Analysis of the case concerning the Guardianship Convention
2022301061137 刘杨
A case summary
1.1 Marie Elisabeth Boll was a Dutch child living in Sweden. After her Swedish mother
passed away in 1953, her Dutch father became her guardian under Dutch law. In 1954,
a Swedish court in Norrkoping confirmed the father's guardianship and also made her
Swedish grandfather her "god man" or legal representative. The Norrkoping Child
Welfare Board then put the child under a Swedish protective upbringing law from 1924.
A Dutch court later named a Dutch deputy guardian, who, with the father, challenged
the protective upbringing in Sweden. In August 1954, the Dutch court replaced the
father with Catharina Postema as guardian after he agreed. Despite this, Swedish
authorities, including the Supreme Administrative Court, kept the child under the
Swedish protective upbringing system, but removed the grandfather's role as "god man".
1.2 Relying on the acceptance by both The Netherlands and Sweden of the Court's
compulsory jurisdiction, The Netherlands asked the International Court of Justice to
hold that this measure of protective upbringing with respect to this child "is not in
conformity with the obligations binding upon Sweden vis-a'-vis The Netherlands by
virtue of the 1902 Convention governing the guardianship of infants," and that "Sweden
is under an obligation to end this measure." Sweden asked the Court to declare the
Netherlands claim unfounded. National judges ad hoc were appointed.
B dispute point
1.3 did the Swedish authorities, by applying the measure of protective upbringing
(skyddsRppfostran) to the Dutch infant, Marie Elisabeth Boll, fail to respect obligations
resulting from the 1902 Convention on the guardianship of infants?
1.4 A brief overview of the principal characteristics of the Netherlands.I. that the
"skyddsuppfostran" (protective education) curtails Netherlands guardianship as
protected by the 1902 Convention governing the guardianship of infants; II. that ordre
public cannot prevail against the Convention, because ordre public generally cannot be
invoked against conventions;
1.5 In contrast, Sweden maintains a different perspective：that the rights pertaining to
custody and control, to upbringing and all other rights exercised by Johannes Boll over
the person of his daughter until August 5th, 1954, derived from his puissance paternelle
and not from guardianship within the meaning of the 1902 Convention; that this was
more particularly so in the present case inasmuch as on his application his guardianship
was originally instituted in accordance with Swedish law which does not regard as
falling within this institution rights relating to the person of the child; that the decision
of May 5th, 1954, could accordingly not infringe any rights protected by the Convention;
Notwithstanding the aforementioned considerations, Sweden is not bound by the 1902
Convention to recognise the validity of the Dutch decision to terminate the puissance
paternelle of Johannes Boll, nor consequently to transfer these rights to Catherine
Postema. Consequently, any breach of those rights would not constitute a violation of
the Convention.
C Court judgements
1.6 The Court, by a vote of 12 to 4, rejected the Netherlands claim.
D Reasons for judgement
1.7 In its analysis of the Swedish decisions establishing and maintaining the protective
upbringing, the Court stated: The Dutch government asserts that these decisions are not
in accordance with the stipulations of the 1902 Convention. The institution of protective
upbringing in the case of Marie Elisabeth Boll precludes the infant from being handed
over to the guardian for the exercise of her functions. The 1902 Convention stipulates
that the guardianship of an infant shall be determined by their national law.
Consequently, the Government of the Netherlands has concluded that the Swedish
authorities were unable to take any action once the national authorities had made
decisions regarding the infant's guardianship. The limitation on the principle of the
national law contained in Article 7 of the Convention, according to the Government of
the Netherlands, does not apply to the present case. This is because Swedish protective
upbringing is not a measure permitted by that Article and because the condition of
urgency required by that provision has not been satisfied. The Swedish government
does not contest the assertion that protective upbringing temporarily impedes the
exercise of custody to which the guardian is entitled by virtue of guardianship under
Dutch law. Nevertheless, this fact does not constitute a breach of the 1902 Convention
or a failure by Sweden to fulfil its obligations thereunder. ...
1.8 The Court determined that in order to evaluate the Swedish measure, it was
necessary to consider it in the light of the intention established by Swedish law, to
compare it with the guardianship governed by the 1902 Convention and to determine
whether the application and maintenance of the measure in respect of infants whose
guardianship fell within the scope of that Convention involved a violation of the
Convention.
1.9 It has been proposed that this measure can be considered a form of guardianship,
which competes with and excludes Dutch guardianship. In order to assess the veracity
of this perspective, it is essential to examine the Swedish judgement in relation to the
stance adopted towards Dutch guardianship.
1.10 With regard to the administration of property, the judgments of the Norrkoping
Court of 16 September 1954 and the Supreme Court of 2 July 1955 both proceeded on
the basis of the recognition of the Dutch guardianship. With regard to the capacity of
the guardian to concern herself with the person of the infant, this capacity was
recognised in the decision of the Supreme Administrative Court of 5 October 1954,
given on an appeal lodged by the guardian. In this decision, reference was made to the
fact that the decision of the Dordrecht Court, appointing Mme. In her capacity as
guardian, Postema extended the custody of the child and the claim that the regime of
protective upbringing should be terminated. This claim was dismissed not on the
grounds of inadmissibility, but after it had been considered on the merits and it was
deemed that upholding it would, at that time, have constituted a serious danger to the
mental health of the ward.
1.11 The judgment of the Supreme Administrative Court of 21 February 1956 is worthy
of particular attention. This judgment was rendered in response to an appeal against a
decision by the Provincial Government of Ostergotland, which had determined that the
measure of protective upbringing should be terminated. If the proceedings had
concluded at that juncture, there would have been no basis for dispute. The subject of
dispute arises solely as a consequence of the aforementioned judgment of 21 February
1956, which determined that the measure should be maintained. The aforementioned
judgment was rendered in accordance with the aforementioned decision, taking into
account the expressed desire of the guardian, Mme. Postema, to entrust the infant to M.
and Mme. Tornquist in Norrkoping. The Supreme Administrative Court did not
challenge the authority of Mme. Postema. The Supreme Administrative Court
recognised Postema's capacity to take proceedings before it, thereby acknowledging her
capacity as guardian and her right to concern herself with the person of the infant. It did
not elevate protective upbringing to the status of an institution, which would have the
effect of completely absorbing the Dutch guardianship. Instead, it confined itself to
finding that the desire of the guardian and the satisfactory information she provided
regarding the household in which she had confidence did not constitute sufficient
grounds for terminating the regime of protective upbringing applied to the infant.
1.12 In light of the aforementioned judgment, it is evident that Sweden's protective
custody measures cannot be regarded as a competing right of custody to the
Netherlands' right of custody established under the Convention. Furthermore, the Court
clarified that the question before it was not one of determining the primacy of a State's
obligations under the Convention, but rather whether the measures taken by that State
were in conformity with its obligations under the Convention.
1.13 The Court emphasised that the Convention was merely a "general provision
regulating guardianship" and that it was not intended to resolve issues other than
conflicts in the establishment of guardianship, let alone to exempt minors from all local
laws on the issue of guardianship. Furthermore, the Court observed that the Swedish
Law for the Protection of Children of 6 June 1924 was not concerned with guardianship.
The protective upbringing provided for in the Act did not extinguish guardianship, but
merely limited its effect to the extent necessary.
1.14 Furthermore, while the 1902 Convention stipulates that the guardianship of minors
should be governed by their law of nationality, this does not preclude the application of
a subparagraph to regulate a different matter when its application indirectly affects, but
does not nullify, the exercise of guardianship in another member state.
1.15 It is evident that any attempt to impede the implementation of the Swedish Law
on the Protection of Children and Young Persons in the case of a foreign infant residing
in Sweden would be an erroneous interpretation of the law's underlying social purpose.
This purpose was particularly emphasised in numerous countries following the
ratification of the 1902 Convention. The social problem of delinquent or even of merely
misdirected young people, and of children whose health, mental state or moral
development is threatened, in short, of those ill adapted to social life, has often arisen.
In response, laws such as the Swedish Law now in question were enacted in several
countries to meet the problem. The Court was unable to accept any interpretation that
would impede social progress by reference to the 1902 Convention.
1.16 It thus appears to the Court that, despite the points of contact and the
encroachments revealed in practice, the 1902 Convention on the guardianship of infants
does not include within its scope the matter of the protection of children and young
persons as understood by the Swedish Law for the Protection of Children of 6 June
1924. It follows that the 1902 Convention cannot be held to have imposed obligations
on the signatory States in a field outside the scope of its own concerns. Consequently,
the Court finds no breach of the Convention by Sweden in the present case.
E Analysis of judgements
1.17 The Court's reasoning commenced with a comparison of the object and purpose of
the Convention and the Swedish law of June 6th, 1924. The comparison led to the
conclusion that the object and purpose of the Convention and the Swedish Law for the
Protection of Children of 6 June 1924 were not identical. While it was true that the
implementation of the Swedish Child Welfare Protection Act had hindered the exercise
of guardianship in the Netherlands, it could not be concluded that Sweden had breached
the treaty obligations it had assumed.
1.18 On the other hand, the 1902 Convention actually deals with international conflicts
in the field of private law, whereas the Swedish law of June 6th, 1924 is in fact in the
field of public law, and from this point of view the 1902 Convention does not really
apply. The Court reached the same conclusion, although not from this point of view.
However, according to Judge Cordova,1protective maintenance measures which force
a foreign minor to remain in the country of residence against the express will of the
legally appointed foreign guardian should be unlawful even in the absence of the 1902
Convention. In the case of the public order reservation, according to Article 38 of the
Statute of the International Court of Justice, the Court shall decide the case on the basis
of international law, i.e. if the Swedish defence of the public order reservation were to
be accepted, it would in effect be an affirmation of the validity of the domestic law of
Sweden, which in turn would be contrary to Article 38, and the Court would have to
decide the case on the basis of international law.2
1.19 Judge Cordova also mentioned that ”I have always known the time-honoured and
basic principle of pacta sunt servanda, which makes it impossible for the States to be
released by their own unilateral decision from their obligations according to a treaty
which they have signed.”3
1.20 In general, the Court merely compared and scrutinised the purposes of the
Convention and the Swedish law of June 6th, 1924, without explicitly responding to
the more in-depth underlying issues of the preservation of public order.
Notes:
1
See: Dissenting Opinion of Judge Cordova
See: Jie Song, Guardianship Public Order & International Treaty Obligations, Law
Science Magazine,2008(01), 156-157
3
See: Dissenting Opinion of Judge Cordova
2