The Netherlands

Children are victims of child abduction and parental alienation.

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Table of Contents

Introduction

Netherlands definition of the best interest of a child: a lack of definition leaves a vacuum for parent's to alienate their child from the other parent

Background

In 2019, 207 children were abducted from the Netherlands to a foreign country. This is almost 5 times lower than the number of abducted children in neighboring Belgium, in the same period of time. Those relatively low numbers are no coincidence: the use of authorization documents for traveling children is becoming more common and police authorities are more aware of the potential kidnapping risks and how to deal with them.

The Netherlands has two main institutions dealing with international child abduction: The Centrum Internationale Kindontvoering (IKO) and the Central Authority. There are also many different NGOs active in the fields of child wellbeing and parental support in the case of divorce and abduction.

In 97% of cases, it was a parent who abducted the children. In 73% of cases, the mothers were the abducting parent. Most children were abducted to Poland, Belgium, Turkey, Spain, and Germany.

Call To Action

As the number of babies born out of wedlock on the rise, the Netherlands must ensure fathers are also given custody of the child without long, bureaucratic procedures. The current law introduced to automatically grant joint custody to both parents regardless of marital status must be passed in a timely manner.

Family Law

Domestic

In the Netherlands, when a child is born within a marriage, the parents have joint custody of the child. When a child is born outside of wedlock, the mother automatically has custody of the child while the father does not. For this, the father or co-mother (the second mother who is not the biological mother) first has to recognize the child. Then, the mother also has to approve. In 2020, 75,000 Dutch children were born outside of wedlock. That is about half of all the children born that year. This means that a lot of fathers and co-mothers would not get automatic authority over their children.

Even if a father or co-mother recognizes the child, it does not automatically grant him /her authority over the child, neither does it give him/her the right to decide on the place of residence of the child. For this, the father or co-mother must file an application for the custody of the child. The biological mother must then give her permission and sign the form. If the mother does not give permission, substitute permission can be requested by the father or co-mother.

Three-quarters of all parents have filed a demand for authority and therefore have joint authority over their children. The other quarter did not make a demand for various reasons. This can lead to very distressing situations when the parents break up or if the mother dies. The procedures to get authority are long and often cause conflict.

On the 25th of November 2020, the Dutch Second Chamber introduced a bill to automatically grant joint authority upon recognition of the child by both parents, as is already the case within marriages or registered partnerships. In this way, the legal position of unmarried parents and their children will be equal to that of married parents and their children. The bill still needs to be reviewed and passed.

Netherlands must swiftly pass this bill to ensure all children have equal access to both their parents from birth.

Parental Abduction

Domestic

While parental abduction is illegal, when parents have joint parental authority, the police sometimes wrongly assume that there can be no child abduction. However, the Dutch Supreme Court has ruled that “a parent who formally still has custody of his or her minor child cannot withdraw that child from the parental authority of the other parent.”

A Dutch parent has the authority over a child’s place of residence only until the age of 16. It is a crime for a parent, or anyone else, to take the child without having this authority or while having joint authority but without the permission of the other parent. In the Netherlands, this is called ‘removal from parental authority.’ There are several degrees of removal within the legal system. So for example the brutal kidnapping of a child by a stranger is a different degree than as a parent who does not respect visitation arrangements. When the child is taken across the borders, it is considered an international abduction. The maximum sentences for these crimes are defined in article 278 (International) and 279 (National) of the Dutch Code of Law.

For withdrawal of minor from legal authority: 6 years;

  • with ruse, violence or threat of violence: 9 years; and
  • involving a child under 12 years old: 9 years.

Additional guidelines on these articles can be found here, in Dutch.

In practice, removal of authority usually happens by a parent after divorce. Most cases are related to the non-respect of the established visitation arrangements. Both parents have to comply but unfortunately, practice shows that not all parents cooperate. They do not pick up or give up the child.

In such cases, the heavy sentences mentioned above are never applied. Instead, judges use other lesser extreme measures. This is especially true if both parents have joint authority over their children. Police will intervene sometimes but usually, they will inform the frustrated parent whose rights are denied that there is nothing they can do. That parent might be up for a long legal battle.

International Until 1980, there was no international system to help parents whose child was abducted to another country. The Hague Convention on Child Abduction was signed by the Netherlands on 11 September 1987 and made an attempt to put a solution in place, but it never really worked properly.

In most cases, the abducted children are registered with local authorities in the country they are taken to. This means that they officially become residents of that country. These governments will often not even move a finger, no matter what evidence you provide. Even if that country has signed the Hague Convention, the local court tends to make decisions in favor of the resident in question.

Brussels II bis is a European Regulation is a law applicable in all Member States of the European Union except Denmark and it takes precedence over the national laws. Brussels II bis contains European rules on family law, parental responsibility (such as custody and contact), and international child abduction within the EU. Among other things, the Regulation defines in which country the court has jurisdiction to make a decision. The Regulation also determines how and when a family law judgment is recognized or enforced in another Member State.

Parental Alienation

Under Dutch law, “the child has the right to associate with his parents and with the person who has a close personal relationship with him”.

In the case of sole custody, the child has the right to associate with his or her non-custodial parent, and vice versa, the non-custodial parent has the right and the duty to associate with his or her minor child(ren).

Thus, the law clearly states that a child has, in principle, the right to associate with both parents except in some specific cases. A judge may also restrict the contact of the parent living away from the child if:

  • contact would be seriously detrimental to the child’s mental or physical development;
  • the parent or the person in a close personal relationship with the child is unfit or incapable of dealing with the child;
  • a child aged twelve years or older has serious objections to having contact with his parent; or
  • such contact is contrary to the best interests of the child.

And here resides the whole problem. There is no clear definition of a child’s best interest. A manipulative parent can turn children against the other parent and claim that the child’s opinion is in the child’s best interests. It is such a hard thing to disprove that a very cunning parent can manipulate the courts to alienate a child from the other parents. Judges are very ill-equipped to face this.

Prevention

Do you suspect that your child’s other parent wants to take your child abroad? You can take measures to reduce the risk of international child abduction. You can contact IKO by mail or phone for more information. They will give you advice and information about which steps should be followed.

+31 (0)88 800 90 00 info@kinderontvoering.org www.kinderontvoering.org

In the event of imminent child abduction, it is important that you are able to share as much information as possible about your child, the other parent, and yourself with the relevant authorities. You can use the following forms to do this:

Form with details of your child Form with details of yourself Form with data of the other parent

Missing Child

Do you have concrete indications that your child may be taken abroad by a parent or caregiver? In case of an acute threat of international child abduction, it is important that you take immediate action. You can take 3 steps:

Step 1 Contact the Centre IKO88 800 90 00 info@kinderontvoering.org www.kinderontvoering.org) by phone for advice and information.

Step 2 Contact the police and inform them about the situation.

Step 3 Contact an attorney with experience in international child abduction cases.

In addition to your own proof of identity, you should bring the following documents to the police station.

The judge’s verdict (copy) Regulation on parental authority Good quality picture of the child All data and picture of the kidnapper Your data Your lawyer’s details

What to do after an actual abduction

  1. Contact IKO

Always contact IKO before you take any steps. They will give you advice and information on how to best proceed. Reporting to the police is not suitable for every case. Therefore, let one of their lawyers advise you first.

Centrum Internationale Kinderontvoering Postbus 2006 1200 CA Hilversum +31 (0)88 800 90 00 info@kinderontvoering.org www.kinderontvoering.org

  1. Mediation or cross-border mediation

You can contact the other parent and try to come to a solution together. A friend or family member may play a mediating role in this. You can also use cross-border mediation to try to reach a lasting solution together. For more information please contact the Mediation Bureau of IKO.

  1. Request for return via the Central Authority

Has your child been taken to the Netherlands or to a country affiliated with the Hague Convention? Then you can submit a request for return to the Central Authority on the basis of the Convention.

  1. Procedure in court

You can start a procedure in the country where your child now resides.

Request for return to the Netherlands

1, Kidnapping from the Netherlands to a treaty country

Has your child been taken from the Netherlands to a treaty country? Then you have the possibility to submit a request for return to the Central Authority in the Netherlands. The form and the details of the Central Authority can be found here. The request can only be made for children under the age of 16. You do not need a lawyer to submit the application.

The Central Authority will forward the application to the Central Authority in the country where your child resides. The foreign Central Authority will send a letter to the abducting parent to indicate that there is a suspicion of international child abduction. In the letter, the Central Authority asks whether the taking parent wants to cooperate in the voluntary return of the child to the country of habitual residence. If the taking parent does not comply, you can start legal proceedings in the country of residence of your child.

  1. Abduction from abroad to the Netherlands

Has your child been brought to the Netherlands from abroad? If so, you can also submit a request for return directly to the Central Authority in the Netherlands. It does not matter whether the country from which your child has been taken is a party to the Hague Convention. The Netherlands handles these requests in the same way and the procedure is the same as described above.

  1. Abduction from the Netherlands to a non-convention country

Has your child been taken from the Netherlands to a country that has not signed the Hague Convention? In that case, you also have the possibility to submit a request for return to the Central Authority in the Netherlands. They cannot forward the request to a foreign Central Authority, because that country does not have a Central Authority. The Dutch Central Authority, therefore, registers the request for return and forwards it to the Ministry of Foreign Affairs. The Ministry forwards the request to the Dutch embassy or consulate abroad. They try to find a solution by diplomatic means. If no solution is found, you may be able to start proceedings in court.

Credit & Contribution

Thanks to Benoit Zalinski for the contribution in producing this country page.

Legal Disclaimer

The materials available on this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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