Court of Northern Netherlands - Personal and family law
ECLI:NL:RBNNE:2025:202
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AgencyCourt of Northern Netherlands
Date of pronouncement22-01-2025
Date of publication24-02-2025
Case numberC/18/235647 / FA RK 24-3128
Areas of lawPersonal and family law
Special featuresOrder
Content indication
Intercountry adoption and violation of children's rights. The Convention on the Rights of the Child takes precedence over Dutch legislation and regulations. This case concerns a boy of approximately fifteen years old, who was brought to the Netherlands by a woman at a young age, with the intention of adopting him here. In its assessment, the court focuses exclusively on the interests of the minor, who was brought to the Netherlands at a young age and has since been convinced that he was adopted by the woman. The court considers that rejection of the request for recognition of the adoption would lead to an inhuman situation for the minor, which consists of the fact that, under immigration law, he is no more than an unaccompanied minor who is not legally in the Netherlands and over whom no authority is exercised. Moreover, the minor can be locked up in immigration detention at any time 'for the purpose of deportation' and he can be given a return decision and an entry ban. For all these reasons, the court recognizes the adoption of the minor, despite the legal and administrative complications indicated in the order.
LocationsRechtspraak.nl
Pronunciation
COURT OF NORTH NETHERLANDS
Department of Private Law
Location Groningen
case/request number: C/18/235647 / FA RK 24-3128
decision of 17 January 2025 on the adoption of:
[child's name] ,
who was born on [date of birth] 2009 in [place of birth] , Nigeria,
and who is hereinafter referred to as "the minor".
The court designates as interested party:
[woman's name] ,
who lives in [city] ,
and hereinafter referred to as "the woman",
lawyer: Mr. C. van der Slikke, who has an office in Groningen,
The registrar of the municipality of The Hague,
which has its seat in The Hague,
hereinafter referred to as "the official".
The process flow
These proceedings were initiated by a petition from the woman, which the court received on 17 June 2024. In it, she requests that the foreign adoption of the minor be recognised or that the adoption be pronounced under Dutch law, and, insofar as it is assumed that the adoption will have a 'weak' character, to determine that the weak adoption under Nigerian law be converted into a strong adoption under Dutch law, or that the adoption under Dutch law will result in the original family law ties in the country of origin being severed. In addition, the woman requests that it be understood that the minor will have the surname [surname] and she requests that the registration of the Nigerian birth certificate of the minor be ordered, possibly supplemented with the birth data of the minor, alternatively to determine the birth data and order their registration.
On June 21, 2024, the court received an F9 form from the woman.
On August 9, 2024, the court received a letter from the official.
On November 20, 2024, the court received a letter from the Child Protection Council (hereinafter "the Council").
On 17 January 2025, the judge heard the case orally. The judge then spoke with the woman, her lawyer, the civil servant and [name of representative] who represents the Council.
The judge spoke to the minor prior to the oral hearing and explained during the oral hearing what he had discussed with him.
The judge gave his verdict immediately after the oral hearing. He announced that he would elaborate on the grounds on which his verdict is based in this order to be given today.
The facts
When assessing the request, the judge may take the following facts into account.
On 10 January 2022, the State Secretary for Security and Justice, represented on her behalf by the Central Authority for Intercountry Adoption, granted permission to the woman on 10 January 2012 to take in a first foreign child for adoption. This permission was extended on 11 March 2013 and expired on 12 March 2017.
The basic administration of the municipality of Groningen shows that the minor
was registered in the Municipal Personal Records Database (BRP) on October 21, 2014.
On 21 May 2024, the Cabinet decided to immediately stop intercountry adoption in the Netherlands and to introduce a phasing-out scheme for ongoing procedures that allows prospective adoptive parents a reasonable period to continue their adoption procedure.
The petition with which the woman initiated the adoption procedure in this country was received by the court on June 17, 2024.
The positions
The woman's point of view
The woman requests the court to recognize her adoption of the minor. She argues that he was born on [date of birth] 2009 in [place of birth], Nigeria. He was found abandoned on the street on 26 July 2011, with an open wound on his leg and unable to walk. On 13 March 2014, the Ministry of Women Affairs and Social Development requested the Ebunoluwa Foundation to assist in the search for adoptive parents. Attempts were made to trace the parents or other relatives of the minor, but were unsuccessful. On 21 May 2014, the Commissioner of the Ministry of Women Affairs and Social Development, in an Approval of Process, declared that the applicant's application for adoption had been received and that the adoption was supported by the aforementioned Ministry. On 10 June 2014, the Abeokuta District Court, Ogun, Ogun State (the Family Court in the Chief Magistrate's Court) granted the woman's application for adoption in a written judgment and ordered that the child be placed in the care and family of the applicant in that context. On this basis, the court determined the adoption of the child by the woman under Nigerian law and recorded it in an adoption deed. According to the woman, the foreign adoption decision was therefore pronounced by the competent authority of the foreign state (Nigeria), where the minor had his habitual residence both at the time of the adoption application and at the time of the judgment, while the woman had her habitual residence in the Netherlands. The woman points out that the minor's birth certificate is incorrect, and that if the court finds that the certificate is therefore not eligible for registration, there is an interest in establishing the birth data she stated. Finally, the woman explains that due to various circumstances she was unable to submit an adoption application and that, when the minor was recently arrested on suspicion of a criminal offence and it came to light that he was not legally residing in the Netherlands, she still wanted to formalise the adoption.
The Council's position
The Council advises to grant the woman's request on the grounds of humanitarian considerations. The woman is the minor's mother, with whom he has lived for many years. Recognition and conversion of the foreign adoption into Dutch law does justice to the actual circumstances of the minor and the woman and is apparently in the interest of the minor. Through adoption, the minor obtains Dutch nationality, which means that the minor's financial security in the Netherlands becomes permanent. The Council sees no other possibility for the minor to be able to stay here in the Netherlands and points out that there is no connection whatsoever with the country of origin and the minor only sees the woman he sees as his mother and his grandmother as important people in his life. The Council has no confidence that, outside of adoption, a possibility will be sought or found to give his residence a legal basis. The sitting representative states that the investigation report was drawn up by the Council out of compassion and that the Council paid too little attention to the complex legal issues surrounding intercountry adoption. The Council, when asked, pointed out that the Council is also unable to address this problem properly and that it has therefore not sufficiently recognised that there is a vacuum of authority. If direct recognition is not possible, the Council wants a guardianship measure to be taken so that authority is exercised over him in any case. The Council points out that it does not trust that a guardian wants or can lead to a legal basis for the minor's residence being found.
The position of the official
The official stated that one of the conditions for recognition of the foreign adoption decision by the Dutch court is that the prospective adoptive parent has followed the procedure of the Foreign Children for Adoption Act (Wobka). In the case of non-Treaty adoptions, the prospective adoptive parent must have been granted a preliminary consent and a preliminary consent in name by the Central Authority of the Ministry of Justice and Security. The preliminary consent of 10 January 2012 was valid until 12 March 2013. On 11 March 2013, the Ministry of Security and Justice issued an extension decision. The decision itself was not submitted but may have expired on 12 March 2017. There appears to be no subsequent extension. Dutch nationals or foreigners residing in the Netherlands must comply with the Wobka if they wish to adopt a child abroad. The submitted adoption no longer complies with the provisions of this law when the validity period of the initial consent expires. If a Dutch citizen resident in the Netherlands or a foreigner abroad adopts a child without initial consent, this adoption cannot be recognised because the Wobka has not been observed by the prospective adoptive parents. It is not possible to rectify this by subsequently requesting the Central Authority for initial consent. Article 10:109 BW stipulates that the court can determine whether such an adoption can still be recognised, despite the failure to comply with the Wobka. The applicable procedure is that of Article 1:26 BW, a declaration of law. The original parents are missing from the submitted birth certificate. In the request to determine the birth data, the surname is left blank with '-' for unclear reasons and this is supplemented with a request to choose the surname Dijkstra on the basis of Article 1:5 paragraph 3 BW. Reference is also made to Articles 4 and 2 WCN. However, the Conflict of Law Names Act (WCN) was repealed on 1 January 2012. Article 10:19 of the Dutch Civil Code applies. The child only has Nigerian nationality. This means that Nigerian name law applies. Nigerian name law is not codified and is determined by customary law. The Nigerian passport shows the surname Dijkstra and the child is registered in the BRP as such. An additional request based on Article 1:5 paragraph 3 of the Dutch Civil Code is therefore not necessary. In the request to determine the birth data, the place of birth should not be [place], Nigeria but [place], Nigeria as shown on the Nigerian birth certificate. [place] is not a place, but a state of Nigeria.
The assessment
What is this case about?
This case concerns the minor, who is now approximately fifteen years old, who was brought to the Netherlands by the woman when he was approximately five or six years old with the intention of adopting him here in the Netherlands, by having the adoption that she claims had taken place in Nigeria recognised. However, the woman failed to act on that intention. For almost ten years, she did nothing to have the adoption that she claims had taken place in Nigeria recognised here in the Netherlands. Nor did the woman take any other steps that led to the minor obtaining a right to exist and security of existence here in the Netherlands. In the court's opinion, the woman who states that she was unable to do so due to various personal circumstances, has not thought, acted or decided in the interests of the minor for a long period of time.
The consequences of this became painfully clear after the minor was arrested by the police in 2024 on suspicion of committing a criminal offence. The minor then learns that he is staying in the Netherlands without a legal basis, can be immediately deported, can be placed in immigration detention or can be transferred to the registration centre for asylum seekers in Ter Apel.
Although it might be expected that this would lead to immediate action, the reality that the minor is not legally resident in the Netherlands, he has no legal representative and no one exercises authority over him, has again not led to action in the interest of the minor. The woman, but also not the Council that became aware of the illegal residence in the Netherlands and the authority vacuum in connection with the criminal case, have done nothing. No steps have been taken to obtain a residence status and even the realization that no authority is exercised over the minor, has not led the Council to the insight that this must be provided for immediately by taking a child protection measure.
The minor who is fully integrated into Dutch society, who has no ties whatsoever with his country of origin and who lives under the assumption that the woman has adopted him and, as he himself told the judge, thought he was a Dutch citizen, lives in the uncertainty that at any moment he could be arrested, deported, placed in immigration detention or, as the police also told him, transferred to an asylum seekers' registration centre in Ter Apel.
Against this background, it must be assessed whether the adoption of the minor can or perhaps even should be recognized. The judge assumes that, given the minor's habitual residence here in the Netherlands in the district of the court of Northern Netherlands, he is competent to hear and decide on the case and that Dutch law applies to the request.
The judge will then explain what obstacles there are under Dutch law to recognition of the Nigerian adoption claimed by the woman. The judge will then explain why in this specific case, on the basis of the fundamental rights that the Convention on the Rights of the Child guarantees to the minor, he ignores the impossibility of recognizing the alleged adoption in this country.
Within which legal frameworks can the adoption of a minor be recognised in the Netherlands?
This case concerns an intercountry adoption. The woman states that this is an adoption under Nigerian law and she wants the adoption to be recognized in this country.
This recognition is not possible on the basis of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereinafter: Hague Adoption Convention), which was introduced in 1995. This convention aims to guarantee the due care of an adoption procedure. However, the Hague Adoption Convention does not apply, because the country of origin of the minor, Nigeria, is not a party to this convention.
Dutch private international law therefore determines whether there is an adoption that is susceptible to recognition. If that is not the case, it will have to be investigated whether an adoption can be pronounced under Dutch law.
Dutch private international law provides in Article 10:109 paragraph 1 of the Dutch Civil Code that a decision given abroad whereby an adoption has been established and which has been pronounced by a competent authority of the foreign state where the child had its habitual residence both at the time of the application for adoption and at the time of the decision, while the adoptive parents had their habitual residence in the Netherlands, is recognised if:
a. the provisions of the Foreign Children for Adoption Act (Wobka) have been observed, and
b. the recognition of the adoption is in the obvious best interests of the child, and
c. recognition would not be withheld on a ground referred to in Article 10:108 paragraph 2 or paragraph 3 of this Book.
Recognition will be withheld on the basis of Article 10:108 paragraph 2 or paragraph 3 of the Dutch Civil Code if the decision on adoption was clearly not preceded by proper investigation or proper legal proceedings or if recognition of that decision would clearly be contrary to public order, which is in any case the case if the decision clearly relates to a sham act.
With regard to the provisions of the Wobka to be observed, the court considers the following.
Article 2 of the Wobka states that the admission of a foreign child in the Netherlands with a view to adoption is only permitted if the minister has granted permission in principle. The documents show that the woman received permission in principle on 29 December 2011, which was valid until 12 March 2013. This permission in principle was extended on 11 March 2013. The decision on this was not submitted, but it may have expired on 12 March 2017. As a result, the woman does not meet the conditions for adoption under the Wobka.
In its assessment, the court further notes that it does not appear to him that the adoption was pronounced in Nigeria in accordance with the requirements of the laws and regulations applicable to adoption in Nigeria. In any event, this cannot simply be evident from the information provided by the woman and the documents submitted by her. Adoption in Nigeria, a federal republic consisting of 36 states, is in principle governed by two laws, the Child's Right Act and the Child's Right Laws. Both laws were introduced in 2003 to protect and promote the rights and welfare of children in Nigeria. These laws apply, based on the information provided so far. The woman has not stated any facts or circumstances from which it follows that the state in question has or has not introduced the aforementioned laws or has retained its own regulations.
In any event, it does not appear that the criteria and requirements for adoptive parents applicable in Nigeria at the time and according to these laws have been tested to see whether all the conditions for adoption have been met. Moreover, the court may, based on the time course of the procedure as outlined by and on behalf of the mother, express doubts as to whether a proper adoption procedure has been conducted in Nigeria. This doubt is reinforced by the birth certificate submitted by the woman. Apart from the fact that the court cannot establish the authenticity of the document, it is a document that does not state the original birth data of the minor and the mention of a state as the place of birth.
It can be gathered from public sources that the adoption process in Nigeria is a complicated process that takes from six months to two years depending on the type and category of adoption, the state where the adoption takes place and the availability and cooperation of the adoption agencies and professionals, the government authorities, the court and the biological parents or legal guardian.
The judge looks critically at the woman's alleged course of the adoption procedure in Nigeria, because it also appears from public sources that the bureaucracy and corruption of the state authorities and agencies, the courts and the adoption agencies and professionals, who can delay the adoption process, refuse or demand bribes. These are facts and circumstances that lead to many prospective adoptive parents opting for an illegal adoption process in Nigeria. There are indications that this could also be an illegal adoption process.
For all these reasons, it is highly questionable whether the woman could have successfully requested recognition of her alleged adoption in Nigeria at an earlier date.
Illegal adoption procedures in general have led to the fact that, in view of the publication of the Joustra Committee report in February 2021 and a parliamentary motion adopted on 16 April 2024, intercountry adoption is in principle no longer possible in the Netherlands due to the vulnerabilities in the system. In principle, because adoption procedures already underway can be completed within a period of six years. All prospective adoptive parents who are in an adoption procedure on 21 May 2024 can continue the procedure during the phasing-out period.
However, the woman's preliminary application was only submitted after the decision had been taken that intercountry adoption was no longer possible. As a result, the adoption procedure was initiated too late. Even if it could be assumed that a proper adoption procedure had taken place under Nigerian law, that adoption cannot be recognised in the Netherlands within the regular legal frameworks and the regulations arising from it.
A treaty law perspective
As far as the judge is concerned, this case is not about the woman's wish to adopt, nor about her interest in that adoption. In its further assessment, the judge will only consider the interests of the approximately fifteen-year-old minor who was brought to the Netherlands at a young age and from that moment on was led and left to believe that he was adopted by the woman. The minor has no connection whatsoever with his country of origin and he knows nothing better than that it is unknown who his biological parents are.
It is the woman and the Dutch government who have brought and left the minor in that situation with a failing adoption system. The Council as part of the Dutch government also failed to intervene when it became aware of the problems surrounding the minor through investigations in connection with the criminal case, not even by requesting a measure that would at least provide for his authority.
The juvenile court therefore determines that the alleged adoption in Nigeria, the transfer of the minor to the Netherlands and the failure to arrange a legal basis for his residence in the years that followed, did not at any time act in his best interests. However, his interests should always have been a primary consideration. This follows from Article 3 of the Convention on the Rights of the Child. 1 The court takes into account in particular that Article 21 of that convention states that the right of the interests of a child must not only be a primary consideration as stipulated in Article 3, but even "the principal consideration". As far as the court is concerned, the latter cannot be understood in any other way than that in the decision to be taken in this case, the interests of the minor must be the only factor that is of significance.
But what is the interest of the minor? For this, the judge looks at the 14th General Comment that belongs to the Convention on the Rights of the Child. The judge recognizes that the General Comments, unlike the Convention on the Rights of the Child itself, do not form an integral part of the Dutch legal order. However, the judge finds that the points of view given in the 14th General Comment, as included in the assessment below, are applicable and applicable in this specific case to give concrete substance to the interest of the minor. 2
The court therefore holds that Article 3 of the Convention on the Rights of the Child requires that where a decision has to be taken that concerns a specific child, as in this case with regard to the minor, the decision-making process must include an evaluation of the possible consequences (positive or negative) of the decision for the child concerned.
On the basis of the evaluation made by him, the judge determines that a rejection of the request for recognition means that it will be impossible or very difficult for the minor to find a right to exist and security of existence in the Netherlands, and certainly not within the foreseeable future, if the request for recognition of the adoption is rejected.
Rejection of the request for recognition would mean that the minor would be exposed to an inhuman situation. That inhuman situation consists of the fact that, under immigration law, he is no more than an unaccompanied minor who does not legally reside in the Netherlands, over whom no authority is exercised and who is not insured here in the Netherlands and cannot be insured for, for example, medical expenses and legal liability.
Furthermore, if recognition of the adoption is rejected, the minor has and will not receive any right to shelter and social security in this country. If rejected, the minor can at any time be locked up in immigration detention 'for the purpose of deportation' and a return decision and entry ban can be imposed on him. Against the background of the failed adoption problems known to the government, he cannot successfully apply for asylum as an unaccompanied minor asylum seeker; after all, the government knows that he is not an asylum seeker.
The minor can at most hope that at some point a legal representative will be found who will come to the conclusion that in the light of the special facts and circumstances of the case a residence permit on humanitarian grounds must be sought. However, the requirement that there is a situation that cannot simply be classified under a specific purpose of residence does not seem to be possible or at least difficult to meet for that purpose. However, for the assessment of a request directed at that purpose, individual, distressing circumstances will be invoked that may, but certainly do not, constitute 'compelling reasons of a humanitarian nature' that justify the granting of a residence permit.
The judge rules that the rejection of the request for recognition of the adoption, due to the consequences of that decision, constitutes an inadmissible infringement of fundamental rights guaranteed by, among other things, the Convention on the Rights of the Child. The legal restrictions and obstacles that exist in this country to recognize the alleged adoption must therefore, in this specific case, yield to the interests of the minor in his adoption.
These interests are considerable. Adoption is the only right for the minor that can guarantee that the minor has the right to life, survival and development, as guaranteed to him by Article 6 of the Convention on the Rights of the Child. It is the only legal entity that can meet his right to retain his identity, guaranteed in Article 8 of the Convention on the Rights of the Child. It is also the only legal entity that can result in a separation between the minor and the woman he regards as his mother, and other family members such as his grandmother with whom he also lived as a family. Rejection of the request for recognition also leads to the separation of the minor and the woman he regards as his adoptive mother and with whom he lived as a family for most of his life. This is not consistent with Articles 9, 18 and 20 of the Convention on the Rights of the Child.
Finally, the judge finds that the rejection of the request is not consistent with the obligation of the Dutch government to ensure the minor the protection and care necessary for his well-being, protection and safety, as guaranteed by Article 3, paragraph 2 of the Convention on the Rights of the Child. In this regard, it must be noted that the terms "protection and safety" as used in the text of that article must be interpreted broadly, and cannot be understood otherwise as the right to protection of basic needs in the material, physical, educational and emotional spheres, to affection and safety.
It is for all these reasons that the judge gave his ruling immediately after the oral hearing and recognised the Nigerian adoption of the minor.
In doing so, the judge was convinced by the Council that the concerns he had about the extent to which the woman was sufficiently capable of thinking, acting and deciding in the interests of the minor were addressed by Veilig Thuis Groningen investigating the minor's upbringing situation. That investigation will clarify whether the concerns that had arisen about the minor's upbringing situation should be further investigated by the Council. If necessary, the Council will request a child protection measure.
For the further administrative settlement of that adoption, the judge adopts the position of the civil servant, who states on grounds that can support that an adoption under Nigerian law is a strong adoption on the basis of article 141 Child Rights Act of 2003. The adoption therefore does not have to be converted. The judge further determines the surname of the minor in accordance with the name that is included in his Nigerian passport.
When it comes to the birth data, the judge has a task to establish this. Although the woman submitted a document entitled 'Certificate of Birth', this document does not contain the original birth data of the minor, but the data about him as they read after the adoption decision of 10 June 2014 of the Family Court in Abeokuta, Ogun State, Nigeria. This document cannot therefore be considered a foreign birth certificate under Dutch law and is therefore not eligible for registration in the civil registry of the municipality of The Hague. This requires (at least) that the birth certificate reflects the situation as it was at the time of birth. The judge further reconstructs, as the civil servant did, that the place of birth of the minor should be [place], Nigeria instead of ' [place] '. Taking this into account, the judge establishes the following birth data for the minor:
surname : [genus name]
first name : [first name]
date of birth : [date of birth] 2009
place of birth : [place of birth] , Nigeria
gender : male
For all these reasons, the judge makes the following decision.
The decision
The judge:
acknowledges the adoption of [child's name] , who was born on [date of birth] 2009 in [place of birth] , Nigeria, by [woman's name] ,
establishes the surname [child's name] as [surname] ,
ordered registration of the birth certificate of [child's name] in the designated civil registry with the addition
surname : [genus name]
first name : [first name]
date of birth : [date of birth] 2009
place of birth : [place of birth] , Nigeria
gender : male
This ruling was given by Mr. BR Tromp, (juvenile) judge, on 17 January 2025. The written version of the ruling in this order was established, pronounced in public and signed by the judge on 22 January 2025.
If you disagree with the decisions made by the judge, you can appeal. But be careful! You cannot file an appeal yourself. You must go to a lawyer for that. A lawyer can file an appeal for you at the Arnhem-Leeuwarden Court of Appeal. It is important that you go to a lawyer quickly. An appeal must almost always be filed within three months after the day of the verdict.
1By the 'Children's Rights Convention' the judge means the International Convention on the Rights of the Child, a United Nations treaty that protects the rights of children worldwide. The treaty was adopted by the UN General Assembly on 20 November 1989 and entered into force in the Netherlands in 1996. Since then, the Children's Rights Convention has been the most important instrument that can be used in the Netherlands to protect children's rights. The treaty grants rights to minors, divided into various chapters and intended to guarantee the well-being, development, protection and participation of children. Provisions that the judge attaches particular significance to in this case are: The best interests of the child (Article 3): The best interests of the child must always be the primary consideration in all decisions concerning children. The right to life, survival and development (Article 6): Children have the right to life and the protection of their physical, mental, social and moral development. The right to participation (Article 12): Children have the right to express their views on matters that affect them and to have their views taken seriously. The right to adoption (Article 21): Children have the right to the protection provided for in the article when they are in an adoption situation. The article emphasises that the best interests of the child must be the primary factor in any decision-making process.
2Based on art. 93 and 94 Gw, the Convention on the Rights of the Child is an integral part of the Dutch legal order. The General Comments of the Convention on the Rights of the Child do not do this. They are interpretations and recommendations given by the Committee on the Rights of the Child to further explain the provisions of the Convention. They are intended as a tool for states, policymakers, researchers and other stakeholders to better understand and apply the obligations arising from the Convention. The General Comments therefore provide an explanation of the meaning of certain articles of the Convention on the Rights of the Child and which specific obligations arise from the Convention on the Rights of the Child.