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The applicant is a Netherlands national, born in 1952 and living in the Netherlands.

He was initially represented before the Court by Mr P.J.A. Prinsen, a lawyer practising in The Hague. Mr Prinsen has now been replaced by Ms T.C. ten Rouwelaar, a lawyer practising in Amsterdam

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant had a relationship with a woman, one B., out of which a child,

Rosa, was born on 11 October 1987. The applicant recognised Rosa as his child. By a decision dated 3 December 1987 the District Court (Kantonrechter) of Deventer vested parental authority jointly in the applicant and B.

The relationship between the applicant and B. came to an end, apparently in 1989. B. applied to the District Court of Deventer for guardianship (voogdij) over Rosa. By a decision of 8 February 1991 the District Court appointed B. as Rosa's guardian (voogd) and the applicant as co-guardian (toeziend voogd). Rosa was to remain with B. The applicant was granted an access arrangement (omgangsregeling) under which Rosa would stay with him for one weekend each fortnight and for periods of several days during the school holidays.

Parents had an equal shared parenting-arrangement

communication at school" had apparently led to conflicts between the applicant and B.

B refused to practice the whole access agreement in which a monday once a fortnight was included. This led to trouble on school because she insisted that the school should refuse contact with the father. The school got problems with the mother. After this court-decision the mother changed the school of Rosa

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It appears that on 13 September 1992, when B. came to pick up Rosa at the applicant's home, a violent incident took place between the applicant and B. in which B. got hurt. According to a statement made by B. to the police this was caused by disagreement about B's decision to send Rosa to a different school. Thereafter B. refused the applicant all access to Rosa.

B forced herself entrance into applicant's house with help of her new partner. Aplicant tried to resist but didn't succeed. As a result of this B fell into the house without any violent interference of applicant.

On 29 September 1993 - very shortly before the hearing in summary proceedings aimed at securing B.'s co-operation with the access arrangement (see below) - B. applied to the Regional Court of Zutphen for the access arrangement between the applicant and Rosa to be terminated altogether. The applicant lodged a written statement objecting to this suggestion, asking for the access arrangement to be altered instead. The Regional Court decided to order the Child Welfare Board (Raad voor de kinderbescherming) to report to it on the feasibility of continuing the access arrangement.

The Regional Court held a hearing on 8 March 1994. The applicant complained that the Child Welfare Board was taking too long to finish its report; he asked for the Board's terms of reference to be changed and for access to be resumed in the meanwhile. The Regional Court decided not to alter the Board's terms of reference and deferred its decision until the report was ready.

The Child Welfare Board submitted a report by a psychologist finding that Rosa had suffered by the lack of understanding between her parents. Resumption of access by the applicant would be too threatening for Rosa and ought therefore not to be considered at this stage. Psychological support was needed to help Rosa overcome the psychological problems caused by the conflicts which she had witnessed.

A second report by the Child Welfare Board itself noted that Rosa had better ties with B. than with the applicant and felt threatened in her contacts with the applicant. It was recommended that access should not be resumed until such time as Rosa herself was ready for it, that B. should receive psychological support and that the applicant should seek psychological treatment.

On 9 June 1994 the Regional Court gave a decision terminating the access arrangement altogether. Its reasoning was the following:

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The father must allow Rosa some time.

On 4 October 1994 the Court of Appeal endorsed the refusal of the Regional Court to order an access arrangement. The Court of Appeal noted that it was generally in the child's interests for it to have contacts with the non-custodial parent, and that the non- custodial parent was in principle entitled to such access. However, basing itself on the psychologist's report, the Court of Appeal found it necessary for Rosa to grow up in a safe family environment, from which the applicant was to be excluded so as to allow Rosa to develop a normal bond with B.. B. was to help Rosa overcome her negative emotional reactions to the applicant, for which she (i.e. B.) needed to seek psychological support. It would then be possible in a few years' time for contact between the applicant and Rosa to be resumed. In the meanwhile B. was to provide the applicant twice a year with information on Rosa's development, including recent photographs and school reports. It held, amongst other things, that although there was nothing in the relationship between Rosa and the applicant to impede contact between them, it would not be in Rosa's interests to order a compulsory access arrangement in view of the serious lack of understanding between B. and the applicant as well as Rosa's own psychological state.

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad) on 15 November 1994. He argued that the Court of Appeal ought to have ordered an access arrangement, leaving it to Rosa's parents to see to it that she did not suffer any harm; in the alternative, the Court of Appeal ought to have examined the question whether the facility with which access arrangements could be terminated was not partly the cause of the problems, and whether continuing the access arrangement rather than terminating it would not have been more conducive to reducing tensions between the parents. He further argued that the Court of Appeal's decision was insufficiently reasoned, given that the Court of Appeal had found that there was nothing to impede contact between the applicant and Rosa per se and so it was not clear how compelling B. to allow such contact could harm Rosa's interests.

The Supreme Court gave a decision on 22 September 1995 dismissing the applicant's appeal. As to the applicant's first complaint it held that the Court of Appeal had been entitled to decide, on the basis of the information available to it (including the psychologist's report), that to impose an access arrangement would be contrary to Rosa's weighty interests; as to the second, that the Court of Appeal had merely stated that an access arrangement imposed by court order would be detrimental to Rosa's interests.

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Following the violent incident of September 1992 the applicant tried, initially through social workers and later through his lawyer, to get B. to recommence implementing the access arrangement. These attempts did not meet with success.

On 22 September 1993 the applicant summoned B. to appear before the President of the Regional Court of Zutphen in summary proceedings (kort geding). He sought an order addressed to B. to co-operate in the implementation of the access arrangement or forfeit a sum of money each time she failed to do so.

Following a hearing on 30 September 1993, the President of the Regional Court gave judgement on 7 October 1993 declining to give the order sought by the applicant. He held it to be inappropriate to prejudge the outcome of the proceedings brought by B. for the termination of the access arrangement. However, he did not award costs against the applicant but ordered both parties to bear their own costs.

The applicant appealed to the Court of Appeal of Arnhem. He argued that the President ought to have ordered the resumption of the access arrangement, because that would have made it clear in what way contact between him and Rosa should be resumed and would thus have yielded infonnation which would have benefited the decision of the Regional Court on whether or not to terininate the access arrangement altogether. He futher argued, inter alia, that his intention was to give practical effect to a right which had been determined by a decision of a court which had force-of res iudicata.

Following a hearing on 15 September 1994 the Court of Appeal gave judgement on 4 October 1994 - the same day on which it gave its decision on the access arrangement (sec above). lt held that, since it had endorsed the termination of the access arrangement, the applicant's claim had lost its basis; the judgement of the President of the Regional Court had therefore to be confirmed. The applicant as the losing party was ordered to pay a sum of money towards B.'s legal costs.

The applicant lodged an appeal on points of law to the Supreme Court on 15 November 1994. He argued that even though the ground for his claim had disappeared due to the decision of the Court of Appeal with regard to the access arrangement, the Court of Appeal ought nevertheless to have ruled in principle on the claim's well-foundedness, since whether or not he was in fact the losing party depended on it, and the decision on costs in turn depended on that.

The Supreme Court delivered its judgement on 24 November 1995. Agreeing with an advisory opinion of the Advocate General, it found that the Court of Appeal had erred in law by deciding without further examination that the applicant was the losing party. The Court of Appeal ought instead to have addressed the question whether or not the President of the Regional Court had rightly dismissed the applicant's claim and to have based its decision on costs on the outcome of that examination. The Supreme Court did not, however, refer the case back for a rehearing on appeal, holding instead that

irrespective of the outcome of such a rehearing each party should bear its own costs; in so doing it applied by analogy the rule that such a decision was possible in litigation between married parents.

B. Relevant domestic law

At the relevant time, Article 1: 161 a of the Civil Code provided as follows:

461. The child and the parent who has not been appointed as guardian are

3. The Regional Court shall only deny the right to access if-

Notwithstanding the word "divorce" in the second paragraph, which of course presupposes a marriage between the parties, this provision was applied equally to unmarried parents.

COMPLAINTS

The applicant complains, firstly, of the termination of the access arrangement between himself and Rosa and, secondly, of the failure by the Netherlands judiciary to enforce the arrangement while it was still in force. The applicant relies on Article 8 of the Convention.

More in detail: There is a lack in the Dutch law but more special the Dutch judiciary and political practicing power are not obeing the law.

There is a logical paradox between
1. a good relation between applicant and daughter.
2. The idea that living this relation would amount to apply force in the direction of the child.

The two complained procedures, on refusal of enforcing and later denial of former visitationrights where interacting and made interdependent against the interest of the child and the father.

There was a violation of 8 ECRM in the meaning of the interference in the privacy, not maintaining the relation (positive obligation) and even a double negative disqualification of the father.

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