International Child Protection 19
1.4.3. The change of the Dutch CA 20
1.4.4. Mediation 21
1.4.5. Conclusion 23
1.5. End conclusion 23
Chapter 2: International and European Law 26
Introduction 26
2.1. The United Nations Convention on the Rights of the Child 26
2.1.1. What does the Hawaii case-law imply? 26
2.1.2. What does the UNCRC itself imply? 27
2.1.3. What does according to The Netherlands the UNCRC imply? 29
2.1.4. The answers according to the UNCRC to the four problems of the Hawaii Case 29
2.1.5. Conclusion 30
2.2. The Child Abduction Convention 31
2.2.1. What does the Hawaii case-law imply? 31
2.2.2. What does the Child Abduction Convention itself imply? 33
2.2.3. What does according to The Netherlands the Child Abduction Convention imply?
35
2.2.4. The answers according to the Child Abduction Convention to the four problems of
the Hawaii Case 41
2.2.5. Conclusion 42
2.3. The European Convention on Human Rights 43
2.3.1. What does the Hawaii case-law imply? 43
2.3.2. What does the ECHR itself imply? 44
2.3.3. What does according to The Netherlands the ECHR imply? 51
2.3.4. The answers according of the ECHR to the four problems of the Hawaii Case 51
2.3.5. Conclusion 53
2.4. The new Brussels II Regulation 53
2
Introduction 53
2.4.1. European Union family law 54
2.4.2. The new Brussels II Regulation 55
2.4.3. Dutch case-law and the new Brussels II Regulation 60
2.4.4. The Netherlands is active in the EU Family Law field 62
2.4.5. The answers according to the new Brussels II Regulation to the four problems of
the Hawaii Case 64
2.4.6. Conclusion 65
2.5. End conclusion 66
Chapter 3: Dutch politicians and academics 71
Introduction 71
3.1. Dutch politicians 71
3.1.1. Problems 71
3.1.2. Proposed Solutions 72
3.1.3. Conclusion 76
3.2. Dutch academics 77
3.2.1. Problems 77
3.2.2. Proposed Solutions 79
3.2.3. Conclusion 80
3.3. End conclusion 81
Chapter IV: Does it make a difference? 84
Introduction 84
4.1. Approved Dutch solutions 84
4.1.1. Parental responsibility 84
4.2. Suggested new Dutch solutions 86
Introduction 86
4.2.1. The gender of the abductor 86
4.2.2. The child’s young age 89
4.2.3. The refusal of the abductor 91
4.2.4. The abductor goes underground 99
4.2.5. Another possible solution 100
4.2.6. Conclusion 100
4.3. Should the Hawaii Case be judged differently? 102
Introduction 102
4.3.1. The gender of the abductor 102
4.3.2. The child’s young age 103
4.3.3. The refusal of the abductor 104
4.3.4. The abductor goes underground 107
4.3.5. Conclusion 108
4.4. End conclusion 109
Appendix I: The Hawaii Case 112
The Hawaii Case according to Dutch legal material 112
The Hawaii Case according to US legal material 115
Appendix II: Why parents abduct 117
The problem has to do with the child 117
Action against the other parent 118
Action against the law 118
The abductor 119
Other reasons 119
Appendix III: Dutch case-law 120
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Criminal law 120
The UNCRC 120
The Child Abduction Convention 120
The ECHR 122
The new Brussels II Regulation 122
Appendix IV: Dutch case-law and the Child Abduction Convention 124
Appendix V: ECHR case-law 128
Literature 129
4
Preface

“24 So the king said, ‘Bring me a sword’, and they brought a sword before the king. 25 The king said, ‘Divide
the living boy in two; then give half to one, and half to the other.’ 26 But the woman whose son was alive said to
the king—because compassion for her son burned within her—‘Please, my lord, give her the living boy;
certainly do not kill him!’ The other said, ‘It shall be neither mine nor yours; divide it.’ 27 Then the king
responded: ‘Give the first woman the living boy; do not kill him. She is his mother.’”1
1 Kings (3:24-27)

International parental abduction is a complex subject.
Since some years I have been trying to help an American mother whose child is abducted to
the European Union and each time, when the abductor manages again to go to another EU
Member-State and start new court procedures, she has to convince the court of that EU
Member-State that the abductor is forum shopping.
Through her ordeal and of many other (international) parental abduction cases, which I have
been following, I can only come to the conclusion that parental abduction is not an answer.
The sole fact that a child is abducted by a parent does not make it acceptable.2
To make the subject more comprehensible, I used as an example the Hawaii Case3 and I
provided my opinion based on the information collected. Therefore, it is certainly not my
purpose to hurt anyone involved in this case or to give any kind of moral judgement.

I would like to express thanks for the guidance and advice of my supervisor, Mr. Dr.
Meijknecht and of Prof. Mr. P. Vlaardingerbroek, who both helped me throughout the process
of writing this thesis.
I would especially like to thank my mother, not only for her support, patience and feedback,
but also because she can be considered an example of a woman who emigrated from the
Czech Republic to The Netherlands in 1968, who earned her own income as a lecturer English
(and sworn interpreter Czech-Dutch), and who taught her two children that a woman can and
always should be independent.
Special thanks is also directed to my sister who liked to play the Advocatus Diaboli so that my
work would be objective.
Furthermore, I thank my friends who often listened when I was talking about (international)
parental abduction.
And last, but not least, my father for the “logistics”.

Per aspera ad astra…

Tilburg, 14 January 2011

1 http://bible.oremus.org/?passage=1Kings (19 December 2010).
2 See Appendix II: Why parents abduct, p. 118-120.
3 See Part 1.1. The Hawaii Case, p. 9-11 and Appendix I: The Hawaii Case, p. 112-116.
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List of abbreviations
CA Central Authority
Child Abduction Convention Hague Convention on the Civil Aspects of International
Child Abduction
(1343 U.N.T.S. 89, Hague Conf. Priv. Inte’l L. Collection
of Conventions (1951-1996) at 265)
ECHR European Convention for the Protection of Human
Rights and Fundamental Freedoms and its Protocols
(4 November 1950, 213 U.N.T.S. 222)
ECHR European Court of Human Rights
ECJ European Court of Justice
Hawaii Case Gerechtshof Amsterdam 29 juni 2006, LJN AY5294,
Hoge Raad 20 oktober 2006, LJN AY8774, Hoge Raad
28 september 2007, LJN BB3193, Gerechtshof ‘s-
Gravenhage 7 februari 2007, LJN AZ7987, Report on
Compliance with the Hague Convention on the Civil
Aspects of International Child Abduction April 2008, p.
44, Report on Compliance with the Hague Convention
on the Civil Aspects of International Child Abduction
April 2009, p. 36 and information from the “Hawai’i
State Judiciary’s Public Access to Court Information”
(http://hoohiki2.courts.state.hi.us/jud/Hoohiki/main.htm).
new Brussels II Regulation Council Regulation (EC) No 2201/2003 of 27 November
2003, concerning Jurisdiction and the Recognition and
Enforcement of Judgments in Matrimonial Matters and
in Matters of Parental Responsibility, repealing
Regulation (EC) No 1347/2000 (OJ L 338, 23/12/2003,
p. 0001-0029).
SPBP Significant Public Benefit Parole
UNCRC United Nations Convention on the Rights of the Child
(1577 U.N.T.S 3)
6
Introduction
“The proposed bill accedes to complaints by Dutch parents that the Dutch state takes the side of the foreign
parents.”4

“Best interests determinations will always be subjective and influenced, or directly determined, by the gender,
national, religious, cultural, ethnic, ideological et al biases of the interpreter.”5
Carlos Bermudez, father of international parental abducted child Sage Bermudez Rayon6

The Elian Gonzales case7 (1999 to 2000) was the first time I read about the topic of
international parental abduction. Since then, I have examined many other actual cases (legal
information, media…) happening all over the world, have paid attention to the many
difficulties experienced by both the left-behind parent as the abductor and got acquainted with
the many different solutions presented to prevent and stop international parental abductions.
However, it should be taken into account that there is not one global solution which can be
applied to all cases.

International parental abduction cases also occur in The Netherlands. There have been media
cases which often were followed by political questions8 and/or political debates9 which were
regularly just snapshots and did not provide a complete view about the issue at hand.

In this master thesis, attention will be paid to how international parental abduction cases are
dealt with in The Netherlands. For this purpose, the Hawaii Case10 will be used as an
example.
Therefore, the two research questions will be:
“What have been the legal effects of the changes as proposed by the Dutch politicians and the
Dutch academics in international parental abduction cases and which possible future
problems, concerning these solutions, can be detected?”
And
“Should the Dutch court have decided differently in the Hawaii Case and why or why not
should this have happened?”
The following sub questions will be answered:
1. What happened in the Hawaii Case?
2. How are decisions on parental responsibility taken in The Netherlands?
3. How are (international) parental abduction cases dealt with in The Netherlands?
4. Which solutions of international parental abduction cases are there currently in The
Netherlands?

4 http://www.internationalfamilylawfirm.com/2010/01/netherlands-changing-hague-abduction.html (19
December 2010).
5 http://bringseanhome.org/forums/index.php?topic=3358.0 (19 December 2010).
6http://www.missingkids.com/missingkids/servlet/PubCaseSearchServlet?act=viewChildDetail&caseNum=1104
316&orgPrefix=NCMC&seqNum=1&caseLang=en_US&searchLang=en_US (19 December 2010).
7 http://news.bbc.co.uk/2/hi/americas/625829.stm, http://news.bbc.co.uk/2/hi/americas/627262.stm and
http://www.pbs.org/wgbh/pages/frontline/shows/elian/etc/eliancron.html (19 December 2010).
8 See e.g. Aanhangsel Handelingen 2008/09, nr. 1624 p. 3409 and Aanhangsel Handelingen 2008/09, nr. 3008
Herdruk, p. 6333.
9 See e.g. Kamerstukken II 2008/09, 30072, nr. 16, p. 1-24 and Handelingen II 15 april 2009, TK 77, p. 77-6055-
77-6063.
10 Only the information provided in Appendix I: The Hawaii Case p. 112-116 will be used.
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5. How should the United Nations Convention on the Rights of the Child (UNCRC)11,
the Child Abduction Convention12 and the European Convention on Human Rights
(ECHR)13 be applied in (international) parental abduction cases and how are these
Conventions dealt with by the Dutch court in case-law?
6. How should, according to the Council Regulation (EC) No 2201/2003 (new
Brussels II Regulation)14, (international) parental abduction cases be dealt with?
7. What are the problems and proposed solutions provided by Dutch politicians?
8. What are the problems and proposed solutions provided by Dutch academics?
9. Are those proposed solutions feasible?
10. Should the Dutch judge have decided differently in the Hawaii Case?

The research method was primary desk research and therefore the main sources used were
Dutch law, case-law of The Netherlands, the ECHR (European Court of Human Rights)15 and
the ECJ (European Court of Justice)16, explanations of how the domestic and EU law should
be interpreted, reports and studies.

Since many international parental abduction cases can be complicated, as more than one legal
system of different countries is involved, the Hawaii Case could be used as an example and
therefore is discussed in the first part of the first chapter. Furthermore, the chapter also pays
attention to the Legal path of solving (international) parental abduction cases in The
Netherlands, The Dutch Court and the Approved Solutions. The second chapter is divided in
four parts, namely the UNCRC, the Child Abduction Convention, the European Convention on
Human Rights and the new Brussels II Regulation. The third chapter is about the problems
detected and the solutions proposed by the Dutch politicians and academics. The last chapter
will answer the research questions whether those proposed solutions should be applied in
practice in The Netherlands.

11 UNCRC.
12 Child Abduction Convention.
13 ECHR.
14 Council Regulation (EC) No 2201/2003 (new Brussels II Regulation).
15 http://www.echr.coe.int/echr/ (19 December 2010).
16 http://curia.europa.eu/ (19 December 2010).
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Chapter 1: The Hawaii Case and The Netherlands
Introduction
Before an opinion can be formed whether solutions proposed by Dutch politicians and/or
academics can solve (international) parental abduction and how Dutch judges should decide
in such cases, one should understand how (international) parental abduction is legally dealt
with in The Netherlands. Therefore, this chapter and the following one concerning Dutch
case-law will be used to clarify the problem.
This chapter will consist of five parts.

First, an international parental abduction case between the US and The Netherlands (from
now on called the Hawaii Case17) will be examined. This part will be divided in three
paragraphs, the outline of the case, the four problems raised (meaning which issues will be
addressed in this master thesis18) and the conclusion. In the second part, the Dutch legal
framework concerning (international) parental abductions will be described. Subjects as
parental responsibility and the Dutch approach of (international) parental abductions will be
discussed. Hereafter, the working method of the Dutch court will be explained. Attention will
be paid to the old as to the new court procedure. In the fourth part the already used solutions
in The Netherlands will be examined. Finally, there will be the conclusion.
1.1. The Hawaii Case19
1.1.1. The outline of the Hawaii Case
During the relationship between an American citizen (father) and a Dutch citizen (mother) a
child was born in 2002 in The Netherlands (the child has both Dutch and American
citizenship) and in the same year the father recognised the child.20 In October 2002 the family
moved from The Netherlands to the US, married on 19 January 2003 in New York and moved
on 29 November 2003 to Hawaii.21 On 24 January 2004 the mother and child left the family
house.22 On 29 January 2004 the father was granted a temporary restraining order (TRO)
indicating that the mother could not leave Hawaii with the child.23 On 30 January 2004, the
mother tried to take the child outside of the state, but was stopped at the border because of the
TRO.24
On 8 June 2005 (? see below) the Family Court of the Third Circuit of Hawaii granted the
father again a TRO against the mother, which indicated that the mother was not allowed to

17 Gerechtshof Amsterdam 29 juni 2006, LJN AY5294, Hoge Raad 20 oktober 2006, LJN AY8774, Hoge Raad
28 september 2007, LJN BB3193, Gerechtshof ‘s-Gravenhage 7 februari 2007, LJN AZ7987, Report on
Compliance with the Hague Convention on the Civil Aspects of International Child Abduction April 2008, p. 44,
Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction April
2009, p. 36 and information from the “Hawai’i State Judiciary’s Public Access to Court Information”
(http://hoohiki2.courts.state.hi.us/jud/Hoohiki/main.htm (19 December 2010)).
18 Although other issues can be discussed as e.g. the right of the child to be heard, the author has only chosen to
address these four issues.
19 For a more detailed description of the case according to Dutch and American materials, see Appendix I: The
Hawaii Case, p. 112-116.
20 Gerechtshof Amsterdam 29 juni 2006, LJN AY5294, paragraph 2.1 and Hoge Raad 20 oktober 2006, LJN
AY8774, paragraph 3.1.
21 Ibid.
22 Ibid.
23 Hoge Raad 20 oktober 2006, LJN AY8774, Conclusion of Advocate-General Strikwerda, paragraph 2.
24 Ibid.
9
take the child outside of the state and the father was rewarded temporary custody of the
child.25
On 8 June 2005 the Family Court of the Third Circuit decided that the mother and father had
joint legal custody of the child, that the child would live in turn four days with each parent
and that both parents were not allowed to take the child outside of Hawaii, only if the other
parent agreed or if the court gave permission and if this would happen, the other parent would
get the right of contact and visitation of the child.26 On the same date the same court gave the
mother permission to visit her family with the child from 13 June 2005 till 5 July 2005 in The
Netherlands (this was done with help of a stipulation, which means that the father and mother
reached an agreement concerning family visitation outside of Hawaii27).28 The mother decided
during her stay in The Netherlands not to return to the US.29
After the decision of the Dutch Supreme Court of 28 September 200730, where it was decided
that the child had to be returned to Hawaii, the mother went underground with the child.31
On 8 October 2008 the child was located in The Netherlands after the mother had come from
Portugal to The Netherlands for medical treatment for the child.32 After intervention by the
police, the child returned to its father, who left The Netherlands with the child on 17 October
2008.33
1.1.2. The four problems raised
This case is interesting because it addressed several important issues concerning international
parental abduction, but only four problems will be derived.
The first aspect is the gender of the abductor. Should there be made a difference whether the
abductor is the mother or the father?
Second, attention should be given to the child’s young age. It was born in 2002, was about
three years old when it was taken by its mother from the US to The Netherlands and six years
old when it returned with its father to the US.
Third, why did the abductor refuse to let the child return to its habitual residence? Some of the
claims put forward by the abductor are opted as reasons by Dutch politicians and academics
why a child should not be returned.
And fourth, should the outcome be altered if the abductor goes underground with the child (in
other words: what should happen when the abductor is frustrating the reunification between
the left-behind parent and the child and succeeds to do so for a couple of years).
1.1.3. Conclusion
The Hawaii Case is just one of the many international parental abduction cases which have
been occurring in The Netherlands. Although more problems can be detected in this case (e.g.

25 Ibid, paragraph 2.2.
26 Gerechtshof Amsterdam 29 juni 2006, LJN AY5294, paragraph 2.2.
27 Watnik 2003, p. 345 and 572.
28 Gerechtshof Amsterdam 29 juni 2006, LJN AY5294, paragraph 2.2 and Hoge Raad 20 oktober 2006, LJN
AY8774, paragraph 3.1.
29 Ibid.
30 Hoge Raad 28 september 2007, LJN BB3193.
31 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction April
2008, p. 44.
32 http://www.westhawaiitoday.com/articles/2008/11/12/local/local05.txt (19 December 2010) and Report on
Compliance with the Hague Convention on the Civil Aspects of International Child Abduction April 2009, p. 36.
33 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction April
2009, p. 36.
10