Kerkenbos 1037
6546 BB Nijmegen
(extra meeting location)
Amsterdam
Overtoom 538hs
1054LL Amsterdam
Nijmegen
Kerkenbos 1037
6546 BB Nijmegen
(bespreeklocatie)
Based on the International Convention on the Rights of the Child (ICRC), it is the parents’ responsibility to raise their child. The child’s interest is considered the first priority in this. It is the government’s responsibility to provide parents with adequate support if they have a hard time executing their duties. In the Netherlands, the legislative authorities have chosen to provide this support in the form of youth care which can be provided by various institutions, the main one being Youth Care Services (Bureau Jeugdzorg, BJZ). BJZ offers youth care for minors of up to 21 years old. This aid can be either voluntary or compulsory.
Parents can ask for assistance from a youth care organization at any time; help only becomes compulsory if there are serious childcare or support issues. Compulsory help currently consists of three different child protection measures: a supervision order (ondertoezichtstelling, OTS), a care order (uithuisplaatsing), or relief from parental authority. These were set out in the Youth Act and the Child Protection Revision Act which became effective on January 1, 2015. What do these measures entail?
In the case of a supervision order (OTS), a child is placed under supervision by juvenile court order because its development is being threatened and the support required to remove this threat is not sufficiently being accepted by the child or its (legal) parent(s). This measure is applied when the child’s (legal) parents can reasonably be expected to resume their childrearing responsibilities within an acceptable period of time. A minor can be placed under supervision by the juvenile court at the request of the Child Protection Board or Public Prosecutor; or at the request of a parent or a person who cares for the minor as part of their household, in case the Child Protection Board decides not to submit the request.
OTS is a custodial measure: the parents’ authority is reduced by the appointment of a guardian, or a guardianship institution, charged with executing the measure and having the authority to interfere in the child’s family. As of January 1, 2015, the Certified Institution (Gecertificeerde Instelling, GI) is appointed as executor. It is mandatory for the child’s parents to follow the instructions of the guardian or GI during the supervision period.
OTS may also be applied provisionally if the minor is under acute, serious threat requiring urgent measures that cannot await a procedure’s outcome. In such cases, OTS can be instituted for a maximum of three months and without hearing the parents or minor involved. Parents, minor and other stakeholders should then be given the opportunity to present their views in a hearing within 14 days of the emergency OTS ruling.
On the request of the Certified Institution supervising a minor, the juvenile court may grant the institution permission to place the child in care day and night, if this is imperative to the child’s care and upbringing or for the purpose of assessing the child’s mental and physical health. A juvenile court warrant is mandatory for this: a child cannot be put in care without this authorization, simply because the GI is already involved with the family because of the OTS. A warrant can be issued for a maximum of one year and can be annually extended by another year. If the care period is extended repeatedly, the legislative changes of January 1, 2015 now specify a shorter term for a potential discharge of parental authority (see below).
First of all, placement in closed care should not be confused with placement in a judicial institution for juvenile persons (juvenile prison). A closed-care order is a civil court placement that has nothing to do with criminal law; it is only concerned with the best interests of the minor’s care and upbringing.
A closed-care warrant may be requested by the family guardian who acts as the executor for the Certified Institution (GI) implementing the child protection measure. These requests are submitted if there are severe care or upbringing issues that significantly impede the minor’s development, and closed-care placement is required to keep the minor from withdrawing or being withdrawn from youth support.
A basic principle of the Youth Act is ‘self-reliance’ (‘eigen kracht’): staying in one’s own environment as long as possible, with the help of a social network if required. In addition, child law applies the principles of proportionality and subsidiarity [1] and a (non-consensual) care order is a last resort. The law also stipulates that, in the event of a care order, minors should be placed with a foster parent or in a family home, if at all possible, unless this is proven not to be in the child’s best interest. If there are any alternative support options available within the OTS framework, these should be considered first before going on to closed-care placement. The drawing up of a Family Group Plan (self-reliance!), for example, is an option that should legally be offered as an alternative prior to closed care. Such plans might include social skills training (anger management), system therapy, additional assessments and diagnoses, creative therapy, sports, etc.
Article 8 ECHR implies that the court needs to determine on a case-by-case basis whether the severity of the problems justifies the violation of private life that closed care entails. Alternatives should always be included in the decision.
Relief from parental authority (custodial measure)
In the case of continued severe issues, the court may give someone else authority over the child. For OTS, we have seen that one of the required criteria held by the court is the expectation that the legal parent(s) will be able to resume their parental responsibilities within a reasonable period. If the OTS (with or without a care warrant) has already been extended a number of times, this expectation is not met. Since it is considered contrary to the child’s interest if parents repeatedly contest the OTS or enter into discussions with the family guardian or GI, this criterion has become the legal basis for implementing custodial measures. The consequence will be that parents will only have the right of access (link authority and visitation), but parental authority has been fully transferred from the parent to the GI or other institution or relevant person.
[1] Article 8 (2) ECHR.