ECLI:NL:RBAMS:2020:5774, Rechtbank Amsterdam, C/1…
ECLI: NL: RBAMS: 2020: 5774
Authority
Court of Amsterdam
Date of judgment
04-11-2020
Date of publication
04-12-2020
Case number
C / 13/671485 / HA ZA 19-927
Jurisdictions
Civil rights
Special characteristics
First instance - multiple
Content indication
Unlawful act of adoptive mother towards adoptive daughter due to violation of the obligation to provide information on origin and descent? Adoption now revoked. Claim is partially time-barred. For the rest: no unlawful act. Claim to hand over adoption file rejected because the court cannot establish that the former adoptive mother still has (parts of) the adoption file. In counterclaim: restraining order imposed for a period of ten years as a result of a stream of offensive and insulting messages.
Locations
Rechtspraak.nl
Module Civil status and country information 2021/5594
RAV 2021/18
Enriched pronunciation
Statement
verdict
COURT OF AMSTERDAM
Private Law Department
case number / cause list number: C / 13/671485 / HA ZA 19-927
Judgment of November 4, 2020
in the case of
[claimant] ,
residing at [residence 1],
plaintiff in convention,
defendant in the counterclaim,
lawyer G. Martin in Purmerend,
against
[defendant] ,
choosing domicile at [residence 2],
defendant in convention,
plaintiff counterclaim,
lawyer mr. DA Segbedzi in Amsterdam.
The parties are hereinafter referred to as [plaintiff] and [defendant].
1The procedure
1.1.
The course of the procedure is evidenced by:
-
the summons of 14 August 2019;
-
the deed pertaining to the submission of exhibits, also deed of domicile choice of the defendant of [plaintiff];
-
the statement of defense also containing a claim in counterclaim, with exhibits;
-
the interlocutory judgment of 18 December 2019, ordering a person to appear before a three-judge chamber
-
the statement of defense in the counterclaim;
-
the official report of the non-held session of 23 April 2020 (in connection with the Corona virus);
-
the deed pertaining to the submission of exhibits, also the deed of amendment / increase of claim of [plaintiff];
-
the official report of the hearing of 6 October 2020 and the documents referred to therein.
2The facts
2.1.
[Claimant] was born in Bangladesh and adopted by [Defendant] and her then wife Mr. [name of husband 1] (hereinafter: Mr. [Claimant]). [Claimant] arrived in the Netherlands on April 21, 1977. The adoption was pronounced by order of 11 October 1978 by the Alkmaar District Court.
2.2.
In a (draft) report of the Child Care and Protection Board in Alkmaar dated June 27, 1978, the place and date of birth of [claimant] are: [name of spouse 1] (Bangladesh) and [date of birth] 1977. The legal parents are stated as [[claimant]]. father's name], father, and [mother's name], mother. Under the name of the father is “deceased” and under the name of the mother “further information unknown”.
2.3.
[defendant] and Mr. [name of spouse 1] divorced in 1981. After this, [defendant] had a relationship with Mr. [name of relationship] (hereinafter: [name of relationship]). [name of relationship] passed away in 1993.
2.4.
At some point in 2006 [claimant] received copies of the following papers (in total four A4 pages) from [defendant]:
a. the signed statement of Dr. SA Ali, medical officer of the “Netherlands Intercountry Child Welfare Organization” (hereinafter: the NICWO) in Dacca, dated April 18, 1977 and with - insofar as relevant - the following content:
Name - [plaintiff] - 1 mnth. 22 days
Sex - Female Weight - 5 lbs. 120 zs.
This is to certify that this baby is free from any clinical disease, and she can bear the strain of travel. ”
b. an (unsigned) document entitled “affidavit” and with the following content:
“I, Madam [name of mother], about 30 years old and wife of Md. [name of father] of the village [claimant], Ps Kotwali, Distr. [name of husband 1], of Muslim faith, as a profession housewife, declare
hereby solemnly and affirmatively the following:
-
That I am the mother of a female child named [Claimant], whose date of birth [date of birth] is 1977 and that she is under my care and supervision and that I am her guardian.
-
That I am unable to provide for her livelihood and other daily expenses and have therefore decided to have her adopted and reintegrated into civil society under the provisions of the Bangladesh Abandoned Children (Special Provisions) Order 1972 and its associated established laws.
-
That today I transferred [claimant] to the guardianship of the “Netherlands Intercountry Child Welfare Organization” in Dacca, for her adoption in the family
of Mr. and Mrs. [name of husband 1] - [defendant] and that I hereby waive all possible claims against her and that I do not make any claims in the future
will make on her.
- That after renouncing my custody of my aforementioned child, the “Netherlands Intercountry Child Welfare Organization will take over her custody and that the said organization will arrange her adoption according to the decisions of the employed authorities.”
c. the undated statement of [name social worker], NICWO social worker , with -
where relevant - the following content:
“[Claimant] is the daughter of the late [name of father]. Her father was a day laborer. He was very honest and a man with a decent demeanor. He lived with his family in a suburb of a larger city. In any case, with his meager income he managed the daily bread
earn for himself and his family.
His family was calm. Unfortunately, [name of father] became seriously ill and died after a severe fever.
After his doo [d] his fold [name of mother] together with her 5 daughters became very needy. She worked hard to provide daily living for herself and the 5 children.
She also became seriously ill from lack of proper care and food. Nor do they have a family to help them. The desperate mother brought her sick baby to our orphanage and offered [Claimant] to us, also renouncing her legal claims to the child.
We have accepted her.
She grows up in our children's home. She is a nice and gentle baby. We decided to give her up for adoption by a foreign country, with the permission of the government.
In view of the preference of Mr. and Mrs. [Claimant] - [Defendant], we believe that [Claimant] fits into this family and have therefore offered her to this family.
Our very best wishes to [Claimant]. ”
d. the under c. said original statement, drawn up in English and signed by [name of social worker].
[Claimant] also received - together with these documents - a copy of her original Bengali passport from [Defendant].
2.5.
In 2006 [claimant] paid a visit to the office of The New York Times and the Bengal Embassy in New York , in response to the contents of the documents referred to in 2.4 .
2.6.
[Plaintiff] sent a letter to [Defendant] on 21 December 2016, in which she writes - inter alia and insofar as relevant - that [Defendant] has made untrue statements to her with regard to her adoption, that she has now made a duplicate of her has a passport in her possession and that [defendant] has unlawfully held the (original) personal document for decades.
2.7.
On September 20, 2017, [claimant] received copies of her adoption file from the adoption organization Wereldkinderen (previously: Bureau Interlandelijke Adoptie). In the accompanying letter from Wereldkinderen to [Claimant] dated September 19, 2017, it states - insofar as relevant - “Enclosed I will send you (…) the copied documents concerning your adoption from the shadow file of the adoption procedure by your adoptive parents. Copies of documents are archived in this shadow file, of which your adoptive parents have the original documents in their possession. ”
2.8.
The documents sent by Wereldkinderen to [Claimant] include at least the following letters:
a. the letter from Ms [name of secretary], office secretary, to Mr and Ms [name of husband 1] - [defendant] of 26 April 1977, with - as far as relevant - the following content:
“As agreed, I hereby send you the official papers that [claimant] received from Bangladesh, namely:
-
waiver (Affidavit)
-
health statement
The statement of the Bangladeshi authorities on the custody transfer will be forwarded shortly.
In addition to the aforementioned papers, we also received a short report regarding the background information about your daughter. This report is also enclosed.
(…) ”
b. the letter from Ms [name of secretary], office secretary, to Mr and Ms [name of husband 1] - [defendant] of 28 June 1977, with the following content as far as relevant:
“Following our letter dated April 26, I am enclosed with you a custody transfer certificate from your daughter [claimant] from Bangladesh.
We have now sent a copy of all the documents to the Ministry of Justice, Immigration Department. ”
2.9.
On 16 February 2017, under the leadership of the public prosecutor of the district in The Hague, a criminal investigation was started, which focuses on harassment (Article 285b of the Criminal Code), in which [claimant] has been designated as a suspect and in which [claimant] April 20, 2017 was arrested in the act and interrogated. On May 9, 2017, two police officers held a conversation with [defendant] in this regard, partly to gather information about the background of [plaintiff]. The official report of findings that was drawn up of this conversation, and that [defendant] has not signed, states, among other things:
Q: What does [Claimant] know about her biological parents?
A: At the time I handed over all the written documents of the adoption to her. Both her parents appear to be deceased. She had three living sisters in Bangladesh at the time of adoption. (…) ”
2.10.
The District Court of The Hague has criminally convicted [claimant] for stalking one or more third parties. [Claimant] is currently on probation for a suspended sentence. [Claimant] has lodged an appeal against the judgment of the court. The appeal is still pending.
2.11.
By order of the Noord-Holland District Court of 27 June 2018, the adoption of [Claimant] was revoked at her request.
2.12.
Following the oral hearing of the request for revocation, on May 29, 2018, [defendant] - through her lawyer - packed in a cardboard box (in any case) had the original Bengali passport and school papers of [claimant] handed over to her. .
2.13.
The relationship between [claimant] and [defendant] has been seriously disrupted for years.
[Claimant] has been experiencing psychological complaints since her early puberty and is currently under psychological treatment for this.
2.14.
By letter of 11 February 2019, [claimant] held [defendant] liable for the damage claimed in these proceedings.
2.15.
[plaintiff] initially summoned [defendant] against 29 May 2019. In a judgment of 24 July 2019, the court dismissed [defendant] from the proceedings because [plaintiff] had not paid the court fee on time. The court ruled that the late payment is the result of circumstances that lie within the risk sphere of [claimant]. Subsequently, [plaintiff] brought a further summons to [defendant], thus initiating the present proceedings.
2.16.
In a letter dated 3 October 2019, the team chair of this court's trade - insofar as relevant - wrote the following to [Claimant]:
“In a letter dated September 23, 2019, the president of the court addressed you about the
inappropriate tone in your letter to a judge of this court. The president also has you
written that you, too, may be expected to observe the usual standards of decency in your communications with the court.
From the telephone contact you had on September 30, 2019 with an employee of the court, and the e-mails you sent to the court in cc that day, it can be inferred that you have the tone and content of your communication with the court. court is not going to adjust. This is unacceptable in court and reason to limit communication with you.
For the next three months, the court will only issue written communication (via the
accept regular mail or the Central Bar of the court) from you and only respond to it insofar as the court deems necessary. You will no longer be able to communicate with the court by email. In addition, our employees have been instructed to disconnect you if you contact us by telephone within the next three months. ”
3The dispute
in convention
3.1.
[Claimant] claims - after increasing the claim - by judgment, provisionally enforceable as much as possible:
to declare that [defendant] has acted unlawfully towards her, by acting or failing to provide all available information to [plaintiff] about her origin and descent, and has acted or failed to act contrary to the on [defendant] ] resting information obligation and has therefore become liable to pay compensation to [claimant];
to order the [defendant] to hand over the complete adoption file, on pain of forfeiting a penalty of € 250 for each day after this judgment that this judgment is not enforced;
to order [defendant] to pay to [plaintiff] € 30,000 for the immaterial and material damage suffered by it, plus the statutory interest from 21 January 2019, at least as of the date of the summons, as well as up to an amount of
€ 850 in extrajudicial collection costs;
4. to prohibit [defendant] from making statements about [plaintiff] in any way whatsoever and to anyone whatsoever to third parties, including all business and other relationships in the broadest sense of these words, on pain of forfeiture of one. penalty of € 250 for each day after this judgment that this judgment is not enforced;
5. Order [defendant] to pay the costs of these proceedings, including the subsequent costs, plus statutory interest.
3.2.
[Plaintiff] has based her claim - in brief and partly in view of the explanation at the hearing - as follows.
Ad 1) [Defendant] is obliged to inform [Claimant], as early and completely as possible, about her origin so that she can determine her identity and learn more about the facts and circumstances from her birth to the adoption. . [Defendant] failed to comply with this obligation because it provided incomplete and also incorrect information to [Claimant]. Throughout her life, [defendant] has lied to [plaintiff] about the death of her biological mother in Bangladesh. However, the adoption file that became available in 2017, of which the (draft) report of the Child Care and Protection Board mentioned in 2.2 is a part, showed that the biological mother of [claimant] was alive at the time of the adoption. [Defendant] should have shared this information with [Claimant] of his own accord. Thus she has been (intentionally) denied a bond with her own mother, a mother she misses every day throughout her life. [Claimant] grew up - wrongly - with the idea that she was an orphan. [Claimant] was never allowed to inspect (detailed) information about her adoption and her Bengali passport from [Defendant] before, because [Claimant] had determined that this information could not be made available to [Claimant] until after her death. Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107). a mother she misses every day throughout her life. [Claimant] grew up - wrongly - with the idea that she was an orphan. [Claimant] was never allowed to inspect (detailed) information about her adoption and her Bengali passport from [Defendant] before, because [Claimant] had determined that this information could not be made available to [Claimant] until after her death. Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107). a mother she misses every day throughout her life. [Claimant] grew up - wrongly - with the idea that she was an orphan. [Claimant] was never allowed to inspect (detailed) information about her adoption and her Bengali passport from [Defendant] before, because [Claimant] had determined that this information could not be made available to [Claimant] until after her death. Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107). [Claimant] was never allowed to inspect (detailed) information about her adoption and her Bengali passport from [Defendant] before, because [Claimant] had determined that this information could not be made available to [Claimant] until after her death. Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107). [Claimant] was never allowed to inspect (detailed) information about her adoption and her Bengali passport from [Defendant] before, because [Claimant] had determined that this information could not be made available to [Claimant] until after her death. Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107). Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107). Structurally withholding relevant information in order to understand the background of the adoption and its origin is - in the light of the right to information arising from Article 8 ECHR - an unlawful act. [claimant] refers to the judgment of the Court of Appeal of The Hague of 13 November 2018 (ECLI: GHDHA: 2018: 3107).
Ad 2) From the letter from Wereldkinderen to [Claimant] dated September 19, 2017, it appears that [Claimant] must have the original adoption file. She refuses to issue this so far and this is unlawful towards [claimant].
Ad 3) [Plaintiff] has become (partially) incapacitated for work as a result of the actions of [Defendant] and is struggling with serious, lifelong psychological complaints. She suffers from a lifelong post-traumatic stress disorder, combined with a depressive disorder and an anxiety and emotion regulation disorder. The material damage consists of the deductible that [Claimant] fully consumes annually as a result of necessary treatments, research costs and loss of earning capacity. The largest loss is immaterial loss, because [plaintiff] has not been able to determine its origin for so long and has been put on a false track by [defendant]. The damage calculation is partly based on the principles of the Court of Appeal of The Hague in the aforementioned judgment of 13 November 2018.
Ad 4) [Defendant] is an inconvenient infringement of the private life of [Claimant].
In the past five years, [defendant] has demonstrably proclaimed untruths about [plaintiff] or made grievous statements about [plaintiff], namely to: the police, the multiple chamber of the Alkmaar court during the procedure for revocation of the adoption, madam R. Smit (civil-law notary in Harderwijk), the attorney of [defendant] and the court hearing the present case. For example, it is not true that [Plaintiff] suffers from an attachment or identity disorder and / or that [Defendant] has sought psychological support for [Plaintiff] in the past for this. Furthermore, it is not correct that [Claimant] had a serious lung disease and / or was operated on for a cyst or a benign tumor. The medical file shows that it was a harmless piece of muscle tissue. Furthermore, [defendant] stated in a letter to the said civil-law notary, who approached her in connection with the estate of the deceased (third) husband of [defendant] (Mr. [name of spouse 2]), wrongly stated that there was a family relationship between the parties. The unlawful nature of the statements lies in the infringement of the privacy of [plaintiff] and the actions of [defendant] from the unjustified belief that she is the mother of [plaintiff] and has control over [plaintiff].
3.3.
[defendant] claims rejection of the claims. [defendant] invokes limitation of the claim for damages. In any case, [claimant] was aware of the alleged 'lie' and the damage in 2006, while she only filed her claim in 2019. Furthermore, [defendant] disputes that it has breached its duty to provide information. She never said that [Claimant] 's biological mother had died. She has always been open about the origins of [claimant], the available documents surrounding the adoption and she has offered [claimant] to travel to Bangladesh. However, [claimant] has repeatedly refused this. It is not correct that [plaintiff] was only allowed to view data after the death of [defendant]. In June 2018, [defendant] sent to [plaintiff] the last adoption papers in her possession. Furthermore, [defendant] considers the alleged damage not substantiated and, according to her, there is no causal link between this damage and the alleged unlawful act. [defendant] also disputes that she made unlawful statements against [plaintiff].
in counterclaim
3.4.
[defendant] claims - in summary - to prohibit by judgment, enforceable by stock, [plaintiff] from any direct or indirect contact in any way for ten years after this judgment has been served, or at least during a period to be determined by the court in good justice. to be taken with [defendant], on pain of forfeiting a penalty of € 250 per violation, with a maximum of € 25,000. [Defendant] also claims that [Plaintiff] be ordered to pay the legal costs, including the subsequent costs.
3.5.
[Defendant] has based the following on her claim - in short and also in view of the explanation at the hearing. [plaintiff] tries compulsively to maintain contact with [defendant] or at least to get the attention of [defendant]. [plaintiff] has bombarded [defendant] with numerous (offensive) e-mails, also after the letter from [plaintiff] of December 26, 2016 in which [plaintiff] requested [defendant] not to contact her. In the course of the procedure to revoke the adoption, [Claimant] also sent several copies of e-mails to the lawyer of [Defendant]. Despite repeated requests from this lawyer to [Claimant], [Claimant] continued to send e-mails. Ultimately, both [defendant] and her lawyer blocked the e-mail address of [plaintiff]. In the course of these proceedings, [plaintiff] started again sending e-mails to [defendant] and her lawyer. Previous amicable requests to discontinue these communications have been unsuccessful. It is true that [plaintiff] did not send any more messages to [defendant] or her lawyer between the last message of August 31, 2019 and the day of the hearing in this case (6 October 2020), but there is a fear that she will do so after the court verdict has pointed out, will do it again.
3.6.
[Claimant] concludes that the claim should be rejected. The fact that [plaintiff] had contacted [defendant], her lawyer and the civil-law notary related to the present case and the settlement of the estate of Mr. [name of spouse 2]. [plaintiff] does not wish to contact [defendant] and now sees no reason after psychological treatment to take matters into his own hands. Part of the problem of [Claimant] is that she has difficulty limiting her reactions. That used to be worse than it is now. The treatments that [claimant] is undergoing also pertain to delaying the initial response. [claimant] will now have himself represented in a business conflict. In addition, [defendant] had a share in how [plaintiff] became. [Defendant] has blocked the e-mail address of [Claimant] himself and has decided not to initiate proceedings against [Claimant] in summary proceedings. In the past year, [plaintiff] has not sent any more messages to [defendant] or her lawyer. [plaintiff] has switched the switch and is no longer targeting [defendant]. Therefore, [defendant] no longer has to be afraid of a flood of messages if the court decision is not favorable to her. In addition, [plaintiff] is on probation from a criminal conviction for stalking, this also applies as protection for [defendant]. Therefore, [defendant] no longer has to be afraid of a flood of messages if the court decision is not favorable to her. In addition, [plaintiff] is on probation from a criminal conviction for stalking, this also applies as protection for [defendant]. Therefore, [defendant] no longer has to be afraid of a flood of messages if the court decision is not favorable to her. In addition, [plaintiff] is on probation from a criminal conviction for stalking, this also applies as protection for [defendant].
4The assessment
in convention
unlawful act - violation of the obligation to provide information?
4.1.
The relevant assessment framework for assessing the claims of [Claimant] stated in 3.1 under 1-3 is as follows.
4.2.
Every child has the right to know from which parent they are descended and the right to identity, including the right to know under what circumstances the child was born. It follows from the judgment of the European Court of Human Rights (ECtHR) in Gaskin v. The United Kingdom of 7 July 1989 that there is a right to the necessary information necessary to understand childhood and early development . Furthermore, rulings of the ECtHR state that everyone must be able to find out details of his or her identity and that the claim to that information is important for the formation of his or her personality. This includes information necessary to reveal the truth about important aspects of that identity, including the identity of his or her parents. (cf. Court of Appeal of The Hague 13 November 2018, ECLI: NL: GHDHA: 2018: 3107). It is up to the parent who exercises authority to give the child that information. In principle, it is reserved for this parent to determine the appropriate time. However, the best interests of the child must come first (cf. HR March 18, 2016, ECLI: NL: HR: 2016: 452).
4.3.
The court first of all states that [plaintiff] received the documents referred to in 2.4 from [defendant] in 2006. These documents show that the biological mother of [Claimant] had not died at the time of the adoption. Insofar as it has already been established that [defendant] informed [plaintiff] before 2006 that the biological mother of [plaintiff] had died at the time of the adoption - which [defendant] expressly disputes - and it would be held that this unlawful act of [defendant] towards [plaintiff] results in the compensation claim of [plaintiff] based on that ground. The following is justified for this.
4.4.
Article 3: 310 paragraph 1 of the Dutch Civil Code provides, insofar as relevant here, that a legal claim for compensation of damage lapses five years after the start of the day following the day on which the injured party has both the damage and the liability for it. person has become known. The limitation period of article 3: 310 paragraph 1 of the Dutch Civil Code does not start to run until the day after the day on which the injured party is actually able to institute legal claims for compensation for the damage he has suffered. This will be the case if the injured party has obtained sufficient certainty - which does not have to be absolute certainty - that the damage has been caused by the person concerned's shortcomings or incorrect actions. The answer to the question at what time the limitation period started to run,
4.5.
[Claimant] was in any case at some point in 2006, after receipt of the said documents, actually able to institute legal proceedings for compensation for the damage it suffered. After all, [claimant] knew on the basis of the content of these documents that the alleged communication (s) of [defendant] was (were) incorrect, while according to [claimant] 's own assertions they were already professional in 2012 and also in previous years. had to ask for psychological help because of the actions of [defendant] (see eg no. 5 in the petition to revoke the adoption). It has been established that [plaintiff] did not hold [defendant] liable for the currently claimed damage until in a letter dated 11 February 2019. However, the claim based on the alleged incorrect statements of [defendant] was already well ahead
February 11, 2019.
4.6.
Insofar as the claim for damages is based on unlawful acts, consisting of - in short - the withholding of adoption data by [defendant], this claim fails on the basis of the following. [plaintiff] has not stated any facts - although she was explicitly asked about this at the hearing - from which it can be concluded that at some point [defendant] had more substantive information about the origin and the circumstances from the birth to the adoption of [plaintiff], than are contained in the aforementioned documents already provided to [claimant]. In doing so, the court notes that the letter from the Child Care and Protection Board referred to in 2.8 under a unmistakably refers to these documents, which [plaintiff] had already had since 2006.
4.7.
To the extent that [plaintiff] finally accused [defendant] that before 2006 [defendant] did not provide (complete or correct) information about the adoption, which accusation [defendant] disputed with reasons, this also applies to the claim to this effect. is barred. In any case from the age of majority of [Claimant] she was able to bring a claim for compensation for damage suffered in connection with this.
4.8.
The foregoing means that the claims stated in 3.1 under 1 and 3 are rejected.
Delivery of adoption file?
4.9.
[Claimant] has requested [defendant] to be sentenced to hand over the adoption file (3.1 under 2). Apart from the answer to the question whether [defendant] has unlawfully retained documents, this claim cannot be allowed because the court cannot establish on the basis of the allegations of [plaintiff] that [defendant] still has (parts from ) has the adoption file. [Defendant] disputes this with reasons, stating that in June 2018, after the hearing in the revocation procedure, she provided all relevant documents in its possession to [Claimant]. The parties acknowledged at the hearing that they did not make a description or have made a description of the contents of the box handed over to [claimant] via the lawyer of [defendant]. The court cannot order [defendant] to hand over documents of which it cannot establish that [defendant] still has them or which they otherwise have access to. Incidentally, [plaintiff] has also not stated that [defendant] still has documents that it does not have in the meantime via other means, which means that there is also no interest in the claim. [Defendant] has stated that he is willing to issue a copy of the photo of the group of adopted children referred to by [Claimant] upon arrival at Schiphol, so that the court does not have to make a decision about this. Incidentally, [plaintiff] has also not stated that [defendant] still has documents that it does not have in the meantime via other means, which means that there is also no interest in the claim. [Defendant] has stated that he is willing to issue a copy of the photo of the group of adopted children referred to by [Claimant] upon arrival at Schiphol, so that the court does not have to make a decision about this. Incidentally, [plaintiff] has also not stated that [defendant] still has documents that it does not have in the meantime via other means, which means that there is also no interest in the claim. [Defendant] has stated that he is prepared to issue a copy of the photo of the group of adopted children referred to by [claimant] upon arrival at Schiphol, so that the court does not have to take a decision on this.
Unlawful statements to third parties?
4.10.
In the context in which they were made, it cannot be said of any of the statements by [claimant] cited by [claimant] (for the list 3.2 under 4) that [claimant] has thereby exceeded the boundaries of the proper be unlawful. On the part of [plaintiff] at the hearing - although this was expressly requested - no further explanation was given, other than that the statements would infringe her privacy, that the prohibition sought after the amendment of the claim was in particular a “practical approach”. "Has, certainly now that [defendant] himself is requesting a restraining order and the starting point of" equal monks, equal hoods "applies. Incidentally, it is stated in 2.9 of the quotation of [defendant] from the police interrogation, in view of the motivated dispute thereof,
The 'prohibition to speak' claimed by [claimant] is rejected.
Process costs
4.11.
As the unsuccessful party, [plaintiff] will be ordered to pay the costs of the proceedings, estimated on the part of [defendant] at € 1,471, of which € 81 in court fees and € 1,390 in attorney's salary (two points x rate III, € 695) . There is no ground for compensation of costs, now that [plaintiff] has just wanted to get rid of any family-law relationship with [defendant]. Incidentally, [plaintiff] has not requested compensation in the event of a negative decision on its claims. Subsequent costs are estimated and can be allocated in the manner as stated below under the decision.
in counterclaim
4.12.
A restraining order as claimed by [defendant] can only be granted if there are serious facts and circumstances that can justify such an invasion of privacy. In any case, there must be a real threat of future unlawful action on the part of [plaintiff] towards [defendant]. The question whether a contact prohibition is necessary in that case must then be answered on the basis of all the circumstances of the case and taking into account the interests of both parties involved.
4.13.
The court concludes the following from the 'anthology' submitted by [defendant] of the messages it received from [plaintiff] in the period from February 2016 to August 2019. Various messages were sent to a large group of senders, including always to [defendant]. Some messages are only addressed to [defendant] and the lawyers of the parties. In many of these messages [plaintiff] uses (extremely) insulting and offensive words about and towards [defendant]. The court does not consider it necessary to include verbatim quotations from these messages in the judgment and it suffices with the opinion that the content of these messages largely exceeds the boundary of the decency, damages the reputation, honor and good name of [defendant] and is therefore unlawful towards [defendant].
It is noticeable that the messages concentrate in time around decisive moments in the various legal proceedings in which the parties are involved: the hearing day and the decision in the revocation procedure, the date of the original summons in the civil proceedings (see 2.15), the date against which [defendant] has been summoned again and so on. In view of this previous history, the court considers it realistic that [plaintiff] after this judgment has been rendered, will again (partly) address [defendant] in the manner it previously used. The court also takes into account the fact that [plaintiff], after the judgment of this court of 24 July 2019 referred to in 2.15, had aimed her arrows at the court (employees) and had expressed herself in such a way that [plaintiff] was subsequently given to understand that for a period of three months no correspondence with her - by e-mail or telephone - will take place (see 2.16). In this light, the circumstance (invoked on behalf of [Claimant]) that [Claimant] is on probation because of a criminal conviction for stalking and is not allowed to commit any criminal offenses does not constitute an argument to dismiss the claim. After all, that probationary period did not prevent [plaintiff] from (part of) the aforementioned conduct. In this light, the circumstance (invoked on behalf of [Claimant]) that [Claimant] is on probation because of a criminal conviction for stalking and is not allowed to commit criminal offenses does not constitute an argument to dismiss the claim. After all, that probationary period did not prevent [plaintiff] from (part of) the aforementioned conduct. In this light, the circumstance (invoked on behalf of [Claimant]) that [Claimant] is on probation because of a criminal conviction for stalking and is not allowed to commit any criminal offenses does not constitute an argument to dismiss the claim. After all, that probationary period did not prevent [plaintiff] from (part of) the aforementioned conduct.
4.14.
The court finds that, despite the just discussed conduct that point in a different direction, [plaintiff] has repeatedly stated that it does not want any contact with [defendant]. In this sense, it cannot be seen that a contact prohibition will seriously infringe the privacy of [Claimant], or that she will actually be disadvantaged by it.
4.15.
The court does not consider the claimed duration of the prohibition - ten years - disproportionate in the circumstances of the case. In this context, the age of [defendant] and her justified wish to enjoy a 'quiet (r)' old age are particularly important, as well as the assessment of the court that it is out of the question that the parties will will still reconcile. As an incentive to comply, the court will impose a penalty of € 250 per violation, to a maximum of € 25,000.
4.16.
As the unsuccessful party, [claimant] will be ordered to pay the costs of the proceedings, estimated on the part of [defendant] at € 543 in attorney's salary (one point x rate II). [Claimant] is further ordered to pay the subsequent costs. These are estimated in the manner stated in the decision.
5The decision
The court
in convention
5.1.
rejects the claims,
5.2.
orders [plaintiff] to pay the costs of the proceedings, estimated to date on the part of [defendant] at € 1,471,
in counterclaim
5.3.
prohibits [plaintiff] from making direct or indirect contact with [defendant] in any way for ten years after this judgment has been served, on pain of forfeiting a penalty of € 250 per violation, with a maximum of € 25,000,
5.4.
orders [plaintiff] to pay the costs of the proceedings, estimated to date on the part of [defendant] at € 543,
furthermore in convention and in counterclaim
5.5.
condemns [claimant] to increase the costs incurred after this judgment, estimated at € 246 in attorney's salary, on the condition that [claimant] has not complied with the judgment within fourteen days after registration and that the judgment has subsequently been served , with an amount of € 82 in attorney's salary and the writ of service costs of service of the judgment,
5.6.
declares parts 5.2 to 5.5 of this judgment provisionally enforceable.
This judgment was rendered by mr. JW Bockwinkel, mr. JT Kruis and mr. JWB Fieren and pronounced in public on November 4, 2020.
.