Quality of court decisions in childcare allowance cases
Ruth de Bock1
The reflection report on the allowance affair 'Lessons from the childcare allowance cases' published by the Administrative Jurisdiction Division in November 2021 is based on two sub-reports. The first sub-report is from the Legal Reflection Working Group. This sub-report mainly looks back at the legal aspects of the strict line of jurisprudence that the Division has followed for years in childcare allowance cases.
The second sub-report is from the Judicial Judgment Working Group. This second sub-report contains a consideration of the way in which the judicial judgments in the childcare allowance cases have been reached. The working group made use of the model that I developed in my NJV preliminary advice of a number of years ago for assessing the quality of judicial decisions.2 This model has three dimensions. The first quality dimension concerns the traditional quality of the judicial decision. Traditional quality can be distinguished in the aspects (i) sound fact-finding, (ii) a full oral hearing, (iii) an expert application of the legal rules, and (iv) an understandable and convincing motivation for the decision (NB: in the description the word 'convincing' is missing on page 44 of the report, that it must be a supporting and comprehensible motivation, but the fact that a motivation is persuasive is an essential aspect of a good motivation). The second quality dimension concerns the fairness of the outcome of the decision. The third dimension of quality concerns whether the judicial decision is also effective in its consequences. An effective decision is one that (a) is not too late, (b) has problem-solving skills and (c) leads to a final settlement of the dispute.
On the basis of this model, the Judicial Judgment Working Group has critically examined judicial judgment in childcare allowance cases and looked at what lessons the Division can draw from this, in order to avoid repetition in the future.
What strikes me in the conclusions of the Working Group is that the judgment of the Division in childcare allowance cases has in fact fallen short on all three quality dimensions. On the traditional dimension, because there was no proper investigation of the facts, litigants experienced the speaking time at the hearing as too short, and finally because the motivation of the judgments was inadequate because there was insufficient response to critical counter-arguments from, among others the Rotterdam court, the National Ombudsman and the Scientific Council for Government Policy (p. 51). The legal merits of the line of case law that has been followed for years are not covered by the study of the Working Group.3 On the dimension of justice, because the unjust way in which the strict line of case law sometimes turned out, has not led to an adjustment of that line (p. 46). And finally on the dimension of effectiveness, because – contrary to what the Department assumed – the Tax and Customs Administration did not make repayment arrangements, but collected the reclaimed amounts in one go. As a result, the statements had no problem-solving ability (p. 47). In fact, I add, the court decisions multiply problems. Of course, for the citizens seeking justice, but also years later for the tax authorities. And, ultimately also for the courts, because confidence in them has declined.
I would like to elaborate on two of these shortcomings in quality. That is primarily the fact-finding. The Working Group notes that too little work has been done on the fact-finding (p. 53). It was assumed that the files supplied by the tax authorities were complete, while in reality this was not the case (p. 46). As a result, a good picture of the actual state of affairs was lacking. The Division did not sufficiently investigate whether the facts alleged by the Tax Authorities – in relation to what was argued against them by the litigants, for example that certain pieces of evidence had indeed been sent – were correct. The Division has therefore insufficiently examined whether the alleged facts corresponded to the actual course of events.
This is not much of a surprise, as the Department's track record on this matter, the fact-finding, is not very favorable. For many years now, it has been noted in the literature that the Division - in parts of its case law - should conduct a more in-depth fact-finding and should not assume the correctness of what the administrative body argues about this. But even if it's no surprise, it's still painful. Proper investigation of the facts is the foundation for high-quality justice. A court decision must be anchored in reality, must be based as much as possible on the actual course of events. If not, the ruling will be perceived as unfair. Justice then becomes fiction. This undermines trust in the judiciary. The importance of finding the truth naturally plays a role in all areas of law: criminal law, family law, civil law and administrative law. Proper truth-finding requires an investigative and critical attitude from the judge. It is not appropriate for the judge to assume too easily that what a party puts forward is correct. Whether that is the Public Prosecution Service, the Tax Authorities, the Child Protection Board or a civil party. This applies all the more if the other party argues that the facts are different in reality, that the actual course of events has been different. And this is especially true if there is a power imbalance between the parties, as a result of which the litigant has great difficulty in substantiating that the alleged complex of facts is incorrect or incomplete. The judge must recognize the existence of such power differences and offer inequality compensation.
Then there is a second lack of quality of decisions in childcare allowance cases: insufficient attention has been paid to the dimension of justice. The Working Group writes in its report that the Division has had insufficient insight into the outcome of its decisions and that this touches the touchstone of material justice (p. 47). The Working Group recommends that when applying a legal practice line in concrete cases, 'material justice should always be kept in mind' (p. 54, p. 58) and that more attention be paid within the Division to 'training in practical moral deliberation', that is, for speaking about the moral aspects of a matter (p. 48). That seems to me to be a sensible recommendation, but at the same time I have to say that I find it wry that it must be explicitly stated that justice is also always about justice. This should be a no-brainer: law and justice are inextricably linked. The function of the law is to justly order society and to reduce the abuse of power. For the judge this means that the core of her work is to strive for a just decision. What Paul Scholten wrote about this in 1931 is as topical as ever: every court decision is fundamentally a decision of conscience, based on the inner conviction that justice is done with the decision. Justice is always an attempt to achieve justice.4 Of course, dilemmas can arise and there can be differences of opinion about what constitutes a just decision in an individual case. Also, the views on justice are not fixed, but subject to change over time. But if it is not recognized that justice is at its core about justice, that justice is the focus on which the judge focuses, the core of the judicial work is being neglected.
In view of the shortcomings in these two quality aspects – proper fact-finding and fairness of the outcome of the decision – the Division has mainly focused on timeliness and legal unity in recent decades. These are also aspects of quality, but if the quality of judicial decisions is narrowed down to these aspects, little remains. The comments in the report of the Working Group, 'that the administrative judge is expected to provide tailor-made solutions' (p. 43) and that 'attention for the special aspects of the individual case must be promoted' (p. 54) seem to me then also no-brainers. It is precisely weighing and assessing the merits of the individual case and trying to arrive at a just decision on that basis, which is the essence of jurisprudence.
Proper fact-finding and fairness always go hand in hand with this. It is not without reason that in almost all directive decisions of the civil chamber of the Supreme Court, the precise interpretation of the standard in a specific case depends on the specific circumstances of that case. This forces the judge of fact to ask himself in each case at hand what the relevant circumstances of the case are and what they entail for achieving a just outcome of the dispute. Of course, that does not mean that this always automatically leads to fair judgments. Sometimes the facts have not been properly researched, sometimes the judge makes a different choice than you would have made yourself. And, as said, what is just and what is unjust is the subject of continuous discussion. But the point is that the judge's aim is always to do justice. I can't imagine why this would be fundamentally different for administrative law.
 Ruth de Bock is a part-time professor of civil justice at ACLPA. She has worked for a number of years as a civil judge and as an administrative judge. She has been Advocate General at the Supreme Court since 2015.
 See R.H. de Bock, Grip on quality. A model for quality of judicial decisions, in: Quality as choice. Quality (assessment) of case law, legislation and legal research (Preadvice of the Dutch Lawyers Association). Kluwer: Deventer 2015.
 See the sub-report of the Working Group on Legal Reflection and the critical reflections that have been published about this in the meantime. See, among others, J. van de Beeten and R. van de Beeten, 'Three times is (no) a charm?', Nederlands Juristenblad 2021/43.
 Paul Scholten, supplemented by G.J. Scholten, General part (at Asser's Manual for the Practice of Dutch Civil Law). Zwolle: W.E.J. Tjeenk Willink 1974 (third edition). See also Paul Scholten, 'Justice and justice', in: Dorsten naar Justice (ed. T. Slootweg), Kluwer: Deventer 2010, as well as the Ars Aequi article by L. van den Berge about the relevance of Scholten for the Allowance Affair.