If parents have joint custody, then permission from both parents is required to request or renew a child’s passport or ID. In The Netherlands, the other parent does not have to be present in person, but must sign a consent form so the other parent can apply. But what happens if the other parent refuses to cooperate or is unavailable?
Refusal to provide permission for a first or new passport often has other reasons than not actually wanting the child to have an ID. It may be the fear of kidnapping that arrises when an ID is issued. Or it may be part of an ongoing power struggle between parents. In many cases the reasons are not necessarily relevant to the application tiself.
The other parent may also have simply disappeared and cannot be contacted. They are nowhere to be found to provide permission.
Judicial consent to apply for a child’s passport
The Dutch legal system provides a legal remedy to break the deadlock between parents. Substitute judicial consent can be obtained in order to apply for a passport for your child. The court order replaces permission from the other parent.
There is a difference both between applying for a Dutch passport or a foreign passport for your child and where you are applying from.
Applying for a Dutch passport for your child while you are in The Netherlands
If you live in The Netherlands and need to apply for a Dutch passport for your child, you can request the family court for substitute permission for the application. This bypasses permission from the other parent and you can apply for the child’s passport. The court procedure is short and based on the Dutch ‘Paspoortwet’ or passport law.
You do not always need a lawyer to petition the court for permission. However, if there is a conflict between you as parents then a lawyer is recommended. The other parent will be given a term to reply. Finally, there will be a court hearing. After the hearing the court will decide if it is in the best interest of the child to grant permission. Spoiler: it is virtually always in the child’s best interest to have a valid ID. Most cases therefore result in substitute permission for a passport or ID card.
If the other parent no longer has a known address, then a normal court procedure could have a three month waiting time before the case can be heard. This is in order to notify the other parent of the procedure. It is advisable to start proceedings well before the child’s passport expires if the other parent is untraceable.
Applying for a Dutch passport for a child from abroad
Whether you can request substitute consent from the Dutch courts is a little more complicated when you are a Dutch citizen living abroad.
The normal procedure for a passport application from abroad is explained on the Dutch Government website Netherlands Worldwide. Note that from 12 years old a child can apply for an ID card themselves. It may be that an ID card is sufficient in your child’s circumstances. This does not apply to requesting a passport. If the other parent does not cooperate, you will still need court proceedings for permission.
According to EU rules, decisions regarding children are the responsibility of the country where the child lives. So if, for example you live in Spain, the Spanish courts should hear any disputes regarding children. However, other jurisdictions may rule that they cannot decide on Dutch passport rules and sovereignty regarding passports. This puts the parent in a difficult position.
However, if the foreign court refuses to decide, then you can petition the Dutch courts. This is also the case if the Dutch authorities do not recognise a judgement from the jurisdiction your child is living in. It will depend on your circumstances whether you can apply to the Dutch courts in these cases. In general, it is not acceptable that a child cannot apply for a passport due to jurisdiction problems.
Applying for a foreign passport for a child when living in The Netherlands
As an expatriate family you may have one or more nationalities. Your child may therefore hold more than one passport. It can actually be quite practical for each parent to each keep a separate passport for the child. However, the uncooperative parent may not want the child to renew one of their passports after the divorce. Or they may block applying for a first passport. As your child is living in The Netherlands, the Dutch courts may decide whether this is justified.
In these proceedings, the case is based on article 1:253 of the Dutch civil code, which covers a broad spectrum of parenting disputes. The Dutch ‘passport law’ does not apply to foreign documents. In this case you always have to be represented by a lawyer. The other parent may even make their own application and even make counter requests that are not related to the passport.
Normally, passport renewal is applied for via your embassy or consulate. It is crucial to enquire whether the embassy or consulate will accept a Dutch court order and then issue the passport as requested. Some countries may require certain requirements to be observed in the court judgement. These requirements can then be addressed in the proceedings. It is important to prepare proceedings carefully.
Important advice: start early!
Please realise that it takes time for a court procedure to be prepared. If you need the passport or ID urgently, then an injunction may be a solution. However an injunction will also take four to six weeks to be heard. Particularly before the holiday periods, the courts are very busy with permissions for holidays and passports. There may also be a processing time for the passport itself. Taking this into account, you should realistically start five to six months before the passport expires.
The first step is to politely ask the other parent in writing for permission. Send them the correct forms and fill them in as far as possible. If they refuse, ask for their reasoning. If they do not react, send regular reminders. When this does not work, then it is probably time to engage a lawyer.
At Dutch Divorce lawyer we have a broad experience of litigating passport cases. We will gladly advise you on the best course of action. Please feel free to contact us.
