COURT OF OVERIJSSEL 06-04-2021 , ECLI: NL: RBOVE: 2021: 1988
Date of publication 19-05-2021
Case number C / 08/254208 / FA RK 20-2385FullscreeenPrint FacebookClipboard
Procedure Decision
Seat location Almelo
Jurisdictions Civil rights; Person-and familyright
Keywords Children ; Adoption ;
Other ; Family name (Sections 1: 5 to 1: 9 BW) ;
Youth protection / Youth law ; Foster care
Legal References
Content indication
Family name 15-year-old after adoption by his foster mother, while he has been bearing the family name of the foster father with whom foster mother died in 2018 since 2019. Including affiliation with the provisions of art. 1: 7 paragraph 4 BW , so that the child retains his (changed by Royal Decree) family name after adoption. Incompatible with art. 8 ECHR if it is not possible to keep the current family name. Also under the UNCRC, the right of the child to his / her identity, including name, must be respected, without unlawful interference.
Full verdict
COURT OF OVERIJSSEL
location Almelo
family and juvenile law team
case number: C / 08/254208 / FA RK 20-2385
decision of 6 April 2021
regarding
[applicant]
,
hereinafter referred to as: the foster mother,
living at a secret address,
lawyer: M. van der Burg.
The following are considered interested parties:
[party 1],
residing in [residence],
hereinafter referred to as: the mother,
[stakeholder 2],
residing in [residence],
further to be called: the father,
the minor
[minor] , born in [place] on [date of birth 1]
hereinafter referred to as: [minor].
1The course of the proceedings
1.1.
The court then took cognizance of the following documents:
the request, received on September 9, 2020, with attachments;
a letter received on October 5, 2020 from mr. Van der Burg with attachments;
a letter received on October 16, 2020 from the Child Care and Protection Board, hereinafter referred to as: the Board;
a reply form from the father received on 19 October 2020;
a report of the board of 26 January 2021 received on January 28, 2021;
a letter received on 8 February 2021 from mr. Van der Burg with attachments.
1.2.
During a conversation with the juvenile court judge on 1 December 2020, [minor] made his position known to the court about the adoption.
1.3.
The case was heard in camera on March 4, 2021.
Appeared are:
the foster mother, assisted by mr. Van der Burg;
P. Bos on behalf of the council.
1.4.
Although summoned in the prescribed manner, the mother and the father did not appear at the hearing.
2Established Facts
2.1.
The foster mother was born on [date of birth 2] in the [municipality 1].
2.2.
The father and the mother have been married. On [2015] the marriage was dissolved by divorce. They have had nine children together. Father also has two children from another relationship and mother also has three children from a previous relationship.
2.3.
On [date of birth 1] was born [minor], as the son of the father and the mother.
2.4.
[minor] was placed under supervision by order of the juvenile judge in Lelystad on 27 November 2007.
2.5.
In 2010 [minor] came to live with the foster mother and the now deceased [foster father]. The foster parents lived together for five years at that time.
2.6.
By order of the Central Netherlands District Court of 19 January 2015, the father and mother were released from custody of [minor] and the William Schrikker Foundation was appointed as guardian of [minor].
2.7.
By order of the Overijssel court dated 6 February 2018, the foster mother and foster father were appointed guardians of [minor].
2.8.
Foster father passed away on [2018].
2.9.
[minor] was given the surname of his foster father ([X]) by Royal Decree of [2019].
2.10.
According to the personal data submitted from the Personal Records Database, [minor] has been cared for and raised by the foster mother since 2010 (and until [mid-2018] also by the foster father).
2.11.
The foster mother, father, mother and [minor] all have Dutch nationality.
3The request
The foster mother has requested the court to declare, as far as possible provisionally enforceable, the adoption of [minor] by her, as well as to determine that [minor] can keep the family name [X], or at least to retain the decision to [X]. minor] the opportunity to make the statement about the family name.
4The position of [minor]
would like the foster mother to adopt him. For [minor] it feels like home with the foster mother. He sees foster parents as his parents and his own family. [minor] has no contact with the mother and occasionally app contact with the father. Except occasionally with [name of sister], he has no contact with his (half) brothers and (half) sisters.
5The mother's point of view
The mother has not made a position known to either the council or the court.
6The father's point of view
The father has not made a position known to the court. The father has indicated to the council that he has difficulty with the request but that he is unlikely to attend the hearing.
7The position of the council
The council considers it in the interest of [minor] that the adoption is pronounced. [minor] has been living with the foster mother for almost 11 years and has nothing more to expect from his biological parents. The council also takes into account the own wishes of [minor] in this. The foster mother has been responsible for [minor] for a long time, so adoption is in line with this situation. The council has no objection to [minor] keeping the surname [X].
8The assessment
The legal framework
8.1.
The legally prescribed supporting documents have been submitted - as far as possible - with the request or at a later stage in the procedure.
8.2.
Adoption takes place pursuant to article 1: 227 paragraph 1 Dutch Civil Code (BW) by a decision of the court at the request of two persons together or at the request of one person alone.
8.3.
The request for adoption can only be granted if adoption is in the evident interest of the child, is established at the time of the request for adoption and it can be reasonably foreseen for the future that the child will no longer have any of its parent or parent, and the conditions referred to in Article 1: 228 Dutch Civil Code are met ( Article 1: 227 paragraph 3 Dutch Civil Code (Dutch Civil Code)) .
8.4.
In the case of the apparent interest of [minor] - in addition to what is further considered below - in this context not only the position that [minor] obtains through adoption, but also what [minor] loses. In the first place, consideration should be given to the entitlement to upbringing and care.
8.5.
With regard to the provision that it is established at the time of the application for adoption and that it can reasonably be foreseen for the future that the child to be adopted cannot expect anything from its parent or parents in the capacity of parent, the court considers that the meaning of this refers to the responsibility towards a child, in particular the upbringing, care and exercise of custody.
The receptivity
8.6.
The foster mother is admissible in the adoption request.
The substantive assessment
8.7.
The court states first that legal parenthood is created in adoption and that all ties with the original parents are broken. This means that adoption is surrounded by many guarantees.
8.8.
In the court's opinion it has been established that there has been no contact between [minor] and the mother for years and that there is only sporadic (difficult) contact between [minor] and the father. [Minor] has virtually no contact with the (many) (half) brothers and (half) sisters. Parents and his (half) brothers and (half) sisters are (all) mentally disabled. [minor] has outgrown parents and his biological family. It has proved sufficient to the court that in any case for the past six years, but in fact for more than ten years, the biological parents do not (cannot) bear their responsibility as the father and mother of [minor]; they have been released from custody and have not been able to give substance to parenthood for him. This is not expected to change.
8.9.
The adoption is also in the apparent interest of [minor]. [minor] has been growing up with a foster mother for eleven years. In practice, the foster mother also fulfills the role of mother for [minor]. The foster mother and [minor] both wish that the foster mother also becomes the legal mother of [minor]. In this way the actual situation is brought into line with the legal situation and the bond that both [minor] and foster mother feel is also formalized. Although [minor] does not currently live at home with the foster mother, there is a weekend arrangement and they are in regular contact. Foster mother gives [minor] the support he needs.
8.10.
The council has not objected to the requested adoption and has recommended that the adoption request be granted.
8.11.
In view of the above, the court is of the opinion that the conditions of article 1: 227 paragraph 3 of the Dutch Civil Code have been met: the adoption is in the apparent interest of [minor] and it can be reasonably foreseen that [minor] no longer has anything from the parents to be expected in the capacity of parent. The fact that [minor] still has many (half-) brothers and sisters, with which the legal bond is broken, does not change that. [minor] has (almost) no contact with them and has no need for it. The foster mother is open to and continues to encourage and support contact with his biological brothers and sisters, she stated at the hearing.
8.12.
The court finds that the conditions referred to in Article 1: 228, paragraph 1 of the Dutch Civil Code have also been met: - [minor] is a minor and has no objection to the adoption;
- [minor] is not a grandchild of the foster mother;
- the foster mother is at least eighteen years older than [minor];
- none of the parents contradicts the request;
- the father and mother have no authority over [minor];
- the foster mother has cared for and raised a [minor] for at least a year.
8.13.
The request for adoption therefore meets the conditions set by Articles 1: 227 and 1: 228 BW. The court will therefore grant the request for adoption.
The family name of [minor]
8.14.
The foster mother has requested that [minor] keep his current family name “[X]”. Also [minor] has this explicit wish; he has (had) a strong bond with his (now deceased) foster father and he explicitly opted for his name at the time. Even now there was no “heir to the family” in the family who could continue this name.
8.15.
The court considers as follows. By Royal Decree of [2019], the family name of [minor] was changed to “[X]” at his request. The court has established that Dutch law does not contain a provision written for this (specific) situation. Article 1: 7 paragraph 4 of the Dutch Civil Code stipulates that a change or determination of the family name by the King remains in force, notwithstanding a later recognition or a judicial determination. Here adoption is not explicitly mentioned. Furthermore, neither Article 1: 5 paragraph 3 nor paragraph 7 of the Dutch Civil Code regulates a choice of name in the case of adoption by one person. Paragraph 1 of this article only provides that if a child is the mother alone in a family relationship, it has her family name and that as a child byadoption only in family law relationship with father, it has his family name. This paragraph does not discuss the situation of an adoption by a mother.
8.16.
The court is of the opinion that this connection must be sought with the provisions of Article 7 paragraph 4 of the Dutch Civil Code, so that [minor] retains his surname (changed by Royal Decree) after adoption. The following is also important here. If the foster father were still alive, [minor] would (most likely) still have lived in a family relationship with the foster father and this request would have been submitted by both foster parents. If the adoption were to be pronounced, [minor] would in principle receive / keep the name of his foster father. Moreover, on the basis of Article 1: 5paragraph 3 or 7 (if [minor] is 16 years of age or older) BW, there is a choice of name. The foster father has no further descendants and both the foster mother and [minor] wish that the family name of the foster father can be continued.
8.17.
In the opinion of the court, it is also incompatible with the provisions of Article 8 of the European Convention on Human Rights (ECHR), if this would mean that it would not be possible to retain his current family name.
This would be an (unauthorized) interference in private and family life - which also includes the right to name. According to the second paragraph of Article 8 ECHR, this is only permitted insofar as this is provided for by law and is necessary in a democratic society in the interests of national security, public security or the economic well-being of the country, the prevention of disorder. and criminal offenses, the protection of health or morals or for the protection of the rights and freedoms of others. The importance of public safety and the prevention of disorder does not preclude the retention of the family name [X] for [minor]. For the rest, it is also not possible to see that retention of the family name is inadmissible, so that interference in this case should not be considered necessary on the basis of (one of) the interests referred to in Article 8 paragraph 2 ECHR. Moreover, under Articles 7 and 8 of the International Convention on the Rights of the Child (CRC), the right of the child to his / her identity, including name, is also respected without undue interference.
8.18.
In view of the foregoing, [minor] retains his family name and his full names after the adoption (after the adoption) .
Executable from stock
8.19.
The stepfather (must be: the foster mother) has requested, as far as possible, to declare the decision provisionally enforceable. This means that the decision must be implemented immediately, even if an appeal is lodged. The court will reject this request. Pursuant to the provisions of Article 1: 230 of the Dutch Civil Code, the adoption has its consequences from the day on which the judgment became final. 9. Decision
The court:
9.1.
speaks from the adoption by [applicant], born in [municipality 1] on [date of birth 2], residing at a secret address (known to the court), of the minor of the male sex named:
[minor] , born on [date of birth 1] in [place],
son of [stakeholder 1] and [stakeholder 2];
9.2.
orders the registrar of births, deaths and marriages of the [municipality 2] to add the later entry (s) of the adoption to the aforementioned birth certificate;
9.3.
understands that after the adoption [minor] keeps his family name “ [X] ”, so that the full names after the adoption are: [minor] ;
9.4.
rejects the more or else requested
This decision was made by mr. HM Jon Extendedur and pronounced in public on April 6, 2021 in the presence of mr. AH Wiersma, Registrar.
.