Netherlands / Supreme Court / 22/04065

Attorney-General against the decision in case 200.262.303/01 of the Court of Appeal ’s-Hertogenbosch on 20 January 2022, in the interest of the interpretation of the law
Deciding body type
National Court/Tribunal
Deciding body
Supreme Court
Type
Decision
Decision date
13/10/2023
ECLI (European case law identifier)
ECLI:NL:HR:2023:1459
  • Netherlands / Supreme Court / 22/04065

    Key facts of the case:

    A father and a mother have three children. The parents have terminated their relationship. They do not have joint custody: the mother is the only custodian and the children live with her. The father wanted a contact arrangement, but the District Court refused. The Court of Appeal did grant a contact arrangement. Moreover, it stated at its own initiative that it would impose a penalty on the mother if she did not adhere to the contact arrangement, because the mother had refused to let the children meet the father for years. The Court of Appeal refers to the right of a parent and a child to have contact, laid down in, among other things, Article 24 of the Charter. The question is whether this right justifies that the Court of Appeal imposes a penalty at its own initiative on the mother if she does not adhere to the arrangement.

    Key legal question raised by the Court:

    Can a court impose a penalty at its own initiative on a parent if he or she refuses to adhere to a contact arrangement between a child and the other parent?

    Outcome of the case:

    There is some confusion about Dutch legislation which lays down that courts may impose coercive measures in cases of joint custody, which seems to imply that penalties (which are coercive measures, too) may also be imposed by the courts at their own initiative. However, the Supreme Court holds that, on the basis of the Benelux Convention on the Penalty Clause and the Explanatory Memorandum to the relevant Dutch law, and, in addition, Dutch case law, courts cannot impose penalties at their own initiative on parents who do not adhere to contact arrangements. This applies to cases of both joint and single custody. The right to family life does not change this. The result of the case as such was not changed, as the proceedings before the Supreme Court were only instigated by the Attorney-General in order to achieve a uniform interpretation of the law by the courts in future.