Court of Zeeland West Brabant

10 April 2020, ECLI:NL:RBZWB:2020:2149

The court determines that under Syrian law the parents have joint parental authority. And that now that the child lives in the Netherlands, the Dutch court may, on the basis of Dutch law, give the mother sole parental custody.

The mother has stated that after the divorce in Syria in 2011, she fled Syria in 2014 with the child. They have been living in the Netherlands since 2015. She has been in charge of the care of the minor since 2011. She hasn’t heard from the father since her departure.

The father did not appear in the proceedings.

The Child Care and Protection Board said at the hearing that the mother’s request was appropriate. The mother must be able to make decisions about the minor by herself.

Hadana and Wilaya

The court sought advice from the International Institute of Jurisdiction (IJI) and asked whether under Syrian law there is joint custody. The IJI says that under Syrian law both parents have a different form of custody.

The hadana belongs to the mother. This concerns the daily material care of the child, such as the provision of clothing and food, physical and spiritual development, education in the faith of the father. In Syria the hadan runs until the child is 15 years old.

The wilaya belongs to the father. This is on the property of the minor and on the person of the minor. The father is the legal representative, manages the property, looks after the person of the child, takes care of the child’s upbringing, should always be able to visit the child and usually has a decisive voice when it comes to determining the child’s habitual place of residence. The wilaya lasts until the child is 18 years old.

In principle, this form of joint custody continues after divorce.

The court considers as follows:

Article 16 of the Hague Convention on Parental Responsibility and Protection of Children 1996 applies.

This Article provides that it is necessary to look at who was granted or retained parental authority after the divorce in Syria.

If parental authority already existed by operation of law before 1 May 2011 (date of entry into force of  the Hague Convention on Parental Responsibility and Protection of Children 1996), it cannot be affected by the 1996 Convention (Article 13 paragraph 1 of the Hague Convention on Parental Responsibility and Protection of Children 1996).

The minor was born before 1 May 2011. Whether a relationship of custody already existed by operation of law on 1 May 2011 must be examined on the basis of the Hague Protection of Minors Convention 1961.

However, Article 13 paragraph 1 of the 1961 Convention provides that this Convention applies to all children who have their habitual residence in a Member State. This minor lived in Syria. And Syria is not a treaty state of the 1961 Convention. Therefore, it must be determined on the basis of ordinary private international law whether there was custody by operation of law on 1 May 2011 and whether this remained so after the divorce. This means that this has to be determined according to Syrian law.

The court follows the IJI and assumes that under Syrian law both parents are (still) in charge of parental authority.

Article 16 paragraph 4 of the 1996 Convention provides that parental responsibility under the law of the State of the habitual residence of the child continues to exist after transfer of that habitual residence to another State. This means that even after departure to the Netherlands, the parties are jointly in charge of custody.

The court deems itself competent to take cognizance of the woman’s request to be entrusted with custody on a unilateral basis, because the minor now has her habitual residence in the Netherlands.

Because the Dutch court has jurisdiction, Dutch law applies (art. 15 of the Hague Convention on Parental Responsibility and Protection of Children 1996).

Reason for allocation of the request

According to Dutch law (art. 1:251a of the Civil Code), the judge may hange the parental authority, at the request of the parent after the divorce,

  • if there is an unacceptable risk of the child becoming trapped or lost between the parents and it is not expected that there will be sufficient improvement in the foreseeable future,

or

  • when change of authority is otherwise necessary in the best interests of the child.

There has been no contact with the father for years. It is impossible for the woman to give substance to the joint authority. The court considers that the change in authority is necessary in the interest of the minor and determines that the mother will now have sole custody.