District Court of The Hague, The Netherlands
In this case the court does not see any ground for ‘refusal’, because the children’s resistance is the result of the negative image father has of mother and their dependence on father. The Guardian ad litem had repported that the children and the father form ‘an island’ in the Netherlands. According to her, there is cognitive dissonance and systemic pressure. The Dutch court thinks their resistance is no reason to decline immediate return to the U.S.
Pursuant to the Hague Convention on Child Abduction, the court must order the immediate return of a child in the event of wrongful removal or wrongful detention (contrary to joint custody). If less than 1 year has elapsed between the transfer of the children to the Netherlands, the court will not address the question of whether the children are rooted in the Netherlands. The court can only waive an order to return if there is a ground for refusal as referred to in Article 13 of the Convention.
The parties agree that they have joint custody of the children and actually exercise that custody. They also agree that the children had their usual place of residence in the U.S. immediately prior to their transfer to the Netherlands. It is also not disputed that the father did not request or receive permission from the mother or from a court of law to travel to the Netherlands and settle in the Netherlands with the children.
Ground for refusal
The father claims there are two grounds for refusal.
1) Upon return to the U.S., the children will find themselves in an intolerable situation within the meaning of Article 13(1)(b) of the Convention.
2) There is opposition on the part of the children within the meaning of Article 13(2) of the Convention.
The father claims that the bond between the mother and the children is bad. The mother has cheated and the children have great difficulty in doing so. In recent months, the children have independently and consistently indicated that they want to stay with the father in the Netherlands.
Moreover, he cannot and may not return to the U.S. for the next 10 years. This also means that if the children are returned, they will be separated from their primary attachment figure: their father.
The mother states that the children in the U.S. were attached to both parents. There was a co-parenting arrangement. The relationship with the children is indeed disturbed and the children will need help when they return to the U.S.. But the father nurtures the children in their negative image of the mother.
According to the mother, the father can and may return to the U.S. Moreover: case law shows that the mere fact that the children are separated from the abducting parent upon return does not mean that the return can be refused.
Guardian ad litem
The guardian ad litem spoke to the children and wrote a report. The eldest two children indicate that they are doing well in the Netherlands and that the U.S. is a closed chapter. They had to leave the U.S., because father had told them that mother was trying to make sure they wouldn’t see father again. According to her, the children and the father form an island in the Netherlands. They are therefore very close to each other and by definition have the same opinion. She wonders whether the children can express themselves freely in this situation. According to her there is cognitive dissonance and systemic pressure among the children (especially the oldest two).
Decision of the District Court of The Hague
The court is of the opinion that the ground for refusal ‘unbearable situation’ must be interpreted very restrictively and can only be honoured in very extreme situations. This is not the case in this situation, according to the District Court. The man can and may return to the U.S. Return of the children to the U.S. does not necessarily mean that there will be no more contact between the father and the children.
The court may refuse to order return if it finds that the children are resisting return and that they have reached an age and degree of maturity that justifies taking their views into account. The court is of the opinion that there is no well-founded opposition. The oldest two children spoke with the judges before the court hearing. The court sees that the children are expressing negative feelings towards the mother, that they have entered into a serious loyalty conflict and that they seem to have opted for the father in this very difficult situation for them. However, the court pays attention to what the special trustee (guardian ad litem) has said.
The reluctance of the children to return and the attitude of the children seems to be motivated by the negative image the father has of the mother and their dependence on the father in the current situation. For this reason, the court cannot attach so much importance to the opinion of the children that this should lead to the acceptance of resistance and the rejection of the return. Moreover, it follows from the special trustee’s report that the children do not seem to feel free to express themselves.
The father appealed. The appeal court also decided that the children must return to the U.S. In addition the appeal court decided that, if the father does not return the children to the U.S. himself, he must hand the children over to the mother. The father had argued that this is only possible if it is clear that the mother can immediately travel to the U.S. with the children. The appeal court said that it is consistent with the intention of the Convention, that the children shall be brought back into their previous situation and that a decision that the father should hand the children over to the mother will contribute to that. The reason for this is that as long as the children are with the father and under only his influence, they will suffer a severe conflict of loyalties. Besides this, the fact that the father had withdrawn the children from the custody of the mother several times, is also a reason for the appeal court to decide that if the father does not bring the children to the U.S. himself, he must hand the children over to the mother.