The following information from the Registryof the International
Court of Justice hâs been communicated to the Pressa
Today, Uovember 2$th, 195$, the International Court of Justice
delivered its Judpent fn the case conçernlng the application of the
Convention of 1302 govesnvlg the Guardianship of Infants, between
the Netkerlands and Sweden,
This case was concerned with the validity of the measure of
protect ive upbringing (sk~ddsup~ f.--tran) taken by the Swedish
authoritiei sn respect of an i~lfat, ?-farieRlisabeth Boll, of
Netherlands nationality, residk~g in Sweden. Alleging that this
rneasure was incompatible wtth the pro~sions of The Hague Convention
of 1902 governing the guardianship of infants, accordkg to which it
is the national law of the infat that is applicable, theNetherlands,
in their Application instituting pracaedings, asked the Coud te
declare that the measure of proteckive uphringing is nat in confod-by
wlth the obligations 'oinding upon Sweden by virtue of Yne Convention
and to order the temiilalion of the measure.
By twelve votes to four, the Cowt re jected this request.
Judges Kojevniko vnd Spiropoulos append declarations for the
Sudgrnent of the Court,
Judges Bach&, Sir Hersch kuterpacht , Iiloreno Quintana,
Wellington Koo and Sir Percy Spender, avaibg theniselves of the
right conferred upon them by Article 57 of the Statute, appendto the
Judgment of the Court statements of their separateopinions.
Vice-President Zafrulla Khan states that he agrees generally
wjth Judge Kelllngbon ICoo.
Judges IfJiniarski and Cordova and 14, Off erh8.u~~Judge ad hoc,
availvlg therllselves of the right conferred upon theni by Article 57
of the Statute,append to the Judgent of the Court statementsof
their dis senting opinions.
Recalling the essential md undisputed facts underlyin the
case, the Judgment states that the Xetherlmds infant brie Elisabeth
Bo33 was born of the marriage si JohannesBou, of Netherlvlds
nationality andGerd Elisabeth Lindwall, who died on DecemberTth, 1953.
On the application of t'ne father, the Swedish authorities had, in
the f bst place, on Ehrch l&h, 1954, regiçtered the gmrdianship of
the latter and appointed a god man of the hfarik, pursuant to Swedish
law of guardlanship. S113ssqui?ntly, on Aprïl 26th, 1954, the infant
was placed by thc 3,:sdish acthorities mder the regime of pmtective
upbringing hstituted wider Article 22(a) of the SwedLsh La.wof
June 6ti1, 19.2 on, the proiection of chsdren and young persons ,
On dune 2nd, 1954, the AmsterdamCantonal Court haci hstituted
guardianshi~ aecordiizg to Netherlands law, The fzther and the
cieputy-guardian hadtScn appealed for the temrhaticin of the
proteetive r~pbringing, bu& thisappeal was rejected by the
Provinciel Goverment of 0sterg8tland. On Aupst Sth, 1954, the
Court af.First Instance of Dordrecht, upon the application of the
Guardianship Cauncil. of that tm and with the consent of the father,
discha,rged the latter from his functions as guardian and appointed
In his placea female guardian and ordered that the çhild shodd be handed aver tothe latter, On Sephember 16th, 1954, the Swedish
Court. ab NorrktSping camcelled the previbus registrat ion of the
guardianship of the father and dismissed an application for'the
removal of the Swedishpodman, Lastly,on February nst, 1956,
th& Swedish Supreme Adnlinistrative Court, bg a firia judgment,
mintained the measure of pratective upbringing.
The Judgent of the International Courtof Justice states that,
of au the decisions given in Sweden and in the Netherlands ,hose
which relate to the organisation of guardianship do not concern the
Court, The dispute relates to the Swedislidecisions which jnstituted
md minbained protective upbringing, It is only upon them that the
CO UT^ iS caUed upon to ~djudicate.
-' in the opinion of the Gaverment of the Netherlands, the Swedish
\ . pmtective upbrbging prevents the infant from being handed over to
the guardian, whereas the 1902 Convention pravides that the .
~rdianship of bfwts shall be governed by thek national Law,
The exception to w'nich Article 7 of the Convention relates is nat
applicable because Swediah protective upbririging is not a measure
pemitted by that Article and because the condition of urgency
required wasnot satisfied.
For its part, the Goverrmnt of Sweden does not dispute the fact
that protective upbringing ternporarily impedes the exercise of
custody to phich the p~rdian is entitled by virtuc of Dutch law, but
contends th& this measure does not constitute a.breâchof the 1902
Convention, In the f irst placebecause, when the measure was taken,
the right to custodybelonging -to the father was an attribute of the
puissance paterrtge which is not governed bg the 1902Convention;
a female guardian having succeeded to this right,the 1902 Convention
does 'not apply Yi hcr case aither. In the second place, the Swedish
Lawfor the protection of children applieç to everyinfant residing
in Svreden; tho Convention governs only confllc'cs of law in respect
of guardlanship; protective upbringing, being a measurewithin the
category of ordre public, does not constitute a breach of the Convention,
The contracthg Ststes retain the rlght to rnake the powers of a
foreign qwrdian subject to the restrictions required by ordre public,
With ref erençe t o thc f irstground relied upon by Sweden, the
Court observes that the distinction between the period during which
the fatherwas.invested ~5th tl-ie guardianship and tiie period when the
- guardianship was entrustedt6 a third partg may lead to a distinct ion
beuig drzm )bet~reen the original Lnstitution of the reghe of
protective upbringing ,andits maintc.imce in face of the guardianship
'conferred upon a third party, The Co& does not consider th& it
need lie concerned with this distinction. The grounds for its , .
decision are applicable to the wbole of the dispute.
Xxijudging of the correctness of the argument zccording to which
protective upbringjng ~onstitutes a rival prdianshLp in cornpetition
with the Dutch guardianskiip, the Judgment notes that certziin of the
Swedish decisions concerning the admiriistratian of the property of
the infant procseded, .on the basis of recognition of the Ikitch
guardianship. .
-The judgment of theSupremeAdministretiv Ceourt of February'2st,
1956, merits .p&icular mention, The Supreme Adminis-trative Court
did not question the .guardianlc sapacity to take proceedtngs; it'
therebyrecogniz -.dher czpacity. It did not raiseprotective '
upbrjnging to the status of an institution the offect of which would be
..I. . compl-etely to absorb the Dutch guardianship, It confined itself,
for reasons outside the scope of the Court's examination, to not
complying with the guardianrs request. Final*, under the regime
thus maintained, the person to whom the child was entrusted in
application of the measure of protective upbringing has not the
capacity and rights of a. guardian.
Protective upbringing, as it appears according to the facts in
the case, cannot be regarded as a rival guardianship to the
guardianship established in the Netherlands in accordance with the
1902 Convent ion.
In dismissing the guardianis claim, the Swedish Supreme
Administrative Court limited itself no doubt to adjudicating upon
the maintenance of protective upbringing, but, at the same the, it
placed an obstacle in the way of the full exercise of the right to
custody belonging to the guardian.
In order to answer the question whether this constituted a .
failure to observe the 1902 Convention which provides that
I1the.administration of a guardianship extends to the person .... of
the infant1',. the Court did not consider that it was necessary .for it
to ascertain the reasons for the decisions complained of. Having
before it a measure instituted pursuant to a Swedish Law, it has to
say whether the imposition and maintenance of this measure are
incompatible with the Convention. To do that, it must determine
what are the obligations imposed by the Convention, how far they
extend, and whether the Convention intended to prohibit the application
to a foreign infant. of a law such as the Swedish Law on the protection
of children.
The 1902 Convention provides for .the application of the national
law of the infant, which it expressly extends to the person and to
all the property of the infant, but it goes no farther than that. ..
Its purpose was to put an end to the divergences of view as to whether
preference ought to be given to the national law of the infant, to.
that of his place of residence, etc., but without laying dom,
particularly in the dornain of the right to custody, any imrmuiity. of
an infant or of a guardian with respect to the whole body of the local
law. The national law and the local law may present somc points' of
contact. It does not follow, however, that in such cases the national
law of the infant must always prevail over the local law and that the
exercise of the powers of a guardian is always beyond the reach of
local laws dealing with subjects other than the assignment of
guardianship and the determination of the powers and duties of a
guafdian .
The local laws relating to compulsory education and the sanitary
,
supervision of children, professional training or the participation
of young people in certain work are applicable to foreigners. A
guardian 's right to custody under the national law of the infant
cannot override the application of such laws to a foreign infant.
The Judgment states that the Swedish Law on the protection of
children and young perçons is not a law on guardianship and that it
is applicable whether the infant be wit hin the puj<~-s-$~c_pe_ttepPnneQ
or under guardianship. Was the 1902 Convention intended.to prohibit
the application of any law on a different subject-matter the indirect
effect of which would be to restrict, though not to abolish, the
guardianls right to custody ? The Court considers that to take this
view would be to go beyond the purpose of the Convention, which is
conf incdconfined to conflicts of laws. If the Convention had intended to
regulate the domain of appxication of laws such as the Swedish Law on
the protection of children, that lavi would have to be applied to
Swedish infents in a foreign country. But no one has sought to
attribute to it such an extraterritorial effect. :
The Judgment recognises that guardianship and protective
upbringing have certain common purposes. But though protective
upbringing contributc's to the protection of the child, it is, at the
same the and above dl, designed to protect society against dangers
resulting from improper upbringing, inadequate hygiene, or moral
corruption of young people. In order to achieve its .ah of
individual protection, guardianship, according tO the Convention,
needs to be governed by the national law of the infaiit. To achieve
its ah, the ûim of the social guarantee, the Swedislî Law on the
protection of children must spply to al1 young people living in ~weden.
It was contended t.hat the 1902 Convention must be understood as
containhg an implied reservation authorizing, on the ground of
ordrepublic, the overruling of tl-ie application of the foreign law
-- The Court did not consider it
recognized as normally the proFer la.~.
necessary to pronounce upon this contention. It sought to ascertain
in a more direct Inmer whether, having regard toits purpose, the
1902 Convention lays down any rules which the Swedish authorities have
disregzrded.
'In doing this, the Court found that the 1902 Convention had to
meet a problem of the conflict of private 1a.w miles and that it gave
the preference to the nstional law of the infant. But when the
question is asked what is the domain of the applicability of the
Swcdish Law or of the Dutch Law on the protection of children, it is
fond that the measures provided for rerere taken in Sweden by an
administrative organ which can act only in accordance with its own
law. Wat a Swedish or Dutch court can do in matters.. of .:guardianship;
nmely, apply a foreign law, the .z.uthorities of tho.se countries,.:
cannot do in the matter of protective upbringing. To extend the
1902 Convention to such a situation would lead to an Vnpossibility.
That Convention was designed to put 'an end to the competing 'claims. of
several laws 'to govern a single legal rclationship. There ..are no
such competing claims in the case of laws for the prot~ction:~of. .
Such a law 'has not and cannot have any
children ard young persons.
extraterritorial aspiration. An extensive int erpretation of .the '
Convention would lead to a negat ive solution if the application .of
Swedish law was refused to Dutch children living .in Sweden, since
Dutch law ori the snme sub ject 'could not be applied to them.
It is scarcely necessary to add, says the Court, that to arrive
at a solution which would prevent the application of the Swedish Law
on the protection of children to a foreign infant living in Sweden,
would be to misconceive the social purpose of that Law, The Court
stnted that it could not readily subscribe to any construction of
the 1902 Convention which would mke it an obstacle on this point to
social progress.
It thus seerns to the Court that, in spite of their points of
contact and of the encroaclments revealed in practice, the Swedish
Law on the protection of children does not come within the scope of
the 1902 Convention on guardianship. The latter cannot therefore
have given rise to obligat'ions binding upon the signatory States in
a field olltside the matter with which it vrss concerned. Accordingly,
the Court did not, Ui the present case, find any failure to observe
the ConventLon on the prit of Çweden.
For'these rea.sons, the Court rejected the claim of the Government
of the Netherlcmds,
The Hague, November 2&h, 1958.
Application of the Convention of 1902 Governing the Guardianship of infants (Netherlands v. Sweden) - Judgment