THE NETHERLANDS AND CHILD ABDUCTION
The Netherlands is a party to the Hague Convention on the Civil Aspects of International Child Abduction. In
2001 the Gerechtshof's-Gravenhage appeal court in the Netherlands
issued a decision upholding the refusal of a Dutch trial court to order
the return from the Netherlands to Canada of a child whose mother took
her 9 year old son to the Netherlands in violation of a signed
agreement made while a pending relocation case was pending in Quebec.
The child had lived in Canada all his life. The
trial court found that the mothers removal of the child was wrongful
within the meaning of Article 3 of the Hague Convention even though the
mother had been awarded sole custody of the child. Proceedings were
underway in Quebec to consider the issues of custody and access and
that the mother had signed an agreement not to leave the country before
a final decision was made. By leaving Canada she had also violated the
Canadian Enforcement Act on International Child Abduction which
prohibited the removal of a child during a procedure in which the
question of custody is pending. However,
the court heard the child in private and judged him to be very capable
of expressing his opinion. He clearly stated that he wanted to stay
with his mother in Holland and strongly opposed returning to Canada. On
the strength of his objections the court exercised its discretion under
Article 13(2) not to order his return. The
court also found that there was a grave risk that the return of the boy
would expose him to physical or psychological harm or otherwise place
him in an intolerable situation because the mother would not be able to
return to Canada since she had no means of support there. Consequently
the boy would have to return alone and the separation from his mother
would cause him a grave risk of harm. This part of the ruling is
extremely controversial since courts in other countries have often
refused to reward an abducting parent who uses his or her own refusal
to return the prior habitual residence of the child as the basis for a
claim of grave risk of harm to the child. In
a case in 2000, the Hoge Raad der Nederlanden, an appeal court,
rejected a mothers appeal from a lower court ruling that required her
to return her two young children to the United States. The children had
lived in the USA all of their lives until their Dutch mother took them
to Holland for a two-month and then refused to return them. The parents
were married and had joint rights of custody under Illinois law. The
mother argued that returning the children to the United States would
place them in an intolerable situation because there was a strong
possibility that she would ultimately get custody in substantive
proceedings in the United States and be allowed to relocate to
Holland. The court rejected that argument since Hague Convention proceedings are not concerned with what ultimately might be in the best interests of children.
