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Summary Children and the law in the Netherlands
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Summary of the chapters 1, 2, 3, 4, 5 and 6 of the book 'Children and the law in the Netherlands' written by Ido Weijers.
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Children and the law in the Netherlands (second edition)
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Children and the law in the Netherlands second edition
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Children and the law in the Netherlands - A comparative introductionIdo Weijers
Introduction
How did the Dutch juvenile law evolve? Two broad-based international developments are important
- The simultaneous creation of a system of child protection and a separate juvenile system.
This took place in the context of the night-watchman state, meaning that the state remained
in the background concerning societal matters. The striking call for active government
resulted in compulsory education (leerplicht) and children’s laws (kinderwetten). Two far
reaching changes: an end to the inviolable rights of the father and permission for the state to
intervene when a threat to the health or development of the child occurred.
- The adoption of the Convention on the Rights of the Child by the United Nations. Four
general principles can be distinguished: (1) all children should enjoy equal enjoyment of their
rights; (2) the best interests of the child should be a primary consideration in all matters
concerning the child; (3) all children have a right to life, survival and development; (4) all
children have a right to express their views and to participate in decisions that affect them in
accordance with their age and capabilities. The Ombudsman for Children is intended as an
independent institute that monitors whether the children’s rights contained in the
Convention on the rights of the child are adhered to.
Chapter 1 Family Law
1.2 Parenthood
Legal parentage (afstemmingsrecht) regulates the familial relationship between parents and children.
This law is subject to great change.
- The first principle that is under debate is the premise that it is in the best interest of the child
to have at least one parent and no more than two. Why not more?
- The second principle concerns the premise that parents of the child are a man and woman
since biologically only a man and a woman can create a child together. Two mothers can now
be considered as parents of the child, but in donor cases, maternity by birth still counts as
pillar of legal parenthood.
- The judicial authority must assess all legislation and administration in light of the European
Convention on Human Rights, and people in the Netherlands can invoke provisions from the
ECHR against government decisions before the court.
Mother by birth
The woman from whom the child is born, is under Dutch law the legal mother who is awarded all the
associated rights and obligations. This law makes no distinction regarding the procedure prior to the
birth (e.g. being a surrogate mother (draagmoeder)).
Parenthood by operation of the law (van rechtswege)
The man who has a formal relationship with the mother at the time of birth is always considered to
be the father by law. If the child is born before both partners are married or have entered into a
registered partnership, the man is not automatically recognized as the legal father, but he will have
to acknowledge the child. Whether another man or a donor was involved with the conception of the
child is irrelevant in the eyes of the law.
Automatic legal maternity is now also possible for the second mother, under two conditions. The co-
mother and birthmother must be in a formal relationship at the time of the birth. In addition, the
child must have been conceived through artificial insemination using an anonymous donor.
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,Parenthood through acknowledgement (erkenning)
Acknowledgement creates a legal relationship between the man acknowledging the child and the
child. However, consent from the mother (and from the child of 12 years or older) is required. Should
the birthmother not give her consent, biological parenthood can play an important role. If a man can
prove that he is the biological father of the child, the court may approve of his request as long as it
does not harm the interests of the child of the relationship between mother and child.
Acknowledgement is not possible when: the juvenile already has two parents; the man cannot enter
into marriage with the mother due to him being too closely related (e.g. being her brother); a man is
not yet 16 years old.
For female couples, this is important in two instances: if they have a child together using a known
donor who does not claim paternity; and if an anonymous donor was used but both women were not
yet in a formal relationship at the time of the birth of the child.
Parenthood through judicial determination (gerechtelijke vaststelling)
This is the opposite of acknowledgement, as it concerns partners who deny parenthood or die before
acknowledging the child. Originally, judicial determination of paternity was solely related to
biological parenthood. The judge was tasked with determining whether the man was the biological
father. In case of co-motherhood, the crucial point is that before the birth of the child, the woman as
the mother’s life partner has agreed with the conception of the child.
Parenthood through adoption
Under Dutch law it is also possible to become a legal parent through adoption.
Consequences of parenthood
The parenthood law leads to the creation of a family. Furthermore, it implies consequences for legal
custody (allowed to exercise authority over the child, to bring him up and care for him), the right and
duty to look after the child (contact and maintenance), inheritance, surname, nationality, tax, social
security and several procedural matters.
1.3 Adoption
Adoption in the Netherlands
Conditions of adoption within the borders of the Netherlands: (1) the adoption must be in the best
interest of the juvenile; (2) at the moment the adoption request is submitted, it must be established
that the child’s biological parents cannot be expected to play any further parental role in the child’s
life; (3) the child who is to be adopted must be under 18 years old; (4) the judge must examine and
consider the child’s (12+) own views on the adoption; (5) grandparents are not permitted to adopts
their grandchild.
Requirements for the biological parents: (1) the adoption will in principle not go ahead if the
biological parents are opposed to it (however, the judge will rule against in case of abuse or neglect);
(2) at the time of adoption, the biological mother must be at least 16 years old and she should no
longer have authority over the child.
Requirements for the adoptive parents: (1) the adoptive parents must be at least 18 years older than
the child they wish to adopt; (2) the parents must have lived together for at least three years (thus
demonstrating a stable relationship).
Inter-country adoption
Inter-country adoption is a fairly cumbersome procedure, for which the most important rules are laid
down in the Hague Adoption Convention: (1) the prospective adoptive parents must submit a request
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, to the Ministry of Security and Justice. This request is followed by an investigation to ascertain
whether the parents are suitable to adopt a child; (2) the parents are required to follow a mandatory
information course on the consequences of possible adoption, after which the minister grants them
permission; (3) the parents can than call upon the services to look for an adoptive child abroad; (4)
actual adoption is only possible after the adoptive parents have cared for and brought up the child
for one years (for two adoptive parents) or three years (for one adoptive parent).
Married and non-married couples, gay and lesbian couples and single people are all allowed to adopt
in the Netherlands, putting the Netherlands – along with a few other countries – at the forefront of
progressive policymaking.
1.4 Minority
In various areas, Dutch law distinguishes between two or more developmental stages. For example,
children who are suspected of criminal offences cannot be prosecuted if they are under the age of
12, for children between 12 and 18 years old there is a separate juvenile law, while young adults over
the age of 18 are in principle subject to ordinary criminal law. In light of this, children who are 12 and
older must be given the opportunity to express their opinion during proceedings concerning parental
authority, child custody and divorce, while younger children may, but are not obliged to be heard.
Dutch law states that damage caused by children <14-year old, cannot be attributed to them. The
parents are liable in such instances, called strict liability. The parents of 14 and 15-year-olds are
responsible, unless they can prove that they cannot be criticized for having failed to prevent the
child’s behavior. From the age of 16, children are solely responsible for behavior that causes harm to
others.
Minority and parental authority
The most notable legal age limit concerns the distinction between minority and majority. Dutch law
usually refers to minors. They are classified as being in the custody of either their parents or a
guardian. In essence, minors are not completely independent before the law and do not have full
control over their activities.
Legal incapacity (handelingsonbekwaam)
The minor may make small, age-appropriate purchases. However, the Netherlands also makes some
exceptions to legal incapacity. This concerns the so-called limited legal capacity (handlichting). That
means that the judge, upon the minor’s request and with the consent of the parents, can declare the
minor legally competent for certain legal actions.
Right to be heard
A minor’s right to be heard means that, from the age of 12, they should be given the opportunity to
be heard by the judge in all matters affecting them directly. This means that the judge must consider
the views put forward by the child and explain why and how his decision is consistent with, or
deviates from, the minor’s request. In principle, minors are not able to initiate legal proceedings
themselves. This is only possible through their parents or guardian. However, if a minor is the subject
of conflict between its parents, the law does provide him with the opportunity to be heard.
1.5 Parental authority
All minors are subject to the authority of their parents. Parental authority can only be limited or
removed if the juvenile court rules that it is in the best interest of the child. Parents have complete
freedom regarding how they bring up and care for their child, but their autonomy is restricted by
public policy provisions.
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