Thursday, July 17, 2014
The Hague Abduction Convention in the Netherlands
The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: the Netherlands
By Annette C. OLLAND, Senior Judge Family Law and International Child Protection at the District Court of The Hague, President of the Dutch Office of the Liaison Judge International Child Protection
Historically, the Netherlands counted 19 District Courts and each of them had jurisdiction in cases of international child abduction. Combined with the limited number of incoming International Child Abduction cases in the Netherlands (between 25 and 30 on a yearly basis), in practice this meant that a family judge in a district court would handle a few child abduction cases in a lifetime. Many district courts and individual judges, as well as other parties, thought that this was undesirable given the required specialist knowledge for these cases and their urgent nature. It was generally felt that this practice, combined with the length of the proceedings – which, including the proceedings before the Court of Appeal and before the Dutch Supreme Court, could mount up to 18 months or more – was not in the best interest of the child and it lead to a lot of criticism from several parties and institutions, including politicians.
Meanwhile, in January 2006, the Family Division of the District Court of The Hague set up a bureau, the so-called Office of the Liaison Judge International Child Protection (hereinafter:
BLIK), in order to build up and expand knowledge in the field of international family law. The direct cause for establishing BLIK was the appointment of the President and Vice-President of the Family Division of the District Court of The Hague as Liaison Judges in 2005. Their task is to facilitate contacts between Dutch judges and their foreign colleagues in pending cases involving the same minor(s) that are filed with courts in different States. BLIK soon developed into a knowledge centre and help desk for judges hearing international family law cases and a contact point for foreign judges. Thus, the Family Division of the Court of The Hague gathered specialist knowledge in the field of international child abduction and international child protection. Soon other District Courts in the Netherlands expressed their wish to be able to refer international child abduction cases to the District Court of The Hague. The District Court of The Hague was willing to hear these cases if necessary.
The criticism of the implementation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) in the Netherlands lead to the publication of a report by the Royal Commission on Private International Law that was published in August 2008, which addressed the question whether the implementation could be improved.26 The report held two recommendations. Firstly, it recommended that appeal to the Dutch Supreme Court in Hague child abduction cases should be limited to appeal in cassation on a point of law. Secondly, the Commission recommended concentrating the administration of justice at first instance and on appeal in Hague child abduction cases in one or a limited number of courts.
Inspired by this report of the Royal Commission on Private Law, the Dutch Minister for Justice declared his intention to improve the position of those directly involved with international child abduction. To this end, the Dutch International Child Abduction Implementation Act and the Dutch International Child Protection Implementation Act needed to be amended. On 1 April 2010 the preliminary draft amendment was presented to Parliament. In anticipation of this draft amendment and in response to the District Courts’ call to be able to refer international child abduction cases to the District Court of The Hague because of its specialist knowledge in the field, the Dutch Council for the Judiciary by decision of 4 February 2009 appointed the District Court of The Hague as the alternative court with the power to hear child abduction cases in addition to other District Courts. This designation meant that the other courts were able to hand over the cases of international child abduction for the whole procedure to the court of The Hague, without the consent of the parties. It turned out that the Courts referred their international child abduction cases most of the times and the Family Division of the District Court of the Hague would, from then on, handle most of the incoming International Child Abduction Cases.
The aforementioned developments finally lead to a change of the Dutch International Child Abduction Implementation Act that came into force on 1 January 2012. This amended
Act aimed to considerably speed up the return application procedure and make an end to two other undesirable situations. In short, the amended Implementation Act (among others) implied the following:
- The court of first Instance in The Hague and consequently the Court of Appeal of the Hague are competent for all incoming International Child Abduction Cases (instead of, before, 18 courts). Thus, the Family Division of the Court of the Hague and of the Court of Appeal of the
Hague have become specialised Courts, dealing with about 25 to 30 cases on a yearly basis;
- Parties can no longer appeal to the Dutch Supreme Court in Hague Child Abduction cases;
- In all cases, the child will stay in the Netherlands for the duration of the appeal in the return application proceedings.
As of 1 January 2012 the concentration of jurisdiction at first instance at the District Court of The Hague is a fact. From our experience, the benefits of concentration of jurisdiction are evident: the Family Division of our Court now has formed a team of experienced and specialised judges who handle Hague Child Abduction cases on a regular basis. Not only our judges but also our clerks and other staff are dedicated to a swift and smooth handling of these cases. The increased number of cases to be handled made it possible for the Family Division of the District Court of the Hague – in cooperation with the Ministry of Justice, the Dutch Central Authority, the Dutch Centre of International Child Abduction, the Bar and specialised family mediators – to develop and implement the so-called ‘pressure cooker procedure’, including cross-border mediation. As a result, the proceedings before the District Court, including cross-border mediation, do not take up more than six weeks.29 An appeal to the Court of Appeal may be lodged within two weeks. A hearing will take place within two weeks from the lodging of the appeal, and the Appeal Court decision will follow two weeks later. Consequently, the proceedings from the notification at and handling by the Central Authority (which should take up to 6 weeks) until the final decision of the Court of Appeal takes up 18 weeks (3x6) at the most.
Thus, from our experience, concentration of jurisdiction has lead to a considerable improvement, both in terms of quality of the decisions and in terms of duration of the proceedings.