Leiden Law Blog

Divorce interventions: Putting the cart before the horse?

Posted on by Jessica Gouw in Private Law
Divorce interventions: Putting the cart before the horse?

In December 2014, the third Children's Rights Monitor by the Dutch Children’s ombudsman was published. This monitor reflects on the (implementation of) children’s rights in the Netherlands and makes recommendations to the Dutch government concerning implementing these rights in a better way. The monitor also examines the results of several research projects and the WODC discovered that every year between 53,000 and 55,000 children have to deal with the separation or divorce of their parents.

The Dutch government wants to prevent conflict divorces and negative outcomes resulting from the separation of parents and therefore offers various forms of help. There are interventions specifically for children and for parents, which are aimed at preventing problems in the development of children. However, I suggest that it would be in the best interests of the child to prevent divorces in the first place. The Dutch government must apply itself to this matter and must point out the value of family life to parents. Taking the Preamble and articles 3, 9 and 18  Convention on the Rights of the Child (CRC) into account, keeping families together is in the best interests of the child.

Parenting plan after divorce

When parents want to divorce or separate they have to make a parenting plan and present this to the judge. In this plan, parents describe, inter alia, how they will divide the upbringing of the children, spread the costs and share information about the children with each other. After the divorce, parents are entitled to equal parental responsibilities and children are entitled to equivalent care from both parents.

Consequences for children after divorce

Divorce can actually have devastating effects on children (see for example VanderMolen2011). Of course consequences differ from child to child, depending on the age and resilience of the child. But the main effects are stress; emotional problems such as insecurity and fears; behavioural problems such as anger and aggression; problems in relationships with parents and friends; and poor results in school. Sometimes children have to move house, go to a new school, make new friends and deal with stepparents and stepsiblings.

It has been shown by UNICEF that poverty too is a danger for children whose parents have been divorced, because many of these children live in single-parent households. Another problem many children face is that their parents are less available, sensitive and responsive to them. This can have negative consequences on the secure and healthy development of the child. This is because, after a divorce, many parents are confronted with problems such as regret, stress, health and emotional problems, while trying to get a grip on their lives.

Interventions by the Dutch government after divorce

According to article 18 CRC and article 1:247 of the Dutch Civil Code, parents are responsible for the upbringing of their children. However the government must provide assistance to parents who cannot fully support the rights and development of their children (art. 18 CRC and art. 2.3 Juvenile Act). A second point is that every action taken by parents or the government should be in the best interests of the child (art. 3 CRC).

Children with divorced parents are entitled to help and intervention when there are problems that cannot be solved by their parents alone. Many interventions have been developed inside and outside the Netherlands to prevent and minimise all kinds of problems resulting from divorce. A few examples are KIESJes! and Dappere Dino's. Other initiatives are also being developed to create more expertise, not only among youth care professionals, but also among judges, lawyers and mediators.

In March 2014, the former secretary of the Ministry of Security and Justice came up with a plan to improve the situation of children in a conflict divorce and to protect children from the negative consequences a divorce can have on their development. This plan has two particular points of interest and hereby resembles article 18 CRC. Firstly, the position of the network of the family and the role this network can play after divorce is pointed out. Secondly, the secretary refers to the local government for offering different, individual forms of help such as mediation, relationship therapy for parents and parenting support.

New opportunities to prevent divorce?

Nonetheless, evidence of the effectiveness of divorce intervention is scarce (Dutch Juvenile Institute). That is why it is useful to look for alternatives.  In this regard, the new Juvenile Act and the government’s strive for a ‘participation society’ offer new opportunities for children in divorce situations.

Because children are entitled to protection of their development and should not suffer as a result of their parents’ divorce, youth support and intervention can also be used before parents decide to divorce. The local government, which is now responsible for youth care, can activate the whole network, just as in the plan mentioned above. This network also includes the children, who can participate in the prevention of a divorce. In addition, the support of professionals, such as mediators, can be initiated by the local government before a divorce takes place.

This prevention strategy  can be of great value to children, because if divorces can be prevented, children need not be exposed to the many possible negative consequences as mentioned above.

Nevertheless, this point of view is not the solution for all possible divorce-related problems and is not applicable in every divorce situation. However it is another way of looking at the practice and potential of Dutch (local) government, whilst bearing in mind the vulnerability of children and the right of the child to grow up in a family environment, ‘for the full and harmonious development of its personality, in an atmosphere of happiness, love and understanding’ (Preamble CRC). 

Add a Comment

Name (required)

E-mail (required)

Please enter the word you see in the image below (required)

Your own avatar? Go to www.gravatar.com

Remember me
Notify me by e-mail about comments