Change in sight for access between grandparents and grandchildren?

Back in 2008, research showed that as many as 12% of grandparents in the Netherlands had lost contact with their grandchildren. Today, in 2023, this issue is still relevant. In practice, it appears that it can be difficult for grandparents to facilitate access to their grandchildren through the courts. On 12 May 2023, the legislative proposal ‘Reducing the Threshold for Access by Grandparents Act’ was submitted to the Lower House. This blog explains the current rules regarding access between grandparents and grandchildren. And what will change if the legislative proposal is passed.

Current statutory provisions

Article 1:377a(1) of the Dutch Civil Code (Burgerlijk Wetboek) states that a child has a right of access to their parents, and whoever else is in a close personal relationship with them. Pursuant to paragraph 2 of this article, the court may, at the request of the parents or one of them or a person who has a close personal relationship with the child, stipulate rules regarding the exercise of access rights. The right of access is a right of both the child and the parent, as well as persons other than the parent.

For an access arrangement to be stipulated by the court, grandparents must prove that they are in a ‘close personal relationship’ with the child. Where this is not the case, their request for access will be declared inadmissible. This means that their application will not be considered by the court and will therefore not be assessed on its substance. The question of whether the child has an interest in the access does not arise in the case of inadmissibility.

Close personal relationship

The concept of a ‘close personal relationship’ in an access request by grandparents has been developed and elaborated in Dutch case law.

The general principle is that grandparents must prove that they have ‘more than usual contact’ with their grandchildren (see, for example, the 2019 judgment of the Amsterdam Court of Appeal). The grandparents will need to provide evidence of sufficiently concrete circumstances.

For example, the fact that the child has lived with the grandparents for an extended period of time or that the grandparents have been responsible for regular care and upbringing. One day of babysitting or an occasional longer babysitting period is not sufficient to assume a close personal relationship. In practice, it can be seen that not all courts deal with the interpretation of the concept of ‘close personal relationship’ in the same way.

If the court concludes that there is indeed a close personal relationship, it will provide a substantive assessment of the access arrangement. This will assess whether an access arrangement is in the child’s best interests and, if so, whether an access arrangement should be established and what form it will take.

Changes after adoption of the legislative proposal

If the legislative proposal is adopted, a presumption of proof of the presence of a ‘close personal relationship’ will be established, pursuant to Article 1:377a(1) of the Dutch Civil Code. This will include:

“A grandparent who is related to the child is presumed to be in a close personal relationship with the child”.

This change removes the need for grandparents to prove ‘more than usual contact’ between the grandparent and child. This is because there is then the presumption that the grandparents are in a close personal relationship with their grandchildren. Interested parties can refute this legal presumption. For example, the parent of a child may argue that the grandparents have had no contact with the child since the child’s birth, or that there was very little contact or that contact has been broken for years.

Positive change for grandparents and child

If passed, this legislative amendment will ensure that the important position grandparents can have in the lives of grandchildren is given more consideration. It will allow the courts to address the actual question at issue here more readily, i.e. that of whether the access arrangement is in the best interests of the child. As a result, this legislative proposal will not only facilitate a positive change with respect to the rights of grandparents, but also with respect to the rights and interests of the child.

It remains to be seen whether the legislative proposal will actually be passed. Until then, it remains difficult for grandparents to facilitate access to their grandchildren.

More information

If you would like more information on access arrangements, or have another legal question, please do not hesitate to contact us.