Child marriage and family reunification
| Published date | 01 June 2017 |
| DOI | 10.1177/0924051917708384 |
| Author | Anne Wijffelman |
| Date | 01 June 2017 |
| Subject Matter | Articles |
Article
Child marriage and family
reunification: an analysis
under the European
Convention on Human
Rights of the Dutch Forced
Marriage Prevention Act
Anne Wijffelman
University of Amsterdam, Amsterdam, Netherlands
Abstract
The Dutch Forced Marriage Prevention Act aims to prevent family reunification of so-called child
brides with their husbands in the territory of the Netherlands by no longer recognizing child
marriages concluded abroad as legal marriages. Although it can be argued that the Netherlands has
an obligation not to recognise a child marriage concluded abroad, it is disputable whether the
Forced Marriage Prevention Act is in line with other human rights obligations. This article analyses
whether the rights of child brides are violated under Articles 8 and 3 of the European Convention
on Human Rights, if their family reunification application is denied. Although the minor spouse is
most likely residing outside the territory of the Netherlands, a family reunification procedure
brings her nevertheless within its jurisdiction, and as such within the sphere of the European
Convention on Human Rights.
Keywords
child marriage, family reunification, European Convention on Human Rights, the right to respect
for family life, the prohibition of ill-treatment, Forced Marriage Prevention Act
Introduction
The Netherlands is increasingly confronted with refugees, primarily Syrian girls, who are legally
married in their country of origin, but are below the Dutch age of consent. Between July 2014 and
February 2016, the Dutch Immigration and Naturalisation Service registered approximately 210
Corresponding author:
Anne Wijffelman, University of Amsterdam, Amsterdam, 3905, Netherlands.
E-mail: annewijffelman@gmail.com
Netherlands Quarterly of Human Rights
2017, Vol. 35(2) 104–121
ªThe Author(s) 2017
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cases of so-called Syrian ‘child brides’.
1
In the period between September 2015 and January 2016,
60 child brides arrived in the Netherlands, with the youngest being 14 years of age.
2
Another ten
family reunification applications involving a minor spouse were submitted.
3
This trend, observed throughout Europe, has triggered in a range of European States a discus-
sion as to the question whether host States should facilitate family reunification in cases of child
marriage. As a result, there has been a rise in initiatives and measures taken by European policy
makers. The influence of the European Union is significant in this area, especially because of the
European Family Reunification Directive.
4
The Family Reunification Directive offers Member
States the discretion to impose an age requirement for family reunification – which can be 21 years
at the highest – for both spouses, ‘in order to ensure better integration and to prevent forced
marriages’.
5
In the Netherlands the practice of family reunification of minor girls with their (adult) husbands
inflamed a heated debate, with some arguing that it is condoning paedophilia. Attje Kuiken, a
Dutch labour parliamentarian, stated: ‘A 12-year-old girl with a 40-year-old man - that is not
marriage, that is abuse’.
6
In response to these concerns, the Netherlands has lately changed the
applicable law. Until recently, the Dutch law allowed child brides to be reunited with their
husbands, as long as their marriage was officially registered in their country of origin, unless the
recognition of the marriage would be incompatible with the Dutch public order. In practice
the public order clause was exercised with great restraint.
7
In December 2015 new legislation,
the Forced Marriage Prevention Act (de Wet tegengaan huwelijksdwang), came into force.
8
From that moment on, Article 10:32 paragraph C of the Dutch Civil Code proclaims that a
marriage concluded abroad while one of the spouses is below the age of 18 will not be recognised
in the Netherlands, unless both spouses have reached the age of 18 in the meanwhile.
9
Conse-
quently, family reunification applications will only acknowledge marriages if both partners are
above the Dutch age of consent. Likewise excluded from family reunification are (unmarried)
partners below the 18 years of age.
10
As a result, child brides are not able to come to the Nether-
lands on family reunification grounds. Presumptively, they remain in a situation of war in Syria or
in a refugee camp in a neighbouring country, without their husbands, who are likely to be their
primary caretakers. In other words, they remain in a particularly vulnerable situation.
1. Nationaal Rapporteur Mensenhandel en Seksueel Geweld tegen Kinderen, ‘Zicht op Kwetsbaarheid: een Verkennende
Onderzoek naar Kwetsbaarheid van Kinderen voor Mensenhandel’ (2016) 47.
2. ibid.
3. ibid.
4. Council Directive 2003/86/EC on the Right to Family Reunification (22 September 2003) OJ L251/12 (Family
Reunification Directive).
5. ibid art 4 (5).
6. A Kuiken quoted in A Holligan, ‘Migrant Crisis: Dutch Alarm over Child Brides from Syria’ BBC News (The Hague,
20 October 2015).
7. Tweede kamer (2010 – 2011) 32 175, No 17.
8. De Wet Tegengaan Huwelijksdwang (adopted 6 October 2015, entered into force 5 December 2015) Staatsblad (2015)
354.
9. Staatsblad (2015) 373.
10. Eligible for a Regular Provisional Residence Permit under the scope of family reunification with an asylum seeker, are
besides spouses, also unmarried partners who are ‘dependent on the alien [ ...] to such an extent that he belongs for this
reason to the family of this alien’, on basis of Article 29 paragraph 2 sub b of the Aliens Act 2000. Unmarried partners
below the age of 18 years are, however, excluded from this family reunification ground, on basis of paragraph C2/4.1 of
the Aliens Circular 2000.
Wijffelman 105
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