KUIJPER v. THE NETHERLANDS
Inadmissible
The applicant, Mrs Trijntje Kuijper, is a Netherlands national, who was born in 1950 and lives in Alexandria (USA). She is represented before the Court by Mr A.W.M. Willems, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent, Mr. R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 October 1979 the applicant married Mr Z. and, on 4 November 1980, their daughter X was born. In February 1985, the applicant and Mr Z. separated and, on 2 April 1986, the Almelo Regional Court (arrondissementsrechtbank) pronounced their divorce. When they separated in February 1985, the applicant and Mr Z. had agreed that it was best for X if she stayed with her father. The applicant moved to Amsterdam, which lies at a distance of about 150 kilometres from Almelo where Mr Z. and X continued to live. On the basis of an arrangement, the applicant had access to X for a total period of five weeks in 1985. In its decision of 16 June 1986 and in accordance with the parents' wishes, the Almelo Regional Court entrusted Mr Z. with X's care and custody and appointed the applicant as X's auxiliary guardian (toeziend voogdes). At an unspecified date in 1986, the applicant moved from the Netherlands to the United Kingdom where she joined her new partner Mr Norris. During the summer of 1986 the applicant and X spent a total of four weeks together in the United Kingdom. Since 1986, there has been little contact between the applicant and X. On 28 December 1988 Mr Z. married his new partner, Mrs Janssen, who was born in 1966, with whom he and X had cohabited since September 1985. Two children were born out of their marriage. In May 1992 the applicant returned to the Netherlands, where she settled in Amersfoort, which lies at a distance of about 100 kilometres from Almelo. Mr Z. informed the applicant, who then wished to intensify her contact with X, that the latter did not wish to have any contacts with the applicant anymore. The applicant's auxiliary guardianship ended on 2 November 1995, when an amendment to the Civil Code entered into force abolishing the institution of auxiliary guardianship. In 1996, the applicant married her new partner Mr Norris and, together with him, moved from the Netherlands to the United States of America where they are currently still residing. On 25 March 1998, about seven months before X was to come of age and shortly before the entry into force of an amendment to several relevant provisions of the Civil Code (Burgerlijk Wetboek) (see below), Mr Z. and Mrs Janssen filed a request with the Almelo Regional Court for X's adoption by her stepmother Mrs Janssen. They submitted that, since 1985, they had jointly provided for X's care and education, that X did not have any contacts with the applicant and that X fully supported the adoption request. In July 1998, the applicant informed the Regional Court that she objected to X's adoption by Mrs Janssen. She submitted inter alia that the fact that X supported the adoption request and that there had not been any contacts between her and X for a certain period of time did not justify severing the legally recognised family tie between them. In the applicant's opinion, to sever a legally recognised family tie would only be justified in cases where a child had nothing to expect from the mother anymore. On 15 September 1998, Mr Z. and Mrs Janssen submitted a copy of a letter of 8 September 1998 by a social worker to the Regional Court. In so far as relevant, this letter reads: “Additional information for the purposes of the adoption request of X Z. This report has been prepared by ... social worker ..., at X's request. At the end of April this year, X contacted the social aid services, in May the provision of assistance started. It appears from conversations that X feels no joy in her life, she feels down and listless, insecure, cannot /dares not take initiatives. For these complaints of depression (which she has already been experiencing for a number of years, at times less at times more, as she says) I advised her to contact her general practitioner. My impressions of X: She comes across as an intelligent young woman, with a certain spontaneity where it concerns less difficult matters; she has the tendency to speak in a more rational manner where it concerns more personal matters. She finds it difficult to show her emotions. She has difficulties in trusting [others] and has little self-confidence. In her personal history the following points of particular interest appear which, in my opinion, are co-determinant for her lack of confidence: after the divorce [which occurred] when she was four, X describes a toilsome access arrangement with her biological mother, whom X calls Trix (Carmen is emotionally her mother, says X, “She has taught me everything”.) X perceives the contact with her biological mother as not close. When X gets a bit older, the need increases to discuss the bad contact as she perceives it, in the hope of being able to come closer to each other. She discovers that that does not succeed. According to X, her biological mother cannot / does not want to look at herself, sees no own part in the problems and blames others. She wants to keep the contact “cosy” [amicable and without complicating matters], says X. X finds that her biological mother does not really love her; this often gives her the feeling that she is not valuable enough to be loved. Another cause of her lack of self-confidence is, in my opinion, her hearing impairment. Owing to this [impairment] she only started attending [regular] primary school as from Group 7 [at the age of 10-11]. The transition from the school for the hearing-impaired to a regular primary school was [a] big [change], she says. She was picked on there, as well as in the beginning of secondary school. Concluding: On the basis of my opinion that complaints of depression have a deeper cause than that of people paying insufficient attention to their own needs, I have found it appropriate to support X in this procedure by way of this letter. Despite her insecurities in life, I note that this adoption request is a conscious decision of hers, about which she has clearly reflected. When I ask X, “Why this radical measure?”, she says she is not acting out of rancour. There appears to be a deep-rooted resistance to the possibility that her biological mother can still exercise an influence on her life, but more important a great need for security and recognition if Carmen becomes her legal mother. I do not feel competent in my function as a social worker to state anything diagnostically as to the possible “harm suffered” by X. My advice is to carry out a further examination on this point, for instance a psychological examination by the Regional Institute for Mental Health Care (RIAGG), before deciding the matter.” On 17 September 1998, in the course of a hearing held in private, the Regional Court examined the adoption request. It heard the parties' arguments. It further heard X on the adoption request. In its decision of 21 October 1998, overruling the applicant's objection, the Almelo Regional Court granted the request for X's adoption. As to the applicant's objection, the Regional Court held that she had insufficiently taken into consideration the manner in which her daughter had developed over the past years and had insufficiently realised that X's interests in being adopted should prevail over her own interests. In that light, it considered that the applicant's objection was to be regarded as a slight form of misfeasance (misbruik van recht; i.e. an abusive use of a right). The applicant's appeal against the decision of 21 October 1998 to the Arnhem Court of Appeal (gerechtshof) was examined at a hearing held on 16 February 1999. X, who was heard before the Court of Appeal during that hearing, made the following statement: “This is a picture of the family to which I belong. That is what it is all about. I consider my stepmother as my mother. I really want the adoption very much. The contact with my biological mother is just not right. Sometimes she wants me and then again not. She did try to do nice things with me but I was always only briefly there. I have never understood why she did not want to see me regularly. When she finally returned to the Netherlands seven years had passed. Then it did not work out anymore. I do not have the feeling that she takes me seriously. I have sought contact with her in 1996. Then she did not want to answer questions which I had. The same thing happened when we spoke over the telephone in 1998 in connection with the filing of the adoption request. The contact that I have with Carmen [X's stepmother] is the most important. I just feel that way. She was already there as from my fourth year. There is a strong bond between us. She has taught me to speak with my hearing disability and has taught me how to ride a bicycle. I do understand why my biological mother disagrees with the adoption request. I have things sorted out much better now. I have also been able to do that because I fight for my interests. At school things are now also better. I realise that the adoption will not change things very much but I want to show that Carmen is my real mother. [Emotionally speaking,] I have taken leave from my biological mother already a long time ago. This adoption is a confirmation of that. I have severed the ties with my biological mother a long time ago. Now I want to express, also in a legal sense, the connection I feel with Carmen. I have no contact any more with my maternal family. I have often tried to have a serious conversation with my biological mother but she just wanted to keep things on a cosy [superficial] level. For the rest, I refer to what I have put in writing.” On 16 March 1999, the Court of Appeal rejected the applicant's appeal and upheld the Regional Court's decision of 21 October 1998. This ruling, in so far as relevant reads: “2.4 The Court of Appeal has noted ... a written statement by X. ... 4.3 The court agrees with Mr Z. and Mrs Janssen that the requested adoption is in the apparent interests of X. 4.4 In this finding, the court takes into account that X, also noting her age, has nothing to expect anymore from [the applicant] as regards care and education. It further takes into account the long period during which X has been cared for and educated by Mr Z. and Mrs Janssen, as well as X's explicit agreement with the adoption request and her reasoned statement on this point. 4.5 It appears from her statement made before the court, as well as from her written statement referred to in 2.4, that X considers Mrs Janssen as her sole mother and that already for some considerable time – in any event since 1991 or 1992 – this has been the case. According to X, she then broke off ties with [the applicant] because the latter was, in X's opinion, not prepared to have or capable of having anything other than superficial contact with her. In or around 1996 X did, according to her statement, seek contact one more time with [the applicant]. That meeting also resulted, according to X, in disappointment, because once more she did not feel she was being taken seriously. The last experience was during a telephone conversation she had with [the applicant] in 1998 in connection with the filing of the adoption request. [The applicant] has not disputed X's statement on this point. 4.6 As already mentioned above, X considers Mrs Janssen as her mother, because she has taught her to speak – X having been unable to do so [for a long period] owing to her hearing impairment – and to ride a bicycle, and has always supported her. In short, X wishes that, in addition to the existing de facto family unit tie (gezinsband) between Mrs Janssen – and the two children born out of the marriage between Mr Z. and Mrs Janssen – and herself, a legal tie is also to be established by which their mutual relation is also legally confirmed.” 4.7 Unlike [the applicant] – who contends that X has incurred emotional problems as a result of the filing of the adoption request – the court accepts that, already prior to the filing of this request, X had contacted a social worker in order to, in her own words, talk about her feelings, and it was thus not the filing of the adoption request as such which caused her to be emotionally burdened. On this point X has declared that those feelings of frustration and anger had already existed a long time and had, according to her, been caused by [the applicant's] incapacity or unwillingness to have a more than mere superficial contact with X. She further felt that she had never been taken seriously by [the applicant] in her wish to obtain answers to questions she had. 4.8 The above does not lead to a different finding as to X's apparent interest in the requested adoption and does not entail that the court, for the determination of the case, requires further information from an expert on X's interest in the adoption by Mr Z. and Mrs Janssen. 4.9 The [applicant's] right of veto, which she invokes, under Article 1:228 § 2 of the Civil Code is only limited by the legal rule that a power cannot be invoked when it is being abused. 4.10 [The applicant] submits that, in exercising her right of veto, she is led by X's interests. According to [the applicant] it is in X's interests, in particular as regards her identity, that a legally recognised family tie between her and X remains in existence. If adoption were to be pronounced, X would be confirmed in her incorrect opinion that she has a bad mother who has left her. That cannot be in her interests. 4.11 Although the court, noting [the applicant's] own statement made at the oral hearing on appeal, assumes that [the applicant] wishes the best for X, and that the absence of a close contact between them is a result of the absence of regular contacts between them – which has also been caused by [the applicant's] stay in England for the period from 1986 to 1992 –, it does not subscribe to the interest advanced by [the applicant] in exercising the right of veto. In this respect it refers to the above considerations as to X's apparent interests in the adoption by Mr Z. and Mrs Janssen. 4.12 The veto expressed by [the applicant] will be disregarded by the court. In the court's opinion, [the applicant] abuses her power to exercise this right because [the applicant], taking into account the disproportionality between the interest advanced by [the applicant] in exercising her [veto] power and X's interest in adoption by Mr Z. and Mrs Janssen which is harmed by the exercise of that [veto] power, in all reasonableness should not have exercised that power. In the assessment of X's interest in being adopted by Mr Z. and Mrs Janssen, the court takes particularly into account that X – who was only four years old when Mr Z. and Mrs Janssen started to cohabit and who turned eighteen in November 1998 – has for a long time has been cared for and educated by Mr Z. and Mrs Janssen jointly.” The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) in which she raised three complaints, namely that the Court of Appeal had failed to take into account her arguments as regards the question whether the adoption would be in X's interest, that the Court of Appeal had given insufficient reasons for rejecting her request to obtain a further expert opinion and for its finding that X had already contacted a social worker before the adoption request had been filed, and lastly that the Court of Appeal had unjustly concluded that her reliance on her right of veto constituted a misfeasance. In its decision of 19 May 2000, the Supreme Court rejected the applicant's appeal in cassation, holding: 3.3 [The first complaint] fails, because it lacks a factual basis. As appears from its legal considerations under 4.10 and 4.11 [in its ruling of 16 March 1999], the Court of Appeal has, unlike what is asserted [in this complaint], examined and rejected the mother's arguments. 3.4 [The second complaint] is that the rejection of the mother's request to involve an expert is incomprehensible and insufficiently reasoned, and that the same applies to the consideration in which the Court of Appeal finds that X, already before the filing of the adoption request, had contacted a social worker. It is left to the insight of the judge hearing the facts of the case to decide whether he finds it necessary to obtain further expert information. That is why the first [limb of this] complaint fails. On grounds of X's statement referred to in its legal consideration under 4.7, the Court of Appeal accepted that X, already before the filing of the adoption request, had emotional problems. On that ground the second [limb of this] complaint fails. 3.5 [The third complaint] is about the finding of the Court of Appeal that the mother has abused her right of veto. In the examination of this part, the following must be put first. Although the right of veto has been allocated to the other parent because adoption would entail, for him, the far-reaching consequence of the termination of the existing legally recognised family tie between him and the child, the other parent should, in exercising this right, attach great weight to the interest of the child. Furthermore, as a rule the interest of the child in being adopted by the adoptive parents increases the longer it has been cared for and educated by them (Hoge Raad, 20 May 1994, nr. 8409, NJ 1994, 626). By finding, on the grounds set out in its legal consideration 4.12, that the mother abused her right of veto, the legal opinion of the Court of Appeal has not therefore been shown to have been incorrect. That opinion is also not incomprehensible or insufficiently reasoned. For the remainder it cannot, being interwoven as it is with assessments of a factual nature, be further examined on its correctness in cassation proceedings.” This ruling by the Supreme Court was published in the Netherlands Law Reports (Nederlandse Jurisprudentie – “NJ”) 2000, no. 455. Article 1:227 § 2 of the Civil Code, as in force at the material time, provided: “The [adoption] request may be granted only if the adoption fulfils the conditions laid down in Article 228, and if it is in the interests of the child as regards both the severance of its ties with its parents and the affirmation of its ties with the adopters, or, in the event of the adoption of a child who is the legitimate or natural child of one of the petitioners, as regards the severance of ties with the second parent and the affirmation of its ties with the step-parent.” The relevant part of Article 1:228 of the Civil Code, as in force at the material time, read: “1. Adoption shall be subject to the following conditions: ... (d) that the [adoption] request is not opposed by either parent having a legally recognised family tie with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on a similar request by the same petitioners that was rejected, although the conditions laid down in paragraphs (e) to (g) below were satisfied; ... 2. ... If the child is the legitimate child of one of the petitioners, the provisions of paragraph 1 (d) shall be disregarded; instead, adoption shall be subject to the condition that the request has not been contested by a former spouse who has a legally recognised family tie with the child and whose marriage to the spouse of the stepparent was dissolved ... [by divorce or dissolution of the marriage after judicial separation].” Under the Supreme Court's case-law in respect of Article 1:228 of the Civil Code, the effective right of veto which this provision gave the legal parent could be overridden if his or her objection to the adoption request constituted a misfeasance (misbruik van bevoegdheid), a notion defined in Article 3:13 of the Civil Code which provision, pursuant to Article 3:15 of the Civil Code, does not only apply to property law but also to other areas. Article 3:13 of the Civil Code provides: “1. A right may not be exercised by the holder if in doing so it is abused. 2. A right is abused inter alia if it is exercised with the sole intention of harming another or for a purpose other than that for which it was granted, or if – in view of the disproportion between the interest to be served and that which is damaged – the decision to exercise that right could not reasonably have been taken. 3. A right may be inherently incapable of being abused.” In a decision taken on 25 February 1994, the Supreme Court accepted as correct the trial court's finding that a former spouse's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between him and his children did not constitute a misfeasance (see, Hoge Raad, NJ 1994, no. 437). In a further decision taken on the same day, the Supreme Court accepted as correct the trial court's finding that a former spouse's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between her and her child in order to prevent the latter reproaching her in the future that, by not opposing the adoption request, she had herself contributed to that tie being lost, did not constitute a misfeasance (see, Hoge Raad, NJ 1994, no. 438). In another case, the Supreme Court held on 20 May 1994 that the exercise of the right of veto should attach great weight to the interests of the child and that, furthermore, as a rule, the interests of the child in being adopted [by one of its own parents and a step-parent] increased the longer it had been cared for and educated [by those requesting adoption] (see, Hoge Raad, NJ 1994, no. 626). In a decision taken on 27 October 2000, the Supreme Court rejected, as a misfeasance, the veto by a parent in respect of a requested adoption where the interests of the children in being adopted outweighed the appellant's interest in exercising his right of veto (see, Hoge Raad, NJ 2001, no. 104). On 1 April 1998, the Act of 24 December 1997 on the revision of the law of descent and the regulation of adoption (Wet tot herziening van het afstammingsrecht alsmede van de regeling van adoptie) entered into force, amending inter alia Article 1:228 of the Civil Code. Pursuant to Article III § 1 of this Act, proceedings on adoption requests filed prior to 1 April 1998 were to be determined according to the legal rules in force until that date. Under the new Article 1:228 § 1 (c) of the Civil Code, the adopting parent or both adopting parents must be at least 18 years older than the child whose adoption is requested. Article 1:228 § 1 (d) stipulates that an adoption request can only be granted if neither legal parent opposes the request. However, according to Article 1:228 § 2, the opposition by a legal parent can be overruled if the child and parent have not or hardly lived together as a family unit (gezinsverband); if the legal parent has abused his or her authority over the child or has grossly neglected its care and education, or if – in respect of the minor – the legal parent has been convicted of one of the offences defined in Sections XIII to XV and XVIII to XX of the Second Book of the Criminal Code (Wetboek van Strafrecht). The Explanatory Memorandum on the bill, which eventually led to the enactment of this provision, makes it clear that the possibility to overrule a legal parent's opposition to adoption was possible only under very limited conditions, although it was explicitly stated that the Supreme Court's caselaw concerning misfeasance remained pertinent and, referring to Articles 3:13 and 3:15 of the Civil Code, that an opposition by a legal parent serving no other purpose than to harm another could already on that ground be overruled. It remained for the judge to assess whether or not in a concrete case a legal parent's opposition was to be overruled. In cases of adoption by a legal parent and a step-parent of a child whose care and education they had provided during a number of years, a large degree of reticence should be displayed in overruling opposition by a legal parent who has not been entrusted with the care and custody of the child. As, in general, there would be no serious grounds that would result in such a parent being deprived of parental authority, and often such a parent would have lived with the child as a family unit, it was considered preferable that, in such situations, more meaning be given to the factual relationship of care and education between the step-parent and the child by way of joint custody (medevoogdij), for example (Kamerstukken (Parliamentary Documents), session 1995-1996, 24,649 no. 3, pp. 14-15). In a letter sent on 22 May 1997 to the Lower House of Parliament, containing replies to questions put by Members of the Lower House on the above bill, the Deputy Minister of Justice stated in relation to the proposed amendment of Article 2:228: “Criticism has been expressed about step-parent adoption in literature and legal practice since the beginning of the 80s. This criticism concerns mainly the fact that step-parent adoption after divorce can be used to ban entirely from the life of the child the existence of the legal parent not entrusted with care and custody. There is further criticism about the artificial manner in which this adoption is regulated (one of the parents must indeed adopt his child). ... I have taken this criticism to heart. Step-parent adoption is not rendered impossible, but the conditions applicable to an “ordinary” adoption also apply to the step-parent adoption: the adopting step-parent must have cared for and educated the child for at least three years. Also the condition of the (minimum) difference in age applies. Furthermore, the same limited possibilities to overrule the opposition of a parent, as in the case of an “ordinary” adoption, are applicable. Finally, the Bill on the regulation of joint authority and joint custody is currently pending before the Upper House of Parliament. I hope and expect that these proposals, if they enter into force, will reduce the number of step-parent adoptions.” The possibility of such joint custody (gezamelijk gezag) was introduced in the Civil Code (Article 1:253t) on 1 January 1998.