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Aantekeningen Hoorcolleges Juveniles & Law Academic Professional

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Aantekeningen van de hoorcolleges van Juveniles and Law (Academic Professional) van de master Clinical Child Family and Education Studies. Gemaakt in studiejaar . Notes of the lectures of Juveniles and Law (Academic Professional) of the Master Clinical Child, family and Education Studies. Made...

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  • 10 november 2019
  • 16
  • 2019/2020
  • College aantekeningen
  • Onbekend
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1

Lectures Juveniles and Law – Academic Professional
Lecture 1: Family law and law of persons– 11-10-2019
Family law = about relations of people such as relations between parents and children or the relation between
partners.

Dutch Civil Code (Boek 1 Burgerlijk Wetboek) contains the corner stones of family law and law of persons.
1. Legal parentage (= juridisch ouderschap)
2. Parental responsibilities. In child protection cases, parental responsibilities can be taken away. Legally,
parents remain parents, however, they don’t have the parental responsibilities anymore.
3. Contact after divorce/separation
4. Legal position minors  law or persons

Next to the Dutch Civil Code we have international agreements such as the Convention of the Child Rights.

There is a difference between everyday speech and legal speech. In everyday speech we consider a ‘parent’ a
birthparent. However, in legal terms, you are only a parent if you have been assigned legal parenthood.

Best interests of the child - overview
• Article 3 Convention on the Rights of the Child states that “the best interest of the child (BIC) shall be a
primary consideration in all actions regarding children”. This is the legal norm if you deal with children.
• But what is the BIC? It is a legal concept.

Example of BIC: based on new forms of families (such as two mothers/two fathers). Government Committee on
Rethinking Parentage (Staatscommissie Herijking Ouderschap) identifies ‘7 cores of good parenting’ based on
one article of one author (who is now the Kinderombudsman). Here, they tried to combine insights from social
sciences with experience from the law. Law and social science are closely connected (despite the scarce of
articles used here )
1. Continuity in the relations with the carers;
2. Unconditional personal commitment;
3. Care for the physical wellbeing of the child;
4. Raising the child to independence and to become a resilient citizen;
5. Organizing and monitoring the raising and upbringing in the family, at schools and in the public
domain;
6. Taking care of the creation of the child’s identity in terms of parenthood
7. Taking care or organizing and facilitating contact with those persons who are important for the child

In this lecture:




Legal parenthood
Most of the times it is the legal parent who has parental responsibilities. However, not all legal parents have
parental responsibilities.

In some cases, people go abroad and pay money and come back with a child. For example, according the law in
Ukraine, you are the legal parent of the ‘bought’ child. However, in the Netherlands it is not allowed to ‘buy’
children. So, these parents are not legal parents. There is a documentary called google baby(?) which shows
this problem. There is now a debate on legalizing surrogacy. The Dutch government will now regulate

,2

surrogacy. Within the Netherlands it will now be allowed on certain conditions (1) you have to go the court
before the conception to make agreements (2) at least one parent has genetic ties to the child. The court will
then decide if it is in the best interests of the child. If the court decides this is the case, the commissioning
parents will be the legal parents. So, there are some developments going on concerning surrogacy, but it is still
under development.

Who are a child’s legal parents?
 Mothers who give birth are always considered as the legal parent. They don’t have to do anything
except giving birth.
 Mostly the biological parents become legal parents, but social parents can also become legal parents.
 A child can have two parents at the most, even if there are three or more biological/social parents
involved in creating the child such as in families of two mothers or two fathers. However, this will
probably change in the future. But, at this moment, this is still true.
 Basic model is a mother and a father as legal parents, but two mothers can also become both legal
mothers of the child. For two mothers, the sperm donor needs to be anonymous. If the donor is
known, the second mother cannot become a legal mother. If the donor is known, this man can
recognize the child. In this case, the child will have three parents and that is not allowed. In the
scenario that the donor is identifiable but unknown to the parents, the mothers can both become
legal mothers.
 For two fathers it is more difficult to both get a status as a legal parent

How do parents become legal parents? Art. 198 and 199 of Book 1 of the Civil Code (Burgerlijk Wetboek)
 By giving birth
 By being married/registered partner to the birth mother at the time of the birth of the child.
 By recognition (= erkenning). Happens if birth child is outside marriage and outside registered
partnership. The mother has to give consent for the father to acknowledge the child. This is based on
the idea that anyone can acknowledge the child of a mother, so for example, a high-status mother can
become a ‘victim’ of a lower-class father trying to form legal ties with her.
• Recognition is not enough for parental responsibilities! You have to apply for parental
authority.
 By adoption: always a decision of the family court. This was originally meant as a child protection
procedure. But nowadays it is more the other way around. It is more to give parents who cannot have
a child, a child. Still, it is always a decision of the family court.

Case 1: Has a biological father who is not a legal father a right to become a legal father if the mother does
not consent?

For example, Rose and Peter have a child. Peter is always abroad for work. Mark is always there. Whenever,
Peter was abroad, Mark and Rose were together. then she gets pregnant and gets twins. She then thinks
that she wants to be with Peter. Peter thinks the children are his, but Mark believes the children are his.
Peter and Rose are married at the time of the birth.

What now, can Mark become the legal parent? The law says: no, Mark cannot be the legal parent because a
stable marriage is considered the best environment for the children. To the extreme: in the 1950’s
unmarried mothers were obligated to put the child for the adoption. So, marriage is considered very
important. So, Mark cannot become a legal parent. He could try to establish a relationship with the children,
and then apply for contact. He can also try to find guardian ad litem (bijzondere curator) who would file for
an application on behalf of the child. So, he does not have an entrance in the court himself, but he can try to
find an alternative route. This has not happened before, but it is in theory a possibility.


Legal consequences of being a parent and child:
 Parentage is a lifelong legal bond which is unbreakable
 Child is legally integrated in a family
 Parents have a duty to maintain the child (kinder-alimentatie) (up to 21 year)
 Parents have parental responsibilities

, 3

 Child and parents: Inheritance rights: children inherit from the parents unless the parent has stated
otherwise in the will.
 Parents: right to give a name
 Child and parent: right to contact
 Parents: right to information about child
 Nationality of the child is determined by the nationality of the legal parent.
 Residence rights of the child
 Tax law consequences: as a parent you were able to donate up to 100.000 euro to your child without
paying taxes over it.
 Social security law consequences
 Criminal law. If you would physically abuse your child, you can get a higher punishment than if you
would abuse a not legal child.

Case 2: Has a child a right to know its origins?
 Child is born in two mother family after concluding a donor contract with the sperm donor
 Contact between donor and child
 Conflict between mothers and the donor: no more contact
 Donor asks the court for a contact order, but question arises: do the mothers have to inform the child
that the donor is his father before the child has contact with the donor?

In the Netherlands, openness is considered as the best interests of the child. So, the court made the mothers tell
the child (under supervision) that this man was his father before the next contact. This differs from jurisdiction of
other countries.


Parental responsibilities
Responsibility and care regarding minors (Art. 1:245 Civil Code):
1. Care and upbringing
2. Management of child’s property
3. Legal representation. A child cannot go to court on its own but needs a legal representation to do so.

Who has parental responsibilities?
1. Married or r.p. (= registered partnership) parents: both parents without having to do anything (art.
1:251 CC)
2. Other parents: a) recognition followed by b) a simple registration in a p.r. (= parental responsibilities)
registry at the court (art. 1:252 CC). For parental responsibilities, if the mother and father are both
legal parents, and they get married afterwards (after the birth), both parents get parental
responsibilities.
3. One parent alone (mostly birth mother) (art. 1:253b)
4. One parent and one non-biological, social parent > court proceedings, best interest test (art.1:253t CC)
Parents can ask the court to decide in cases where they do not reach an agreement on issues of care, for
instance choice of school, medical treatment etc. (mostly after divorce)

Parental divorce
Divorce or separation:
a) Marriage > always court decision
b) Registered partnership > for parents with minor children: always court decision
c) Informal cohabitation> no court decision, unless conflict

Joint parental responsibilities after divorce/separation:
After divorce both parents will exercise parental responsibilities together (art. 1:251 CC). They will have to
make decisions on important issues together.




Only in exceptional cases a court may order p.r. for only one parent,

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