No kidding: Children’s well-being in international divorce cases

Van Hilten de Vries van Ruitenbeek Advocaten & Mediators (HVR) is a law firm specialising in family law and general practice. Based in The Hague, HVR also has a meeting point in Amsterdam.

As a family lawyer with considerable expat practice, I know that many children are damaged and become severely traumatised when their parents separate or divorce - which can also be considered a form of child abuse.

A widespread issue

In the western part of the Netherlands almost one out of two relationships ends sooner or later. With such high numbers it's important to raise awareness about this widespread issue.

If you witness child abuse as a consequence of a high conflict divorce you can, in fact, do something about it as you might have influence as a schoolteacher, doctor, grandparent or neighbour.

Understand the legal system

For expats families living in the Netherlands, it is worth knowing that the Dutch courts are the only legal system with jurisdiction over their children.

Therefore, in the case of a divorce, Dutch (international, private) law will be applied to legal issues such as parental responsibility, division of care and upbringing, visitation rights and child support.

Child abduction

If, for instance, a relationship comes to an end and one of the parents wants to return to his or her home country, taking the children - while the other parent does not want this - the Dutch court must deal with this issue first. In this situation, taking the children to another country will be seen as child abduction.

As dramatic as it sounds, child abduction during separation or divorce occurs suprisingly frequently. As a family lawyer I always inform my clients that this is never an option.

The same goes for Dutch clients abroad who consult me about their wish to return to the Netherlands with their children, without consent from the other parent. It is not only against the law, but from my experience, the children will become the victims of an escalating situation.

A growing awareness

Luckily, most divorces follow a reasonably peaceful course nowadays, especially in regard to the children.

Most divorcing couples in the Netherlands are capable of thinking and acting differently as parents than as ex-spouses. This is in part thanks to Dutch law, which forces them to draw up a parenting plan.

This growing social awareness is also thanks to the efforts of experienced family lawyers and child psychologists, who keep beating the drum for children caught in divorce situations.

Nonetheless, 15 percent of divorces do become high conflict in which the children are the real victims of the crippling battle of their parents.

The five factors of high conflict divorce

As described in the recent book Kinderen uit de Knel (No Kids in the Middle), research carried out by behavioural scientists shows that five (interfering) factors can be determined in high conflict divorces:

› 1. The destructive communication patterns, in which parents demonize each other and are caught in their own "tunnel of truth".

› 2. The active influence of the social network of the parents, so that not just two parents are at war, but two communities.

› 3. "The Past", especially the reason for divorce, is not left behind but is dredged up over and over again when future goals need to be set.

› 4. The children, especially their well-being and development, seem to completely fade in importance, even when professionals are involved.

› 5. All participants - the parties, the social network and the (often many) professionals - start to feel powerless.

No Kids in the Middle

The behavioural scientists behind Kinderen uit de Knel have developed a training programme for high conflict divorces, in which their aim is not to control the parents, as it seems to have little effect.

They reported that they have learned to instead treat the parents as wounded animals, who sometimes roar and slash around.

Additionally, the scientists found that progress can only be made by directing the parents’ focus to the children and by constantly asking them to think how they can make things better for them.

The Kinderen uit de Knel programme was first developed by the Lorentzhuis and the Kinder- en Jeugdtraumacentrum (KJTC) in Haarlem. Now it is increasingly used in more cities, including English language sessions in The Hague.

My approach towards high conflict divorce

As a family lawyer, my first aim is to keep a client from entering his or her own "tunnel of truth".

I always make clear to my clients, either in mediation or in cases with court proceedings, that the children are the most vulnerable parties in a divorce and that they should not be forgotten.

I remind them that they, as parents, have a responsibility to take care of their children and to make arrangements that are in their interest.

The right to know both parents

According to the Convention on the Rights of the Child, children are entitled to know both their parents and to have the best possible contact with each of them. Dutch law supports this right and, as parents, clients need to be aware of it.

Dutch jurisprudence shows that in order to maintain this right, each parent (and their family and social network) should encourage contact with the other parent, keeping in mind that this is in the interest of the child.

Directing focus to the children

In expat situations, it can be sometimes difficult to focus on the interest or welfare of the children, but an effort must always be made to do this.

Taking children abroad without the other parent's agreement is never the solution. Nor is keeping the expat mother, who always took care of the children, "hostage" in the Netherlands on a very, very tight spousal alimony.

The interest of the child should be the aim; this principle is embedded in many law systems around the world.

Special issues

When there is a special health or behavioural issue concerning the children, I always advise the parents to consult a child psychologist first or to have a child psychologist as a co-mediator.

Sometimes a collaborative divorce team with an experienced child psychologist as coach can be the best option.

In that case, the child psychologist can advise parents on the best arrangement for the child or children, while the lawyers can focus on the possible financial provisions, in line with the child arrangement goals.

A court ruling, the last resort

When I am requested to take over a case that has already become high conflict, I first encourage my client to attend the Kinderen uit de Knel programme.

If, despite this, no solution is possible, often due to psychopathology, I can only request the judges handling the inevitable court case to utilise every possible tool to arrive at and enforce a final decision.

This is in the interest of the children. It may be quite challenging for a judge but, in order to protect those who are most vulnerable, the battle must be stopped.

Edith van Ruitenbeek is a lawyer/mediator and partner of HVR. For more advice on divorce: