The young David volunteered to fight Goliath, a Philistine giant wearing full armour. Initially the king of Israel refused to let David fight, but finally he clothed David in a helmet of bronze and a coat of mail. However, because he had not tested them, David took them off and chose five smooth stones. He defeated Goliath with a stone (1 Samuel 17).
“My life is just like David and Goliath, I initiated a lawsuit against the William Schrikker Groep”, this is how Cavdar expressed himself on his Twitter profile. Cavdar was four years old when he was placed in the custody of a youth care foundation for mentally disabled children after he was found neglected in his home. Afterwards he claimed compensation because he was not mentally disabled. Currently the case is before the court of appeal (ECLI:NL:GHAMS:2016:1465), pending the outcome of a court-ordered expert examination.
A Philistine giant wearing full armour
Children are bearers of rights arising from inter alia the European Convention on Human Rights (hereinafter: ECHR) and the Convention on the Rights of the Child (hereinafter: CRC). An out of home placement of a child forms a breach of the rights of the child. Consequently public interference (such as an out of home placement) is only justified under strict requirements. Both the Dutch Civil Code (articles 1:254-1265) and the Dutch Child and Youth Act contain provisions with regard to the (forced) out of home placement of children. A judge can decide to place a child under the supervision of a certified youth care organisation and – if necessary – the judge can decide to place the child out of home. Additionally the child bears various rights which have to be taken into account during the realisation of the out of home placement. The tasks and responsibilities of youth care organisations are laid down in various documents, including the previously mentioned acts. These organisations have a lot of discretionary powers.
In recent years unlawful and inaccurately executed out of home placements have drawn attention. Not only minors and parents, but also academics are critical. This sparks a legal question about what a child can do in the case of an unlawful out of home placement.
Clothed with a helmet of bronze and a coat of mail
When his rights are being violated by an unlawful out of home placement the child has the right to an effective remedy (article 13 ECHR). When legal rehabilitation is not possible the child has the right to compensation (Barkhuysen & Van Emmerik 1998). In the case of an unlawful deprivation of liberty article 5 ECHR contains the right to compensation. The CRC doesn’t contain an explicit right to an effective remedy or compensation. However the Committee on the rights of the child indicates that for rights to have meaning effective remedies must be available to redress violations. Furthermore it mentions that it is essential that domestic law sets out entitlements in sufficient detail to enable remedies to be effective.
Amongst other possibilities to seek legal protection Dutch tort law provides the child with the opportunity to seek remedy. For my master thesis I analysed the various requirements for a successful claim for damages under articles 6:162-163 of the Dutch Civil Code in cases of unlawful out of home placement.
Five smooth stones
There are five requirements for a successful claim of compensation: unlawfulness, attributability, loss, causality and relativity. In addition there are various formal requirements, such as rules of evidence and legal representation. After analysing international and national laws and literature and examining all published relevant Dutch case law I found out that tort law is seldom applied in cases concerning unlawful or inaccurately executed out of home placements. Claims succeed rarely. In my view the implementation of some of the requirements of article 6:162 need to be clarified and improved in some areas. This will provide added value for minors, youth care organisations and the state. For example a lack of clarity exist with regard to the question of how far the responsibilities of youth care organisations reach, if it is necessary to prove inaccuracy, and what is required to prove immaterial damages. I recommend – also given the current developments in the area of youth care and the various parties and interests at stake – that more research should take place on the civil liability of youth care organisations in general, and on the desirability and possibility of introducing a specific regulation for minors to claim compensation for damages as a result of unlawful (closed) out of home placements.
Just like David and Goliath?
The minor who seeks remedy because of an unlawful out of home placement is vulnerable and dependent on his (legal) representative and the law (as he is a bearer of rights). Laws and representatives can offer protection – like the helmet and coat of mail – but could simultaneously form a barrier. When the five smooth stones (unlawfulness, attributability, loss, causality and relativity) are slung well, it may not be impossible to successfully claim compensation.