ECLI:NL:RBZUT:2002:AE4670
AgencyZutphen Court
Date of judgmentJune 27, 2002
Publication dateJune 27, 2002
Case number39708 FA RK 01-943
Areas of lawPersonal and family law
Special featuresFirst instance - multiple
Content indication
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Finding sitesRechtspraak.nl
Pronunciation
ZUTPHEN COURT
Second multi-member chamber
Decision: 27 June 2002
Case number: 39708 FA RK 01-943
Decision on the request of:
1. [petitioner 1],
residing in [place of residence 1],
in his capacity as guardian over:
[daughter 1] and [daughter 2];
2. [petitioner 2] and [petitioner 3],
both residing in [place of residence 2],
3. [petitioner 4],
residing in [place of residence 3],
4. [petitioner 1] (for himself) and [petitioner 5],
both residing in [place of residence 1];
5. [petitioner 6] and [petitioner 7],
both residing in Boskoop,
6. [petitioner 8] and [petitioner 9],
both residing in [place of residence 4],
applicants referred to as 2 through 6 in their capacity as
(married) relatives in the first, second and third degree of
[adoptive father] and [adoptive mother], their daughter
[daughter 2] and [daughter 1] aforementioned,
Prosecutor: Mr. AJH Ozinga,
lawyer: Mr. JAM Dingemans in [place of residence 3].
The course of the proceedings
This progression is evident from:
- the petition with attachments, received on 8 May 2001;
- the letter with attachments from Mr. Ozinga dated 28 June 2001;
- the letter from the Council for Child Protection, Zutphen branch, dated July 18, 2001;
- the letter with attachments from Mr. Ozinga dated August 1, 2001;
- the official record of the proceedings at the hearing of 4 October 2001;
- the letters with attachments from Mr. Dingemans dated 30 October 2001, 12 November 2001, 3 April 2002 and 9 April 2002.
The established facts
By decision of the High Court of Judicature in Madras, India, of 3 August 1998, [adoptive father] and [adoptive mother], hereinafter referred to as the adoptive parents, were appointed guardians over the minor [daughter 1], born on [date of birth] in [place of birth].
The adoptive parents died on August 24, 1999, in a traffic accident in [country of vacation].
The request
The petitioners request that the court declare that, pursuant to the Hague Adoption Convention, a valid adoption by the adoptive parents of [daughter 1] took place under Dutch law on 3 August 1998.
In the alternative, the petitioners request a declaration that, pursuant to Dutch private international law, a valid adoption by the adoptive parents of [daughter 1] took place on 3 August 1998 pursuant to Dutch law.
In the alternative, the petitioners request that the court retroactively convert the adoption pronounced in India on 3 August 1998 into an adoption under Dutch law.
The assessment
Since India is not a party to the Hague Convention on the Protection of Children and Cooperation in Intercountry Adoption of 29 May 1993 (Treaty Series 1993, 197 and 1996, 94), hereinafter also referred to as the Hague Adoption Convention, the request will be assessed in accordance with the rules of Dutch private international law regarding adoption.
Recognition of a foreign adoption of a minor under Dutch international private law is possible in certain cases if the adoption in the country of origin was pronounced by the competent authorities following a careful procedure and the minor has acquired the status of a legitimate child of the adoptive parents under the law of that country.
The decision of the High Court of Judicature in Madras, India, on 3 August 1998, reads, insofar as relevant hereto:
It is ordered as follows:
1. That subject to undermentioned clauses, 3, 4, 5 & 6 infra, [adoptive father] and [adoptive mother], [address] 160, [place of residence], the petitioners/Applicants herein be and are hereby appointed as guardians of the person viz. '[daughter 1]', the female child whose photograph is duly attested and annexed hereto during her minority or until further orders of this Court.
2. That the said petitioners/Guardians appointed herein be and are hereby permitted to take custody of the said minor female child '[daughter 1]' for being adopted, fostered, brought up and maintained by [adoptive father] and [adoptive mother], [address] 160, [place of residence].
3. That the petitioners/Guardians appointed herein be and are hereby permitted to take the minor child out of India for being brought up by them in Netherlands.
4. That the Petitioners/Guardians appointed herein shall submit periodical reports regarding the welfare of the child at an interval of three months in the first two years and at an interval of six months for the succeeding three years, to this Court as also to Malaysian Social Services, Chennai-600 029, Indian Council for Child Welfare, Chennai-600 030 and the agency in Netherlands.
5. That the petitioners/Guardians appointed herein shall adopt the child in accordance with the local laws within a period of two years from the date of this Order.
6. That the minor child shall be accompanied by a responsible adult.
7. That the Appropriate Authorities shall issue the necessary Passport and travel documents to facilitate the travel of the child.
In short, the ruling amounts to [daughter 1] being entrusted to her adoptive parents and being charged with a form of authority comparable to guardianship. The adoptive parents are granted permission to take [daughter 1] to the Netherlands and are obliged to adopt her under Dutch law within two years.
In the court's opinion, such a decision does not have the consequence under Indian law that the family relations between [daughter 1] and her mother have been severed and that she has become related to her adoptive parents.
Therefore, this is not an adoption that lends itself to recognition under Dutch law pursuant to the Hague Adoption Convention or Dutch international private law. The fact that the decision was rendered by the competent authorities of India and that the proceedings can also be qualified as careful by Dutch standards does not alter the foregoing, since the adoption must be considered incomplete.
It follows from the foregoing that the primary and subsidiary requests must be rejected.
With regard to the subsidiary request to retroactively convert the adoption pursuant to Article 27 of the Hague Adoption Convention into an adoption by the adoptive parents valid under Dutch private international law, the Court rules that, insofar as this would even be possible given that India is not a party to the said Convention, the death of the adoptive parents prevents this. It cannot be inferred from the said article of the Convention that conversion of an adoption posthumously and/or retroactively is possible. Dutch adoption law does not provide for posthumous adoption or retroactive adoption. Consequently, there are insufficient grounds to proceed with such a conversion under Dutch private international law.
It follows from this that this request must also be rejected.
The decision
The court:
Dismisses the primary, subsidiary, and further subsidiary requests.
This decision was rendered by Mrs. R. Krijger, JMH van Staveren, RMAG van Valderen and pronounced by the aforementioned, at the public hearing of 27 June 2002, in the presence of the Clerk.
The Clerk announces that:
An appeal against the aforementioned decision lies with the Court of Appeal in Arnhem:
- for the applicants and the interested parties who appeared within three months after the date of this decision;
- for other interested parties within three months after service of this decision or within three months after this decision has otherwise become known to them;
This appeal must be lodged through a lawyer/attorney.
coll.