Communication No. 201/1985
2.6 The author therefore requested
the Human Rights Committee to consider his communication since he had exhausted
domestic remedies and the same matter was not pending before another procedure
of international investigation or settlement.
3. By its decision of 26 March 1986, the Committee transmitted the communication
under rule 91 of its provisional rules of procedure to the State party concerned,
requesting information and observations relevant to the question of the admissibility
of the communication.
4.1 In its submission under rule 91, dated 9 July 1986, the State party contests
the author's standing to submit an application on behalf of his son, adding
"The family relationship between Hendriks, Sr. and Hendriks, Jr. does
not in itself provide sufficient grounds to assume that the son wishes
the application to be submitted . . . Even if Mr. Hendriks did have the right
to submit an application on behalf of his son, it is doubtful whether Hendriks,
Jr. could be regarded as a 'victim' within the meaning of rule 90, paragraph
1 (b), [of the Committee's provisional rules of procedure]. The Government
of the Netherlands wishes to stress that the Netherlands authorities
have never prevented Wim Hendriks, Jr. from contacting his father of his own
accord if he wished to do so. The Government of the Netherlands would
point out in this respect that Mr. Hendriks, Sr. met his son in 1985
and entertained him at his home in the Federal Republic of Germany."
4.2 With respect to the compatibility of the communication with
the Covenant, the State party contends that article 23, paragraph 4, of the
Covenant "does not seem to include a rule to the effect that a parent
who has been divorced must have access to children from the
marriage if those children are not normally resident with him/her. If the
article does not lay down such a right, there is no need to explore the question
of whether this right . . . has actually been violated. "
4.3 With respect to the exhaustion of domestic remedies, the State party observes
that there is nothing to prevent the author from once again requesting
the Netherlands courts to issue an access order, basing his request on 'changed
circumstances", since Wim Hendriks, Jr. is now over 12 years old, and,
in accordance with the new article 902 (b) of the Code of Civil Procedure
which came into force on 5 July 1982, Wim Hendriks, Jr. would have to be heard
by the Court in person before a judgement could be made.
5.1 In his comments dated 3 September 1986, the author states that the decision
of the Supreme Court of the Netherlands of 24 February 1980 effectively prevents
him from re-entering the domestic recourse system.
5.2 With regard to the question of his standing to represent his son before
the Committee, the author submits a letter dated 15 November 1986, countersigned
by his son, forwarding a copy of the initial letter
of 30 December 1985 and of the comments of 3 September 1986,
also countersigned by his son.
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its provisional rules
of procedure, decide whether or not it is admissible under the
Optional Protocol to the Covenant. The Committee decided on the admissibility
of the Communication at its twenty-ninth session, as follows.
6.2 Article 5, paragraph 2 (a),
of the Optional Protocol precludes the Committee from considering a communication
if the sane matter is being examined under another procedure of international
investigation or settlement. The Committee ascertained that the case
was not under examination elsewhere. It also noted that prior consideration
of the same matter under another procedure did not preclude the Committee's
competence as the State party had made no reservation to that effect.
6.3 Article 5, paragraph 2 (b), of the optional Protocol precludes the Committee
from considering a communication unless domestic remedies have been exhausted.
In that connection the Committee noted that, in its submission of 9 July 1986,
the State party had informed the Committee that nothing would prevent Mr.
Hendriks from once again requesting the Netherlands courts to issue
an access order. The Committee observed, however, that Mr. Hendriks' cl aim,
initiated before the Netherlands courts 12 years earlier, had been adjudicated
by the Supreme Court in 1980. Taking into account the provision of article
5, paragraph 2 (b), in fine of the optional Protocol regarding
unreasonably prolonged remedies, the author could not be expected to continue
to request the same courts to issue an access order on the basis
of changed circumstances", notwithstanding the procedural change
in domestic law (enacted in 1982) which would now require Hendriks,
Jr. to be heard. The Committee observed that, although in family law disputes,
such as custody cases of this nature, changed circumstances might often justify
new proceedings, it was satisfied that the requirement of exhaustion of domestic
remedies had been met in the case before it.
6.4 With regard to the State party's reference to the scope of article 23,
paragraph 4, of the Covenant (para. 4.2 above), i. e. whether the provision
in question lays down a right of access for a divorced parent or not, the
Committee decided to examine the issue with the writs of the case.
7. On 25 March 1987, the Committee therefore decided that the communication
was admissible. In accordance with article 4, paragraph 2, of the Optional
Protocol, the State party was requested to submit to the Committee, within
six months of the date of transmittal to it of the decision on admissibility,
written explanations or statements clarifying the matter and the measures,
if any, that might have been taken by it.
8.1 In its submission under article 4, paragraph 2, of the Optional Protocol,
dated 19 October 1987, the State party contends that article 23, paragraph
4, of the Covenant does not provide for a right of access to his/her
child for a parent who has been divorced and whose children are not normally
resident with him/her. Neither the travaux préparatoires nor the wording of
the said article would seem to imply this. The State party further affirms
that it has met the requirements of article 23, paragraph 4, since the equality
of rights and responsibilities of spouses whose marriage has been dissolved
through divorce is assured under Netherlands law, which also provides
for the necessary protection of any children. After the divorce, custody can
be awarded to either the mother or the father. The State party Submits that:
10.4 The courts of the
States parties are generally competent to evaluate the
circumstances of individual cases. However, the Committee deems it necessary
that the law should establish certain criteria so as to enable the
courts to apply to the full the provisions of article 23 of the Covenant.
It seems essential, except in exceptional circumstances, that these
criteria should include the maintenance of personal relations and direct and
regular contact between the child and both parents. The unilateral opposition
of one of the parents, cannot, in the opinion of the Committee, be considered
an exceptional circumstance.
10.5 In the case under consideration,
the Committee notes that the Netherlands courts, as the Supreme Court
had previously done, recognized the child's right to permanent contact
with each of his parents as well as the right of access of the
non-custodial parent, but considered that these rights could
not be exercised in this case because of the child's interests. This was the
court's appreciation in the light of all the circumstances, even though there
was no ' finding of inappropriate behaviour on the part of the author.
11. As a result, the Committee cannot conclude that the State party has
violated article 23, but draws its attention to the need to supplement
the legislation, as stated in paragraph 10.4.