The new Hague Conventions in the Dutch Courts

Extract

The present Convention has now been in force in the Netherlands for almost eight years. The Netherlands has made the two reservations allowed by the Convention. The first is that the Convention will be applied only as regards minors who have the nationality of a Contracting State (Art. 13 section 3). The second is that the competence to issue measures regarding minors of parents whose marriage has been annulled or dissolved or who have separated is reserved to the authorities which dealt with the annullment, dissolution or separation concerned (Art. 15 section 1). According to the Explanatory Memorandum of the Act ratifying the Convention (Bijl. Hand. II 69/70–10450 (R719)), the object of making the first reservation is to prevent the existence of Dutch measures which will not be recognized elsewhere. It is to be expected, so the Explanatory Memorandum continues, that a country of which the minor is a national will be more willing to recognize a measure issued pursuant to its own law. Note must be taken of the fact that the Explanatory Memorandum is based on the ordinary rules of Dutch private international law as they were at that time, i.e., custody and other matters concerning the protection of minors are in principle to be governed by the national law of the minor and, in exceptional cases, Dutch law is to be applied as the law of the habitual residence of the minor (Bijl. Hand. 70/71–10.450 (R719)). The object of making the first reservation is somewhat weakened, however, by making the second reservation, because according to Article 15 section 2 of the Convention the consequence of making the reservation under Article 15 section 1 is that the other Contracting States are not obliged to recognize the measures taken by Dutch authorities pursuant to Article 15 section 1. (See further below. Note to Part 6, regarding the second reservation). At present the object of making the first reservation is even more questionable, because there is no generally accepted opinion, so far as judicial decisions are concerned, as to whether the non-conventional Dutch conflict of laws rule should be based on nationality or on habitual residence. (See Kokkini-Iatridou: “Overzicht der Nederlandse rechtspraak, Internationaal Privaatrecht, Gezag over minderjarigen”, WPNR 1978, pp. 6–12, 24–25).