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Recognition child foreign father

Recognition of a child by a foreign father is part of parentage law. The private international law aspects of descent are mainly regulated in Book 10 of the Dutch Civil Code and the Code of Civil Procedure (Rv):

  • International jurisdiction law is regulated in Rv, articles 1-14 Rv.
  • The conflict of laws is mainly regulated in Book 10 of the Dutch Civil Code, Articles 10:92-99 of the Dutch Civil Code.
  • The recognition of judicial decisions in which parentage relationships have been established or amended is regulated in Article 10:100 of the Dutch Civil Code. Also consider the bilateral treaties, such as: the Dutch-Belgian enforcement treaty of March 28, 1925 and the Dutch-Italian enforcement treaty of April 17, 1959.
  • The recognition of legal facts or legal acts relating to family law relationships which are laid down in a deed is regulated in Article 10:101 of the Dutch Civil Code.
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Sub-topics of descent are regulated in the CIEC Convention of September 12, 1962 on the establishment of family relations between the illegitimate child and its mother and the CIEC Convention of September 10, 1970 on Legalization by Marriage. There are no EU regulations binding on the Netherlands on the question of international jurisdiction, applicable law and recognition and enforcement in international parentage cases.

The recognition of a child by a foreign father and the international jurisdiction of the Dutch court Nederlandse

Article 3 DCCP provides the main rule with regard to the recognition of a child by a foreign father and the international jurisdiction of the Dutch court. With the exception of cases as referred to in Articles 4 and 5 DCCP, the Dutch court has international jurisdiction if the applicant or the interested party named in the application is domiciled or habitually resident in the Netherlands.

In addition, the Netherlands has international jurisdiction with regard to the recognition of a child by a foreign father, if the Netherlands can be regarded as a so-called ‘forum conveniens‘: the case is sufficiently connected with the legal sphere of the Netherlands. Finally, the Dutch court has international jurisdiction if the Netherlands can be regarded as a so-called ‘forum necessitatis’: legal proceedings outside the Netherlands prove impossible.

Please note that it is not possible to make a choice of forum with regard to the recognition of a child by a foreign father, because parentage law disputes are not at the discretion of the parties.

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The recognition of a child by a foreign father and the applicable law

Article 10:95 of the Dutch Civil Code applies with regard to the recognition of a child by a foreign father and the applicable law. This article is based on the preferential treatment principle. This means that several options are offered in a step-by-step manner to ensure that the recognition is successful. This looks like this:

  • First of all, the nationality of the person who wishes to proceed with recognition is taken into account. Example: if the foreign father has Portuguese nationality, the question of whether the foreign father is authorized to recognize the child and under what conditions this is possible is governed by Portuguese law.
  • If the person who wishes to proceed with recognition has several nationalities, national law is decisive according to which recognition is possible. Recognition of the child by a foreign father can in that case also take place if the foreign father is competent for recognition under one of the legal systems of the states of which he is a national and meets the conditions under which recognition takes place.
  • If recognition of the child is no longer possible under the national law of the foreign father, then the law of the state of the habitual residence of the child is decisive. If a foreign father wants to recognize a child who has his or her habitual residence in the Netherlands, and the law of the state of the foreign father’s nationality does not (any longer) allow recognition, the question of the power to recognize the foreign father to recognize the child and the conditions under which recognition of the child can take place, governed by Dutch law.
  • If recognition is no longer possible under the law of the child’s habitual residence, then the law of the state of the child’s nationality is followed.
  • If the child has several nationalities, then the national law according to which recognition is possible is decisive here too.
  • If recognition is not (or no longer) possible under that law, then the law of the state of the habitual residence of the person who wishes to proceed with recognition is linked in the last place. If the foreign father who wishes to recognize the child has his habitual residence in the Netherlands in such a case, then Dutch law determines the authorization for recognition and the conditions under which this can take place.

The consent of the mother or child with regard to the recognition of a child by a foreign father and the applicable law

Article 10:95 of the Dutch Civil Code has a separate reference rule for the consent of the mother or the consent of the child for the recognition of a child by a foreign father. Irrespective of the law applicable to the recognition of a child by a foreign father, the consent of the mother or that of the child in respect of that recognition shall be governed by:

  • the law of the state of the mother’s nationality; or
  • in the case of consent by the child, the law of the state of the child’s nationality;
  • If the mother or child has more than one nationality, the law of the state that requires consent applies. But please note: do the mother or child have Dutch nationality? Then Dutch law applies, regardless of whether the mother or child has other nationalities;
  • does the applicable law not know the recognition? In that case, the law of the habitual residence of the mother or that of the child respectively applies.

The law applicable to the consent also determines whether a court decision can replace the consent in the absence of this consent.

 

As to whether and how recognition can be nullified with regard to the competence of the person who has recognized the child and the conditions for recognition, it is based on the law applicable to the recognition of a child. child by a foreign father. With regard to the consent of the mother or that of the child, the law applicable to the consent of the mother or child with regard to the recognition of a child by a foreign father is followed.

As to whether and how recognition can be nullified with regard to the competence of the person who has recognized the child and the conditions for recognition, it is based on the law applicable to the recognition of a child. child by a foreign father. With regard to the consent of the mother or that of the child, the law applicable to the consent of the mother or child with regard to the recognition of a child by a foreign father is followed.

The recognition of a child by a foreign father and the recognition of a foreign court decision in the Netherlands

If the recognition of a child by a foreign father has been established or changed in a foreign court decision, the question may arise whether such a decision can be recognized in the Netherlands and, if so, under what conditions. Article 10:100 of the Dutch Civil Code offers the answer to this.

This article provides that irrevocable judicial decisions made abroad in which family relations have been established or amended by virtue of descent are recognized by operation of law in the Netherlands, unless:

  • there was apparently insufficient connection for the jurisdiction of the judge with the legal sphere of his country;
  • that decision was apparently not preceded by a proper investigation or due process of law; or
  • the recognition of that decision is manifestly incompatible with public policy.

It is important that recognition cannot be refused on grounds of public policy, on the sole ground that a law other than that which would have followed from this title has been applied to it. On the other hand, the recognition is not subject to recognition in advance if it is incompatible with an irrevocable decision of the Dutch court regarding the establishment or amendment of the same family-law relationships.

The recognition of a child by a foreign father and the recognition of legal facts or legal acts relating to family law relationships which are laid down in a deed

Article 10:101 of the Dutch Civil Code concerns legal facts or legal acts in which family relationships have been established or changed, which have been laid down in a deed drawn up by a competent authority in accordance with local regulations. This article refers in part to the regime under article 10:100 of the Dutch Civil Code.

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