Children and the law in the Netherlands
Introduction
Juvenile law = jeugdrecht issues relating to aspects of family law such as parenthood, minority and
parental authority as well as child protection and juvenile justice.
Netherlands Civil Code: contains the regulations concerning child protection and issues crucial to
juvenile law such as parenthood, minority, adoption and custody.
1900 Simultaneous creation of a system of child protection and a separate juvenile justice system.
Increased awareness of impoverishment among families in the fast-expanding cities. (= crucial
development one)
Compulsory Education (Leerplicht)
1901 Children’s Laws (Kinderwetten)
child protection and juvenile justice – end to the inviolable rights of the father, while the
state gained the right to intervene if there was a threat to the health or development of the child
1989 Convention of the Rights of the Child
Second crucial development. Ratified by 193 states. Four general principles:
1. All children should enjoy equal enjoyment of their rights
2. The best interests of the child are 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
In recent years, this development has led to discussions in many areas in the Netherlands and
elsewhere in Europe, and to far-reaching changes to legislation relating to the rights of the children.
Committee of the Rights of the Child (CRC) monitors the implementation of the Convention. One of
the recommendations Ombudsman for Children (since 2011); independent institute that monitors
whether the children’s rights contained in the Convention are adhered to. The Ombudsman helps
juveniles who believe their rights have been violated, provides advice and examines structural
problems of children, such as poverty. European Network has 40 Ombudsmen.
2015 A task force for refugee children was formed.
Chapter 1: Family Law
1.2 Parenthood
Legal parentage (afstammingsrecht) regulates the familial relationship between parents and children.
Who is family, according to the law? A child has at least one parent, and no more than two. This is
currently under debate. Recently a State Commission recommended to allow three or four parents.
Until recently, the principle of biological parenthood was used as a simple and solid basis for
parenthood law. Since 2014 two mothers can be considered as parents of the child (in the
Netherlands). The principle of biological parents hasn’t completely been abandoned, since maternity
by birth still counts as pillar of legal parenthood.
International law plays an extremely important role in the development of Dutch parenthood law. The
European Convention on Human Rights (ECHR) has direct effect: the judicial authority must assess
all legislation and administration in light of the ECHR, and people in the Netherlands can invoke
,provisions from the ECHR against government decisions before the court. Other factors include key
influential judgements of the European Court of Human Rights (ECtHR).
Legal mother = the woman from whom the child is born, even if genetic material from others is
introduced during conception. The state may not discriminate between what used to be termed
legitimate children (born within marriage) and natural children (born outside marriage). When a
surrogate mother (draagmoeder) brings a child into the world for another woman or a homosexual
couple, they basically have no legal status. Up till now a commissioning motherhood (wensmoeder) is
not recognized by Dutch law: surrogate = legal mother.
Traditionally, Dutch law recognizes paternity by marriage: the father of a child is the man who, at the
moment the child is born, is married to the birth mother. Since 2014 this also applies if the man is in a
registered partnership with her. The traditional assumption still applies that the man who is
married/registered to the birth mother is also the biological father. In the eyes of the law it is irrelevant
whether another man or donor was involved with the conception. If the child is born before
marriage/partnership, the man is not automatically recognized as the legal father, but he will have to
acknowledge the child.
Since 2014 automatic legal maternity is also possible for the second mother, if the co- or duo-mother
and the birth mother are in a formal relationship (marriage or registered partnership) at the time of the
birth. The child must, secondly, have been conceived through artificial insemination using an
anonymous donor. If the donor is known, the partner isn’t automatically the legal mother. This is
because the donor would be able to claim legal parent status on the basis that he is the biological
father.
Dutch law also traditionally recognizes legal paternity by acknowledgement (erkenning), a separate
issue from biological paternity. It creates a legal relationship between the man acknowledging the
child and the child. This can be done after birth or later. Consent of the mother (and from the child of
12 years of older) is required. If the man can prove he is the biological father, the court may request
consent in lieu (unless risks). A sperm donor has the right to ask consent if the mother refuses. An
important precondition for acknowledgement in such cases is that the sperm donor must also
demonstrate that he has or has had a close personal relationship with the mother or the child.
Acknowledgement is not possible:
- If the juvenile already has two parents
- It’s prohibited for a man who is family of the mother (brother, father, uncle)
- It’s prohibited for a man who isn’t yet 16 years old
In 2014 the law was amended. Just as for a man who wants to acknowledge the child, the co-mother
has to have the birth mother’s consent. If she refuses, the judge may permit the request if he considers
it’s in the best interest of the child. For female couples the path towards acknowledgement is
important if they have a child using a known donor who doesn’t claim paternity, and if an anonymous
donor was used but both women were not in a formal relationship at the time of birth.
Parenthood through judicial determination (gerechtelijke vaststelling) essentially the opposite of
acknowledgement, since it concerns partners who deny parenthood (in particular). In the case of
paternity, it concerns the men who deny paternity or die before acknowledgement. Before, judicial
determination of paternity was solely related to biological parenthood. Since 2014 a somewhat similar
procedure has been developed for a woman who denies co-motherhood. The decision can’t be made
on a biological fact. 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. She can, just as the father, ask court to enforce
her status as a legal co-mother.
Legal parenthood has some consequences. It guarantees a right and duty to look after the child, even if
the parents separate. It involves a legal responsibility to maintain the child. Parents and children are
each others heirs. For inter-country adoptions: if the parents are Dutch nationals, the adopted child
also receives Dutch nationality.
, 1.3 Adoption
Under Dutch law it is also possible to become a legal parent through adoption. Dutch adoption rarely
happens. The adoption must be in the obvious interest of the juvenile. 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. A child who is adopted, must be under 18 years old. If
the child is 12 years or older, the opinion of the child plays a role. The judge can also consider the
opinion of a child under 12 who explicitly objects to an adoption request being granted. Grandparents
can’t adopt their grandchild.
The biological and prospective adoptive parents must satisfy a number of requirements. The adoption
will in principle not go ahead if the biological parents are opposed to it. Only if the biological parents
have abused or neglected the child, or if they have never or only for a very short time lived with the
child in a family relationship, may the judge decide to rule against their wish and let the adoption go
ahead. 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. The adoptive parents must be at least 18 years older than the
child they wish to adopt and they must have lived together for at least three years. The adoption can be
officially processed if the child had lived with them at home for at least a year (three years by single
parent).
Hague Adoption Convention (1993) rules for inter-country adoption. Prospective adopt parents
must submit a request to the Ministry of Security and Justice. This request is followed by an
investigation by the Child Care and Protection Board to ascertain whether the parents are suitable to
adopt a child. After the parents should follow a mandatory information course on the consequences of
possible adoption. Then they can call a government-approved intermediary agency to look for an
adoptive child abroad. Married and non-married couples, gay and lesbian couples and single people
are all allowed to adopt in the Netherlands.
1.4 Minority
Child = every human being below the age of eighteen years unless under the law applicable to the
child, majority is attained earlier.
Children in the Netherlands 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 under
14 years of age cannot be attributed to them. The parents are liable in such instances strict liability.
For 14- and 15-year-olds, the responsibility is slightly less one-sided for the parents. They are liable
unless they can prove that they cannot be criticized for having failed to prevent the child’s behavior.
From 16 years the child is solely responsible for behavior that causes harm to others. In France the
principle of strict liability is enforced until the age of 18. In Germany, Belgium and England strict
liability is not assumed: the person who has suffered damage is obliged to prove that the parents are
responsible because they failed to supervisor the minor. So the development perspective doesn’t play a
role in these four countries.
Since 1988 the age of majority (meerderjarigheid) is 18 year. Minors are classified as being in the
custody of either their parent(s) or a guardian. While parenthood implies life-long legal ties between
the two, parental authority only applies to parental relationship and ends when the juvenile turns 18.
Minors may not take legal action independently. Limited legal capacity (handlichting) the judge,
upon the minor’s request and with the consent of the parents, can declare the minor legally competent
for certain legal actions. For example a minor pregnant woman, so she can exercise authority over the
child. Exceptions: giving consent for a medical decision, the minor’s capacity to defend legal
proceedings on being involuntarily admitted to a psychiatric institution and the minor’s right to be
heard.
