Yes, the Netherlands has signed and ratified the Hague Convention of 19 October 1996. The Convention has been in force in the Netherlands since 1 May 2011.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The provisions of the Hague Convention regulate which law applies to questions of custody and legal representation of a minor. According to article 16 paragraph 1 and article 17 the law of the State on whose territory the minor has his/her habitual residence will regulate matters of custody and legal representation.

According to article 2 of the Implementation Act of the Hague Convention of the Netherlands the articles mentioned also apply to questions falling outside the scope of application of the Hague Convention. In all cases the law of the State in which the minor has his/her habitual residence will apply.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

If the minor has its habitual residence in a Member State of the EU bound by Council Regulation (EC) No 2209/2019 (Brussels IIter Regulation) the application of Brussels IIter shall prevail over the Hague Convention (see under 2) and the rules of Dutch private international law (see under 3). Based on article 7 Brussels IIter the Court of the habitual residence of the child has international jurisdiction. Based on article 97 Brussels IIter within the EU, Brussels IIa prevails over the Hague Convention.

If the minor has its habitual residence outside one of the EU Member States but inside a State which is a member of the Hague Convention, the jurisdiction shall be attributed to the Court of the habitual residence of the child, see article 5 Hague Convention.

In principle, if the minor has his/her habitual residence in the Netherlands a Dutch court shall have jurisdiction.

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

Representation of the minor is part of the parental authority according to Dutch law and follows the same rules as mentioned above under 1.2.

The age of minority ends at the age of 18 years, see article 1:233 Civil Code[1]. Minors older than 16 years can send a request for legal emancipation to the local court for certain legal acts, see article 1:235 Civil Code. This capacity, acquired with emancipation, to conclude certain business is needed for starting their own business or to take over the business of their parent(s).

[1] See for the text of the Civil Code only available in Dutch: https://wetten.overheid.nl/BWBR0002656/2023-01-01/0. 

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

Only persons older than 18 year can marry or enter into a registered partnership.

The minor woman who has given birth to a child and who is given parental responsibily over the child can by court decision be treated as an adult.

Minors can make a last will, if they have reached the age of 16 years, see article 4:55  Civil Code, see: https://wetten.overheid.nl/BWBR0002761/2018-09-19/0.

Neither the consent of the parents nor the consent of the court is prescribed for drawing up the last will.

Both parents married or registered as partners have parental responsibility, see article 1:251 Civil Code. Lesbian couples (married or registered partners) have the same rights, if there is no other legal parent available. These rights do not exist for male married or registered couples. The unmarried mother of a child has parental authority by birth based on article 1:253b Civil Code. In all other cases (parents not married but de facto living together or persons who have a child together) the other parent must recognize the child. For children born after 1 January 2023 the parent who recognizes a child, will automatically get parental responsibility. For children born before 1 January 2023 registration in the custody register at the court or a court decision is needed.

Parents exercise parental responsibility jointly. If one of the parents dies or is not capable to exercise his/her responsibilities, the other shall continue to exercise parental responsibility alone. It is possible to appoint a second parent, if he/she has later married with that person, or has registered as a partner or started living together with that person. Parents can appoint the guardian in a last will or can express their wish in the custody register at the local court. The appointed guardian has to accept the guardianship before the court.

If parents have died or cannot exercise parental responsibility the court appoints a guardian. The request can be issued by the Children’s Council (Raad voor de Kinderbescherming), by a parent (who has no parental responsibility) or by the court acting in its own capacity.

It is possible to appoint two guardians.

3.1 What is the scope of the right of custody?

There is no difference between the rights and obligations based on parental responsibility and guardianship. Parental responsibility and guardianship includes taking care of the minor as a person, administrating his/her assets and representing the minor in court or for other authorities.  Parental responsibility comprises the duty and right of the parent to care for and raise his/her minor child. The words ‘care for and raise’ include caring and taking responsibility for the mental and physical welfare and safety of the child and promoting the development of his/her personality. The parents may not use mental or physical violence or apply any other degrading treatment when they care for and raise their child. Parental authority includes the duty of the parent to develop the bond of his/her child with the other parent.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

Parents with parental authority can appoint a guardian in the last will or can register their wish in the custody register at the local court. In this custody register kept by the Court unmarried couples can register that they both have parental responsibility. Parental responsibility is for children born on or after 1 January 2023  automatically given to the other parent who recognizes the child Parents can either appoint a guardian in a last will or to register their wish in the custody register at the court.  After the death of bothe parents the court appoints a guardian on request of the parent without parental responsibility, the Children’s Council or the court itself acting in its own capacity. The guardian must accept the guardianship before the court. In case there is a conflict of interests between minors and their parents, a special guardian can be appointed who represents the minor in court cases.

3.2.2 Is the competent authority free in its choice of a new custodian?

Yes, but the children’s council advises the judge in all cases taking into account the best interest of the child; the family of the minor can intervene in the procedure. Persons who themselves are placed under adult guardianship and mentally disturbed persons cannot be appointed as guardians, see article 1:246 Civil Code.

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

It is possible to have one or two guardians, not more. The tasks cannot be separated between the guardians.

3.3 How and by whom will the right of custody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

In case of disagreements the court decides, see article 1:253a Civil Code. There is no difference between married, registered partners and unmarried couples.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No, only the guardian can exercise the right of custody. His/her rights and obligations cannot be transferred by him/herself. Only the judge can appoint a new guardian, if the guardian can or does not fulfil his obligations.  If needed the guardian can always sign a specific power of attorney to be represented for example for the signing of an authentic instrument before a notary.

Both parents represent the minor jointly. One parent can represent the minor, if no objections of the other parent have been proved, see article 1:253i Civil Code.  Legal representation forms a part of parental authority. The same applies for guardianship.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

Legal representation is part of parental responsibility/guardianship and cannot be separated and transferred to someone else.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Does not apply, see for most answers before.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)? Please specify.

See answer 2.1.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

Yes the consent of the local court is prescribed for certain transactions, see article 1:345 Civil Code.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

The guardian needs the authorisation of the Subdistrict Court to perform the following acts on behalf of the minor:

• entering into agreements which necessarily involve a transfer of assets of the minor or the encumbrance of such assets with a limited property right, unless these acts concern money or may be regarded as a normal administrative act or have to be performed by virtue of a court order;
• making donations, other than usual, not excessive gifts (for example birthday presents);
• accepting a bequest or a donation subject to obligations or conditions;
• lend out money or commit the minor as a surety or a joint and several co-debtor (in case there are more co-debtors involved);
• agree that an estate, to which the minor is entitled, will be left undivided for a specific period of time.

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Court approval must be requested before the transaction takes place. If not, the transaction is voidable, see article 1:347 Civil Code.
A legal act performed in conflict with Article 1:345 or 1:346 Civil Code by the guardian in the name of the minor is voidable; – 2. The voidability does not apply to a legal act which has not been performed gratuitously towards the counterparty of the minor, provided that this counterparty acted in good faith; the voidability does not apply either to a legal act that has not caused any disadvantage for the minor.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

Some transactions between a minor and guardian are forbidden, see article 1:346 Civil Code. The guardian may not buy, rent or lease property or farm land that belongs to the minor unless the Subdistrict Court has in advance approved the agreement that will be concluded for this purpose between the guardian and the minor. In the event that the guardian has obtained a right in property or farm land of the minor that was sold, rented out or leased out in public (on a trade or commodity market or by auction), the guardian must ask for the Subdistrict Court’s approval within one month after the conclusion of the related agreement.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

If a minor has inherited based on a last will or based on the statutory succession law, the procedure of beneficial acceptance is prescribed, see article 4:193 Civil Code. A legal representative of an heir cannot accept an inheritance unconditionally on behalf of that heir and he/she needs the authorisation of the Subdistrict Court to reject an inheritance in the name of the heir. He/she is compelled to make a statement of beneficial acceptance or of rejection of the inheritance within three months as from the day on which the deceased’s estate, or a share in it, belongs to the heir.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

The guardian can give power of attorney for legal transactions, but cannot transfer his/her right of representation to another person.

There is a register kept by the local court, where decisions on guardianship and parental responsibility are registered, see article 1:244 Civil Code.

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

Yes, the clerk of the local court must give anybody access to the register.  The clerk can also provide the parents with an excerpt of the registration, when requested. When requested he/she submits an excerpt of the register upon payment of a certain amount.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

The parents can give their consent to the child to travel alone with somebody else or with only one parent. There is a form available, see:

https://open.overheid.nl/documenten/ronl-2f862864-a354-4d21-94b8-70a8a5ccd205/pdf.

The form is also available in English:

Ttps://www.government.nl/documents/forms/2016/06/17/consent-letter-for-minors-travelling-abroad.

There are no further rules in our Civil Code. In case of any dispute between the parents the Court shall decide, see article 1:253a Civil Code.

Protective measures for adults with diminished capacity

The Dutch legal system provides for three different measures for adults with diminished capacity: guardianship, fiduciary administration and mentorship.

In the case of guardianship (in Dutch: curatele), the guardian makes the decisions in financial matters, care, nursing, treatment or supervision of the person concerned. That person is incapable of taking any legal action him or herself (see Article 1:378 et seq. Civil Code: https://wetten.overheid.nl/BWBR0002656/2020-01-01/#Boek1_Titeldeel16). 

Guardianship is the most intense form of support that is necessary when the person cannot make decisions either independently or with the support of other persons. It is therefore reserved for cases of total incapacity. In this case, the person under guardianship is represented by his or her guardian.

In the case of fiduciary administration (in Dutch: bewind), the administrator handles the financial affairs of the person. Administration can be instituted because a person is reckless spending his or her money or goods or has problematic debts (see Article 1:431 et seq. Civil Code, https://wetten.overheid.nl/BWBR0002656/2020-01-01/#Boek1_Titeldeel19).

The administrator will make the decisions to transfer or pledge the assets that are placed under administration together with the person. The administrator has the right to perform administrative acts with regard to assets under administration.

A judge will decide, on the basis of medical reports, whether the person is the subject of an absolute and permanent incapacity that limits his or her ability to manage his or her person and property (guardianship) or whether he or she merely needs measures to supplement his or her capacity to make certain decisions while retaining his or her capacity (fiduciary administration).

In case of protective mentorship (in Dutch: mentorschap), the mentor makes the decisions in personal affairs, like care, nursing, treatment or counselling of the person concerned (see Article 1:450 et seq. Civil Code, https://wetten.overheid.nl/BWBR0002656/2020-01-01/#Boek1_Titeldeel20). The mentor is not allowed to represent the person in financial matters

The possibilities of anticipating a future loss of capacity

Dutch law provides for a series of preventive acts to ensure that the will of the person who loses his or her capacity is respected. The aim is to anticipate solutions for the following situations:

A. The instrument of a lasting power of attorney as such does not exist in the Dutch Civil Code for cases of loss of legal capacity. Loss of capacity only takes place when a procedure for the court to appoint a guardian is started. In all other cases the power of attorney is used. There is no judge involved who controls at which moment the loss of capacity of the principal is a fact, that means that it is up to the representative to decide when to use the power of attorney. As long as the principal is still capable to act legally and express him/herself he/she can act for him/herself. Notaries use guidelines for checking capacity and can also ask an independent physician to advise them on the capacity of their clients. 

In the Netherlands, the notaries developed a special authentic instrument (in Dutch: het levenstestament, i.e. the living will), wherein different aspects are laid down by a person in case of future loss of legal capacity.

The power of attorney in the levenstestament remains valid if the person loses his/her legal capacity as long as the Court did not make decisions on guardianship or fiduciary administration. 

B. Any person with sufficient capacity to act may appear before a notary to propose for the future the person whom he or she wishes to have appointed by the judge as his or her legal representative when he or she is in a situation of incapacity and guardianship, and to establish the measures or criteria to be taken into account with regard to his/her person or property.

Advance decisions on medical treatment and on end-of-life issues are used to provide instructions or to appoint the trusted person to give them at the appropriate time in the event that a person is no longer able to express his or her willingness to accept or refuse medical treatment, for example as a result of an accident or illness. The measures provided for in the advance directive cover only the doctor-patient relationship relating to the respect of the patient’s wishes with regard to the application of palliative pain treatments, the use of disproportionate and extraordinary treatments or the abusive and irrational extension of the patient’s life maintenance.