requirements governing entitlement to child
benefit for foster children are applied strictly,
regardless of the nationality of the applicant or
the place of residence of the foster children.
It submits that case law shows that applicants of
Dutch nationality, residing in the Netherlands,
are also deemed ineligible for child benefit for
their foster children who are resident abroad.
Moreover, if one or both of the parents are still
alive, it is assumed in principle that the natural
parent has a parental link with the child, which as
a rule prevents the foster parent from satisfying
the requirements of the Child Benefit Act.
Covenant. By decision of 4 July 1991, the
Committee similarly declared Mr. Kaiss’
communication admissible. On 4 July 1991 the
Committee decided to join consideration of the
two communications.
State party’s merits submission and the authors’
comments thereon
5.1
By submission of 30 March 1992, the
State party explains that, pursuant to the Child
Benefit Act, residents of the Netherlands,
regardless of their nationality, receive benefit
payments to help cover the maintenance costs of
their minor children. Provided certain conditions
are met, an applicant may be entitled to a child
benefit, not only for his own children, but also
for his foster children. The Act lays down the
condition that the foster child must be (a)
maintained and (b) brought up by the applicant as
if he or she were the applicant’s own child.
5.5
Furthermore, the State party argues that,
even if proportionally fewer migrant workers
than Dutch nationals fulfil the statutory
requirements governing entitlement to child
benefit for foster children, this does not imply
discrimination as prohibited by article 26 of the
Covenant. In this connection, it refers to the
decision of the Committee in communication
No. 212/1986, P. P. C. v. the Netherlands,2 in
which it was held that the scope of article 26
does not extend to differences of results in the
application of common rules in the allocation of
benefits.
5.2
The State party submits that the authors’
allegations of discrimination raise two issues:
(1)
Whether the distinction between
an applicant’s own children and foster
children constitutes a violation of article
26 of the Covenant;
5.6
In conclusion, the State party submits
that the statutory regulations concerned are a
necessary and appropriate means of achieving the
objectives of the Child Benefit Act, i.e. making a
financial contribution to the maintenance of
children with whom the applicant has a close,
exclusive, parental relationship, and do not result
in discrimination as prohibited by article 26 of
the Covenant.
(2)
Whether
the
regulations
governing the entitlement to child
benefit for foster children, as applied in
the
Netherlands,
result
in
an
unjustifiable disadvantage for non-Dutch
nationals, residing in the Netherlands.
5.3
As to the first issue, the State party
submits that to be entitled to child benefit for
foster children, the applicant must raise the
children concerned in a way comparable to that
in which parents normally bring up their own
children. This requirement does not apply to the
applicant’s own children. The State party argues
that this distinction does not violate article 26 of
the Covenant; it submits that the aim of the
relevant regulations is to determine, on the basis
of objective criteria, whether the relationship
between the foster parent and the foster child is
so close that it is appropriate to provide child
benefit as if the child were the foster parent’s
own.
6.1
In his comments on the State party’s
observations, counsel maintains his allegation
that the distinction between own children and
foster children in the Child Benefit Act is
discriminatory. He argues that the authors’ foster
children live in exactly the same circumstances
as their own children. In this connection,
reference is made to article 24 of the Covenant,
which stipulates that a child is entitled to
protection on the part of his family, society and
the State without any discrimination as to, inter
alia, birth. According to counsel, no distinction
can be made between the authors’ own and foster
children regarding the intensity and exclusivity in
the relationship with the authors.
5.4
As to the second issue, the State party
submits that no data exist to show that the
regulations affect migrant workers more than
Dutch nationals. It argues that the Act’s
2
119
Declared inadmissible on 24 March 1988, para. 6.2.
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