11.2 Nakad Law - Statekidnappings in NL.pdf

The reference to “(legal) products” indicates that youth care offers legal and non -legal products and services. However, the principle of legality means that all products/services in the context of government coercion must be based on a legal basis, because o therwise the administrative body acts without competence; this is the hallmark of a rule of law. Lawyers and judges, officials of the Ministry of Justice and Security, and the in -house lawyers and lawyers of the GI’s know this, or at least they should know this. Lawyers employed by the municipalities or lawyers hired by the municipality also know this, or at least should know this. 58. The requirement of a legal basis protects citizens from unlawful interference with their family life, violation of human dignity and arbitrariness. 59. Examples of products and services without a legal basis are: Example 1. The growing practice, whereby the parents conclude an agreement of child protection measures (coercion) – OTS or OTS/UHP – with the GI on the basis of the freedom of contract, is not based on a legal basis. This was explicitly discussed during the Round Table on Youth Protection in the House of Representatives on 27 October 2021.19 Example 2.

The growing practice, in which employees from GIs and their chain partners proactively have access to families to observe them and to look for or construct possible and/or future development threats – serious or not – lacks a legal basis. Example 3. The use of espionage services and secret police services against parents (who do not engage in domestic terrorist activities) lacks a legal basis. 60. Hereinafter we will see that contract law prohibits the parties from setting aside mandatory legal provisions. 5.2 Nullity (conflicts with mandatory articles of law or treaties) Erosion of parental authority/Protection of family life 61. Article 1:247 of the Dutch Civil Code (parental authority) not only gives parents the right, but also imposes on them the duty, each own child ( himself! ) to educate and care for. The State must take into account the rights and obligations of parents on the basis of Article 3 paragraph 2 of the UN Convention 18 https://vng.nl/sites/default/files/eindrapport_kostprijsonderzoek_gecertificeerde_instellingen_14mei2018_0.pdf 19 https://www.tweedekamer.nl/debat_en_vergadering/commissievergaderingen/details?id=2021A05923

16 | mrs. dr. H.W.R. Nakad-Weststrate on the Rights of the Child, and the State must respect the responsibilities, rights and obligations of the parents on the basis of Article 5 of this Treaty. 62. Parents may conclude contracts in the sphere of voluntary youth assistance, as long as this assistance does not undermine parental authority ; from their autonomy they want extra support, and they are in charge of this themselves; they decide on which help, the beginning and the termination thereof. Furthermore, Article 1:265a of the Dutch Civil Code stipulates that only after an authorization from the court, a child can be placed out of the home. This provision is also mandatory. It is therefore not possible to agree through an agreement from youth care that children will be accommodated elsewhere. 63. Freedom of contract in the area of child protection measures is a different situation, because parental authority is being completely or partially eroded . A contract is concluded with the GI in which parents undertake to: i. either to structurally share their autonomy and the direction of care or upbringing, or to transfer it to the GI or to tolerate some degree of control of the GI (an agreement of OTS); ii. or voluntarily give up their own child(ren) and deliver them to the GI who, with the help of third parties, fully takes over the upbringing and care (an agreement of OTS/UHP).

64. Such agreements are contrary to the legal obligation of parents under Article 1:247 of the Dutch Civil Code. On the basis of Article 3:40 paragraph 2 of the Dutch Civil Code, conflict with a mandatory legal provision – such as Article 1:247 of the Dutch Ci vil Code – leads to the nullity of the legal act. The GI as an administrative body should know that it may not ask parents to give such agreements contractual form, and that these agreements therefore have no legal validity whatsoever. The GI as an administrative body should therefore also know that it may not ask parents to conclude such an agreement. The Child Protection Board should review this. In the extreme case, the court should find the nullity and call the GI – and the Child Protection Board – to order. Agreement of Exploitation/Modern Slavery 65. Any kind of help to a child, but certainly child protection measures, must be effective. They must therefore solve the serious, concrete problems within a reasonable period of time, because Article 274 Sr prohibits slave trade, Article 273f Sr prohibits human trafficking and any intentional benefit from the exploitation of another, and Article 1:1 of the Dutch Civil Code prohibits personal servitudes of any kind or under any name. These articles are also mandatory, so they may not be deviated from contractually either. 66.

According to the United Nations, human trafficking is the recruitment, transport, transfer, housing or reception of people through violence, fraud or deceit, with the aim of exploiting them for profit. Men, women and children of all ages and backgrounds can become victims of this crime, which occurs in every region of the world.20 Indicators 1. On the basis of the following indicators, an agreement with the Dutch youth care for child protection almost without exception qualifies an agreement of modern slavery: slave trade, human trafficking, exploitation, personal servitude. (i) the child is always the source of the financial claims arising from the contract, (ii) there is a legal relationship of power imbalance between the parents and the contracting party, 21 (iii) there is some degree of erosion of parental authority, and/or (iv) the child protection measures are ineffective, or even (on balance) harmful; yet they are renewed year after year, (v) parents complain of forgery, unilateral filing, mendacious statements, faulty evidence, and other problems with the soundness of the file. (vi) coercive measures are used against the parents (such as going to court, written instructions, contact restrictions, etc.), these means can be used, or there is a threat to induce parents to comply, obedience or complete submission. 67.

Virtually all agreements will qualify as void agreements. Under the leadership of the GIs, most children are (further) damaged or their situation does not improve substantially, without parents still being able to protect their children and end the voluntary assistance independently or have the decisive vote in it (Article 255 DCC). The contractual provision that the GI only has an obligation to use its best efforts, or that 20 https://www.unodc.org/unodc/en/human-trafficking/human-trafficking.html 21 The power imbalance can be: actual (number of employees), financial, knowledge related (in-house specialist knowledge and means to purchase that knowledge through external consultants and lawyers), experience (is the contracting party a professional "repeat-player"?), legal power base, and access to power (chain partners, including the Dutch Bar Association, the judiciary, the Council for Child Protection, the ministries involved (VWS/Minister V&J), and parallel interests to those of the power, etc. 17 | mrs. dr. H.W.R. Nakad-Weststrate agreement is not or is not intended to be an agreement for exploitation, do not rem ove the violation of Article 1:247 of the Dutch Civil Code. The fact that the GI receives payment for the services from the Municipality does not alter the qualification of slavery.

De facto, parents in the Dutch system must also contribute (through their own contributions) to the exploitation of their own child(ren). 68. On the basis of Article 3:40 paragraph 2 of the Dutch Civil Code, the agreement is prohibited and void due to conflict with mandatory legal provisions . Because of the infringement of treaty provisions by content or purport "contrary to morality or public order," and therefore also null and void (Article 3:40 paragraph 1 of the Dutch Civil Code). The GI as an administrative body should know that it may not ask parents to conclude such an agreement. The Child Protection Board should review this. In the extre me case, the court should find the nullity and call the GI – and the Child Protection Board – to order. Treaty provisions on exploitation/modern slavery 69. The children are also protected from exploitation by European and international treaties, such as Article 5 of the EU Charter and Article 32 of the Convention on the Rights of the Child. 22 Under Article 7 of the UN Convention on the Rights of the Child, children have the right to know their own parents and to be cared for by them.

From their legal po sition, the agreement of the GI with their parent(s) – see above on the basis of the indicators – is by content or scope "contrary to morality or public order," and therefore also null and void (Article 3:40 paragraph 1 of the Dutch Civil Code). 70. On this ground, too, voluntary agreements of OTS and/or OTS/UHP are prohibited and void. The GI as an administrative body should know that it may not ask parents to conclude such an agreement. The Child Protection Board should review this. In the extreme c ase, the court should find the nullity and call the GI – and the Child Protection Board – to order. 5.3 Nullification (defects of free will) 71. These voluntary contracts can be unilaterally annulled by parents on the grounds of defects of free will. Information backlog. As already noted, youth protection measures in practice almost never lead to a quick solution of the problems and/or return home. On the contrary, OTS and/or OTS/UHP are usually extended until the age of 18 or 21. 1. Even if mistakes have been made or it is established afterwards that the measures should never have been imposed, the children do not return home (not even in the Child Allowances Scandal). 23 2.

Even if the measures do not help anything and do lead to and (further) damage to the child such as a UHP (think also of the findings of the Samson Committee and the De Winter Committee on sexual, physical and psychological violence), the children do not return home. This information is often hidden from parents. The impression is created that the child may be able to return home through the annual judicial review, or the GI pretends that the child would be better off through voluntary youth protection measures. Power inequality and/or pressure. It is standard practice that the GI - to make things easier for itself - strives for voluntary measures, with the threat of coercion as a means of getting parents to accept ('urge/compulsion'). With this, the industry itself proves that a voluntary agreem ent to OTS and/or OTS/UHP interferes with the legal system of protection in the event of coercive measures. Many parents and children live in constant fear, despite the so-called voluntary framework. 72. In the circumstances described above, parents may unilaterally invoke the nullity of the agreement (Article 3:49 of the Dutch Civil Code) on the grounds of threat, fraud, abuse of circumstances (Article 3:44 of the Dutch Civil Code) and/or error (Article 6:228 of the Dutch Civil Code). These defects of will lead to the voidability of the agreement.

The destruction has retroactive effect (' ex tunc', Article 3:53 paragraph 1 of the Dutch Civil Code). 73. These legal consequences make it clear that freedom of contract is not an appropriate instrument for child protection measures (legal uncertainty). Municipalities risk losing years of funding with retroactive effect. They have to recover that from the GI. 74. Finally, the GI acts structurally unlawfully, by not accepting the legally valid annulment of a contract by parents, but ignoring it. The execution of the contract usually continues after annulment. 22 See also Article 36 UN Convention on the Rights of the Child, Article 7 paragraph 1 sub c Rome Statute, Article 4 ECHR, etc. 23 https://nieuwrechts.nl/87893-omtzigt-furieus-zelfs-een-onafhankelijk-onderzoek-laten-doen-lukt-deze-regering-niet 18 | mrs. dr. H.W.R. Nakad-Weststrate 5.4 Legally valid grounds for child eviction 75. The removal from home may only be used as a last resort (ECtHR 22 March 2018, nos. 68125/14 and 72204/14 (Wetjen and Others v. Germany), EHRC 2018/118 m.nt. S. Florescu, par. 84-85. See also o.m. ECtHR of 12 July 2001, No 25702/94 (K. and T. v. Finland), p ara. 166-167, ECtHR 26 October 2006, No 23848/04 (Wallová and Walla v. Czech Republic), para. 73-74, ECtHR 16 March 2010, no. 28680/06 (A.D. and O.D v. United Kingdom), par. 89.

See also the Case law guide on Article 8 of the European Convention on Human Rights (version 30 April 2019), p. 62, available on www.echr.coe.int). 76. In the Parliamentary History (2010) examples are given of the rarity of cases,24 in which this means could be suitable. Moreover, it remains the case that less harmful alternatives must first be tried, with support from one's own network; unfortunately, this has not happened in the examples below . Even in these distressing cases, alternatives should be tried (such as protected, assisted living in a residential group): a. A mother whose child was placed out of the home in 1998 is relieved of parental authority over her minor child. The mother has been addicted to alcohol and drugs for years, uses medication because of depressive symptoms, mother is unreachable for the assistance, unreliable in fulfilling agreements. There is no prospect of an improvement in the situation. b. Father is treated for years at the GGZ, department of forensic psychiatry. Both parents are weakly gifted. Since 1993, the family has a history of aggression and abuse of the child by the father. This abuse still takes place during the contact moments betw een the parents and the – who has been placed out of home for six years – child. The safety of the child cannot then be guaranteed. The mother cannot manage the situation in the right direction.

The contact moments must be significantly reduced in order for the child to develop normally. In the best interests of the child, the parents lose legal custody of him. The court assumed that this exemption could induce the parents to follow expert advice and to comply with agreements. c. Mrs X, probably staying in the Rotterdam region, is 34 weeks pregnant. Her pregnancy goes uncontrollably, Mrs. X uses hard drugs heavily, deals in them and prostitutes herself. Mrs. refuses to be treated or to have her pregnancy checked. The child will most likely come into the world addicted. She does not receive parental authority and the Youth Care Agency receives provisional custody. d. Provisional supervision of unborn child. Mother has cognitive limitations and social emotional problems. The mother does not want any more help in any way. The unborn child is placed under supervision. e. Mother, exercises sole custody of two children and is pregnant. The development of the children is threatened in the social-emotional, cognitive and physical areas. Due to an intellectual disability, the mother is unable to show «adequate parenting behaviour». Assistance in a voluntary framework has not proved to be sufficient. Mother is of the opinion that there are ghosts in her house and has left the house. After she «ritually] had the house cleaned», she lives there again.

Both the two minor children and the unborn child are placed under supervision and placed out of the home. f. A pregnant woman is known for a long time to various emergency services because of her various behavioral disorders. She functions at a weakly gifted level and regularly withdraws from assistance. The father who also needs help has stopped it. Because there is a fear that the parents will withdraw the unborn fruit from necessary medical care, the fruit is placed under provisional supervision and placed out of the home in due course. g. Mother, of a few weeks old baby, functions at a weakly gifted level, has borderline personality disorder and can «under adverse circumstances turn her powerlessness, fear or anger into destructive behavior». The woman must soon be in detention because of a conviction for attempted manslaughter. Mother is «cannot acquire parenting skills, she turned out [previously] not to be teachable». Mother has previously been relieved of the custody of two other children. Father also functions at a weakly gifted level a nd needs 24 -hour guidance and treatment. He poses a danger associated with impulse breakthroughs in tension followed by aggression. The baby is placed under supervision and urgently placed out of the house. 77.

According to many lawyers, the current grounds for out -of-home placement have demonstrably been stretched (far) too far over the past years. 5.5 Illegal guidelines for returning the children home 78. The guidelines for the return of the children home are based on a so-called "acceptable period". This period is 1/2 year (children up to 5 years) to one year (children older than 5 years). After that period, the children belong to the foster parents. The children would then be so attached to the foster parents that the foster parents take precedence over their own parents. In addition, foster parents have a 'blocking right' that they can invoke if parents request relocation home in case of 'voluntary' care of more than a year; in 24 https://zoek.officielebekendmakingen.nl/kst-32405-2.html 19 | mrs. dr. H.W.R. Nakad-Weststrate a formal OTS/UHP, the Child Protection Board usually allows the wishes of the foster parents to outweigh those of the interests of the original family. 79. These guidelines also constitute evidence of the nature of the exploitation of Dutch youth care, partly due to the self-interest of the chain partners to continue the child protection measures and to 'cash in' on the children for as long as possible. a.

Firstly, the Directive is null and void because it is contrary to Article 7 of the UN Convention on the Rights of the Child and contrary to Article 1:247 of the Dutch Civil Code. b. Secondly, it is ignored that after this period the children are regularly moved within the youth care. In that case, the directive is clearly not an obstacle. c. The passage of time is not a valid reason. The decisive factor is the existence of a concrete, serious threat to development. d. If that concrete, serious development threat has never existed, or the eviction for other reasons turns out to be unlawful or null and void afterwards, the passage of time cannot remove the unlawfulness or nullity. e. If children lose their attachment with their own parents, there is a suspicion of wrongful acts of the GI in violation of Article 1:262 paragraph 3 of the Dutch Civil Code (promoting the family bond). 80. The Netherlands does not even meet the level of Nazi Germany in 1945, since it has not identified such inhumane, barbaric guidelines as null and void and unlawful, but has implemented them as professional standards.

If the children are then not allowed to return home, and the parents are sidelined – often their parental authority is automatically taken away after a perspective decision – then the foster parents assert all parental rights against the children, but do n ot waive the exploitation rights. Thus, although they are the legal successors of the real biological parents, yet they do not have to settle for child benefit, but continue to receive generous daily allowances and other attractive conditions paid within the comme rcial system. The exploitation continues, but the parents have been formally disenfranchised. 81. The mandatory periodic judicial review is illusory after the deadlines have been met. This also contributes to the character of show trials. Virtually no child is ever allowed to return home, even though the decisions do not explicitly refer to the guidelines. In their mutual division of roles, lawyers and judges give the appearance of legitimacy to void and unlawful practices. 5.6 The execution of court orders 82. Pursuant to Article 430 paragraph 3 rv, orders may only be enforced after prior service by the court bailiffs. Article 812 rv prevents the delivery of the children from having to be requested separately, but does not release the obligation to serve. Parents can file an execution dispute.

This intervention also prevents the antedating of court orders (see Protocol 'fleeing' families). 83. The execution of court orders may not constitute an infringement of human dignity, neither of the parents nor of the child. If it turns out that the child does not want to be taken away at all, then the child is apparently (sufficiently) happy and attached despite possible problems and does not want to be 'protected' in this way. Prior service allows parents to prepare themselves and the child and voluntarily take the child to a designated place, instead of being ambushed at home by a force majeure of black uniforms (for example, with 12 police officers and four police buses).