DECISION of the Children's Judge at 's-Hertogenbosch District court on the petition under section 12 of Netherlands Bulletin of Acts, Orders was received by the Registrar at this from: the Act of 2 May 1990, and Decrees, 202, which Court on 15 October 1990 the International Legal Assistance Division of the Constitutional and Criminal Law Branch of the Ministry of Justice in The Hague, in its capacity as Central Authority, acting for itself and on behalf of: [Name of minor], born on [date of birth], of or resident at [place], United Kingdom. hereinafter referred to as "the Central Authority", represented by E.J. Daalder; and the statement of defence and additional statement of defence submitted by: [Name of Husband] hereinafter referred to as "the husband", represented by T. van den Akker, solicitor. The action in the case to date 1. This is apparent from the following: - the petition made by the Central Authority; - the statement of defence and additional statement of defence submitted by the husband; - the official reports of the hearings held on 25 October and 13 November 1990; - the documents submitted; - correspondence. The dispute and the judgement 2.1 The following matters of relevance to the case have been established between the parties. The parties were married on [date of marriage] in the United Kingdom. The following minor children were born of this marriage: - [Name of first child], United Kingdom and [Name of second child] on 15 Aug 1989. The parties have been resident in [the Netherlands] since December 1988. On 7 July 1990 [Name of Wife] hereinafter referred to as "the wife", left for England with the said minor children to spend a holiday with her parents. On 6 August 1990 she informed the husand, who had in the meantime joined the family, that she regarded their relationship as over and wished to stay in England. On 7 August 1990 the husband left for London with the minor [Name of minor] to England at his request to, fetch his father and sister, who had come to England to provide help and support. When he returned the wife handed him three decisions of 7 August 1990 from the High Court of Justice, Family Division, Principal Registry, which in brief made the said minor children temporary wards of court, gave the wife temporary care and control and ordered the husband to refrain from removing [Name of Children] from the jurisdiction of the High Court and the care and control of the wife and to return the minor to the wife. The husband returned to the Netherlands the following day leaving [Name of child] with the wife. 2.2 On 7 September 1990 the husband again travelled to England and on 8 September he returned to the Netherlands taking [Name of child] with him. In brief, two decisions of the said High Court of 10 September 1990 subsequently upheld the decision of 7 August 1990 and ordered the husband to relinquish [Name of child]. The decision of 24 September 1990 established, inter alia, that [Name of child] was removed unlawfully from the jurisdiction of the High Court. 3. The Central Authority now requests that: a. an order be made that [Name of child] should be relinquished and returned to the wife; b. in so far as necessary an order be made provisionally entrusting the minor to the care of the Child Care and Protection Board; c. the husband be ordered to pay to the Central Authority and/or the wife the costs incurred in connection with the abduction and return of the minor, the order to be immediately enforceable, and to pay the costs of the case, since the husband removed the minor [Name of minor] from the jurisdiction of the High Court and the care and control of the wife and took the said minor with him to the Netherlands in contradiction of the above-mentioned decisions, this constituting improper removal, and has so far refused to take [Name of minor] back to England and to comply with the decisions of the High Court. 4. The husband's statement of defence is discussed below in so far as necessary. No defence against the competency of the Central Authority to act in the case or against the competency of the Children's Judge has been entered, so that there has been no change in this respect. 5. On 1 September 1990 the Act of 2 May 1990, Netherlands Bulletin of Acts, Orders and Decrees 1990, 202, hereinafter referred to as the Implementation Act, came into force. The Act implements two Conventions, namely: a. the European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, which was signed in Luxembourg on 20 May 1980, hereinafter referred to as the European Convention (Dutch text in Netherlands Treaty Series 1981, 10; English text in Netherlands Treaty Series 1980, 134), and b. the Convention on the Civil Aspects of International Child Abduction, which was signed on 25 October 1980 in The Hague, hereinafter referred to as the Hague Convention (Dutch and English texts in Netherlands Treaty Series 1987, 139). The minor [Name of minor] was removed to the Netherlands on 8 September 1990, after the said Act came into force; in principle, therefore, both Conventions may be taken into account in assessing the present petition. 6. The husband first contested that the present case concerns improper removal, claiming that the question of whether his actions constituted improper removal should be answered on the basis of section 1c of the Implementation Act, where improper removal is defined as improperly failing to return a child in contradiction of rights of custody as defined in article 3 in conjunction with article 5A of the Hague Convention. According to the husband this means two things, namely that the broader definition of "improper removal" used in the European Convention is not relevant to the case and that, in brief, his actions are not covered by the definition of "wrongful removal" used in the Hague Convention either, since it refers inter alia to "... breach of rights of custody attributed to a ...... body, ...... under the law of the State in which the child was habitually resident immediately before the removal ......", and no place other than [Netherlands] can be considered to be the place where the minor was habitually resident, since, the husband asserts, the four weeks which [Name of child] spent in England prior to the decision of the High Court of 7 August 1990 constitute an insufficient length of time for him to be considerd to be habitually resident in England. The husband's defence as stated is unacceptable. It should first of all be noted that the definition of the term "improper removal" given in article 1c of the Implementation Act is intended for use in cases of international abduction in which no Convention is applicable, which having regard to the considerations stated in section 5 above is not the case here; reference should be made to the Explanatory Memorandum which accompanied the relevant bill. The definition of improper removal used in the European Convention is therefore relevant to the case and it must be considered that the actions of the husband are covered by that definition, which means that the Convention is applicable here, The Hague Convention is also applicable, however. Contrary to the husband's assertion, it is not the time at which the provisions for the custody of the minor were made which must be taken into account in this case in determining the place where [Name of minor] is habitually resident but the time he was removed, i.e. 8 September 1990. At that moment the child was resident with the wife, who had informed the husband on 6 August 1990 that she wished to remain in England. In the view of the Children's Judge these circumstances are sufficient grounds for England to be regarded as having been [Name of minor]'s place of habitual residence on 8 September 1990. It has also been established that the husband was aware of the decisions of the High Court of 7 August 1990 and thus knew he was acting in contradiction thereof on 8 September 1990. The actions of the husband are thus also covered by the definition of wrongful removal used in the Hague Convention, which is thus applicable to the case pursuant to the provisions of article 4 thereof. 7. Since both the United Kingdom and the Netherlands have ratified both Conventions it must be established which of the two Conventions should be applied in this case. The Central Authority has rightly pointed out in this connection, refering to the Explanatory Memorandum accompanying the Implementation Act, that where both Conventions are applicable the aims of the two Conventions and the provisions which govern the relationship between them imply that the application of the Convention which is most likely to bring about the return of the child should take precedence. The Children's Judge considers that this should in this case be taken to mean the Hague Convention. This immediately means that the husband's defence, in so far as it is based on the European Convention, will be passed over. It also means that, having regard to the provisions of articles 12 and 13 of the Hague Convention, the immediate return of the minor [Name of minor[ should be ordered. The Court may refuse to do so if, to be brief, one of the grounds for refusal listed in the Convention is applicable. 8. In this connection the husband first referred to article 13, opening words and b, of the Hague Convention, claiming and submitting evidence to support his claim, that there is a grave risk that his return would expose the child to physical or emotional harm, this in view of the medical condition of [Name of minor] on his arrival in the Netherlands, the serious drinking problem of the wife's father, the fact that the wife is very much under the influence of someone called [Name of person], who has been convicted several times and was recently dismissed because of sexual misconduct at a home for girls where he was employed, the state of neglect and filth in which the husband found the children on his last visit to England, and that moreover he were to be taken from his familiar surroundings in [the Netherlands] to England. The Children's Judge will, with reference to article 18 of the Hague Convention, pass over the evidence of the husband, since she considers that the circumstances in question, even if evidence thereof were to be supplied, do not constitute sufficient reason not to grant the current petition. The husband also refers to article 20 of the Hague Convention, claiming that the return of the minor may be refused if it would not be permitted on the grounds of fundamental principles of the Netherlands relating to the protection of human rights and fundamental freedoms, as the husband claims is the case here, referring to article B of the European Convention for the Protection of Human Rights and Fundamental Freedoms ([Name] has the right to respect for the family life he led in [the Netherlands]) and to article 3.1 of Protocol no. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which reads: "No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national." However, this defence cannot be supported either. First of all, article 20 speaks of "...... fundamental principles of the requested State relating to the protection of human rights ......" etc. Moreover, it is extremely unlikely that article 20 should refer to the principles indicated by the husband, particularly the latter, since this would mean that the primary objective of the Convention would conflict with the fundamental principles referred to above. Whatever else may be said about the defence, what cannot be contested is that the return of the child can always be ordered under the provisions of article 18 of the Hague Convention. 9. It may be from the above that the petition may be granted. As the losing party the husband will be ordered to pay the costs incurred by the Central Authority in connection with the abduction and return of the child. Arrangements will be made below for the payment of the costs in the case of the husband and the wife, taking into account the wife's part in the dispute in question and the fact that the parties are a married couple. The decision The Children's Judge: orders that that minor child [Name of minor] be returned and relinquished to the wife; orders the husband to pay to the Central Authority any costs it has incurred in connection with the abduction and return of the said minor child; declares the judgement thus far to be immediately enforceable; rejects any further or other petitions; orders that as far as the costs in the case of the husband and wife are concerned each-party shall pay his or her own costs. This judgement was given by R.H.M. Hooymans-van Oerle, Vice-President and Children's Judge, and pronounced at the public sitting of 's-Hertogenbosch District Court on 13 February 1991 by the said R.H.M. Hooymans-van Oerle, in the presence of J. C. Overmans, Clerk of the Court. (three signatures) Stamp: Issued as a true copy Registrar, 's-Hertogenbosch District Court