The guardian ad litem plays a major role in return proceedings before the court in the Netherlands.
In return proceedings, the court appoints a guardian ad litem (Article 1:250 of the Civil Code) for every minor aged 3 years or older. If an appeal is lodged, the appointment of the guardian ad litem continues during the appeal.
Appointment of special trustee
The guardian ad litem is appointed by the court after the first hearing, when it has become clear that a substantive hearing of the case will have to take place. The first hearing is the pro forma hearing, at which no decision on the request for a return order is yet taken. At that hearing, in the presence of the parties and the representative of the Child Care and Protection Board, discussions include whether the parties want to be referred to mediation and whether there is contact between the child and the left-behind parent.
The questions to the guardian ad litem
The guardian ad litem is instructed by the court to answer the following questions in a report before the next hearing:
– what does the minor himself indicate about staying in the country of origin and the Netherlands,
– to what extent can the minor express himself freely,
– to what extent can the minor oversee the consequences of staying in the country of origin or the Netherlands, and
– have any details emerged that are relevant to the decision to be taken by the court?
The work of the special guardian
The guardian ad litem will have at least 2 interviews with the child, without the parents being present. The special curator does not interview the parents and does not conduct any other investigation. He or she writes a report for the court with the findings, which is provided to the parties.
Child interview with the judge
Prior to the second hearing, the minor can have an interview with one of the judges, in the presence of the court clerk. If the minor wishes, the guardian ad litem may be present at that interview. The content of this child interview is summarised orally by the court for the parents and their lawyers at the hearing.
At the second hearing, the minor is not present but the guardian ad litem is.
The guardian ad litem’s report
The guardian ad litem’s report and what the guardian ad litem puts forward at the hearing may be important in answering the following questions:
– Is there resistance of the child against a return to the home country (art.13 para 2)
– Would return to the home country result in an intolerable condition (art.13 para 1 sub a)
If a minor makes statements indicating resistance, the court may also explain this as the result of a loyalty conflict. The court can then use the guardian ad litem’s report to determine how much weight should be given to the minor’s statements.
Continuity in the minor’s statements
When weighing the minor’s statements, it is also important whether the minor’s statements to the guardian ad litem are consistent with the minor’s statements during the child interview, and whether the court’s impression of the minor is consistent with the special curator’s impression of the minor.
An example of this is the judgment of the Hague Court of Appeal of 10 February 2022. The 11-year-old boy showed to the special guardian and during the child interview that he suffered from fears of a possible return. He revealed that the mere thought of having to return to Belgium evoked death wishes in him The Court concluded that a return would put this boy in an intolerable condition (an acute situation of psychological distress).
In the judgment, the court may request the special trustee to discuss the judgment with the minor and, to this end, provide that the appointment of the special trustee continues for some time.