Uitspraak
DISTRICT COURT OF ZWOLLE-LELYSTAD
Civil law section
Lelystad office
case number: 170085 / FA RK 10-1401
date: March 4th 2011
decision rendered by the three-judge family court
in the case of
1. [petitioner 1],
2. [petitioner 2],
both residing at [state], in India,
lawyer E. Schoneveld LLM, hereinafter to be referred to as petitioners,
petitioners,
and
1. [defendant 1] ,
residing at [town],
lawyer D.J.I. Kroezen LLM,
hereinafter to be referred to as the father,
2. [defendant 2],
residing at [town],
lawyer J.A. Wesdorp LLM,
hereinafter to be referred to as the mother,
jointly also to be referred to as: the adoptive parents,
interested parties,
and
L.D.H. Lesmeister LLM,
lawyer at Almere,
in her capacity as special curator of
the minor [name child] mentioned below,
hereinafter to be referred to as the special curator.
Course of the proceedings
By decision rendered by this court on 30 August 2010 decisions were deferred on
- the request to establish parenthood of the petitioners by means of a DNA test,
-the request to issue a declaratory judgment stating that the petitioners are the biological parents of [name child],
- to issue a declaratory judgment about the existence or non –existence of family life between the petitioners and [name child],
-the request to draw up an access arrangement between the petitioners and [name child] and an information arrangement regarding [name child].
Furthermore the court ordered that an expert examination should be conducted to provide the answers as requested in said decision and on the proposal of the parties and the Child Care and Protection Board (hereinafter: the Board) Ms dr [name 1], child and youth psychologist and educationalist, was appointed expert.
The court has taken cognizance of the following documents, which were submitted later:
-a letter of 04 November 2010 of the expert Ms dr [name 1] (hereinafter: [name 1]), and enclosed the report of the psychological examination of [name child] of 04 November 2010, the written response of 27 October 2010 of the adoptive parents to the draft report of [name 1], a report for [name child], separate statements of the adoptive parents and [name child] of 01 November 2010;
-a fax message of 16 November 2010 of Kroezen LLM, also on behalf of Wesdorp LLM;
-a fax message of 09 December 2010 of Schoneveld LLM;
-a fax message of 13 December 2010 of Kroezen LLM, also on behalf of
Wesdorp LLM;
-a fax message of 16 December 2010 of Lesmeister LLM, and
-a letter of 16 January 2011 of Mr/Ms Schonfeld LLM and enclosed the report of 21 December 2010 of Ms drs [name 2] commenting on the report of the psychological examination carried out by [name 1].
No further court hearings were held.
Established facts
For the established facts the court refers to the previous decision rendered on 30 August 2010.
Assessment of the case
The court has maintained the considerations and grounds of the previous decision rendered on 30 August 2010, which considerations and grounds are considered to be repeated and inserted here unless stated otherwise below.
In their latest letters/fax messages the petitioners and the adoptive parents requested the court to take a decision on their requests. In view of this and since the court now finds that the documents and the previous court hearings provided sufficient information to take a decision on the requests of the petitioners and the adoptive parents, the court will render its final decision in the form of this decision.
Admissibility of the request for a DNA-test
First the court has considered the question of the admissibility of the petitioners’ request for a DNA-test.
In substantiation of their claim that [name child] is their son – who was kidnapped and later adopted by adoptive parents – the petitioners submitted a number of documents, which were already mentioned in the decision of 30 August 2010 (under “Established facts”).
The petitioners have now submitted some further documents:
-a sworn statement of 08 December 2006 of Mr C. Vijayakumar, deputy chief superintendent of police, organised crime department, and
-a photocopy of the so-called “charge sheet” of 29 September 2007.
In view of the above and given the fact that on the part of the adoptive parents there is a mere denial of the facts and circumstances alleged by the petitioners, the court is of the opinion that at any rate there is a possibility that the adoptive parents are the biological parents of [name child].
In view of what is stated above the court is of the opinion that the petitioners’ request for a DNA test is admissible. The court will therefore reject the request of the adoptive parents to dismiss the request of the petitioners for a DNA test.
Establishment of parenthood by means of DNA test
The adoptive parents have argued that there is no legal ground based on which the statutory representatives could be obliged to have their child provide DNA if the child does not wish to do so. The court sees reason to judge first if it is in the interest of [name child] to know whether the petitioners are his biological parents.
In conjunction with article 3 of the Convention on the Rights of the Child (hereinafter: CRC) the court is of the opinion that the interests of [name child] should be put first in assessing the above request of the petitioners. In the event of conflicting interests, the interests of the child should be decisive as a rule.
The court observes that in principle it is in the interests of (adopted) children to know who their biological parents are.
The report of the psychological examination of [name child] carried out by [name 1] shows – stated succinctly-, that
[name child] maintains his decision that he does not want to submit to a DNA test.
[name child] is a well-balanced boy who functions in accordance with his age on a cognitive, emotional and social level. He is able to see things from the perspective of other persons and to form his own opinion. He expresses his opinion in a quiet, differentiated and well-considered manner.
[name child] and his adoptive parents have a close, warm relationship based on mutual respect and protection. [name child] feels a bond with his adoptive parents and relatives and feels appreciated by them. [name child] is loyal towards his adoptive parents. India is omnipresent is his daily life and it is part of him and his adoptive family. He knows that he was adopted and regards this as something positive and his biological parents have a place in his personal history. The family talks about India and [name child]’s biological parents in a respectful manner.
[name 1] states that because of his intelligence and personality [name child] is able to take the decision not to provide DNA. The decision is not motivated by one-sided fear or loyalty towards the adoptive parents, but by conscious considerations about the way he wishes to live his life now. According to [name 1], [name child] will not be able to handle the consequences of a DNA test now because contact with the petitioners would seriously unsettle him.
[name 1] assesses that [name child] will decide that he wants to find out who his biological parents are once his situation is stable and secure. [name child] also stated himself that he expects that there will be a time that he would like to know more. This is not the right time and he will put it off till he is grown up (over 18). This certainly fits in with the development of adopted children.
In actual fact you could say that the question is not whether DNA will be provided or not, but it has become a matter of timing.
[name 1] is of the opinion that it is in the interests of [name child] that he sets the pace for all actions regarding proof of relationship, contact and access arrangements. The child should be the one in charge, because it is only then that [name child] will be able to complete his development properly.
The adoptive parents and the special curator have stated that they agree with the contents of the report and the conclusions drawn there. The petitioners have informed the court that they do not agree with the findings and conclusions of [name 1].
In response to the report of [name 1] the petitioners presented the report to Ms drs [name 2] (hereinafter: [name 2]). On 21 December 2010 [name 2] drew up a report commenting on the examination method used by [name 1] and the contents of the report.
The petitioners stated that they agree more with the conclusions and findings of [name 2] than with those presented by [name 1].
[name 2] has recommended that an independent party takes the responsibility from [name child] and that this party decides on his behalf that he should submit to a DNA test soon. [name 2] cannot answer the question whether [name child] is capable of taking the decision that he does not wish to submit to a DNA test with a straightforward “yes”.
She has furthermore recommended further examination through treatment by a psychotherapist.
The court shares the view of expert [name 1] because of the following reasons.
Unlike [name 2], [name 1] – who, as both parties and the Board agreed, is the expert in this matter- did examine [name child]. In view of the report drawn up by [name 1] in relation to further information provided by the documents and during the hearings in court, the court is of the opinion not only that the examination carried out by [name 1] has been sufficient and careful, but also that her findings and conclusions as mentioned above are convincing.
The court can quite well understand, for instance, that [name child] fears – as follows from [name 1]’s report among other things – that he has to return to India in the event of a positive DNA match, in the light of what appeared in the media on this subject and the attitude of the alleged biological mother. When the petitioners subsequently in this procedure state that for the time being they do not intend to claim [name child] - which therefore explicitly leaves the possibility open that this could change without warning – and report the adoptive parents to the police for child robbery or child abduction, it is totally logical that [name child] has fears about submitting to a DNA test. In his mind submitting to a DNA test could lead to his return to India or to a criminal conviction of his adoptive parents. Therefore it is also completely logical and only natural that [name child] does not want to take a DNA test at this time in his life.
The fact that the petitioners have also stated that they do not wish to remove X from the adoptive family does not change his feelings. After all, it is not about the (changing) signs the petitioners give, but about the way [name child] has interpreted these signs and what the consequences are for him.
In view of the above the court considers [name 2]’s criticism on expert [name 1]’s report not sufficient reason to disregard [name 1]’s findings and conclusions.
[name 2] substantiates her opinion by indicating possible alternative theories and by referring to literature about adoption in general, but the court finds itself confronted with having to take a decision in the matter of the exceptional and specific situation of [name child], which was not examined by [name 2].
The court does not follow [name 2]’s advice to have [name child] further examined through treatment by a psychotherapist. Apart from the fact that this advice fails to show that it is in [name child]’s interest to submit to a DNA test now, the court does not follow the advice since the court has received sufficient information to base its decision in this matter on.
In conclusion, the court deems it necessary that [name child] considers his situation as stable and secure. At the moment his situation is not sufficiently stable and secure. Therefore the court agrees with expert [name 1] that [name child] should be the one who sets the pace in this case. It is therefore not in [name child]’s interests to grant the request for the DNA test.
Weighing up the interests of [name child], of the petitioners and the social interest they put forward, as well as the importance of the DNA test for the criminal investigation that is being conducted in India into child trafficking, the court finds as follows.
The important interests of the petitioners, the alleged social interest and the alleged importance of the investigation in India should be disregarded, since [name child]’s interests also seen in the light of article 3 CRC carry more weight. For it is in the interest of the child that he is able to properly complete his development. The petitioners’ reliance on the provisions of article 8 CRC does not change this view, and besides, said article concerns the rights of the child and not the rights of the parents.
In view of the above – viewed together and in relation to each other – the court will reject the petitioners’ request to establish their parenthood in relation to [name child] by means of a DNA test. In view of this the court will disregard the defence put forward by the adoptive parents regarding the legal ground (absence of a legal basis for compulsory DNA testing).
Declaratory judgment in respect of biological parenthood
A fax message of 16 June 2010 sent by Schoneveld LLM shows that the petitioners, if a DNA test is rejected, wish that a declaratory judgment is given saying that they are the biological parents of [name child].
Now that it is not possible to conclude that the petitioners are [name child]’s biological parents on the basis of a DNA-test and since insufficient objective circumstances have been presented for that matter which should lead to that conclusion, the court will not give a declaratory judgment in respect of biological parenthood.
Family life
The adoptive parents requested a declaratory judgment saying that family life does not exist between the petitioners and [name child]. As appears from the above fax message sent by Schoneveld , the petitioners wish that a declaratory judgment were given saying that family life does exist between them and [name child].
The court refers to the above considerations under the heading “Declaratory judgment in respect of biological parenthood”. Now that is has not been established that [name child] is (not) the son of the petitioners, who was allegedly taken care of and brought up by them as from the day he was born until the day he was kidnapped, the court does not get to assessing the question whether there is a relationship which could be regarded as family life as defined by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) or as a close personal relationship between the petitioners and [name child]. The court will therefore not proceed to giving a declaratory judgment saying that family life does or does not exist between the petitioners and [name child].
Access and information arrangement
Pursuant to the provisions of article 1:377a, paragraph one, of the Dutch Code of Civil Law, the child is entitled to have access to his parents and the persons he has close personal ties with.
Under the provisions of paragraph two, at the request of the parents, the court makes an access arrangement with one of them or with the person who has a close personal relationship with the child.
Pursuant to the provisions of article 1:377b, paragraph one of the Dutch Civil Code, the right to receive information on important matters regarding the person and the property of the child only applies to parents and according to case law the right has been extended to persons who have a close personal relationship with the child.
Since it has not been established that the petitioners are the biological parents of [name child] or that there is a close personal relationship between the petitioners and [name child], refer to the above considerations, the request of the petitioners to have access and to receive information and photographs is rejected.
Costs of the proceedings
The court sees no reason to deviate from the common principle in family law cases where it concerns the costs of the proceedings. The parties shall compensate each other for the costs of the proceedings, which means that each party bears its own costs.
Costs of expert examination
The court will order the petitioners, since they did not succeed in their action, to pay the costs of the expert examination which amount to a total of € 4,763. =.
Decision
The court:
rejects the requests filed by the petitioners and the adoptive parents;
sets off the costs of the proceedings between the parties in the sense that each party pays its own costs;
orders the petitioners to pay the costs of the expert examination which amount to a total of
€ 4,763. = , which costs should be paid to the court registry by means of a transfer to account number 56.99.90.734, in the name of MV and J District Zwolle stating “proceskostenveroordeling” and the case number.
Rendered by A.C. van de Velde-ter Beek LLM (presiding judge), M.A.Pot LLM and G.J.J.M. Essink LLM, judges and juvenile court judges, in the presence of J.K. Franken LLM, clerk of the court and pronounced in open court on March 4th 2011.