Uitspraak
THE COURT OF APPEAL IN ARNHEM
Auxiliary court location in Leeuwarden
Judgment
Decision rendered on 13 September 2012
Case number 200.088.239
Judgment in the case of
1. [appellant 1],
residing in [place of residence]
hereafter referred to as: [appellant 1],
2. [appellant 2],
residing in [place of residence],
hereafter referred to as: [appellant 2],
appellants in the principal appeal,
respondents in the cross-appeal,
hereafter jointly referred to as: appellants,
Legal counsels A.D. Leuftink LL.M. and J.H. van der Tol LL.M.,
both practising in Naarden
against
1. [respondent 1],
residing in [place of residence]
hereafter referred to as: the adoptive father
2. [respondent 2],
residing in [place of residence],
hereafter referred to as: the adoptive mother,
respondents in the principal appeal,
appellants in the cross-appeal,
hereafter jointly referred to as: the adoptive parents,
Legal counsel J.A. Wesdorp LL.M.,
practising in Almere,
Legal counsel D.J.I. Kroezen LL.M.,
practising in Amsterdam.
Interested party:
L.D.H. Lesmeister LL.M.,
lawyer in Almere,
in her capacity asGuardian ad litem of
the minor [child],
hereafter referred to as: the Guardian ad litem.
The dispute in the first instance
In thedecision made on 4 March 2011 (Case number 170085/FA RK 10-1401) the District Court of Zwolle-Lelystad, Lelystad branch, rejected the preliminary applications filed by [appellant 1] and [appellant 2] to establish-stated succinctly- the petitioners' parenthood of the minor [child] and their right to access to the child.
In this decision, a separate request submitted by the adoptive parents to make a declaratory judgment that family life, as defined by the provisions of Article 8 ECHR, does not exist between the petitioners and the child, was also rejected.
The appeal case
In a notice of appeal, received by the Court Registry on 1 June 2011, [appellant 1] and [appellant 2] filed a request for the decision rendered on 4 March 2011 to be quashed and to render a new decision and
- rule that [appellant 1] and [appellant 2] are the biological parents of [child],according to his birth certificate born on 12 October 1997;
- decide that a DNAtest will be carried out to establish the biological parenthood of [appellant 1] and [appellant 2] of [child], to which [child] and [adoptive father] and [adoptive mother], as the legal representatives of [child], must give their cooperation;
- rule that family life, as defined in the provisions of Article 8 ECHR, exists between the appellants and [child];
- decide that, at the discretion of the Court of Appeal, an information arrangement must be established between [appellant 1] and [appellant 2] and [child];
- decide that the costs of the expert in the amount of € 4,763. - shall be borne by the Treasury, any other costs to be determined by the Court.
In the notice of defence , received by the Court Registry on 12 August 2011, [adoptive father] and [adoptive mother] appealed against the petition and asked the Court of Appeal to dismiss the requests filed by the appellants or to reject their claims, including, if necessary, the supplements to the grounds, in which the respondents explicitly request the Court of Appeal to judge first whether the appellants'request for a DNAtest as requested by them is allowable, before the admissibility of the request and the merits of the case are judged; the respondents also request that the Court of Appeal award compensation for the costs of the proceedings,conforming to the Court's judgment in relation to the request to charge the costs of the expert's report to the State.
In the above notice of defence [adoptive father] and [adoptive mother] have also lodged a cross appeal and have requested that the appeal instituted by the appellants is disallowed and to rule that family life as defined in the provisions of Article 8 ECHR does not exist between the appellants and [child], furthermore requesting that the costs of the appeal proceedings are compensated.
In the notice of defence, received by the Court Registry on 14 October 2011, [appellant 1] and [appellant 2] contested the request in the cross appeal proceedings and requested that the cross appeal be disallowed or rejected, or at any rate to decide that if the Court of Appeal judges that family life does not exist between the appellants and [child] as defined in Article 8 ECHR, this opinion should be based on a DNA test, conforming to the Court's judgment in relation to the requested compensation for the costs of the proceedings.
The Court of Appeal has furthermore taken cognizance of the other supporting documents, including a letter with attachments from A.D. Leuftink LL.M. dated 29 June 2011, a letterwith attachments from A.D. Leuftink LL.M. dated 4 January 2012 and a fax message with an attachment sent by J.A. Wesdorp LL.M. on 16 January 2012.
Through the intermediation of the Guardian ad litem, a form was sent to the minor [child], on which he could tell the Court of Appeal if, and if so, in what way he wished to express his views on establishing the appellants' biological parenthood and the taking of a possible DNAtest in that context .
This form has not been returned to the Court of Appeal; the Court of Appeal has concluded from this that the child did not want to make use of the opportunity to make his opinion known. The Guardian ad litem, on behalf of [child], reaffirmedto the court that the child did not want to express his views on the matter.
The case was heard in court on 16 January 2012. The appellants appeared and were legally represented by A.D. Leuftink LL.M. and assisted by A.P. Shantan, a Tamil language interpreter. The adoptive mother did not appear in person, but the adoptive father did. He was legally represented by D.J.I. Kroezen LL.M. and J.A. Wesdorp LL.M. who also legally represented the adoptive mother. J.A. Wesdorp LL.M. also used his/her plead notes when addressing the court. The Guardian ad litem was also present. Mr. Rijkse and Ms. Brinkhof were present as representatives of the Child Care and Protection Board.
On 23 January 2012, after the hearing, another fax message was received from L.D.H. Lesmeister LL.M. and on 25 January 2012 a fax message was sent by A.D. Leuftink LL.M..
Assessment of the case
* Documents received afterwards
1. The Court of Appeal has not taken cognizance of the fax message sent by L.D.H. Lesmeister LL.M. which was received on 23 January 2012 nor has it taken cognizance of the fax message sent by A.D. Leuftink LL.M. which was received on 25 January 2012. Both fax messages were received after the hearing of 16 January 2012 without the Court having given them the opportunity to do so. The Court considers taking cognizance of these fax messages as contrary to the principle of due process and has therefore not taken them into consideration.
* The established facts
2. [appellant 1] and [appellant 2] have Indian nationality. Three children were born of the marriage, [boy] being one of them. He was born in [India] in 1997. In March 1999 [boy] disappeared.
3.From the translation of a 'Document of Surrender' dated 10 February 1999, which was submitted by the appellants in the first instance, it appears that a person named Ms. [X] stated that she had given birth to a son whom she gave the name [A.] on 12 October 1997 in [India]. It also appears from this document that she gave [A.] up for adoption.
4. The minor [A.] entered the family of the spouses [adoptive father] and [adoptive mother] in 2000. In the decision made by the High Court of Judicature in Madras on 31 August 2000 they were awarded guardianship of the minor [A.].
5. In the decision made by the District Court of Zwolle on 15 April 2002, the adoption of the above minor [A.]was granted to [adoptive father] and [adoptivemother]. In this decision, the birth details of the minor [A.]were also established, in the sense that he, a male child, was born in [India] on 12 October 1997, that his first name was [A.] and that the above [X] was his mother. The Court ordered that these birth details be registered in the Register of Births of the Municipality of the Hague. In conclusion his first name [A.] was changed to [child].
* Documents instituting the present proceedings
6. On 9 April 2010 [appellant 1] and [appellant 2] filed a petition to the District Court of Zwolle-Lelystad asking the court to establish an access and information arrangement between them and the minor [child]. They alleged that [child] is their son [boy], abducted in March 1999 and, by using a false/forged statement, was given up for adoption as the minor child called [A.]. This petition was subsequently supplemented with the request that the adoptive parents and [child], at least the adoptive parents as the legal representatives of [child],be ordered to cooperate in establishing the parenthood of [appellant 1] and [appellant 2] of[child] by means of a DNAtest.
7. [adoptive father] and [adoptive mother] have submitted a defence against these requests and have filed a separate request for a ruling that family life as defined by the provisions of Article 8 ECHR does not exist between [appellant 1] and [appellant 2] and [child].
8. The Court of Zwolle-Lelystad has appointed L.D.H. Lesmeister LL.M. as Guardian ad litem to represent the interests of the minor [child].
9. In the judgment made on 30 August 2010, the Court ordered that [child] should undergo a psychologicalexaminationand appointed [GZ*psychologist], a GZ*psychologist, as expert. For the purposes of this expert examination, a large number of questions were asked, mainly to establish whether [child] is able to understandthe consequences of his decision not to give cooperation to the requested DNAtest, both in the short and the long term.
Note: GZ*psychologist - psychologist working in general healthcare (Gezondheidszorg)
10. On 4 November 2010 the expert published her report. Based on the findings of her examination she - stated succinctly - has come to the conclusion that [child], in view of his intelligence and personality,is capable of making the decision not to provide material for a DNA test. According to the expert, this decision is not motivated by one-sided fear or loyalty towards his adoptive parents, but is based on a careful consideration of how he wishes to live his life now. At the moment there is no room for any possible birth parents in his life. According to the expert, [child] is not able to understand the consequences of a DNAtest and a possible positive match, nor will he be able to handle the consequences. According to the expert,this is directly related to the pressure that [child] has experienced, and is experiencing, from [appellant 1] and [appellant 2] and his fear of contact, visits and claims. In the opinion of the expert, the parties involved, [appellant 1] and [appellant 2] on one side and [adoptive father] and [adoptive mother] on the other,must conform to the wishes of [child] and, in the interests of his development, it is alsohis developmental stage that should be indicative in this matter for all actions relating to family relationships, contact and access arrangements.
11. Subsequently, [appellant 1] and [appellant 2] had a counter examination carried out by [drs. B.], who published her report on 21 December 2010. In her report she expressed some critical comments about the examination methods used by [GZpsychologist] and the contents of the report. She also presented an alternative explanation for the refusal of [child] to cooperate in taking a DNAtest. She is of the opinion that the responsibility for the decision about whether or not to have a DNAtest should be transferred from [child] to an independent party. She has further indicated that, based on the examination which was carried out,it is not possible to give a whole-heartedly affirmative answer to the question whether or not[child] is capable of taking the decision that he does not want to cooperate in a DNAtest.
12. In the decision made on 4 March 2011 the court took the report of [GZpsychologist] as its starting point and its judgment followed the conclusions of [GZpsychologist] on the question whether [child] is capable of making a decision about the requested cooperation in having a DNAtest. Subsequently the court, weighing the individual interests of each of the parties involved and the social interests, held that the wish of the child not to cooperate in having a DNAtest to get clarity about his biological descent was decisive. For these reasons the Court rejected the request of [appellant 1] and [appellant 2] to establish through a DNAtest that they are the biological parents of [child]. In the absence of such a test and an adequate number of other objective circumstances from which the fact that they are the biological parents of [child]could be adduced, the Court has also refused to rule as such.
13. The Court further observed that (otherwise) it has not been established that [child] is in fact the (biological) son of [appellant 1] and [appellant 2], orthat they had taken care of him and brought him up from the day he was born until the time of his abduction. The Court therefore did not get to the question whether a relationship between them exists/existed which could be regarded as family life, as defined in Article 8 ECHR, or a close personal relationship. The request of [appellant 1] and [appellant 2] to establish an access or information arrangement has been rejected for that reason. For similar reasons the Court has also rejected the request of [appellant 1] and [appellant 2] to rule that family life exists and the request of [adoptive father] and [adoptive mother] that family life does not exist.
* The requests in the appeal proceedings
14. [appellant 1] and [appellant 2] have instituted appeal proceedings in time.
They have -stated succinctly- requested that the Court of Appeal grant the requeststhat they filed in the first instance. To clarify the scope of the appeal proceedings, [appellant 1] and [appellant 2] have explicitly stated that they no longer wish to maintain the request that they submitted in the first instance to establish an access arrangement.
15. In the appeal proceedings, the following subjects are therefore brought up for discussion: the request that their biological parenthood be established by a DNAtest, the request for a ruling that states they are the biological parents of [child], the request for a ruling on the existence or non-existence of family life between them and [child] and the request to establish an information arrangement.
16. In conclusion a judgment must be made on the matter of the costs of the proceedings,the costs of the expert examination and the costs of the appeal proceedings
The opinion of [appellant 1] and [appellant 2]
17. To substantiate their requests [appellant 1] and [appellant 2] have argued that there are a large number of objective facts and circumstances which have arisen as a result of a criminal investigation in India, which, in their opinion, provide enough evidence for believing that they are, or at least could be, the biological parents of [child]. To be certain that there is a biological relationship between them and [child] they consider a DNAtest to be the obvious way of establishing this. They claim that they have a legally enforceable interest to have the fact that they are the biological parents of [child] verified. They base this legal interest primarily on the provisions of Article 8 ECHR: the protection of the right to private and family life. [appellant 1] and [appellant 2] argue, in this context, that the interests of [child], acknowledging that these interests, pursuant to the provisions of Article 3 of the International Convention on the Rights of the Child (IVRK), should always be considered first, do not conflict with the granting of the requested DNAtest. On the contrary, in their opinion, [child], if anything, has a major interest in having clarity about his origins as a core element of his personal identity. As an adopted child he has the right to know his own parents/origins and this right should, in their opinion, prevail over his personal wish not to cooperate in having a DNAtest now. Both [child] and [appellant 1] and [appellant 2] have a right to acknowledge their family-law relationship. [appellant 1] and [appellant 2] more alternatively argue that the protection of the family or family life is (also) safeguarded by the provisions of Article 23 paragraph 1 of the International Covenant on Civil and Political Rights.
18. [appellant 1] and [appellant 2] argue further that, in establishing the interests of [child] and assessing and considering his interests and the interests of the other parties involved which play a role in the decisions at hand, the fact that this was a case of child kidnap or child abduction and (illegal) international adoptionshould be held decisive or should at least be regarded as being of major importance. In their appeal they emphasize once again that they do not intend separating [child] from his adoptive parents and taking him with them to India. They only wish to have clarity about their biological family relationship for themselves and for[child]. They have a legally valid interest in requesting that the court establish their biological parenthood.
19. The collection of genetic material from [child] which is necessary for the DNAtest, isa minor violation of physical integrity. In the opinion of [appellant 1] and [appellant 2] it is even less far-reaching than undergoingthe psychological examination which [child] has had. They are of the opinion that the Court, leaving the conclusion about the refusal to cooperate at the discretion of the Court, in the present case should have come to the conclusion that they are the biological parents of [child].
20. With regard to the assessment of the interests of[child] and the value which has been attached to the personal opinion of [child],[appellant 1] and [appellant 2] argue that the critical comments of [drs. B.] on the examination and the report of the psychological examination carried out by [GZpsychologist] have been pushed aside too easily with the observationthat [drs. B.] had not examined [child] personally, whereas [GZpsychologist] had.
Point of view of [adoptive father] and [adoptive mother]
21. [adoptive father] and [adoptive mother] have pleaded that [appellant 1] and [appellant 2] have not submitted sufficient, authentic and verifiable evidence regarding the facts and circumstances relating to the abduction of [boy] and the fact that he was adopted as the minor [A.], and they have, therefore, challenged these statements. They further argue that the articles of law referred to by [appellant 1] and [appellant 2] do not constitute a legal ground for ordering [child] to cooperate in having a DNA testagainst his will. The above articles only relate to the rights of a child to get clarity about his parentage, even against the will of one of his (alleged) parents. [appellant 1] and [appellant 2]cannot invoke these articles to oblige [child] and/or his adoptive parents to cooperate in having a DNAtest. Furthermore,such parentage cases are about the creation of legal ties, about respecting a biological reality which should correspond as much as possible with the legal reality. In adoption cases such as the adoption of [child], however, the legal reality is different from the biological reality: the legal ties with the biological parents are replaced by legal ties with the adoptive parents.
22. Furthermore this is not an outright refusal to have a DNAtest, since it has been shown from the expert examination by [GZpsychologist] that there are good grounds for the decision that [child] and/ or his adoptive parents cannot be required to cooperate in having such an examination. [adoptive father] and [adoptive mother] attach little value to the expert opinion of [drs. B.] who, in their opinion, is an expert by experience and not an independent and impartial party. They are of the opinion that the examination carried out by [GZpsychologist] shows conclusively that [child] currently does not wish to know who his biological parents are and that it will be harmful to his development if this knowledge is foisted upon him at this stage of his life and at this age. [adoptive father] and [adoptive mother] state that the present proceedings have (had) a major impact on [child];they have had a detrimental effect on his school performance and his behaviour andresulted in [child] having therapy again.
A DNAtest will be harmful to [child], precisely because of the unwanted and unforeseeable effects of the outcome thereof, such as a possible revocation of the adoption or the possible criminal conviction of the adoptive parents either here or in India. Furthermore, forcing him to cooperate in having a DNAtest is an unacceptable violation of the physical integrity of [child] and an unacceptable violation of his family life (with his adoptive parents). The rights and interests of [child] take precedence over all other rights and interests involved.
23. [adoptive father] and [adoptive mother] understand that the uncertainty is hard for [appellant 1] and [appellant 2], but believe that the rights of [child] should prevail. [adoptive father] and [adoptive mother] further express their doubts about the public interest and the interests of human rights activists which have been put forward by [appellant 1] and [appellant 2], which human rights activists especially aim at gettingcriminal convictions of the persons involved in India and in stimulating an international discussion about (adoption as legalized) child trafficking. The interests of [child], the interests of his adoptive parents and possibly even the interests of [appellant 1] and [appellant 2] are made subordinate to this.
The point of view of the Guardian ad litem
24. The Guardian ad litem informed the Court of Appeal that [child] still fears that the appellants want more from him than the mere certainty that they are his biological parents and he their biological son.
* Judgment of the Court of Appeal
25. The Court assumes that the facts and circumstances submitted by [appellant 1] and [appellant 2] show that it cannot be ruled out that the petitioners are the biological parents of [child]. Considering the fact that [adoptive father] and [adoptive mother] have challenged and contradicted the statement that [boy], the son of [appellant 1] and [appellant 2], was probably given the name [A.] and that by producing false/forged documents the above [A] was given up for adoption by [adoptive father] and [adoptive mother], it has not been established however, that [child] is in fact [boy]. The alleged identification of [A.] ([child]) as [boy] by [appellant 1] and [appellant 2] based on [appellant 2] recognizing him from a photograph in 2005, is not held decisive by the Court of Appeal in this context, given the circumstances under which it took place and the summary recording or report which was preparedabout this.
26. The possibility that [child] is in fact their youngest son [boy] and the -understandable - wish of [appellant 1] and [appellant 2] to have more clarity about their possible biological parenthood of [child], however, does notgive the Court of Appeal the possibility or obligation to direct that a further expert examination in the form of a DNA test must be carried out and to order [child], or at any rate the adoptive parents, to cooperate and if there is a lack of cooperation to leave the consequences at the discretion of the Court.
27. The Court of Appeal, in the first place, is faced with the question of the legal basis of the request of [appellant 1] and [appellant 2] to establishthat they are the biological parents of [child]. If there is a legal basis for granting their biological parenthood, if this could be established, the expert examination could, in the opinion of the Court of Appeal, be allowed on the basis of the provisions of Article 150 of the Dutch Code of Civil Procedure. If there is no legal basis for granting their biological parenthood, however, the DNA test (and the cooperation of [child] and/or his adoptive parents in the test) requested by them, can only be ordered if there is a separate legal basis for it.
28. [appellant 1] and [appellant 2] have based their claim for the establishment of their biological parenthood, or at least for an order to carry out a DNAtest, upon, among other things, the provisions of Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the provisions of Article 3 of the International Convention on the Rights of the Child (hereafter called ICRC). They have further concurred with the principles of the Dutch law of descent, which principles are also based on the above International Conventions.
29. The Court of Appeal assumes that no statutory provision exists in (the) Dutch law (of descent) which allows, in a case such as the one in question,for, at the request of [appellant 1] and [appellant 2], possibly the biological parents of [child], the biological parenthood of (one of ) them to be established. The Articles of Title 11 'descent' and Title 12 'adoption' of Book 1 of the Dutch Civil Code do not provide a basis for this.
30. Other than that which [appellant 1] and [appellant 2] want to have accepted, this basis cannot be found in the above principles of the Dutch law of descent nor in the (articles of the) International Conventions to which they refer.
31. [appellant 1] and [appellant 2] have rightly pointed out that, among other things, the (fundamental) right to respect for private life is based on a general moral right which also includes the right of a child to know the parents that it has descended from. This right has been internationally acknowledged in the provisions of Article 7 of the Convention on the Rights of the Child of 20 November 1989. On the basis of this right, the child is entitled to claim that the (parentage) particulars of his putative father and/or mother are disclosed by support agencies or to compel his (putative) father and/or mother to submit to a DNAtest. It should be further observed that this right is not an absolute right and must give way to the rights and freedoms of others (such as the putative father or mother) when these rights carry more weight in given cases.
32. The material and especially immaterial interests of the child which the law of descent intends to protect are, however, not the subject under discussion in a case such as the present case in which the (possible) biological parents of an adopted child want their biological parenthood to be established by means of a DNA test. The above right of a child to know his parentage does not apply by analogy to thegeneral right of a parent to know that a child descends from him or her or that he or she is in fact the (biological) parent of the child.
33. Neither can the child be forced by the possible biological parent or by a third party to use the right to know who his biological parents are. Knowledge of his parentagecannot be foisted upon the child against his will.
34. That the case in question was (possibly) acase of child abduction and (illegal) international adoption and not a matter of a voluntary and conscious decision of (one of) the parents to give the child up for adoption -although such a decision is often dictated by circumstances- , is something which is a feature of the situation at hand and distressing for all parties involved, but it does not change the judgment of the Court of Appeal.
35. The above means that the request of [appellant 1] and [appellant 2] to establish (to have established) that they are the biological parents of [child] or for the requested ruling cannot be granted on that point. The request lacks a legal basis. Therefore the DNAtest that they requested within this context and the cooperation of [child] in such a test is not deemed right and it is also impossible to designate a separate provision of law which would grant the request for a DNAtest.
36. With regard to the request of [appellant 1] and [appellant 2] to establish an information arrangement, the Court of Appeal assumes that the provisions of Article 8 ECHR are not only intended to protect the right to respect for private life, but the right to protect the right to respect for domestic and family life too. Other than in the case of the request to establish the biological parentage of [appellant 1] and [appellant 2] or to have this established, or the requested ruling on this point, the Court is of the opinion that the request of [appellant 1] and [appellant 2] to establish an access and/or information arrangement in itself and in general has a sufficient basis in the provisions of Article 8 ECHR, as well as in the provisions of Article 1:377a of the Dutch Civil Code.
37. For the existence of a close personal relationship, as defined by the provisions of Article 1:377a of the Dutch Civil Code, or family life, as defined by the provisions of Article 8 ECHR, the existence of a (biological) family-law relationship between the petitioner(s) and the child is not sufficient. Additional circumstances are required to prove that family life or this close personal relationship exists. When there is no family-law relationship, it will have to be proven on the basis of circumstances that family life or a close personal relationship exists between the petitioner(s) and the child.
38. Within this framework, the Court of Appeal naturally assumes that family life, as defined by the provisions of Article 8 ECHR and a close personal relationship as defined in the provisions of Article 1:377a of the Dutch Civil Code, existed between [appellant 1] and [appellant 2] and their youngest son [boy]. For they are the parents of [boy] and they brought [boy] up and took care of him in their family until the time of his disappearance. This family life and close personal relationship has not been severed by the involuntary disappearance of [boy].
39. Here again, however, as already stated above in paragraph 25, the issue is that it has not been established that [child] and [boy] are one and the same person, because it has not been established that [boy] was given up for adoption in Indiaas the minor [A.], notwithstanding the fact that it has been established that [A.] was adopted by [adoptive father] and [adoptive mother] and that on the occasion of the adoption his first name was changed into [child].
40. If it was an established fact that [child] and [boy] are one and the same person, the existence of family life or the close personal relationship between [appellant 1] and [appellant 2] on the one side and [child] on the other side would also be an established fact.
All this means in essence is that,in the given circumstances,there is only indirect evidence for the existence of the above family life or the above close personal relationship, only evidence provided by a DNA-testcould prove that [child] and [boy] are one and the same person.
41. In this particular context, the Court of Appeal considers that one could not exclude the situation arising when a judge, who has been presented with sufficient additional circumstances upon which he or she would conclude that a biological family-law relationship or a close personal relationship existed, might see good reason for ordering an expert examination to get clarity about the existence of this family-law relationship (and subsequently make a substantive assessment of the request). The case in question, however, does not compare to this as the expert examination is not only necessary to establish this family relationship in the first place, but is also necessary to prove the additional circumstances.
42. It would be going too far to order an expert examination (in the form of a DNA test) in the context of making a declaratory judgment on the existence of family life (or a request to establish an access and/or information arrangement on the basis of alleged family life) to get clarity about the question whether the above [child] and [boy] are or could be the same person, in order to prove the existence of family life. Article 8 ECHR, which protects the right of family life, does not go as far as this. This applies all the more so because of the consideration of the Court of Appeal that the provisions of the above Article 8 ECHR do not provide a direct legal basis for a request to establish biological parenthood (by means of a DNA test) or to have it established.
43. To conclude, the Court of Appeal considers that, with regard to a possible substantive assessment of the request to establish an information arrangement, the Court would regard the decision of [child] to refuse contact with [appellant 1] and [appellant 2] as the decisive factor. [child] is at an age that his serious objections to providing information about his person should be considered as a decisive factor.
44. The above also means that the Court of Appeal rejects the request of [appellant 1] and [appellant 2] to establish an access and information arrangement. The same applies to their request for a declaratory judgment to be made on the existence of family life. The request of [adoptive father] and [adoptive mother] on this matter is also rejected.
45. The Court of Appeal grants the request of [appellant 1] and [appellant 2] to charge the Treasury for the costs of the expert examination -the psychological examination- of [child]. In the operative part of the interlocutory judgment of 30 August 2012, the court, without reservation, determined that the costs of the expert examination should be borne by the Treasury. In that judgment, the court did not consider the (im)possibility of imposing an advance on [appellant 1] and [appellant 2], who are receiving legal aid to support their litigation. Nor can it be adduced from the judgment that, for this reason, the costs of the expert should be paid by the State, with the possibility of still charging these costs, pursuant to the provisions of Article 244 of the Dutch Code of Civil procedure, to (one of ) the parties. The court has created the impression that the decision regarding the costs of the expert in the decision of 30 August 2010 was a final decision and that they did not have discretion to reconsider this in the final judgment of 4 March 2011. Given the interests at stake in the present case, the Court of Appeal also deems it reasonable that the costs of the expert are borne by the Treasury.
46. On the issue of the costs of the expert, the Court of Appeal will therefore quash the judgment of the court and charge the costs of the expert examination to the State. Given the interests at stake in these present proceedings, the Court of Appeal also finds good cause for the costs of the appeal proceedings to be compensated, meaning that each of the parties shall bear its own costs.
47. The Court has judged as stated hereafter.
The judgment
The Court of Appeal:
upholds the judgment on appeal, except for the decision about the petitioners being ordered to pay the costs of the expert.
and therefore giving a new judgment on that matter:
decides that the costs of the expert are to be paid by the State;
decides that each party pays its own costs of the appeal proceedings.
This judgment was rendered by R. Feunekes LL.M. (presiding judge), I.A. Vermeulen LL.M. and J.P. Evenhuis LL.M., and pronounced in open court of the Court of Appeal on 13 September 2012 in the presence of the clerk of the court.