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The new Hague Conventions in the Dutch Courts*
Published online by Cambridge University Press: 21 May 2009
Extract
The present Convention has now been in force in the Netherlands for almost eight years. The Netherlands has made the two reservations allowed by the Convention. The first is that the Convention will be applied only as regards minors who have the nationality of a Contracting State (Art. 13 section 3). The second is that the competence to issue measures regarding minors of parents whose marriage has been annulled or dissolved or who have separated is reserved to the authorities which dealt with the annullment, dissolution or separation concerned (Art. 15 section 1). According to the Explanatory Memorandum of the Act ratifying the Convention (Bijl. Hand. II 69/70–10450 (R719)), the object of making the first reservation is to prevent the existence of Dutch measures which will not be recognized elsewhere. It is to be expected, so the Explanatory Memorandum continues, that a country of which the minor is a national will be more willing to recognize a measure issued pursuant to its own law. Note must be taken of the fact that the Explanatory Memorandum is based on the ordinary rules of Dutch private international law as they were at that time, i.e., custody and other matters concerning the protection of minors are in principle to be governed by the national law of the minor and, in exceptional cases, Dutch law is to be applied as the law of the habitual residence of the minor (Bijl. Hand. 70/71–10.450 (R719)). The object of making the first reservation is somewhat weakened, however, by making the second reservation, because according to Article 15 section 2 of the Convention the consequence of making the reservation under Article 15 section 1 is that the other Contracting States are not obliged to recognize the measures taken by Dutch authorities pursuant to Article 15 section 1. (See further below. Note to Part 6, regarding the second reservation). At present the object of making the first reservation is even more questionable, because there is no generally accepted opinion, so far as judicial decisions are concerned, as to whether the non-conventional Dutch conflict of laws rule should be based on nationality or on habitual residence. (See Kokkini-Iatridou: “Overzicht der Nederlandse rechtspraak, Internationaal Privaatrecht, Gezag over minderjarigen”, WPNR 1978, pp. 6–12, 24–25).
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- Copyright © T.M.C. Asser Press 1979
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*) Art. 272 Dutch CC provides that, if there are reasons to deprive the parents of their parental authority, the public prosecuter can, in the interests of the minors, entrust them provisionally to the Council for the Protection of Children for as long as 14 days. Within that period he has to petition for ratification by the District Court; otherwise the period of entrusting expires. The court can refuse the petition and order the return of the minors to their parents or affirm the decision and auspend parental authority pending proceedings to revoke parental authority.
* Appeal in cassation ‘in the interest of the law’ is an extraordinary legal remedy. It is initiatedby the Attorney General (Procureur Generaal) in the Supreme Court and be made only after the ordinary remedies have become barred and the decision has become final. The decision of the Supreme Court does not affect the rights and duties of the parties as established by the decision a quo of the lower court, (cf., Hondius, , “Judicial organisation in the Netherlands”, in Introduction to Dutch law for foreign Lawyers, Deventer 1978, p. 2).Google Scholar
*) (Art. 161 section 5 Dutch CC provides that on the petition of either or both of the parents the divorce court may award an order of access between the children and the parent who is not granted custody. Failing such an order in the divorce of custody order, it may still later be awarded by the custody court.)