Algemene wet (on)gelijke behandeling

cricketfan · Leeftijd: 55 Geslacht: Sterrenbeeld: Berichten: 22

Dear forum members,
I have gathered from another forum (SOS-papa) that the traditional pro-female and specifically pro-mother bias that is evident in family court decisions in the Netherlands has at times been challenged by certain fathers. However, the (appeal) court has apparently stated that there is actually a legal basis for the bias, namely the Algemene wet gelijke behandeling (http://www.cgb.nl/artikel/algemene-wet-gelijke-behandeling-awgb), which states in Article 1b) that there shall be no discrimination on the basis of, inter alia, gender, whilst Article 2b) conveniently states that the law does not apply when it is a matter of protection of a woman, and particularly a pregnant woman or a mother.

I gather that this is the basis on which divorced women in general, and mothers in particular, are not only awarded the primary physical custody of the children in most cases (i.e. it is legal to presume the children are better off with the mother, even without examining the circumstances before jumping to said conclusion) but are also in the highly entitled position of more or less consistently receiving the court's explicit blessing ("she needs some more [unspecified length of] time to be ready") not to to have to work at all - or at least not more than part-time - for typically 12 years, sometimes longer. The jurisprudence bears this out. I don't have the reference numbers to hand just at the moment, but it seems clear that in cases where there is a role reversal, i.e. a man has been a househusband and consequently out of the workforce for e.g. ca. 10 years, he will be, by contrast, expected to fairly quickly find work (apparently he doesn't need an unspecified length of time to feel ready) and the court will order a tapering-off of the partneralimentatie he will be paid with one to three years. A court-ordered self-sufficiency timeframe such as this for a woman is, to my knowledge, unheard of.

My question is this - how can this law on equal treatment with its clear gaping hole that legally sanctions such pro-female/mother and anti-male/father bias be compatible with Article 14 ECHR in combination with Article 8 ECHR, and further Article 1.2 of Protocol 12 ECHR, which the Netherlands has ratified and which stipulates:

Article 1 - General prohibition of discrimination
1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Has anyone challenged the incompatibilty?

Protocol 12 ECHR entered into force in the Netherlands as of 1.4.2005, but I do not notice an equality of treatment in family court decisions as of that date, especially not in terms of the differing ways in which men and women are expected to perform gainful employment, and not in terms of physical custody issues.

Although the wet voortgezet ouderschap en zorgvuldige scheiding has some nice words in it, it seems to have been rather carefully crafted with words such as "gelijkwaardig" rather than starting with a rebuttable presumption of exactly 50/50 shared parenting time (cf. the Belgian legal reform of 2006). So far the new law seems to not to have brought much in the way of improvement for fathers wishing to continue to be highly involved with bringing up their children. In fact a number of rechtbanken and Gerechtshoven seem quite cynically to regard the new law merely as window dressing and rewording with more "trendy" words and go on to use the old terminology, stating that the term "omgang" will be used but "verdeling van de verzorging- en opvoedingstaken" should be understood, whilst proceeding to issue court orders which contain the same old anti-father substance as before the law was changed.

Once again, I welcome discussion in Dutch and/or English.