Leiden Law Blog

Access to water for children in the Netherlands

Posted on by Giulia de Groot and Thomas Franx and Adriaan Milders and Maxime Köster in Private Law , 2
Access to water for children in the Netherlands

In 2013, water companies cut off 8,000 households from the supply of clean drinking water because bills had not been paid. It is estimated that in 500 to 750 of these cases children were involved. It is questionable whether this practice is in conformity with the Convention on the Rights of the Child. Both the government and the water companies should adjust their policies accordingly.

The Convention on the Rights of the Child (CRC)

Article 24 of the CRC recognises ‘the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’. In particular, paragraph 2 sub c obliges States Parties to ‘pursue full implementation of this right’ and to ‘take appropriate measures’ to ‘combat disease and malnutrition (…) through the provision of adequate nutritious foods and clean drinking-water’. This obligation may seem unenforceable against the State or the water companies, because Article 24 merely compels States Parties ‘to strive to ensure that no child is deprived of his or her right of access to such health care services’.

However, the Dutch Supreme Court ruled that citizens may enforce such an obligation if the text of the provision is unconditional and sufficiently detailed in order to be applied in the national legal order. The judgment concerned Article 8 section 2 of the WHO Framework Convention on Tobacco Control, which stipulates that ‘each Party shall adopt and implement (…) effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places’.

The wording of Article 24 CRC is equally unconditional and detailed. It clearly obliges the States Parties to adopt effective measures to ensure the supply of clean drinking water in order to reach the stated objective: the protection of children against disease and malnutrition. In our opinion, this obligation can therefore be applied in the Dutch legal order.

Current and future policies regarding the suspension of water supply

Does the Dutch government live up to its duty under Article 24 CRC? In 2012, the government adopted a policy that forbids water companies to cut off the supply of drinking water to vulnerable consumers. In order to qualify as a vulnerable consumer, a doctor needs to confirm that the termination of the supply will have serious consequences for the health of that person. No special attention was paid to the position of children.

The Dutch government is about to change this policy because of a ‘certain tension with the increased international attention for the right to access to drinking water’. The new policy would oblige the ‘owner of a drinking water company’ to provide all consumers, upon request, with ‘preservatives’ and allow them to fill these bags before suspending the water supply. Although the government mentions the CRC, it does not recognise the special position of children. Worse still, the proposed policy does not fully guarantee the supply of clean drinking water, for the ‘preservatives’ can only be used temporarily and it is questionable whether the storage of water in such water bags is sufficiently hygienic. Besides, it seems a rather expensive and time-consuming solution for what should, really, be a matter of debt assistance and counselling.

If the new policy is adopted, it will still be possible for Dutch water companies – which are in fact owned by governmental bodies – to suspend the water supply to children, even though the CRC obliges the member states to ensure access to clean drinking water for every child.

No right to free water

Why is the government so hesitant? Is it because the government assumes that losing the right to suspend the water supply would mean losing the right to receive payment at all? Indeed, both the Court of Appeal of Den Bosch and the Minister of Infrastructure and Environment argue that there is no such thing as a right to free water. They are quite right: if the supply cannot be suspended, the consumer still has to pay the bills. So, there is no need for hesitation: the water company does not lose the right to demand payment, but only loses suspension as a means to press for payment. There is no justification why this solution does apply to people who are ill, but does not apply to children.

Conclusion

In our opinion, the current and future Dutch policies regarding the suspension of water supply are not compatible with the right of children to have access to clean drinking water. This right is enforceable against the State and also against water companies, because they are in fact owned by public authorities. The best way to serve the interests of the child in these situations of long-term poverty is to prevent the suspension of the water supply when children are involved. The government should recognise that children are vulnerable and should include in the new policy an exception comparable to the exception that already exists for  people who are ill.

2 Comments

Jos van Goethem
Posted by Jos van Goethem on July 27, 2017 at 15:36

Het zou goed zijn te realiseren dat schuldhulpverleningsbeleid faalt. Ik heb deze zaak onder de aandacht van het Ministerie gebracht, juist omdat het gezin (met een 7 weken oude baby) werden afgesloten omdat ze onterecht buiten de WSNP werden gehouden.

Ik heb meerdere klanten in die situatie zitten, waarbij er 1 zelfs 7 jaar - zonder formeel besluit - buiten de schuldhulpverlening gehouden wordt door de Stadsbank Oost. Inmiddels een nieuw besluit (inclusief excuses) dat cliënte toch voldoet aan de voorwaarden voor schuldhulpverlening.

Overigens vind ik de gevonden oplossing - welke ik ook heb besproken met de verantwoordelijk ambtenaar - een verbetering van de huidige situatie, die weliswaar tekort schiet in absolute zin maar een additionele overbruggingsperiode mogelijk maakt.

A.G. Castermans
Posted by A.G. Castermans on July 26, 2017 at 12:00

Fine example of how fundamental rights may influence the use of a contract law instrument, the right to withhold peformance of a reciprocal obligation.

In the meantime, the government declared that debtors are not entitled to a so called ‘ban on debts’ - a new instrument for debt assistance and counselling - if they do not pay their water bills. See article 4 Besluit van 6 maart 2017 tot invoering van een afkoelingsperiode voor natuurlijke personen ter stabilisering van hun financiële situatie alsmede tot vaststelling van het tijdstip van inwerkingtreding van artikel 5 van de Wet gemeentelijke schuldhulpverlening (Besluit breed moratorium), Stb. 2017, nr. 83.

It is advised that both the Ministry of Social Affairs and Employment and the Ministry of Infrastructure and the Environment join forces with regard to children’s right to water in case of poverty.

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