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Law - ECHR - Hendriks v the Netherlands
Submitted by: Wim Hendriks, St.
Alleged victim: The author
State party concerned: The Netherlands
Date of communication: 30 December 1985 (date of initial letter)
Date of decision on admissibility: 25 March 1987
The Human Rights Committee, established under article 28 of
the International Covenant on Clvil and Political Rights,
Meeting on 27 July 1988, Having concluded its consideration
of communication No. 201/1985, submitted to the Committee
by Wim Hendriks, St. under the Optional Protocol to the International
Covenant on Civil and Political Rights, Having taken into
account all written information made available to it by the
author of the communication and by the State party concerned,
Adopts the following:
1. The author of the communication (initial letter of 30 December
1985 and subsequent letters of 23 February, 3 September and
15 November 1986 and 23 January 1988) is Wim Hendriks, a Netherlands
citizen born in 1936, at present residing in the Federal Republic
of Germany, where he works as an engineer. He submits the
communication on his own behalf and on behalf of his son,
Wim Hendriks, Jr., born in 1971 in the Federal Republic of
Germany, at present residing in the Netherlands with his mother.
The author invokes article 23, paragraph 4, of the Covenant,
which provides that:
"States Parties ... shall take appropriate steps to ensure
equality of rights and responsibilities of spouses as to marriage
... and at its dissolution. In the case of dissolution, provision
shall be made for the necessary protection of any children."
He claims that this article has been violated by the Courts
of the Netherlands which granted exclusive custody of Wim
Hendriks, Jr. to the mother without ensuring the father's
right of access to the child. The author claims that his sons's
rights have been and are being violated by his subjection
to one-sided custody; moreover, the author maintains that
his rights as a father have been and are being violated and
that he has been deprived of his responsibilities vis-a-vis
his son without any reason other than the unilateral opposition
of the mother.
2.1 The author married in 1959 and moved
with his wife to the Federal Republic of Germany in 1962,
where their son Wim was born in 1971. The marriage gradually
broke up and in September 1973 the wife disappeared with the
child and returned to the Netherlands. She instituted divorce
proceedings and on 26 September 1974 the marriage was dissolved
by decision of the Amsterdam District Court, without settling
the questions of guardianship and visiting rights. Since the
child was already with the mother, the father asked the court,
in December 1974 and again in March 1975, to make a provisional
visiting arrangement. In May 1975, the Court awarded custody
to the mother, without, however, making provision for the
father's visiting rights; co-guardianship was awarded to the
ex-wife's father on the ground that Mr. Hendriks was living
abroad. Early in 1978, the author requested the Child Care
and Protection Board to intercede in establishing contact
between his son and himself. Because of the mother's refusal
to co-operate, the Board failed in its efforts and advised
the author to apply to the Juvenile Judge of the Amsterdam
District Court. On 16 June 1978, the author requested the
Juvenile Judge to establish a first contact between his son
and himself and subsequently to make a visiting arrangement.
On 20 December 1978, the Juvenile Judge, without finding any
fault on the part of the father, dismissed the request on
the grounds that the mother continued to oppose any such contact.
In this connection, the Juvenile Judge noted:
"That in general the court is of the opinion that contact
between a parent who does not have custody of a child or children
and that child/those children must be possible;
"That, although the court considers the father's request
reasonable, the 'mother cannot in all conscience agree to
an access order or even to a single meeting between the boy
and his father on neutral ground, despite the fact that the
Child Care and Protection Board would agree and would have
offered guarantees;
"That, partly in view of the mother's standpoint, it
is to be expected that the interests of the boy would be harmed
if the court were to impose an order."
2.2 On 9 May 1979, the author appealed to the Court of Appeal
in Amsterdam, arguing that the mother's refusal to co-operate
was not a valid ground for rejection of his request. On 7
June 1979, the Court of Appeal confirmed the lower
"Considering ... as its main premise that in principle
a child should have regular contact with both parents if it
is to have a balanced upbringing and be able also to identify
with the parent who does not have custody,
"That cases may arise, however, where this principle
cannot be adhered to,
"That this may particularly be the case where, as in
the present instance, a number of years have passed since
the parents were divorced, both have remarried, but there
is still serious conflict between the parents,
"That, in such a case, it is likely that an access order
will lead to tension in the family of the parent who has custody
of the child and that the child can easily develop a conflict
of loyalties,
"That a situation such as that described above is not
in the interests of the child, it being irrelevant which of
the parents has caused the tension, since the interests of
the child - the right to grow up without being subjected to
unnecessary tension - must prevail,
"That, in addition, the father has not seen the child
since 1974 and the child now has a harmonious family life
and has come to regard the mother's present husband as his
father."
2.3 On 19 July 1979, the author appealed on points of law
to the Supreme Court, arguing that the grounds for a rejection
could only lie in exceptional circumstances relating to the
person of that parent "as certain to be a danger to the
health and moral welfare of the child or to lead to a serious
disturbance of his mental balance, whereas in the present
case it has not been stated or established that such exceptional
circumstances exist or have existed". On 15 February
1980, the Supreme Court upheld the Court of Appeal's decision,
noting that "the right of the parent who does not have
or will not be awarded custody of the child to have access
to that child must never be lost sight of but - as the Court
rightly judged in this case - the interests of the child must
ultimately be paramount". The author therefore states
that he has exhausted domestic remedies.
2.4 The author contends that the Netherlands courts did not
correctly apply article 161, section 5, of the Netherlands
Civil Code, which stipulates that "on demand or on application
of both parents or of one of them, the judge may lay down
an arrangement regarding contact between the child and the
parent not granted custody of the child. If such arrangement
has not been laid down in the divorce judgement .... it may
be laid down at a later date by the Juvenile Judge".
In view of the "inalienable" right of the child
to have contact with both his parents, the author contends
that the Netherlands courts must grant visiting rights to
the non-custodial parent, unless exceptional circumstances
exist. Since the Courts did not make an arrangement for mutual
access in his case and no exceptional circumstances exist,
it is argued that Netherlands legislation and practice do
not effectively guarantee the equality of rights and responsibilities
of spouses at the dissolution of marriage nor the protection
of children, as required by article 23, paragraphs I and 4,
of the Covenant. In particular, the author notes that the
law does not give the courts any guidance as to which exceptional
circumstances might .serve as a justification for the denial
of this fundamental right of mutual access. For the psychological
balance and harmonious development of a child, contact with
the parent who was not granted custody must be maintained,
unless the parent in question constitutes a danger to the
child. In the case of his son and himself, the author contends
that, although the Netherlands courts ostensibly had the best
interests of the child in mind, Wim junior has been denied
the opportunity of seeing his father for 12 years on the insufficient
ground that his mother opposed such contacts and that court-enforced
visits could have caused psychological stress detrimental
to the child. The author argues that every divorce entails
psychological stress for all parties concerned and that the
courts erred in determining the interests of the child in
a static manner by focusing only on his protection from tension,
which, moreover, would not be caused by the father's misconduct
but by the mother's categorical opposition. The author concludes
that the courts should have interpreted the child's best interests
in a dynamic manner by giving more weight to Wim junior's
need to maintain contact with his father, even if the re-establishment
of the father-son relationship might initially have given
rise to certain difficulties.
2.5 Having regard to article 5, paragraph 2 (a), of the Optional
Protocol, the author states that on 14 September 1978 he submitted
an application to the European Commission of Human Rights,
and that consideration of the matter by that body was completed
with the adoption of the Commission's report on 8 March 1982.
On 3 May 1984, the author submitted a separate application
to the European Commission on behalf of his son. On 7 October
1985, the Commission declared the case inadmissible, rations
personae.
2.6 The author therefore requested the Human Rights Committee
to consider his communication since he had exhausted domestic
remedies and the same matter was not pending before another
procedure of international investigation or settlement.
3. By its decision of 26 March 1986, the Committee transmitted
the communication, under rule 91 of its provisional rules
of procedure, to the State party concerned, requesting information
and observations relevant to the question of the admissibility
of the communication.
4.1 In its submission under rule 91, dated 9 July 1986, the
State party contests the author's standing to submit an application
on behalf of his son, adding that:
"The family relationship between Hendriks, St. and Hendriks,
Jr. does not in itself provide sufficient grounds to assume
that the son wishes the application to be submitted ... Even
if Mr. Hendriks did have the right to submit an application
on behalf of his son, it is doubtful whether Hendriks, Jr.
could be regarded as a 'victim' within the meaning of rule
90, paragraph 1 (b), [of the Committee's provisional rules
of procedure]. The Government of the Netherlands wishes to
stress that the Netherlands authorities have never prevented
Wim Hendriks, Jr. from contacting his father of his own accord
if he wished to do so. The Government of the Netherlands would
point out in this respect that Mr. Hendriks, St. met his son
in 1985 and entertained him at his home in the Federal Republic
of Germany."
4.2 With respect to the compatibility of the communication
with the Covenant, the State party contends that article 23,
paragraph 4, of the Covenant
"does not seem to include a rule to the effect that a
parent who has been divorced must have access to children
from the marriage if those children are not normally resident
with him/her. If the article does not lay down such a right,
there is no need to explore the question of whether this right
... has actually been violated."
4.3 With respect to the exhaustion of domestic remedies, the
State party observes that there is nothing to prevent the
author from once again requesting the Netherlands courts to
issue an access order, basing his request on "changed
circumstances", since Wim Hendriks, Jr. is now over 12
years old, and, in accordance with the new article 902 (b)
of the Code of Civil Procedure which came into force on 5
July 1982, Wim Hendriks, Jr. would have to be heard by the
Court in person before a judgement could be made.
5.1 In his comments dated 3 September 1986, the author states
that the decision of the Supreme Court of the Netherlands
of 24 February 1980 effectively prevents him from re-entering
the domestic recourse system.
5.2 With regard to the question of his standing to represent
his son before the Committee, the author submits a letter
dated 15 November 1986, countersigned by his son, forwarding
a copy of the initial letter of 30 December 1985 and of the
comments of 3 September 1986, also countersigned by his son.
6.1 Before considering any claims contained in a communication,
the Human Rights Committee must, in accordance with rule 87
of its provisional rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
The Committee decided on the admissibility of the Communication
at its twenty-ninth session, as follows.
6.2 Article 5, paragraph 2 (a), of the Optional Protocol precludes
the Committee from considering a communication if the same
matter is being examined under another procedure of international
investigation or settlement. The Committee ascertained that
the case was not under examination elsewhere. It also noted
that prior consideration of the same matter under another
procedure did not preclude the Committee's competence as the
State party had made no reservation to that effect.
6.3 Article 5, paragraph 2 (b), of the Optional Protocol precludes
the Committee from considering a communication unless domestic
remedies have been exhausted. In that connection, the Committee
noted that, in its submission of 9 July 1986, the State party
had informed the Committee that nothing would prevent Mr.
Hendriks from once again requesting the Netherlands courts
to issue an access order. The Committee observed, however,
that Mr. Hendriks' claim, initiated before the Netherlands
courts 12 years earlier, had been adjudicated by the Supreme
Court in 1980. Taking into account the provision of article
5, paragraph 2 (b), in fine of the Optional Protocol regarding
unreasonably prolonged remedies, the author could not be expected
to continue to request the same courts to issue an access
order on the basis of "changed circumstances", notwithstanding
the procedural change in domestic law (enacted in 1982) which
would now require Hendriks, Jr. to be heard. The Committee
observed that, although in family law disputes, such as custody
cases of that nature, changed circumstances might often justify
new proceedings, it was satisfied that the requirement of
exhaustion of domestic remedies had been met in the case before
it.
6.4 With regard to the State party's reference to the scope
of article 23, paragraph 4, of the Covenant (para. 4.2 above),
i.e. whether the provision in question laid down a right of
access for a divorced parent or not, the Committee decided
to examine the issue with the merits of the case.
7. On 25 March 1987, the Committee therefore decided that
the communication was admissible. In accordance with article
4, paragraph 2, of the Optional Protocol, the State party
was requested to submit to the Committee, within six months
of the date of transmittal to it of the decision on admissibility,
written explanations or statements clarifying the matter and
the measures, if any, that might have been taken by it.
8.1 In its submission under article 4, paragraph 2, of the
Optional Protocol, dated 19 October 1987, the State party
contends that article 23, paragraph 4, of the Covenant does
not provide for a right of access to his/her child for a parent
who has been divorced and whose children are not normally
resident with him/her. Neither the travaux preparatoires nor
the wording of the said article would seem to imply this.
The State party further affirms that it has met the requirements
of article 23, paragraph 4, since the equality of rights and
responsibilities of spouses whose marriage has been dissolved
through divorce is assured under Netherlands law, which also
provides for the necessary protection of any children. After
the divorce, custody can be awarded to either the mother or
the father. The State party submits that:
"In general, it can be assumed that a divorce occasions
such tensions that it is essential to the child's interest
that only one of the parents be awarded custody. In cases
of this kind, article 161, paragraph 1, of book 1 of the Civil
Code provides that, after the dissolution of a marriage by
divorce, one of the parents shall be appointed guardian. This
parent will then have sole custody of the child. The courts
decide which parent is to be awarded custody after a divorce.
This is done on the basis of the interests of the child. One
may therefore conclude that, by these provisions, Netherlands
law effectively guarantees the equality of rights and responsibilities
of parents after the dissolution of marriage, bearing in mind
the necessary protection of the child."
The State party adds that it is customary for parents to agree,
at the time of the divorce, on an access arrangement between
the child and the parent who was not awarded custody. The
latter, in accordance with article 161, paragraph 5, of the
Civil Code, can request the Court to decide on an access arrangement.
8.2 The State party further explains that, if the Committee
should interpret article 23, paragraph 4, of the Covenant
as granting a right of access to his/her child to the parent
who was not awarded custody, it would wish to observe that
such a right has, in practice, developed in the Netherlands
legal system:
"Although not laid down explicitly in (the Netherlands)
legislation, it is assumed that the parent not awarded custody
has a right of access. This right derives from article 8,
paragraph 1, of the European Convention on Human Rights, which
lays down the right to respect for family life. The Netherlands
is a party to this Convention, which thus forms part of the
Netherlands legal system. Article 8 ... moreover is directly
applicable in the Netherlands, thus allowing individual citizens
to institute proceedings before the Netherlands courts if
they are deprived of the above right."
8.3 With regard to the possible curtailment of access to the
child in cases where this is deemed crucial to the child's
interests, the State party refers to a judgement of the Supreme
Court of the Netherlands of 2 May 1980, the relevant passage
of which reads:
"The right to respect for family life, as laid down in
article 8 of the European Convention on Human Rights, does
not imply that the parent who is not awarded custody of his
or her minor children is entitled to contact with them where
such contact is clearly not in the children's interest because
it would cause considerable disturbance and tension in the
family in which they are living. To recognize such an entitlement
on the part of the parent not awarded custody would conflict
with the children's rights under article 8 of the Convention."
This, it is stated, is a case where the "necessary protection
of any children", within the meaning of article 23, paragraph
4, of the Covenant, was the overriding interest at stake.
The State party adds that the Lower House of parliament is
debating a bill concerning the arrangement of access in the
case of divorce. The bill proposes that the parent who is
not awarded custody after divorce be granted a statutory right
of access and puts forward four grounds on the basis of which
access could be denied in the interests of the child, to wit,
if:
"(a) Access would have a seriously detrimental effect
on the child's mental or physical well-being;
"(b) The parent is regarded as clearly unfit or clearly
incapable of access;
"(c) Access otherwise conflicts with the overriding interest
of the child;
"(d) The child, being 12 years of age or older, has been
heard and has indicated that he has serious objections to
contact with his parent."
8.4 Inasmuch as the scope of a parent's right of access to
his/her child is concerned, the State party indicates that
such a right is not an absolute one and may always be curtailed
if this is in the overriding interests of the child. Curtailment
can take the form of denying the right of access to the parent
not awarded custody or restricting access arrangements, for
example by limiting the amount of contact. The interests of
the parent not awarded custody will only be overruled and
access denied if that is considered to be in the child's interests.
However, if the parent who was awarded custody reacts to access
arrangements in such a way as to cause considerable disturbance
in the family in which the child is living, the parent who
was not awarded custody may be denied access. Applications
for access can thus be turned down, or access rights revoked,
if this is deemed to be in the overriding interests of the
child.
8.5 The State party further recalls that the above considerations
were all applied in deciding whether the author should have
access to his son. This led to the denial of access by every
court involved.
8.6 The State party concludes that article 23, paragraph 4,
of the Covenant has not been violated and contends that the
obligation to ensure the equality of rights and responsibilities
of spouses at the dissolution of marriage, referred to in
that provision, does not include an obligation to ensure the
right of access in the form of an access arrangement. Alternatively,
if the Committee should interpret the above provision as encompassing
that right, it states that the Netherlands legal system already
provides for the right in question. In the author's case,
the right ,was assumed to exist, yet its exercise was denied
in the interests of the child. The necessary protection of
the child upon dissolution of the marriage made it impossible
for the complainant to exercise his right of access.
9. In his comments dated 23 January 1988, the author claims
that article 161, paragraph 5, of the Netherlands Civil Code
should have been interpreted as requiring the judge in all
but exceptional cases to ensure continued contact between
the child and the non-custodial parent. He concludes that,
in the absence of a clear legal norm under Netherlands law
affirming that a parent-child relationship and parental responsibility
continue, the Netherlands courts, in the exercise of uncontrolled
discretion, violated his and his son's rights under the Covenant
by denying his applications for visiting rights.
10.1 The Human Rights Committee has considered the present
communication in the light of all information made available
to it by the parties, as provided in article 5, paragraph
1, of the Optional Protocol. The facts of the case are not
in dispute.
10.2 The main question before the Committee is whether the
author of the communication is the victim of a violation of
article 23, paragraphs 1 and 4, of the Covenant because, as
a divorced parent, he has been denied access to his son. Article
23, paragraph 1, of the Covenant provides for the protection
of the family by society and the State:
"The family is the natural and fundamental group unit
of society and is entitled to protection by society and the
State".
Under paragraph 4 of the same article:
"States parties to the present Covenant shall take appropriate
steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and at its dissolution.
In the case of dissolution, provision shall be made for the
necessary protection of any children."
10.3 In examining the communication, the Committee considers
it important to stress that article 23, paragraphs 1 and 4,
of the Covenant sets out three rules of equal importance,
namely, that the family should be protected, that steps should
be taken to ensure equality of rights of spouses upon the
dissolution of the marriage and that provision should be made
for the necessary protection of any children. The words "the
family" in article 23, paragraph 1, do not refer solely
to the family home as it exists during the marriage. The idea
of the family must necessarily embrace the relations between
parents and child. Although divorce legally ends a marriage,
it cannot dissolve the bond uniting father - or mother - and
child~ this bond does not depend on the continuation of the
parents' marriage. It would seem that the priority given to
the child's interests is compatible with this rule.
10.4 The courts of the States parties are generally competent
to evaluate the circumstances of individual cases. However,
the Committee deems it necessary that the law should establish
certain criteria so as to enable the courts to apply to the
full the provisions of article 23 of the Covenant. It seems
essential, barring exceptional circumstances, that these criteria
should include the maintenance of personal relations and direct
and regular contact between the child and both parents. The
unilateral opposition of one of the parents, cannot, in the
opinion of the Committee, be considered an exceptional circumstance.
10.5 In the case under consideration, the Committee notes
that the Netherlands courts, as the Supreme Court had previously
done, recognized the child's right to permanent contact with
each of his parents as well as the right of access of the
non-custodial parent, but considered that these rights could
not be exercised in the current case because of the child's
interests. This was the court's appreciation in the light
of all the circumstances, even though there was no finding
of inappropriate behaviour on the part of the author.
11. As a result, the Committee cannot conclude that the State
party has violated article 23, but draws its attention to
the need to supplement the legislation, as stated in paragraph
10.4.
Individual opinion: submitted by Messrs. Vojin Dimitrijevic
and Omar El Shafei, Mrs. Rosalyn Higgins and Mr. Adam Zielinski,
pursuant to rule 94, paragraph 3, of the Committee's provisional
rules of procedure, concerning the views of the Committee
on communication No. 201/1985, Hendriks v. the Netherlands
1. The great difficulty that we see in this case is that the
undoubted right and duty of a domestic court to decide "in
the best interests of the child" can, when applied in
a certain way, deprive a non-custodial parent of his rights
under article 23.
2. It is sometimes the case in domestic law that the very
fact of a family rift will lead a non-custodial parent to
lose access to the child, though he/she has not engaged in
any conduct that would per se render contact with the child
undesirable. However, article 23 of the Covenant speaks not
only of the protection of the child, but also of the right
to a family life. We agree with the Committee that this right
to protection of the child and to a family life continues,
in the parent-child relationship, beyond the termination of
a marriage.
3. In this case, the Amsterdam District Court rejected the
father's petition for access, although it had found the request
reasonable and one that should in general be allowed. It would
seem, from all the documentation at our disposal, that its
denial of Mr. Hendriks' petition was based on the tensions
likely to be generated by the mother's refusal to agree to
such a contact - "even to a single meeting between the
boy and his father on neutral ground, despite the fact that
the Child 'Care and Protection Board would agree and would
have offered guarantees" (decision of 20 December 1978).
Given that it was not found that Mr. Hendriks' character or
behaviour was such as to make the contact with his son undesirable,
it seems to us that the only "exceptional circumstance"
was the reaction of Wim Hendrlks junior's mother to the possibility
of parental access and that this determined the perception
of what was in the best interests of the child.
4. It is not for us to insist that the courts were wrong,
in their assessment of the best interests of the child, in
giving priority to the current difficulties and tensions rather
than to the long-term importance for the child of contact
with both its parents. However, we cannot but point out that
this approach does not sustain the family rights to which
Mr. Hendriks and his son were entitled under article 23 of
the Covenant.
Vojin Dimitrijevic Rosalyn Higgins
Omar El Shafei Adam Zielinski
Individual opinion: submitted by Mr. Amos Wako. pursuant to
rule 94. paragraph 3 of the Committee's provisional rules
of procedure, concerning the views of the Committee on communication
No. 201/1985, Hendriks v. the Netherlands
1. The Committee's decision finding no violation of article
23 of the Covenant in this case is predicated on its reluctance
to review the evaluation of facts or the exercise of discretion
by a local court of a State party.
2. Although I fully appreciate and understand the Committee's
opinion in this matter and, in fact, agreed to go along with
the consensus, I wish to put on record my concerns, which
are. twofold.
3. My first concern is that, though the Committee's practice
of not reviewing the decisions of local courts is prudent
and appropriate, it is not dictated by the Optional Protocol.
In cases where the facts are clear and the texts of 811 relevant
orders and decisions have been made available by the parties,
the Committee should be prepared to examine them as to their
compatibility with the specific provisions of the Covenant
invoked by the author. Thus, the Committee would not be acting
as a "fourth instance" in determining whether a
decision of a State party's court was correct according to
that State's legislation, but would only examine whether the
provisions of the Covenant invoked by the alleged victim have
been violated.
4. In the present case, the Committee declared the communication
of Mr. Hendriks admissible, thus indicating that it was prepared
to examine the case on the merits. In its views, however,
the Committee has essentially decided that it is unable to
examine whether the decisions of the Netherlands courts not
to grant the author visiting rights to his son were compatible
with the requirements of protection of the family and protection
of children laid down in articles 23 and 24 of the Covenant.
Paragraph 10.3 of the decision reflects the Committee's understanding
of the scope of article 23, paragraphs 1 and 4, and of the
concept of "family". In paragraph 10.4, the Committee
underlines the importance of maintaining permanent personal
contact between the child and both his parents, barring exceptional
circumstances; it further states that the unilateral opposition
by one of the parents - as apparently happened in this case
- cannot be considered such an exceptional circumstance. The
Committee should therefore have applied these criteria to
the facts of the Hendriks case, so as to determine whether
a violation of the articles of the Covenant had occurred.
The Committee, however, makes a finding of no violation on
the ground that the discretion of the local courts should
not be questioned.
5. My second concern is whether the Netherlands legislation,
as applied to the Hendriks family is compatible with the Covenant.
Section 161, paragraph 5, of the Netherlands Civil Code does
not provide for a statutory right of access to a child by
the non-custodial parent, but leaves the question of visiting
rights entirely to the discretion of the judge. The Netherlands
legislation does not contain specific criteria for withholding
of access. Thus the question arises whether the said general
legislation can be deemed sufficient to guarantee the protection
of children, in particular the right of children to have access
to both parents, and to ensure equality of rights and responsibilities
of spouses at the dissolution of a marriage, as envisaged
in articles 23 and 24 of the Covenant. The continued contact
between a child and a non-custodial parent is, in my opinion,
too important a matter to be left solely to the judge to decide
upon without any legislative guidance or clear criteria, hence
the emerging international norms, notably international conventions
against the abduction of children by parents, bilateral agreements
providing for visiting rights and, most importantly, the draft
convention on the rights of the child, draft article 6, paragraph
3, of which provides| "a child who is separated from
one or both parents has the right to maintain personal relations
and direct contacts with both parents on a regular basis,
save in exceptional circumstances". Draft article 6 his,
paragraph 2, provides similarly.' "a child whose parents
reside in different States shall have the right to maintain
on a regular basis, save in exceptional circumstances, personal
relations and direct contacts with both parents ...".
6. The facts of this case, as presented to the Committee,
do not reveal the existence of any exceptional circumstances
that might have justified the denial of personal contacts
between Wim Hendriks junior and Wim Hendriks senior. The Netherlands
courts themselves agreed that the father's application for
access was reasonable, but denied the application primarily
on the grounds of the mother's opposition. Although the Netherlands
courts may have applied Netherlands law to the facts of this
case correctly, it remains my concern that that law does not
include a statutory right of access nor any identifiable criteria
under which the fundamental right of mutual contact between
a non-custodial parent and his or her child could be denied.
I am pleased that the Netherlands Government is currently
contemplating the adoption of new legislation which would
provide for a statutory right of access and give the courts
some guidance for the denial of access based on exceptional
circumstances. This legislation, if enacted, would better
reflect the Spirit of the Covenant.
Amos Wako
* The text of an individual opinion submitted by Messrs. Vojin
Dimitrijevic and Omar El Shafei, Mrs. Rosalyn Higgins and
Mr. Adam Zielinski is reproduced in appendix I to the present
annex. The text of an individual opinion submitted by Mr.
Amos Wako is reproduced in appendix II.
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