Dutch law offers a minor child of 12 years or older, or a minor who can be considered capable of properly perceiving his/her interests, the possibility to apply to the court, the so-called ‘informal legal entrance’. The minor can write or call the court in a very low-threshold manner for, for example, adjustment of parental authority or changing or terminating a visitation arrangement.
The District Court of Northern Netherlands recently had to rule on the question whether a minor can also request access to a half-brother or sister by himself.
What was at stake in this case?
The minor continued to live with her mother after her parents' relationship ended. Meanwhile, the minor has a half-brother and half-sister born from a relationship between the mother and her new partner.
In September 2022, the minor moved to live with her father and his new partner. As a result of this move, she also switched secondary schools. Since the minor moved from her mother to her father, contact with her mother has deteriorated. The minor indicated that she still visited her mother right after the move to father, but experienced a lot of tension there. This eventually led to her not visiting her mother's home for a longer period now. As a result, she also no longer has physical contact with her half-brother and half-sister. She does video call them every week, but would like to have physical contact with them again somehow. The minor has asked the court to make this possible.
The mother's position
The mother indicated in the proceedings that the minor can simply come to her home. The mother does not recognise the tensions mentioned by her. According to the mother, the minor was bullied a lot in primary and secondary school. In connection with this, mother raised with her to discuss with her father whether it would be an option for her to live with him and go to another secondary school. Subsequently, this appeared to be settled in one weekend. She became very angry about this. Not towards the minor, but towards father. There is no longer any communication between her and father. Too much has happened between them for that. The fact that father's new partner started interfering has not done any good either. Mother is convinced that her anger will never go away. For herself, she has been able to give this a place. She would love it if the minor came back to her home, but if that is not possible, she is fine with that too. She knows the minor is fine with her father.
Regarding contact between the minor and her half-brother and half-sister, she believes that her partner should also have a say in this, as they are his children. Contact at the community centre or playground would be fine, but she does not want to drag the children around, nor does she want fixed appointments. According to mother, the children are now of an age where they also have their own activities. They now have weekly picture calls, but already do not always feel like it. Finally, mother believes that she or her partner should be present at any contact moments. She may also agree if a social worker is present at the contacts.
Father's point of view
According to father, the minor is doing well. This is also confirmed by the school. The fact that there is no physical contact between the minor and her half-brother and half-sister makes father very uncomfortable for her. Father has a very different view on how the minor's move to him has gone. After the minor discussed a possible move with him, something unpleasant allegedly happened in mother's home situation, after which she rather suddenly moved in with him. This went in consultation with school and relevant social services. Father believes that what is happening now is not good for the minor. It puts her in a loyalty conflict again.
The position and advice of the Child Protection Council
The Council has been involved with these parents for an extended period of time, so the Council has a metre-high file. The Council's concerns at the time resulted in a supervision order for the children ( the minor and her brother) . The supervision order was eventually not renewed because nothing succeeded in improving the situation. Children are loyal to their parents to the utmost, but in a situation that does not feel safe or pleasant due to the actions of their parents, they sometimes end up feeling compelled to choose between them. The minor's brother made the choice to live with his mother and have no further contact with his father. It is not entirely inconceivable that the minor chose to signal to father that she still liked him and went to live with him. The fact that the half-brother and half-sister are sometimes resistant to the picture call moments may also already be a first sign of a loyalty conflict. The Council therefore considers it important, in a situation such as this, where it is no longer possible to work on the cause of the underlying problems, to look at how the minor's wishes can still be met and has advised that the parties discuss this with a counsellor and agree on contact moments in mutual consultation.
Judgment of the court
This case concerns a so-called ‘informal legal entry’. This informal court entrance allows a child who is 12 years old or older, or sometimes a child who is even younger, to approach the court informally. The court can, if the judge so wishes, make an ex officio decision on that application of a child, after the application has been considered and all interested parties have been heard on it.
A child can make use of the informal court entrance if provided for by law. The law gives three possibilities:
- Under Article 1:251a paragraph 4 of the Civil Code, a decision on a parent's custody can be made during the divorce proceedings. Based on Supreme Court case law, this can also be done after the divorce proceedings, unless a decision on this matter has already been made in the divorce proceedings (see: HR 4 April 2008, ECLI:NL:HR:2008:BC2241);
- Pursuant to article 1:253a paragraph 4 jo. 1:377g of the Civil Code, a child, if his parents exercise joint parental authority over him, may also request the determination or modification of the division of the care and upbringing duties;
- Under Article 1:377g jo. 1:377a, 1:377b and 1:377e, a child may also request the establishment or modification of a visiting arrangement or information and consultation arrangement.
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In the opinion of the court, the minor's request is admissible. This case involves the situation mentioned under 2. The minor herself has the right to directly request the court for access to persons who have a close and personal relationship with her, such as, in this case, her half-brother and half-sister. The term ‘close personal relationship’ refers to the term ‘family life’ within the meaning of Article 8 ECHR. This is what exists between the minor and her half-brother and half-sister. Indeed, the right protected in Article 8 ECHR includes relations between close blood relatives. Apart from their blood relationship, they have lived together for a considerable time (several years) as part of a combined family under one roof and thus experienced each other on a daily basis. The relationship with her half-brother and sister has thus been very important in family life as the minor has known it. The existence of fFamily life' within the meaning of Article 8 ECHR thus created a right to visitation.
The court assumed that the minor was struggling with considerable loyalty problems, as she had to cope with a dynamic of mutual disappointment and anger between (step) parents, while she naturally wanted to love all adults who were important to her. The move to father has become a new source of reproach and grief for all parties, and the minor tries to pick up the shards a bit with her request to at least have contact with her half-brother and half-sister. At the same time, the court notes that (further) deployment of assistance does not seem to be an issue at the moment and that the situation 'is what it is'. Against this background, it needs to be considered how the minor's right to visitation can be fulfilled.
The mother and stepfather did not raise any objections to the minor's wish and were willing - albeit subject to conditions - to cooperate with the efforts of (the already involved) counsellors to concretely and practically work out the contact between the minor and her half-brother and half-sister. The court is of the opinion that, in the first instance, the basic principle should be that visitation will take place in the presence (from a distance) of the mother or stepfather and that a social worker will also be present - if the minor so desires. Efforts should be made to achieve contact (at least) once a month at a mutually agreed location and time.
The judge wrote a letter to the minor about what was decided as a result of the conversation with her parents.
Conclusion
A minor has the right to apply directly to the court himself/herself for access to persons who are in a close and personal relationship to him/her, such as a half-brother or sister in this case. The term ‘close personal relationship’ refers to the term ‘family life’ within the meaning of Article 8 ECHR.
Do you have questions about the informal legal entry or would you like advice on visitation rights? If so, please contact one of our lawyers without obligation. We will be happy to assist you!