It can thus be sften that the Act provides certain criteria for participation in the life of an ethnic minolity whereby a perlon who il ethuically a Semi can be held not to be a Semi for the purposes of the Act. The Committee has been concerned that the ignoring of objective ethnic criteria in determining membership of a minority, and the application to Mr. Kitok of the designated rules, may have been disproportionate to the legitimate ends sought by the legislation. It hal further noted that Mr. Kitok has always retained some links with the Sami community, always living on Semi lands and seeting to return to full-time reindeer farming as soon as it became financially possible, in his particular circumstances, tor him to do so.
In resolving this problem, in which there is an apparent conflict between the legislation, which seems to protect the rights of the minority as a whole, and its application to a single member of that minority, the Committee hal been guided by the (atio decidendi in the Lovelace case (No. 24/1977, LavalGe. v. ConadA), ii/ namely, that a re.triction upon the right of an individual member o( a minority must be shown to have a reasonable and objective justifIcation and co De necessary for the continued viability and welfare of the minority as a whole. After a careful review of all the elements involved in this case, the Committee i. of the view that there is no violation of article 27 by the State party. In this conte.t, the Committee notes that Mr. Kitok is permitted, albeit not as of right, to graze and farm his reindeer, to hunt and to fish.
December 1985 (date of initial let.ter) I2.At.tL.Q~ decisioDQJLAdmissibiU.tyz 25 March 1987 ~ving concludAd it. conlideration of communication No. 201/1985, ,ubmitted to the Committee by Wim Hendrik•• Sr. under the Optional Protocol to the International Covenant on Civil and Political Rights. Having taken into account all written information rllade available to it by the author of the r.ommunication and by the State pa~ty concerned. Adopts the followingl y~ under artic11 5. paragumph 4. of the QgtiooAl Protocol•.
The authur of the communication (initial letter of 30 December 1985 and lubsequent letters of 23 February. September and 15 November 1986 and 23 January 1988) i. Wlm ~endriks. a Netherlands citi.en born in 1936. at pre,ent re.iding in the Federal Republic of Germany. where he works as an engineer. He lubmit, the communication on his own behalf and on behalf of hi' son. Wim Hendrik•• Jr •• born in 1971 in the Federal Republic of Germany. at pre.ent re,idin9 in the Netherlands with his mothur. The author invokes article 23. paragraph 4. of the Covenant. which provides thatl "States Parties ••• shall take appropriate steps to en,urf> equality of right. and respon,ibi1~ties of spouses as to marriage ••• and et its di.,ol, tion. In the case of dissolution. provision shall be made for the necessary protection of any children." He claims that this article has been violated by the Courts of the Netherlands which granted e.clusive custody of Wim Hendriks. Jr. to the mother without ensuring the father's right of access to the child. The Author cloim. that hil lonl's rights have been and are being violated by his SUbjection to ooe-.ided custodYI moreover. the author maintain. that his rights as a father have been and are being violated and that he has been deprived of his re.ponsibilitie& vis-a-YlA his son without any reason other than the unilateral opposition of the mother.
The author married in 1959 an:! moved with his wife to the Federal Republic of Germany in 1962. where their son Wim was born in 1971. The ~~rriage gradually broke up and in September 1973 the wife disappeared with the child and returned to the Ne~herlands. She instituted divorce proceedings and on 26 September 1974 the marriage was dissolved by decision of the Amsterdam District Court. without .ettling the questions of guardianship and visiting rights. Si,lce the child wos • The text of ~n individual o~inion submitted by Me8Bl'S. Vojin Dimitrijovic and Omor El Shafei. Mrs. Rosolyn 8i99inB and Mc. Adam Zielinski is ceproduced in appendia I to the present annex. The text of an individual opinion liubmitted by Mr. AlIIUI. Wako is reproduced in appendix I I "That in general the court is of th~ opinion that .:lontact between a parent Hho does not have custody of a child or children and that child/those children must be possible; "That. although the courc considers the father's request reasunable. the mother cannot in all con8ci~nce agree to an access order or even to a single meeting between the boy an~ his father on neutral ground. despite the fact that the Child Care and Prot~ction Board would agr.~e end would have offered guaranlees, "That. partly in view of the mother's standpoint, it is to be expected that the interests of the boy w(.uld be harmed if the court werl8 to impose an order." 2.l On 9 May 1919, the author appealed to the Court of Appeal in Amsterdam. arguing that the mother's refusal to co-operate was not I'l valid ground for rejection of his request. On 1 June 1919. the Court ot Appeal confirmed the lower Court's judgements "Considering .•• as its main premise that in principle a child should have regular contact with both pacents if it is to have a balanced upbringing and be able also to identify with the parent who does not have custody, "That case. may ari.e, however. where this principle cannot be adhered to, "That this may particularly be the case wher~. as in the present instance, a number of years have po!8sed since the parents wer~ dblorced, both have remarried, but there ~s slill serious conflict between the parents, "That, in such a case, it is likely that an accees order will lead to tension in the family of the p&r&nt who has custody of the child and that the child can easily develop a confli~t of loyalties. "That a situation such as that described above is not 'd the interests of the child, it being irrelevant which of the parente has caused the tension, since the interests of the child - the right to grow up without being subjected to unnecessary ten9ion - must prevaJl, "That. in addition, the father has not seen the child since 1974 and the child now has a harmonious family life and has come to regard the mother's present husbAnd as his father. establi~hed that such exceptional circumstances exi.t or have exi.ted". On 15 rebrua~y 1980, the Supreme Court upheld the Court of Appeal's deci.ion, noting that "the right of the parent who doe. not hlive or will not be awarded custod. of the child to have a~COBS to that child must never be lost sight of but - as the Court rightly judged in this case - the interests of the child must ultimately be paramount". The author th~refore stat1s that he has exhausted domestic remedies.
The author contends that the Netherlands courts did not correctly apply article 161, section 5, of the Netherlands Civil Code, which stipulates that "on demand or on application ot both parents or of one of them, the judge may lay down an arrangement regarding contact between the child 5nd the parent not granted custody of the child. If such arrangement has not been laid down in the divorce j'.ldgement .•• , it may be laid down at a later date by the Juvenile Judge". In vi,.w of thft "inalienable" right of the child to have contact with both hi. parents, tht, author c(~tends that the Netherlands courts must grant visiting rights to the non-custodial parent, unless exceptional circumstances exist. Since the Courts did not mako an arrangemelit for mutual access ifi his case and no exceptional circumstances exist, it is argued that Netherlands legis~ation and practice do not effectively guarantee the equality of rights and responsibilities of spouses at the dissolution of marriage nor the protection of children, as required by article 23, paragraphs 1 and 4, of the Covenant. In partiCUlar, the author notes that the law does not give the courts any guidance aB to which exceptional circumstances might serve as a justification for the denial of this fundamental r~ght of mutual access. For Ihe psychological balance and har:monious development of a chilG, contact with Ihe parent who was not qranted cu.tody must be maintained, unleBs the parent in question constitutes a danger to the child. In the ca.e of his 80n and himself, the author contends that, although the Netherland8 court. ostensibly had the best interests of the child in mind, Wim junior has been denied the opportunity of seeing his father for 12 years on the in.ufficient qround that his muther opposed such contacts and that court-enforced visits could have cau8ed psychological stress detrimental to the child. The author argue. that every divorce entails psychological stress for all partie. concerned and that the courts erred in determining the intereBte of the chUd in a et,atic manner by focusing only on his protdction from tension, which, moreover, would not be caused by the father's misconduct but by the mother's cateqorical opposition. Tb. a~thor concludes that the courts should have interpreted the child's best interests in a dynamic manner by giving more weight to Wim junior's need to maintain contact with his father, even if the re-establishment of the father-son relatl~nship might initially have given rise to certai~ difficulties.
Having regard to article 5, paragraph 2 (a), of the Optional Protocol, the author states ~hat on 14 September 1978 he submitted an application to the European Commission of Human Rights, and that consideration of the matter by that body waL completed with the adoption of the Commission's report on 8 March 1982. On
May 1984, the author submitted a separate application to the European Commission on behalf of his son. On 7 October 1985, the Commission declared the case inadmissible, rll.tiQ.Dtl-_pJlr&onoe.
In its submission under rule 91, dated 9 July 1986, the State party conteats t.le aut:hor' s standing to submit an application on behalf ot' his sun, adding that: "The family relationship between Hendriks, Sr. and Hendriks, Jr. does not in itself provide sufficient g~ounds to assume that the son wishes the appl~cation to be s~mitted ••• Even if Mr. Hendriks did have the right to submit an application o~ behalf of his son, it is doubtful whether Hendriks, Jr. could be regarded as a 'victim' within the meaning of rule 90, paragraph 1 ~D), [of the Committee's provisional rules of procedure]. The Government of the Netherlands wishes to st~ess that the NetherlaDds authorities nave never prevented Wim Hendriks, Jr. from contacting his father of hi$ own accord if he wished to do so. The Government of the Netherlands would point out in this respect that Mr. Hendriks, Sr. met his son in 1985 and entertained him at his home in the Federal Republic of Germany."
With respect to the compatibility of the communication with the Covenant, the State party contends that article 23 p paragraph 4, of the Covenant "does not seem to inclt.de a rule to the effect that a parent who has been divorced must have access to children from the marriage ~f those children are not normally resl-dent with him/her. If ttLe article does not lay down such a right, there is no need to explore the question of whethe~ this right ••• has actually been violated."
With respect to the exhau~tlon of domestic remedies, the State party observes that there is nothing to prevent the author froQ once again requesting the Netherlands COl".rts to issue an access order, basing his request on "changed circumstances", since Wim Kendriks, Jr. ls now over 12 years old, and, in accordance with the new article 902 (b) of the Code of Civil Proceuure which came into force on 5 July 1982, Wim Hendriks.> Jr. would have to be heard by the Court in person before a judgement could be made.
In his comments dated 3 Soptember 1986, the author states that the de~ision of the Supreme Court of the Netherlands of 24 February 1900 effectively prevents him from re-entering the domestic recourse system.
With rega~d to the question of his standing to represant his sen before the Committee, the author submits a letter dated 15 November 1986, countersigned by his son, forwarding a copy of the initial letter of 30 December 1985 and of the comni~nta of 3 September 1986, also countersigned by his son.
Before considering any claims contained in a communication, the Human Rights Committee must, iu accordance with ru~e 87 of its provisional rules of procedure, decide whe.ther or not it is admissible under the Optiona~ Protocol to the Covenant. The Committee decided on the admissibility of the Communication at its twenty-ninth session, as follows. -234-
Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee from considering a communication unle.s dome.tic remedies have been exhau.ted. In that connection, the Committee noted that, in ita .ubmi••ion of 9 July 1986, th~ State party had informed the Committee that nothing would prevent Mr. Hendriks from once again requesting the Netherland. courts to issue an accee. order. The Committee ob.erved, however, that Mr. Uendriks' claim, initiated before the Netherlands court8 12 years earlier, had been adjUdicated by the Supreme Court ir. 1980. Taking into account the provision of article 5, paragraph 2 (b), in fine of the Optional Protocol regarding unreasonably prolonged remedie., the au~hor could not be expected to continue to request the 8ame courts to i ••ue an acce.s order on "he basis of "changed circum.tance.", notwith.tanding the procedural chanqe in domastic law (enacted in 1982) which would now require Hendriks, Jr. to be heard. The I 'ommittee observed that. although in family law di.put•• , 8uch as custody ca8e. of that nature, changed circumstance. might often ju.tify new proceedings, it ~as satisfied that the requirement of exhau8tion of domestic remedies had been met in the case before it.
With regard to the State pal y's reference to the scope of article 23, paragraph 4, of the Covenant (para. 4.2 above), i.e. whether the provi8ion in q'l1est!on laid down a r 19ht of access for a divorc~d parent or not, the Committee dec~Jed to examine the issue with the merits of the case.
On 25 March 1987, the Committee therefore decided that the communication ~a. admissible. In accordance with article 4, paragraph 2, of the Optional Protocol, the State party wa, raquested to submit to the Committee, within ei. months of the date of tran8mittal to it of the decision on admis.ibility, written explanations or .tatement. clar~fyin9 the matter and the measures, if any, that might have been taken by it.
In its submission under article 4, paragraph 2, o! the Optional Protocol, dated 19 October 1987, the State party contends that artiCle 23, paraqraph 4, of the Covenant does not provide for a riqht of acce•• to his/her child for a parent who has been divorced and whose children are not normally resident with him/her. Neither the tXAYAUK preparatalrs. nor the wording of the laid article would seem to imply this. The State party further affirms that it has met the requirements of artIcle 23 paragraph 4, since the equality of right, and responsibilities of spou.e. whose marriage has ~een di••olved through divorce is a••ured under Netherlands law, ~hich also provides for the necessary protection of any children. After the divorce, custody can be awarded to either the mother or the father. The Slate party submits thata "In general, it can be assumed that a divorce occasions such tensions that it is essential to the child's interest that only one of the parents be awarded custody. In ~ases of this kind, article 161, paragraph 1, of book 1 of the Civil Code provides that, after the dissolution of a marriage by divorce, one of the parents shall be appointed guardial. This parent wiI.! then have sole custody of the child. The court. decide which parent is to be --235- The State party add. that it 1. customary for parents to agree, at the time of the divorce, on an acce•• arrangement betwe&D the child and the parent who was not awarded custody. The latter, i~ accordance with articlu 161, paragraph 5, of the Civil Code, can requ~lt the Court to decide on an acces. arrftngement.
Tbe State party further explains that, if the Committee should interpret art~cle 23, paragraph 4, o~ the Covenant a. granting a right of access to his/her child to the parent who was not awarded cu.tody, it would wish to observe that such a right has, in practice, developed In the Netherlands legal systeml "Although not laid down explicitly ~n (the Netherlands) legislation, it is a••urned that the parent not awarded custody has a right of access. This right derives from article 8, paragraph 1, o( the European Convention on Human Right., which lay. dot', the right to respect for family life. The Nethe lands is a party to this Conv~ntion, which thus forms part of the Netherlands legal sy.tem. Article 8 ••• moreover is directly ·,pplicable in the Netherlands, thus allowing individual citisens to institute proceedings before the N.,t~erland8 courts if they are deprived of the above right."
With regard to the possible curtailment of aCC8SA to the child in cases wher~ this i. deeme~ crucial to the child'. interests, the State party refers to r judgement of t.he Supreme Court of the Netherlands of 2 May 1980, the relevant passage ~f which read•• "The right to respect. for family lif.. , as luid down in article 8 of the European Convention on Human Rights, does not imply that the parent who is not awprded custody of his or her minor children is entitled to contact with them where such contact i. cl,arly not in the children'. interest because it would cause con.iderable disturbance and tension in the family in which they are living. To recognise such an entitlement on the part of the parent not awar~~d custody would conflict with the children's rights under article 8 of the Convention." This, it is stated, i. a case where the "necessary protection of any childlen", within the meaning of article 23, paragraph 4, of the Covenant, was the overridinq interest at stake. The State party adds that the Lower House of parliament is debating a bill concerning the ar~angement of access in the case of divorce. The bill propo.e. that the parent whc is not awarded custody after divorce be granted a statutory right ~f acce~Q and puts forward four grounds on the basis of which acc.s. could b. denied in the interests of the child, to wit, if: "(a) ACL~SS would have a seriously detrimental effect on the ~hild's mental or physical well-beingl "(b' The rarent is regarded as clearly unfit or clearly incapable of acces" "(c) Access othArwise conflicts with the overridir.~ interest of the childl
The State party fU1':ther recalls that the ab.>". considerations were all applied in deciding whether the author should have access to his son. This led to the denial of access by every court involved. 8. j The State party concludes that article 23, paraql'aph 4, of the Covenant has not been violated and contends that the obligation to ensure the equality of ~ights and responsibilities of spouses at the dissolution of marriage, I.ferred to in that provision, does not :nclude an obligation to ensure the ~i9ht of acce.s in the form of an a~c~ss arrangement. Alt~rnatively, if the Committee should interpret the above provision as encompassing that right, it states that the Netherlands l.gal system already provides for the right in question. In the authol's case, the right was assumed to exist, yet its exercise was denied in th. interests of the child. The necessary protection of the child upon dissolution of the marriage made it imposs\ble for the complainant to .xerciRe his right of access.
In his COffi"-ents dated 23 J~nuary 1988, the author claims that article 161, paragraph 5, ~£ the ~etherland~ Civil Code should have been interpreted a. requiring the judge in all but ..xceptiollal cas,'tQ to ensur" continued contact between the child and the non-cllstodial parent. He concludes that, in the absence of a clear legal norm under Neth~,rlands law affirming that a parent-Child relationship and parental responsibility continue, the Netherlands courts, in the eaercise of uncontrolled discretion, violated his and hi. son'. rio~ts under the Covenant by denying his applications for visiting rights.
The Human Right~ Committee has considered the present communication in the light of all information made available to it by the p6rtieu, aa provided in article 5, paragraph 1, of the Optional Protocol. The facts of the case are not in dispute. lO.~ The main question before the Committ.e is whether the au·:.~r of the communication is the victim of a violation of article 23, paragraphs 1 and 4, of the Covenant because, as a divorced parent, he has been deni.d access to his son. Article 23, paragraph 1, of the Covenant provides for the protection of the family by society and the Statel "Th. family is the nat\1ral and fundamental gl'OUp unit of society and la entitled to protftction by society and the Stat.... Under paragraph 4 of the sam. articlel
In ezaminin9 the communication, the Committee considers it important to stress that article 33, paragraph. 1 and 4, of the Covenant .et. out three rul•• of equal importance, nam.ly, that the family ahould be protect.d, that sLops should be laken to .nsure equality of right. of .pou••• upon the di••olution of tbJ marriage pnd that provi.ion .hould b. mad. for tb. n.c•••ary prot.ction of any childr.n. The wordl "the family" in articl. 23, paragraph 1, do not ref.1" lol.ly to the family home .. it .xilt. during lh,. marriag.. Th. id.a of the tMlily must necessarily .mbrace the r.lation. b.tw••n par.nt. and child. Althou9h Jivorcti l.gally .nds a marriag., it cannot di••olv. th~ bon~ uniting fath.r - or moth.r - and childl this bond do•• not d.p.nd on the continuation of the par.nts' marrIage. It would a.em that the priority given to the child's int.rests is compatibla with this rule.
The court. of the Stat•• parti•• are gen.rally comp.tent to evaluate t~e circum.tanc•• of individual ca.... How.v.r, the Committ•• d.em~ it nec.ssary that the law .hould ••tabli.h certain criteria so as to .nabl. the courts to apply to the full the provi.ion. of articl. 23 of tu. Covenant. It s.ems .ssential, barring exceptional circum.tance.. that th••• criteria should inclu~e the maintenan~~ of p.nonal relation. and direct and regular contl-ct b......,••n tl•• child and both parent.. Th. unllat.ral opposItion of one of the paren~., cannot, In the opinion ~f the Committee, b. con.id.r.d an .xc.ptional circumsl~nc••
In the ca•• u~d.r consid.ration, the Committee not.s that the Nethe~lands court•• al the Supreme Cour~ had pr.viou.ly don., recogni.ed the child'G right to p.rman.nt contact with each of his parents as well kS the right of access of the non-cu.todial parent, but con.ider.d that th.s. rights could not be exercised in the current ca•• b.cause of the child's interest.. This was the court's appreciation in the light cf all the circumstances, even though th.re was no finding of inapproprJ,at. behaviour on the part of the author.
As a result, the Committ.e cannot conclude that the State party has violated article 23, but draw. its att.ntion to th. need to supplement the legislation, as stated in paragraph 10.4. Notell AI S•• Officiol Heco~. of the G.neral A.uembly. Thl~~eventh S.lal~ Suppllment ~tQ (A/37/40), annez X and ibl~., ~~~llinth SessIon, Supplement No. 40 (A/39/40 and Corr.l and 2), ann.x IX, respectively. hI lb1d., Thirty-eighth Se••ion. Supplement No.~O (A/38/40), annex XIII, para. 7.2. J::.I Mr. Nb.nge, fir.t cou.in of the author, co-sIgned the author's 8ubmie.ion. to the Committee. Mr. Mbenge'8 own case (No. 16/1977) was conclud~d with view. bdopted on 25 March 1983 (elqhteenth s888ion) (s•• QfticlAI_-R.a..c.a~.da-gJ. the Gen.ral AlltunbU-a- Thirtr-.ighth Sllllon, Suppllment .N~_j.Q (A/38/40), annax X). ~I OffIcial HeeaEd. af the aoneral AI,ombly,~ty:.ixthSO.lion, 5up~ent Bo, J& (A/36/40), annex XVIII. ~unicatiQD No. 201/1985, UendrikI-v. the Netherlandl
The great difficulty that we .ee in this case is that the undQubted riqht and duty of a domestic CQUlt to decide "in the best interests Qt the child" can, when applied in a certain Way, deprive a non-custodial parent of his right. under article 23.
It il lometlffie~ ~he case in domestic law that the very fact of a fomi1y rift will lead a non-custodial parent to lose access t~ the child, though he/she hal not engaged in any conduct that would ~.. render contact with the child undesirable. However, article 23 of the Covenant speaks not only of the protection of the child, but also of the right to 8 fomily life. We agree with the Committee that this right to protection of the child and to a fomily life continues, in the parent-child relationship, beyond the termination of a marriage.
In this case, the Amsterdam District Court rejected the father's petition for acce.s, although it had found the request reasonable and one that should in gener~l be allowed. It would seem, from all the documentation at our disposal, thnt it. denial of Mr. Hendrlks' petition was based on the tensions likftly to be generated by the mother'. refusal to agree to such a contact - "even to a single me,ting between the boy and his father on neutral ground, despite the fact that the Child Care and Protection Board would agree and would have offered guarantees" (aecislon of 20 December 1978). Given that it was not found that Mr. Hendriks' ch~racter or behaviour was such a8 to make the contact with hi. Bon undesirable, it seems to UM that the only "exceptJ:-nal circumstance" was the react.ion of Wlm Hendriks junior's mother to the possibility of parental access and that this determined the perception of what was in the best interests of the child.
It il not for UI to insist that the courts were wrong, in their assessment of the belt interests of the child, in givin~ priority to the current difficulties and tenlion, rather than to the long-term importance for the child of contact with both itl parentl. However, we cannot but point out that this approach does not sustain the family rights to which Mr. Hendriks and his son were entitled under article 23 of the Covenant. Voj1n Dim1trijev1c ()nar El Shafei ROBalyn Hig91ns Adam Zielinski
The Committoo's decilion finding nQ violation of articlo 23 Qf the Covenant in this CalO il predicated on it. roluctance to roview the evaluation of facts Qr the exerci80 of discrotion by a lQcal court of a State party.
Although I fully ~ppreciate and under.tand the Committee's opinion in this matter and, in fact, Agreed to go along with the consensus, I wish to put on record my concerns, which are twofold.
My first concern is that, though the CQmmittoo's practico Qf nQt reviewing the doci.ion& of 10001 court. i. prudont and apprQpriate, it is nQt dictated by the Optional Protocol. In cases where the facts are clear and the teats of all relevant orders and decisions have been mado available by the parties, the Committeo should be prepared to examine them a. to their compatibility with the specific provisions Qf the Covenant invQked by the author. 'rhus, the Committee would not be acting al a "fourth instance" in determining whether a decision of a State party's court was correct according to that State's legislation, but would only examine whether the provisions of the Covenant invoked by the alleged victim have been violated.
In the present case, the Committee declared th~ communication of Mr. HendI'its admissible, thus indicating that it wa. prepared to examine the case on the merits. In its views, however, the Committee has essentially decidod that it is unable to examine whether the decisions of the Netherlands courts not to grant the author vi.iting right. to his son were compatible with the requirements of protection of the family and protection of children laid down in artiCles 23 and 24 of the CQvenant. Paragraph 10.3 of the decision rftflects the Committee's understandinq of the scope of article 23, paragraphs 1 and 4, and of the concapt of "family". In paragraph 10.4, the Committee underlines the importance of maintainJng permanent personal contact between the child and both his parents, barring ext:eptioDal circumstances, it further states that the unilateral opposition by one of the parents - aa apparently happ~ned in this case - cannot be considered such a~ exceptional circumstance. The Committee should therefore have applied the.e criteria to the facts of the Hendriks case, so as to determine whether a violation of the articles of the Covenant had occurrod. The Committee, however, makes a finding of DO violation On the ground that the discretion of the local courts should not be queationed.
My second concern is whether the Netherlands legislation, aB applied to the Hendriks family is compatible with the Covenant. Section 161, ptH'agraph 5, of the Netherlands Civil Code does not provide for a statutory right of access to a child by the non-custodial parent, but leaves the questlon of visiting rights entirely to the discretion Qf the judge. The NetherlaDds legislation does not contain specific criterie fQr withhQlding of access. Thus the question arises whether the sold general legislation can be deemed sufficient to guarantee the protection of children, in particular the right of children to have access to both parentc, and to ensure equality of rights aud responsibilities of spouses at the dissolution of
The facts of this case, as presented to the Committee, do not reveal the existence of any exceptional circum.tances that might have justified the denihl of personal contacts between Wim Hendrits junior and Wim Hendriks senior. The Netherlands courts themselves agreed that the father's application for access was reasonable, but denied the application primarily all the grounds of the mother'. opposition. Although the Netherlands courts may have applied Netberlands law to the facts of this case correctly, it remains my concern that that law does not include a statutory right of access nor any identifiable criteria under which the fundamental right of mutual contact between a non-custodial parent and his or her child could be denied. I em pleased that the Netherlands Government is currently contemplating the adoption of new legislation which would provide for a statutory right of access and give the courts some guidance for the denial of access based on exceptional circumstances. This legislation, if enacted, would better reilect the spirit of the Covenant. Amos Wako