ECLI: NL: RBNHO: 2014: 8263, District Court of Noord-Holland, ...

ECLI: NL: RBNHO: 2014: 8263

Authority

District Court of North Holland

Date of judgment

23-07-2014

Date of publication

25-11-2014

Case number

C / 15/210626 / FA RK 14-264

Jurisdictions

Person-and familyright

Special characteristics

First instance - single

Content indication

American adoption; child lived in the Netherlands because of the American adoption decision; recognition of American adoption decision not legally possible

Legal References

Civil Code Book 1

Civil Code Book 1 25c

Civil Code Book 10

Civil Code Book 10 105

Civil Code Book 10 108

Civil Code Book 10 109

Code of Civil Procedure (applies in case of digital litigation)

Code of Civil Procedure (applies in case of digital litigation) 3

Adoption of Foreign Children

Act Adoption of Foreign Children Act 2

Locations

Rechtspraak.nl

JPF 2016/102

Enriched pronunciation

Pronunciation

COURT NORTH HOLLAND

Family & Youth Section

location Haarlem

adoption

case / petition no .: C / 15/210626 / FA RK 14-264

Order of the Single Judge for Family Matters of 23 July 2014

given at the request of:

[applicant 1] and

[applicant 2] ,

both residing in [residence],

hereinafter also referred to as: applicants or separately [applicant 1] and [applicant 2],

lawyer: mr. M. Koomen, with offices in Alkmaar.

The interested party is considered to be:

the civil servant [the civil servant], hereinafter: the civil servant.

1Course of the proceedings

The course of the procedure is evidenced by:

- the petition, with annexes, received on 23 January 2014;

- the letter from the official dated February 26, 2014;

- the letter, with appendices, from the Applicants' attorney dated 17 March 2014;

- the letter from the Applicants' lawyer of 19 March 2014.

2The established facts

The court assumes the following facts on the basis of documents submitted:

2.1

On 19 June 2010, [applicant 1] asked the Ministry of Justice for permission to take in a second foreign child. This permission was granted to him on August 11, 2010.

2.2

[applicant 1] and [applicant 2] married each other on [date of marriage] in [place].

2.3

On [date of birth], in [USA] (hereinafter also referred to as: USA), from [mother] the child [the child], (hereinafter also referred to as: the child). The biological father is unknown.

2.4

The Findings of Fact and Order of the Superior Court of New Jersey of 15 June 2012 shows that under the Hague Adoption Convention, the law of the State of New Jersey provides that the applicants are charged with custody of the child and that they have been granted permission to apply for a passport with the intention of going to the Netherlands with the child, in connection with the intended adoption. The “Findings of Fact and Order” of June 15, 2012, was certified according to the Apostille (Convention de la Haye du 5 octobre 1961) on July 12, 2012 by Andrew Sidamon-Eristoff, State Treasurer of Trenton, New Jersey, United States of America.

2.5

From the submitted “Judgment of Adoption” of the Superior Court of New Jersey of 26 February 2013, it appears that under New Jersey law the child has already been adopted by the applicants.

Since this adoption under New Jersey law, the name of the child has been changed to: [name] The “Judgment of Adoption” of February 26, 2013, according to the Apostille (Convention de la Haye du 5 octobre 1961) by Andrew Sidamon-Eristoff, State Treasurer in Trenton, New Jersey, United States of America.

2.6

The extract from the municipal personal records database of the municipality [city] of 8 November 2013 shows that the child has been registered at the address of the applicants since 11 July 2012. In any case, the Applicants have taken the child into their family and cared for and raised it.

2.7

The applicants have the Dutch nationality and the child is an American citizen and also has the Dutch nationality.

2.8

By order of July 5, 2011 of the court of Haarlem, the adoption by the applicants of the child [the child], born on [date of birth] in [US]

3Request

3.1

The request is for the pronouncement of the adoption by the applicants of [the child], born on [date of birth] in [USA], as the daughter of [mother];

- to (further) determine the (original) birth data of the child;

- declare that the Applicants have declared that the child will retain the Applicants' family names under Dutch law, so that the full names of the child will be [name] under Dutch law.

3.2

The applicants request that the adoption be pronounced in accordance with Dutch law. The Applicants have indicated that although this is an adoption under [US] law, this adoption cannot be regarded as an adoption in accordance with the Hague Convention on the Protection of Children and Cooperation in the Field of Intercountry Adoption of 29 May 1993 (hereinafter: the convention), since when pronouncing this adoption in the name of both applicants, no consideration was given to the fact that [applicant 2] does not have the required consent in principle. With regard to [applicant 2] there can be no question of an adoption in accordance with the convention and in the opinion of the applicants this defect also affects [applicant 1]. Since, according to the Applicants, there is no treaty adoption, it must be established that the American adoption under Article 10: 109 paragraph 1 of the Civil Code (BW) also does not qualify for recognition. After all, the child has been registered in the Netherlands since 11 July 2012 and was therefore not in her country of birth on 26 February 2013, when her adoption was pronounced. The Applicants do not wish to leave any ambiguity whatsoever with regard to the legal status of the child for now and the future and therefore request the adoption by the Dutch court under Dutch law.

4Review

4.1

The Dutch court has jurisdiction on the basis of article 3 sub a of the Code of Civil Procedure.

4.2

Although the petitioners have requested that only the adoption be pronounced in accordance with Dutch law, the judge must first check - ex officio - whether an adoption (whether or not by convention) has already been effected abroad.

4.3

It has been established from the documents submitted that the authorization in principle from the Ministry of Justice to take in a foreign child for adoption was only granted to [applicant 1]. Article 2 of the Adoption of Foreign Children Act (Wobka) prohibits the admission of a foreign child without prior consent in principle. It follows from this that the condition for possible recognition of a foreign adoption has not been met with regard to [applicant 2]. The court will therefore only proceed with an ex officio assessment of the foreign adoption with regard to [applicant 1].

4.4

Now that the treaty has entered into force for both the United States of America and the Netherlands, the treaty is applicable. The documents do not include a statement within the meaning of Article 23 of the Convention to the effect that the present adoption was effected in accordance with the Convention. Therefore, under the law of the State of New Jersey (US), the adoption cannot be legally recognized in the Netherlands.

4.5

It must then be assessed whether the American adoption can be recognized in the Netherlands on the basis of Articles 10: 108 and 10: 109 BW.

4.6

Article 10: 109 DCC regulates the recognition of the adoption from a foreign state where the child - both at the time of the application for adoption and at the time of the decision - had its habitual residence, while the adoptive parents had their habitual residence in the Netherlands .

4.7

It has been established that [applicant 1] had his habitual residence in the Netherlands both at the time of the application for adoption and at the time of the final adoption decision.

The child was residing in the United States of America at the time of the application for adoption. At the time of the American adoption decision, however, the child was already in the Netherlands. Since the child does not meet the condition that she was in the United States at the time of the American adoption, recognition is not possible by operation of law.

adoption

4.8

In view of the above considerations, the American adoption decision with regard to [applicant 1] does not qualify for recognition, it must be assessed under Dutch law whether the conditions for adoption have been met, on the understanding that pursuant to Article 10: 105 of the Dutch Civil Code Parental consent to adoption is governed by US law.

4.9

In view of the adoption procedure that has already been conducted in the United States, the court assumes that the biological parent has no objection to the adoption and this parent cannot be summoned. The Findings of Fact and Order of 15 June 2012 shows, among other things, that the mother chose the applicants to adopt her child and that the mother consented to the adoption of the child by the applicants.

4.10

The Minister of Justice has not granted permission to [applicant 2] to accept a foreign child for adoption. The court assumes that [applicant 2] was involved in the investigation carried out by the Child Care and Protection Board in the context of the consent in principle to [applicant 1]. Now that it has been established from the documents submitted that the adoption of the child in the United States was pronounced on behalf of both applicants and that the child has actually been cared for and brought up together by the applicants since 11 July 2012, the court is of the opinion that the it is in the best interest of the child that she is placed under family law with both applicants and that clarity is created about the legal parentage of the applicants.

4.11

On the basis of the documents submitted, the court is convinced that the requested adoption is in the apparent interest of the child. It has also been established that the child now and in the future can reasonably be expected to expect nothing more from her biological mother in her capacity as parent, so that it has now also become apparent that the other legal conditions for adoption have been met. , the request will be granted.

determination of birth data

4.12

The Applicants requested that the (original) birth data of the child be determined (further).

The documents include a "certificate of birth", with an Apostille stamp, on which the applicants are listed as the parents of the child. However, this concerns a re-registration of the birth certificate, which does not include all the original birth data of the child. The Dutch system of the law, however, is aimed at a birth certificate giving the complete history of a person in chronological order (as far as possible). This is also in line with the International Convention on the Rights of the Child (Treaty Series 1990,170), which requires, among other things, that a child's parentage history is known (as far as possible).

In a letter dated February 24, 2014, the official proposed to the court to establish the child's birth data as follows, due to the lack of the child's original birth certificate:

Family name: [family name]

First names: [first names]

Date of birth: [date of birth]

Place of birth: [place of birth]

Gender: Female

Mother: Family name

: [family name]

First name: [first names]

The Applicants stated in a letter from their lawyer dated 19 March 2014 that they agreed with the proposed determination of the birth data of the child.

4.13

Pursuant to Article 1: 25c, paragraph 3 of the Dutch Civil Code, the court will determine the birth data of the child required for drawing up a birth certificate in accordance with the civil servant's proposal.

names

4.14

Finally, the Applicants requested to understand that they have declared that the child will retain the Applicants' family names under Dutch law so that the full names of the child will be [name] under Dutch law.

In view of the content of the official's letter of 24 February 2014, this request will be granted.

5Decision

The court:

5.1

Establishes that on [date of birth] in [USA], a child of the female sex was born to [mother], to which child was given the surname [family name] and the first name [first names] and orders the registration thereof in the births of the congregation [place]

5.2

Is the adoption of the child of the female sex:

- [the child], originally named [name], born on [date of birth] in [USA],

aforementioned by the applicants.

5.3

Instructs the registrar of births, deaths and marriages of the municipality [place] to add a later statement of the adoption of the child to the relevant deeds.

5.4

It is ordered that the full names of the child will (continue to) be [name] under Dutch law.

5.5

Rejects the lake or otherwise requested.

5.6

Pursuant to Section 1: 20 e paragraph 1 of the Dutch Civil Code, the Registrar orders the Registrar to send a copy of this decision to the civil registrar of the municipality of The Hague.

This decision was issued by mr. DH Steenmetser-Bakker, also juvenile judge, in the presence of MP Joukes as registrar and pronounced in public on 23 July 2014.

Insofar as a final decision has been taken, an appeal can be lodged against this decision with the Amsterdam Court of Appeal through the intervention of a lawyer. The requesting party and any interested parties appearing must lodge the appeal within three months from the date of the decision. Other interested parties must lodge the appeal within three months of the notification of this decision or after it has become known to them in some other way.

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