Joseph Zander versus the Netherlands
Application Number: 32040/96
24 October 2000
(remark: In Court, unexpected the statement has as a whole been read out by my lawyer Ms ten Rouwelaar. Therefore I and me was in the first two parts replaced by he, his, father. As a kind of protest against the stupid fact that a human who's human rights are violated can't speak a word in a court that defences this rights, I refused to change this in the text here under.)
Translation of part of the application is attached because we found there was no translation at your disposal.
1. The Dutch State in its last decision by the Supreme Court (Hoge Raad) in this case ruled that Rosa and I have a good relationship but that this relationship could not exist, as it would depend on applying force to Rosa:
" In conjunction with the above the Court of Appeal does not visualise the duress to be experienced by the mother. In its decision it has satisfactorily stated as to why, according to its judgement based on the present circumstances, irrespective of the acceptation that the relationship between Rosa and her father in itself does not present obstacles, the imposition of the right of access is contrary to the weighty interest of Rosa.." (Supreme Court 22.9.95 sworn translation, enclosure 6 - letter 9.10.00 to your Court)
It is in the nature of a good human relationship that it needs no enforcement. Whenever the relationship has not been realised one can therefore conclude that there must have been external circumstances that impeded one of the persons concerned. The Supreme Court did not recognise this. The Applicant in his complaint to the Supreme Court asked if the Court of Appeal was referring to enforcement upon Rosa or her mother; it appears that the Supreme Court's meaning was restricted to a statement that it was not the mother whose position was in question.
2. As Rosa's father, I exercised the role of primary care giver. That position was taken away from me step by step using a great variety of means by the mother and institutions. From having the greatest part of the care till 1990, my care of Rosa was progressively reduced. According to a judicial agreement for contact in 1990, the contact/access was to continue on a daily basis, but with far less allocation of time than previously. In 1992 her time with me was reduced to nothing ... "……visitation history shows how the contact between father and child was gradually diminished with the predominant reasoning of the „mother’s will". There was never a reproach of any child damaging behaviour on the father’s side." Statement of Ms Kodjoe, also present in the audience - (enclosure 9(18).10.00 No 13 page 2).
3. The mother used all possible ways of creating friction, including violent trespass into my house. In a specific incident she later tried to distort into a false allegation of "violence", she reported to the police that I had 'pulled her hair' whilst concurrently admitting to the offence of trespass. The Dutch State refused to make any investigation into the truth of this allegation, stating that this was unnecessary: "fact-finding is not the goal of the investigation" (from a letter by the Minister of Justice dated 30.11.95, enclosed with our reply of 24.2.00, also letters to and from Chief Prosecutor Zwolle: enclosures No. 8 and 9 with our letter of 9(18).10.00 to the Court)
4. I was left powerless and without hope. A former court decision (Zutphen) had already reduced contact. The mother could not tolerate the fact that I had good relations with Rosa's school. According to the contact conditions specified by the Court, Rosa was brought to school by me. But the mother got what she asked for (no contact with me on Mondays) regardless of who was causing the problems. This made me attempt other means of intervening, such as the intercession of an official social-work institution ( Mr. Visser 11.6.93, enclosure 13 with our letter of 9(18).10.00 to the Court )
5. When I applied for further court orders to oblige the mother to give Rosa the acess the court had previously ordered, this led to the denial of all existing contact rights . This was in the first instance achieved, not by a court judgment, but just stated, as can be read in records (not undersigned by the judge) of the regional court of Zutphen (enclosure 4 of our letter of 9.10.00 to your Court). This first denial of contact had no basis in Dutch Law. It was not in fact related to Dutch law at all (Art. 161a Civil Code Book 1 later 377). The Court of Appeal, after almost a year without contact between me and Rosa, filled this lack by upholding the sentence of the Regional Court.
6. There then followed a long-drawn-out and professionally invalid enquiry in the case "These conclusions leave Rosa with her anxieties and keep depriving her for an indeterminate length of time of the relationship with her father which alone could take the anxiety and the burden of all her insecurities away." (Statement of Ms Kodjoe page 7; enclosure 12 with our letter of 9(18).10.00 to the Court). There was no investigation into the possibility of PAS being induced in my daughter in either the middle or long term, even though this possibility could not have been viewed as in the child's best interests.
In so far as the State may attempt to propose that they have made positive efforts to resolve the case in subsequent proceedings, we ask the Court either to consider thoroughly the proceedings complained of by the Applicant, or to give the Applicant an opportunity to provide detailed evidence as to how the procedures were followed. Looking back on the development of the case, it is clear to me that many of the problems which ensued could have been avoided if the State had not intervened on the request of the mother on several occasions without clear reasons.
C. The procedures
7. Interaction of proceedings
The procedural complaints in front of this Court relate to two sets of parallel proceedings that interacted. The upholding of existing access rights, as requested by the father, was countered by the mother by initiating a further set of court proceedings on the terminating of the access arrangement. This was then brought as a factor into the first proceedings. In this way, both sets of proceedings became interdependent, placing the Applicant at a severe disadvantage in his attempts to gain access.
The proceedings initiated by the mother in order to prevent access simply led to a delay, in pursuing the proceedings initiated by the father in order to achieve maintenance of access. The period of absence from her father that the child experienced grew longer and longer and finally led to what were -for the Applicant and his daughter- negative judgement in both cases. It should be mentioned that although these are not the subject of the Applicant's present complaint a number of other proceedings were initiated, further complicating the picture. In the period before a hearing concerning access which he was pursuing in one court, a hearing on the question of sole custody to the mother was pending at another court. The same occurred again during the proceedings themselves, when the mother and her new partner were permitted to launch another application seeking joint-custody for the new partner. The same happened again in hearings which took place in another regional court at a later date. The case was removed from the Zupthen Child Protection Service office to the Zwolle office because of complaints from the mother against the Zupthen Child Protection Service. The procedures on the changing of Rosa's family name were pending elsewhere. There was no co-ordination on the part of the officials concerned. "The authorities, through their failure to co-ordinate the various proceedings touching on the Applicant’s family rights, have not, therefore, acted in a manner which has enabled family ties to be developed" (ECHR Ciliz-Netherlands 29192/95 11.7.00 para 71 )
8. Obligations of Article 8 of the Convention
It was not only the obligation to refrain from measures that cause family ties to rupture that was violated. The right as affirmed by your Court, to be positively supported in maintaining family relations between Rosa and her father was also violated. Instead the State's behaviour consisted of a double negative, in that it supported and sustained the conditions leading to the child's possible alienation. In the longer term, this alienation may also be induced through reading the severe and unnecessary criticism's of the father in reports written by the Dutch Child Protection Service itself. The concluding statement in the report submitted by the Child Protection Service in this case stated "In themselves, he does have nice and child-orientated ideas such as singing songs and bicycling through town on a delivery bike with his daughter. However, the above seems more to fit his personal need to be seen as a progressive father, than to be part of a responsible attitude to Rosa's upbringing." (Sworn translation from the report of the Child Protection Service dated 17.5.94 as per enclosure 4 with our letter of 9(18).10.00 to the Court). Attention should be given to the criticism of singing songs and of being a progressive, care-giving father, as well as the fact that all the Dutch judges involved regarded this report as well-balanced and carefully written. It should also be noted that such remarks formed the basis of attempts to require the father to submit to therapy: "This would mean that he should agree to the course of upbringing as set out by the mother. I do not think that the father will be able to do this independently". To this end he would have to ask for assistance from RIAGG (Regional Institute for Mental Welfare)." (from the sworn translation of the Child Protection Service report)
This being a further infringement of the father's rights to privacy. Even though these passages were not literally repeated in the Dutch court judgments, the Dutch Courts did rely on this report, so obviously biased against the father, but they did say they considered this report carefully written. The behaviour of the Dutch State as represented by the Child Protection Service has been so untoward that it has actually run into active hostility on the part of the State against the Applicant himself, as exemplified by its conduct in preventing him from laying a complaint, against the Child Protection Service. Too many people had become a part of the delusional system themselves and the Institutions themselves have lost sight of the needs and interests of the child. (Ms Kodjoe's report page 6)
A positive outcome in the later cases was severely obstructed by this behaviour
The survey made by the State (enclosure 10.10.00 ) although not complete and correct, gives a first insight into this, especially when compared to our own analyses (enclosure 1 with our letter of 9(18).10.00 to the Court). The State, when it judges this opportune, and even when it has no bearing on the substance of our complaint, brings up criticisms such as the alleged use of violence. The State manifestly tries to hurt the Applicant emotionally by first demanding that he start proceedings in the interests of his daughter Rosa (1993), and then changing its stance to one where it attacks him for having started them (report of the Child Protection Service 1994 as in the dossier, Judgment of the Zwolle Court (enclosure 2 with our letter of 9(18).10.00 to the Court). It has now reverted to claiming in its own submissions to your Court that the Applicant should have initiated proceedings. And perhaps today the contrary again.
9. Final and disproportionate character of the intervention.
The decision to "terminate" the contact arrangements did not match the ostensible intentions: "it would then be possible … for contact between the Applicant and Rosa to be resumed" (see fact sheet). The regional court felt that a certain period of time was necessary in order for B’s negative feelings against the Applicant to subside, which would, in turn, have the effect of putting an end to Rosa’s emotional blockage.
The "termination" of the access arrangement is, in the terminology of the European Court, an interference with the Applicant’s right to family life as recognised in Article 8. The legitimate aim pursued by the Dutch courts was, according to the courts:
(1) protecting the child by ensuring her recovery from an emotional blockage, brought about by B’s emotional problems with the Applicant, which was treatable and not uncommon amongst children in similar circumstances, and
(2) the resumption of contact between the Applicant and Rosa in the future.
The Dutch courts considered the circumstances in the Applicant’s case to be of such a nature that only temporary distance between the Applicant and Rosa was necessary. But their decisions ran counter to the aim of reuniting Rosa and her father and were not "necessary in a democratic society". The Dutch courts literally decided to "terminate" (instead of the only legal possibility, to "deny") the access arrangements. Such a severe and lasting restriction on access is not proportionate to the legitimate aim that they were professedly pursuing.
Even if stopping the access arrangement could have been regarded as a legitimate interference with the Applicant's rights, this decision should of legal necessity have been only temporary. The Applicant maintains that any "termination" of the contact agreement was illegal. The Applicant offered a viable and commensurate solution in view of problems the mother was causing at the father's door. That solution was to change the access agreement in such a way that the Applicant pick up his daughter at school on Friday and bring her back on Monday, entirely appropriate in view of the positive nature of the relationship between the Applicant and Rosa's school (letter of the headmaster 27.9.93 enclosure 3: reply to proceedings of the Court of Zutphen on the denial of contact rights).
10. Mutual rights
The UN Convention on the Rights of Children (9.3) sees a relationship of a child with his parents as a right, not merely an interest. My application is therefore not necessarily a defence of the fathers' rights against the child's interests, as the Dutch State sets out in its answer to the application. The protection afforded to family life, as given by the ECHR, obviously includes protection of the rights of children to have a family life "The exercise of parental rights and the mutual enjoyment by parent and child of each other's company constitute fundamental elements of family life." (reference: ECHR R. v. United Kingdom A 121). The rights of his child and her paramount interests have always been a central issue in his considerations. The criticisms made by the State, as in the aforementioned final part of the conclusion of the Child Protection Service, can be regarded as a direct infringement of the rights to private life of both Rosa and her father, as her carer. The remit of this Court is such that the father would have a reduced ability to make his complaint on behalf of his daughter as well as on behalf of his relationship with his daughter. So the formal statement here that the fathers' rights were violated means that his rights of giving care and taking responsibility for his daughter were violated and these are fully congruent with the rights and interests of his daughter, as per Article 5 of the United Nations Convention on the Rights of the Child "States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention."
The Applicant would not contemplate conducting this procedure if he was not convinced that it was in the interests of Rosa. Dutch law considers contact rights (Code Civil Art. 1:377, formerly 161a) as a mutual right. However, the State did not place any value on this mutuality.
11. On the danger of inducing PAS
This danger could have been known at the point at which the Child Protection Service initiated its enquiry. " In 1994 the alienation from him did not yet show pathological traits, it was more an almost complete denial of the father’s existence. The possibility though was then very high that her feelings towards her father would progress from affection to neutrality to distance to alienation (PAS)." (Ms Kodjoe's statement page 5).
A brief outline of Parental Alienation Syndrome (PAS)
The term Parental Alienation Syndrome indicates a disturbance in which a child has become preoccupied with criticism, deprecation and even vilification of a parent - in cases where this is unjustified. PAS may be considered as a step further on from brainwashing. The term "brainwashing" implies that one divorced or separated parent is systematically and consciously programming the child to denigrate the other. PAS includes this factor but is more comprehensive; it also includes factors that have been induced in such a way that they arise from within the child itself. A PAS-child sees itself as having a "loved" and "hated" parent, the hated parent being the one it doesn't live with. When the point has been reached where the child wants nothing else but to push the "hated" parent out of its life, it can be said that the child has internally absorbed a program, initiated by the parent it lives with and/or those surrounding it. The child is convinced this is all its personal conviction. This process of "casting off" the (for the most part) father is mostly irreversible. PAS has been described extensively by Richard A. Gardner M.D, Professor at Columbia University USA (On Parental Alienation Syndrome enclosure 14 with our letter of 9(18).10.00 to the Court)
Rosa is and was in danger of being mentally hurt for her whole lifetime.
12. Strong reasons
There need to be strong reasons to deny access rights (Hendriks-Netherlands 8427/78 1982). Our conclusions about this subject are explained in the application. Unilateral opposition from one parent to the child's contact with the other parent is not regarded as sufficient ground to separate a child from that parent " 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." (Human Rights Committee Communication No. 201/1985, Views adopted on 27 July 1988, UN Doc. A/43/40, pp. 230-241).
Even Dutch legal history is quite clear about this - the Dutch Minister for Justice stated to the Dutch Senate that he didn't want to return to the situation in which " one parent-guardian can refuse contact with the child" (Dutch Senate 18964 number 117a page 2)" However this was not brought into practice by the Dutch judiciary. This leads to another point in the application, discrepancies between State institutions "the State of the Netherlands continues to fail to comply with these obligations in its judiciary and executive bodies". (enclosured translation application para 2c)
As previously mentioned, the Dutch State clearly refused to make any findings of fact. It thus failed to establish who might be the parent unilaterally refusing contact. The State appears fundamentally disinterested in such questions. It would be fair and concordant with the jurisprudence that an interference in the right to family life could only be permitted if founded on a valid evaluation of the case. "Moreover, taking into account the importance of the subject-matter, namely, the relations between a father and his child, the Regional Court should not have been satisfied, in the circumstances, by relying on the file and the written appeal submissions without having at its disposal psychological expert evidence in order to evaluate the child’s statements. The Court notes in this context that the Applicant, in his appeal, challenged the findings of the District Court and requested that an expert opinion be prepared to explore the true wishes of his child and to solve the question of access accordingly." (ECHR 25735/94 Elsholz-Germany para 52 enclosure10 with our letter of 9(18).10.00 to the Court)
13 Democratic society
The decisions of the Dutch courts were not necessary in a democratic society. It is not necessary in a democratic society that a father should not sing songs with his child, let alone that he go into therapy in order to change this. This it is not in the interests of the child, not even faintly. The decisions are clear violations of the rights of Rosa to enjoy her relationship with her father (singing songs). Judgements deriving from such evaluations are a severe offence against democratic society. Putting people in therapy on political and discriminatory grounds (such as being a "progressive father") and threatening them with sanctions if they do not, in order to separate them definitively from their children is an offence against Public Safety, an abuse of mental and physical health and it is immoral.
The decisions were not taken in accordance with the law. The Court of Zutphen did not make its decisions upon any legally coherent basis (Dutch law - Art. 161a Civil Code Book 1). Unilateral opposition should not be sufficient grounds to deny access rights. To reach such a grave decision stronger reasons then a general formula such as to withdraw access "in contravention of the substantive interests of the child" (Dutch law - Art. 161a Civil Code Book 1). Dutch law, as it stands now, permits unpredictable, arbitrary and irrevocable interference in violation with the Convention.
D. Conclusions and damages.
15 Interference with Article 8 of the Convention para 2 :
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The procedural failings, severe criticism's, the failure to take into account the interests of the child and all the elements taken into consideration above lead to one conclusion; the interference of the Dutch State in Mr. Zander's family life, the family life of his daughter, their close family and even in a broader view in the life of the mother (being reinforced in her paranoia instead of being helped) were all comprehensively violated.
The reactions contained in statements by the Government and the arguments mentioned here show that the argument of the State that the complaint was manifestly ill-founded cannot stand and that the complaint is therefore justified.
17. Payment of damages
The court has the possibility to allocate a pecuniary compensation for the damage done by a High Contracting Party in such a case. We asked the court for compensation for damage caused of 500,000 guilders, at the moment of submitting the application. We estimate the damage at this moment to be 700,000 guilders for material compensation and non-pecuniary damage (stress and traumatic experiences) ... "he might have obtained some degree of satisfaction and this could have changed his future relationship with the child. In this respect he may therefore have suffered some real loss of opportunities warranting monetary compensation. In addition, the Applicant certainly suffered non-pecuniary damage through anxiety and distress." (ECHR Elsholz-Germany para 70)
The Applicant wishes to state clearly that he is standing here for the interests of his child Rosa, in equal or greater measure than his own interests. It never can be in the interest of a child not to experience a good relationship with a parent.
Text written by Joep Zander with thanks to:
Ms ten Rouwelaar
Rob van Altena
Translation of part of the application: Zander-Netherlands 32040/96
In the opinion of the Applicant, the State of the Netherlands does not fulfil its obligation, by virtue of article 1 of the E.V.R.M., to secure the rights and freedoms established in the First Title of the Convention.
As a result of the above-mentioned decisions, the right to ‘family life’, guaranteed in article 8 E.V.R.M., section 1, is infringed. In the opinion of the Applicant, this violation is not justified by exceptional grounds of section 2 of this article, in accordance with the conditions mentioned in that article, while considering:
- the method in which the Dutch Judge applies the Dutch rules of law
that provide for infringements of the right to ‘family life’ permitted under Dutch law;
- the fact that the denial grounds adopted in Dutch Law basically permit
unlimited denial, or at least:
allow considerably more discretionary space for the denial of parental access, than permitted by section 2 of article 8 of the E.V.R.M..
(See the denial ground referred to in article 377a, section 3 subsection d Civil Code Book1: "access will be in contravention of considerable interests of the child").
The State of the Netherlands has in its legislative bodies accepted the obligations stemming from the Convention for the protection and abstinence from infringements, and, although incomplete, stated these in the Dutch Law. However, the State of the Netherlands continues to fail to comply with these obligations in its judiciary and executive bodies.
Article 8 E.V.R.M. indicates that infringement of the fundamental right to access is and can only be possible if stringently described conditions have been complied with. The denial grounds that existed at the time of the above-mentioned procedures in the Dutch Civil Code (161a Civil Code Book 1) and are still in existence (article 377a Civil Code Book 1), only partially complied and comply with those conditions.
In this case, the Judge tested in the past the request to establish an arrangement for parental access between the Applicant and his minor daughter Rosa against the denial grounds mentioned in 1:161a Civil Code. Pursuant to this test, this Judge did not proceed to denial, but to establishment of an arrangement for parental access. Afterwards, the mother of the minor daughter, after she first had observed the established arrangement during a certain period, stopped the arrangement unilaterally, as of October 1992. This discontinuation comprised an unlawful violation of the fundamental right, protected by article 8 E.V.R.M.
Due to this unilateral discontinuation, distance was created between the Applicant and his minor daughter Rosa.
Subsequently, the Applicant sought protection of his protected right by article 8 ex article 1 E.V.R.M. with the Dutch Judge by summoning the mother in summary proceedings in order to claim compliance with the prevailing arrangement for parental access. In reaction to this, Bosman proceeded to the initiation of a petition procedure to terminate the decision on access which had been prevailing up to that moment. This did not take place until Bosman had denied the minor daughter contact with the Applicant without legal ground, for one year.
The European Commission clearly indicated, for instance in the Hendriks case (NJ 1983, 191), its approach towards the right of parental access: "The Commission considers that the natural link between a parent and a child is of fundamental importance and that, where the actual ‘family life’ in the sense of ‘living together’ has come to an end, continued contact between them is desirable and should remain possible. Respect for family life within the meaning of Article 8 thus implies that this contact should not be denied unless there are strong reasons, set out in para. 2 of that provision; which justify such an interference ….’.
This consideration of the Commission also expressly states ‘strong reasons’. The Dutch Legislator was compelled to adopt the denial grounds mentioned in article 1:161a section 3 Civil Code – which is at present article 1:377a section 3 Civil Code. Only based on these reasons, access can be denied.
In the case at issue, the Court considered (rov. 7) that in the relationship between Rosa and Zander (the Applicant) in itself, no impediments exist that resist contact between them. The disrupted relationship between the parties is apparently sufficient for the Dutch Judge to breach a fundamental human right of the parent and the child. This ground, however, is not sufficient to assume that this entails ‘strong reasons’ in order to deny the Applicant access.
The Dutch Legislator has never advocated such a ground as a reason to deny access. The Minister pleads in the Memorandum following the final report – Lower House, meeting year 1993-1994, 23 012, no. 8 – that requirements can be made upon the exertion of authority of the parent entrusted with parental authority. Hence, one of the elements of a proper exertion of authority is that the parent entrusted with parental authority cooperates to the implementation of the arrangement for parental access and encourages the child to maintain contacts with the other parent.
In other words:
Both the European Commission and the Dutch Legislator advocate an approach of the issue that is entirely different from that of the Dutch Judge.
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