Children

Cross-border disputes involving children are very complex. Parents both want what is best for their children, but can also be diametrically opposed. If the judge has to make a decision, “the best interests of the child” will usually be decisive. What that exactly is, varies from case to case.

Many countries in the world, including the Netherlands, are party to international treaties that aim to create clarity about the legal position of children. One of the best known is the Hague Convention on Child Protection of 1996. Other treaties are there to ensure that there is a safe upbringing climate for children, such as the International Convention on the Rights of the Child (CRC).

If parents cannot reach an agreement on what is in the best interest of their child, the judge can be asked to make a decision on this. Which judge must be approached for this is determined in the Netherlands on the basis of private international law (IPR). Each country has its own rules to determine whether its own judge has jurisdiction or not.

In most international treaties, the child's habitual residence is the determining factor for jurisdiction. The judge of the country where the child lives is considered best placed to determine what is in the best interests of that child. The fact that the child does not have the nationality of the country where it lives is not always relevant. But the reverse is also true: the fact that a child has Dutch nationality does not mean that the Dutch judge has jurisdiction to make decisions regarding the child.

Children prefer that their parents reach an agreement on matters concerning them. Even if you do not live in the same country, it is possible to reach an agreement through consultation. This can be done, for example, through Cross Border Mediation. You can find more information about this at: https://www.kinderontvoering.org/mediation/pagina/crossborder-mediation.html

 

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