Boll case
Encyclopedia
The Boll case was heard before the International Court of Justice
in 1958 and remains the only case in which a Convention drafted by the Hague Conference on Private International Law
was the principal subject of interpretation by a court with worldwide jurisdiction.
In Boll the Netherlands
sued Sweden
in regards to the guardianship of a child, Marie Elizabeth Boll. Marie was the daughter of a Dutch seafarer whose Swedish wife had died. Prior to the mother's death, the child lived in Sweden with her mother but, under the existing rules of nationality during that period, was only entitled to the Dutch nationality of her father. In spite of Marie's residence in Sweden, Dutch authorities assigned her guardianship according to their own procedures. Swedish authorities overrode the Dutch decisions and placed the child under a protective public care order based on the fact that Marie was residing in Sweden with maternal grandparents.
The International Court of Justice
analyzed the Hague Convention of 1902 relating to the settlement of guardianship of minors
and found that the concept of guardianship should be narrowly interpreted. As such, the 1902 Convention did not prevent institutions of public law, in this case the Swedish order, from intervening to take the child into "care" or "protective upbringing." The practical effect of this decision was that it allowed a state to void the guardianship orders of another state with presumptive jurisdiction by enacting public laws.
In response to the Boll decision, the Hague Conference, which had recently created a small Permanent Bureau, responded by drafting a new Convention in the Conference's Ninth Diplomatic Session in 1960, the Hague Convention of 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors which included expanded language regarding "measures directed to the protection of [the child's] person or property," which was specifically intended to apply to both a state's own private law orders, such as guardianship orders, but also to all public care orders.
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
in 1958 and remains the only case in which a Convention drafted by the Hague Conference on Private International Law
Hague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law....
was the principal subject of interpretation by a court with worldwide jurisdiction.
In Boll the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
sued Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
in regards to the guardianship of a child, Marie Elizabeth Boll. Marie was the daughter of a Dutch seafarer whose Swedish wife had died. Prior to the mother's death, the child lived in Sweden with her mother but, under the existing rules of nationality during that period, was only entitled to the Dutch nationality of her father. In spite of Marie's residence in Sweden, Dutch authorities assigned her guardianship according to their own procedures. Swedish authorities overrode the Dutch decisions and placed the child under a protective public care order based on the fact that Marie was residing in Sweden with maternal grandparents.
The International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
analyzed the Hague Convention of 1902 relating to the settlement of guardianship of minors
Hague Convention of 1902 relating to the settlement of guardianship of minors
Commonly referred to as the "Guardianship Convention", the Convention of 1902 relating to the settlement of guardianship of minors, along with the other Conventions in 1902, was the Hague Conference's first effort at addressing international family law. Within a few decades it was the only family...
and found that the concept of guardianship should be narrowly interpreted. As such, the 1902 Convention did not prevent institutions of public law, in this case the Swedish order, from intervening to take the child into "care" or "protective upbringing." The practical effect of this decision was that it allowed a state to void the guardianship orders of another state with presumptive jurisdiction by enacting public laws.
In response to the Boll decision, the Hague Conference, which had recently created a small Permanent Bureau, responded by drafting a new Convention in the Conference's Ninth Diplomatic Session in 1960, the Hague Convention of 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors which included expanded language regarding "measures directed to the protection of [the child's] person or property," which was specifically intended to apply to both a state's own private law orders, such as guardianship orders, but also to all public care orders.