8 July 2015
It is not uncommon for the main carer to find a new partner who lives elsewhere in the country, or even abroad, several years after divorcing – or even during the divorce proceedings.
Foreign nationals, who are temporarily or permanently resident in the Netherlands (expats, for example), have also been known to want to return to their country of birth or to be re-assigned elsewhere, either in the Netherlands or abroad. Former spouses then face the question as to whether the main carer can simply decide to move with their child to another town or city, or another country, against the wishes of the parent left behind. The answer to this questions is NO. If the parent who is not moving has custody of the children, he/she will have to give his/her consent. If the consent is not given, the other parent can ask a court to give substitute consent. There will have to be a weighing of interests by the court, with the interest of the child playing an important role.
If a parent flouts this requirement, and moves away from the Netherlands, without consent of the court or the other parent, this will be considered as child abduction – which is a criminal offense. A parent may not relocate even within the Netherlands without consent.
Abduction can be extremely damaging for a child. It is one of the most grave and emotional actions that can be taken. The International Child Abduction Centre in the Netherlands (IKO) is the agency that serves as the first port of call in abduction-related matters. In abduction cases, it’s advisable to engage the services not only of a lawyer in the Netherlands, but also of one in the country where the child is actually staying. Proceedings for the repatriation of the child will have to be commenced in that country and there may be a need for certain proceedings in the Netherlands to enable the child to be returned. Execution from foreign court orders abroad can sometimes be problematic and an accusation could make it very hard for the abducting parent to return. I regularly work with specialised child abduction lawyers to seek the best possible solution for the child.
The Hague Convention on Child Abduction is a legal tool that is meant to help a/the custodial parent to regain access to the abducted child, facilitating the return of the minor to his or her habitual place of residence. The signatory parties have all agreed to co-operate towards the immediate return of the abducted child to his or her habitual residence. It is advisable, however, that the parent also notifies the police. Sadly, abductions also happen into countries that are not signatory parties to the Convention. The point of department is first the return of the child, then talk about the care ruling of the child. This also applies for the specific rulings on child abduction within the European Union. In the Netherlands in most cases the return of the child is ordered. So, if you have to deal with child abduction, please contact a specialised lawyer or the International Child Abduction Centre.
