Ontwikkelingen in het civielrechtelijk conservatoir beslag in Nederland

The Dutch provisions on prejudgment attachment are special in the sense that they have a liberal character. This means that – compared to similar provisions in other countries– obtaining leave to impose attachment for a claim that has not yet been established by law is relatively simple. Prejudgment attachment is characterized by an inherent conflict of interests of the attaching party (who wants to secure his claim, pending a decision by the court) and the attachee (in being able to dispose of his assets without hindrance and in being protected from unlawful attachment). Prejudgment attachment can have far-reaching consequences for the attachee. The subject of this study is the balance of the Dutch system of prejudgment attachment and that of the proposal for European bank attachment

International child abduction and the best interests of the child: an analysis of judicial reasoning in two jurisdictions

The Hague Child Abduction Convention aims to secure the speedy return of abducted children. Judges can use a limited number of grounds for refusal. They may not make an in-depth assessment of the merits of any custody issue. The Convention on the Rights of the Child provides that the best interests of the child shall be a primary consideration in all actions concerning children. This article analyses the use that judges make in their decisions on the concept of “the best interests of the child”. For this purpose it scrutinizes the case law on international child abduction of the Netherlands and England and Wales. By using software designed for qualitative research, the authors are able to make an objective and systematic analysis. This article confirms the hypothesis that the concept of the best interests of the child is often used without substance, and sometimes only to endorse conclusions that would have possibly been reached in any event

Studiedag ‘Gezinstransities vanuit het perspectief van de kinderen’

Steeds meer kinderen groeien op in een nieuw samengesteld gezin. Een dergelijk gezin ontstaat wanneer een van beide ouders, of beide ouders, een nieuwe relatie aangaan met een partner die zelf geen juridische ouder is van het kind. Daarbij rijst de vraag hoe de kinderen deze wijziging in gezinssamenstelling ervaren en welke functie de verschillende betrokkenen, zoals de ouders, de school en juridische en pedagogische professionals, hierbij vervullen. Deze vraag stond centraal tijdens een studiedag georganiseerd door het Universitair Centrum Sint Ignatius Antwerpen op 29 september 2015 te Antwerpen. Daar werd het ontstaan van een nieuw samengesteld gezin na echtscheiding vanuit verschillende invalshoeken belicht

Handhaving van EVRM-rechten via het aansprakelijkheidsrecht. Over de inpassing van de fundamentele rechtsschending in het Nederlandse burgerlijk recht

This PhD thesis focuses on how Dutch liability and damages law can contribute to the enforcement of ECHR rights, assuming as a starting point that liability and damages law should be constitutionalised. In other words, the question is how ECHR rights should be enforced through liability and damages law. The answer to this central research question needs reference to the nature of liability and damages law and the nature of ECHR law. There are five key themes that support the description of the nature of both sets of regulations. These themes are the basic principles, the basis, the legal rule, the criteria, and enforcement. The comparison between ECHR law and liability and damages law as it currently stands has resulted in the first part of the conclusion, which is that we should not look for the solution regarding the enforcement of fundamental rights in the liability for unlawful acts law only. An important point in the comparison is the observation that the bases in the two sets of regulations are essentially different. Liability and damages law, on the one hand, is based on the basic principles of to live honestly, not to injure another, to give to each one that which belongs to him and each shall bear his own damage. The basic principles reveal that harm is a core element in liability and damages law as it is currently structured. ECHR law, on the other hand, is based on the basic principles of human dignity and fundamental freedom. These basic principles have made ECHR law a system that aims to prevent rights violations and, where no longer possible, to sanction violations. Protection of fundamental interests is therefore the core element. Current liability and damages law, as opposed to ECHR law, more specifically aims to remedy an unfair situation which consists of harm caused by the disadvantaging party on the disadvantaged party, through the property of the disadvantaged party and the disadvantaging party. Harm and the correlative relationship between disadvantaged and disadvantaging party are therefore the core elements. The comparison of the nature of liability and damages law and the nature of ECHR law, and also the approaches - found in the foreign legal systems as studied – that serve to interconnect the ECHR and liability and damages law, have resulted in a conclusion in two parts. The first part of this conclusion states that we should not look for the solution regarding the enforcement of fundamental rights in the liability for unlawful acts law only, a conclusion that cannot be read without the second part of the two-part answer, which is that a new basis in liability law - in addition to the unlawful act - can be used more directly and more specifically geared towards ECHR rights in order to enforce ECHR rights. The author believes that the nature of fundamental rights justifies a new basis in liability law in addition to the unlawful act, creating a specific approach to enforce fundamental rights: the breach of a fundamental right

Het recht van kinderen op levensonderhoud: een gedeelde zorg

Research indicates that the current child maintenance system in the Netherlands suffers from inadequacies. An important indication is the fact that many Dutch parents resort to the courts in order to resolve their differences concerning the child maintenance payment. Another indication relates to the high number of parents with care who apply to the National Maintenance Collection Agency (LBIO) to enforce the child maintenance payment by the liable parent. In addition to this, Dutch municipalities are dealing with considerable numbers of recovery claims each month. The central question of this research is the following: Do the Norwegian and Swedish child maintenance systems provide models that can be transposed into Dutch legislation? The reason for comparing the Dutch child maintenance system with the Norwegian and Swedish systems is that the social structure of these Nordic countries shares essential features with that of the Netherlands, and because both Norway and Sweden have a progressive child maintenance system. The main conclusion is that parts of the Scandinavian systems can be transposed into Dutch legislation, concerning the duty and the right to child maintenance, the determination of child maintenance and the enforcement of the amount. The following recommendations may be formulated for the Dutch child maintenance system based on the research conclusions drawn. A maintenance obligation ought to be developed for a known donor in case this has not been acquired by a consenting partner, as is the case in Norway and Sweden. In addition The Dutch legislator should adopt the example of the Norwegian and Swedish child maintenance systems by providing children beyond the age of eighteen with a conditional right to maintenance. Any child receiving secondary or higher education should be considered to be in need. The Dutch government should establish formal guidelines for assessing child maintenance, for example by issuing a governmental decree. Furthermore, assessing the required amount of child maintenance should be straightforward, depending on a limited number of factors, and it should be based on the needs of children, on the one hand, and the financial capacity of parents on the other. Fixed amounts should thereby be set as standards to guarantee legal certainty. In order to calculate the amount of child maintenance the Dutch government should develop an easy-to-use digital program, and this should be made generally available. When child maintenance can be assessed along formal guidelines and fixed amounts, the assessment may take place by the LBIO in addition to the courts, and it is expected that this will reduce the number of lawsuits. The provision that renders contracts drawn up by a notary public concerning the amount of child support enforceable by law should be executed. In addition, the collection of child maintenance by the LBIO on the basis of a mutual agreement without a writ of execution should be made possible