Intercountry adoption from Bangladesh; appeal by Wereldkinderen and Terre des Hommes to the limitation period is not unacceptable according to standards of reasonableness and fairness; no claim within a reasonable period; claim against State fails for sub
https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHDHA:2023:1716
ECLI:NL:GHDHA:2023:1716
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AuthorityCourt of Appeal in The Hague
Judgment date12-09-2023
Date of publication12-09-2023
Case number200.308.104/01
Formal relationshipsFirst instance: ECLI:NL:RBDHA:2021:12781 , Ratification/Confirmation
JurisdictionsCivil rights
Special characteristicsAppeal
Content indication
Intercountry adoption from Bangladesh; appeal by Wereldkinderen and Terre des Hommes to the limitation period is not unacceptable according to standards of reasonableness and fairness; no claim within a reasonable period; claim against State fails for substantive reasons: no od
LocationsRechtspraak.nl
Sdu News Personal and Family Law 2023/529
Pronunciation
COURT OF THE HAGUE
Civil rights
Team Trade
Court case number: 200.308.104/01
Court case number: C/09/594910 / HA ZA 20-600
Judgment of September 12, 2023
in the case of
[appellant] ,
living in [place of residence],
appellant,
lawyer: R. van Domselaar, with offices in Utrecht,
in return for
1. The State of the Netherlands (Ministry of Justice and Security) ,
based in The Hague,
defendant,
lawyer: MM van Asperen, with offices in The Hague,
2. Wereldkinderen Foundation ,
based in The Hague,
defendant,
lawyer: MH van Olden, with offices in Rotterdam,
3. Terre des Hommes Netherlands Foundation ,
based in The Hague,
defendant,
lawyer: Mr. S. Colsen, with offices in Amsterdam.
The court will hereinafter refer to the parties as [appellant], the State, Wereldkinderen and Terre des Hommes.
1The case in brief
1.1
[appellant] was born in Bangladesh and came to the Netherlands as a small child in 1976 and was adopted here in 1978. She states that a man who worked for both Wereldkinderen and Terre des Hommes persuaded her biological mother to give her up under false pretenses. According to [appellant], there had already been signals of abuses with regard to intercountry adoptions from Bangladesh and Wereldkinderen and Terre des Hommes should therefore have intervened. She also accuses the State (among other things) of failing to provide sufficient supervision. She is seeking a declaratory judgment that the defendants acted unlawfully during and after her adoption. She also wants the defendants to be ordered to compensate her damages.
1.2
The court honored Wereldkinderen's and Terre des Hommes' claim that the statute of limitations had expired and rejected the claim against the State on substantive grounds. The court also concludes that Wereldkinderen and Terre des Hommes rightly rely on the limitation period. Furthermore, the court agrees with the district court that the State has not acted unlawfully.
2Procedure on appeal
2.1
The course of the appeal procedure is evident from the following documents:
- the summons of February 24, 2022, with which [appellant] appealed the judgment of the District Court of The Hague of November 24, 2021;
- the statement of grievances of [appellant], with appendices;
- the statements of defense from the State, Wereldkinderen and Terre des Hommes.
2.2
An oral hearing was initially scheduled for April 2023, but this did not take place. At the request of the parties, they argued in writing instead. The pleadings (including the response to each other's written explanation) are in the file.
3Factual background
3.1
[appellant] was born on or around [date of birth 1] in Bangladesh. On [date 1], at the age of four, she traveled to the Netherlands together with her brother to be adopted by a Dutch adoptive family. In 1978, [appellant] and her brother were adopted under Dutch law by Mr. [Name 1] and Mrs. [Name 2] in [place of residence] (hereinafter jointly: the adoptive parents).
3.2
Wereldkinderen is a foundation that aims to provide help to children in need. Wereldkinderen is involved, among other things, in mediation in intercountry adoptions. The Intercountry Adoption Agency Foundation (hereinafter: BIA) is a legal predecessor of Wereldkinderen. BIA, in turn, was the result of a merger in 1975 of the Foundation for Intercountry Adoption (hereinafter: SIA), the intercountry adoption branch of the Dutch Association for Foster Families (NVP), and the adoption branch of the Wereldkinderen Association. BIA, or at least its legal predecessor SIA, was active in Bangladesh from 1973 to 1982. SIA/BIA was the only mediator who had permission from the Bengali government to mediate in adoptions to the Netherlands.
3.3
Terre des Hommes is a foundation founded in 1966 that aims to combat the exploitation of children and focuses on helping children in their home country. Terre des Hommes has been active in Bangladesh since 1971.
3.4
[Person 1] (hereinafter: [Person 1]), also known as “[Person 1]” or “[Person 1]”, started in Bangladesh in 1974 as a “local program officer” for Terre des Hommes. His appointment as program director followed in August 1975 and his appointment as “full official representative of Terre des Hommes Federation in Bangladesh” in March 1976. [Person 1] was also the representative of BIA in Bangladesh from mid-1976 to September 15, 1978. During this period he worked for both organizations. [Person 1] worked from a Terre des Hommes office in Dhaka. He drove a van, the costs of which were shared by BIA and Terre des Hommes.
3.5
On December 20, 1976, BIA opened a children's home in Dhaka, the NICWO Baby Home (Netherlands Intercountry Child Welfare Organization). The NICWO was part of BIA. Representative of the NIWCO in Bangladesh was [Person 1].
The (background of) Dutch legislation and regulations during the transfer to the Netherlands and the adoption of [appellant]
3.6
When [appellant] traveled from Bangladesh to the Netherlands (1976) and was adopted in the Netherlands (1978), there were no treaties that regulated her adoption and to which the Netherlands and/or Bangladesh were party.
3.7
Adoption was introduced in Dutch law as a child protection measure taken in the interests of the child in need of protection, and not as an institution in the interests of the adopters. The possibility of adoption was legally introduced in 1956 and regulated since January 1, 1970 in Articles 1:227-1:229 of the Civil Code (BW) 1 .
3.8
In 1978, only married couples could request adoption and the request could only be granted on the basis of the then Article 1:227 of the Dutch Civil Code: " if the adoption is intended both from the point of view of severing ties with the parents and confirming ties with the adopters, (..) is in the apparent interests of the child and the conditions set by the following article have been met." Among other things, the condition applied (in principle) that none of the parents (which meant: parents who had a family law relationship with the child) contradicted the request.
3.9
In the first years after 1956, the adoption law was mainly used to create security in existing foster situations. Until the mid-1960s, most adoptions involved a Dutch foster child and Dutch (adoptive) foster parents. After 1965, adoptive parents increasingly turned abroad to find a foster child, from 1967 onwards, more specifically non-European countries. The policy and legal developments surrounding the adoption of foreign children are described in the “Note on the practical course of events surrounding adoption and adoption preparation” (hereinafter also the Adoption Note) that the State Secretary of Justice sent to the Chairman of the Second Chamber has sent 2. This memorandum discusses, among other things, the problems posed by the increasing interest in foreign foster children from the 1960s onwards and the resulting need for regulatory measures. After all, Dutch law did not yet provide a (sufficient) legal framework for intercountry adoptions (see also 6.2. below).
3.10
In 1967, the first guidelines were drawn up for the Main Department of Immigration and Border Protection 3 . The guidelines were amended in 1975 and included in the Aliens Act Implementation Guidelines (part G7) 4. The general rule was that taking in a foreign foster child had to be in the best interests of that child and that the child would not have an acceptable future under the circumstances in the country of origin. Unless it concerned children from families of close relatives or friends, only children below compulsory school age (in 1976-1978: under the age of six) were eligible for inclusion. Furthermore, a foreign foster child could only be admitted if the prospective foster parents had obtained prior permission in principle from the Minister of Justice. With this in mind, the Child Protection Council conducted an investigation into the suitability of those prospective foster parents.
3.11
The Aliens Implementation Guidelines also stipulated that the child's arrival must be arranged in a responsible manner. Where required, a provisional residence permit (MVV) had to be issued by the Dutch representation in the country in question. Furthermore, with a view to the child's admission to the Netherlands, the prospective foster parents had to demonstrate by means of documents (among other things) that:
a) the parent(s) and/or legal representative of the child had renounced the child in a manner that was locally valid and acceptable according to Dutch standards;
b) the authorities in the country of origin agreed to adoption by the foster parents.
3.12
The Aliens Circular stated that the Ministry of Justice did not mediate in the search and placement of foster children. This was already a private initiative, also for domestic adoption, and so it remained so. It was only in 1989 that a licensing system was introduced with the entry into force of the Foreign Foster Children (Wobp) Act, with a view to regulating private mediation and government supervision and control.
The Bengali perspective - period 1971-1982 5
3.13
Millions of civilians lost their lives or were displaced as a result of a civil war in 1971 between Pakistan and the then Bengal region. The Pakistani army used systematic rape as a weapon of war. It is estimated that approximately 300,000 Bangladeshi women were victims of rape, leading to tens of thousands of unwanted pregnancies. After Indian intervention, the Pakistani army withdrew in December 1971 and the independent state of Bangladesh was proclaimed.
3.14
The war had devastated Bangladesh and its economy had collapsed. More than eighty percent of the population lived below the poverty line. In 1974 a famine broke out. International organizations such as the Red Cross, Salvation Army and Terre des Hommes provided assistance in the refugee camps. Global media attention led some people to adopt a Bangladeshi child. Since 1972, a number of Dutch organizations, including SIA, have contacted the Bengali authorities to set up an adoption channel with Bangladesh.
3.15
The Bangladeshi government wanted to solve the problem of women becoming pregnant through rape and combat the social exclusion of these women. There were heavy social taboos on unwed motherhood. The Bangladeshi government saw the global attention to the situation in the country as an opportunity and decided to allow abortion and intercountry adoption, even though these went against the country's Islamic law and customs. In October 1972, an adoption law was passed: the Abandoned Children Order . This law stipulated that "abandoned children" could be made available for intercountry adoption and the Ministry of Social Affairs would fulfill the role of statutory guardian for these children. The definition of “abandoned child” was:"a child who, in the opinion of the Government, is deserted or unclaimed or born out of wedlock" . This adoption law was tightened in 1978 (only actual orphans or foundlings could henceforth be adopted by foreigners) and completely repealed in 1982, due to objections from the strict Islamic political party Jamaat-e-Islami, which did not want the adopted children to be converted to other religions or a western lifestyle. Intercountry adoption was banned.
3.16
The following (procedural) steps had to be taken successively for the adoption of children from Bangladesh by Dutch foster parents in the period 1973-1982:
1. the Bangladeshi parents signed a waiver (affidavit) in court by which they relinquished their rights as caregivers;
2. statutory guardianship was placed with the Bangladeshi Ministry of Social Affairs and the child was handed over to a home (in the case of adoption by Dutch people, this was almost always the BIA children's home in Dhaka);
3. child and adoptive parents were matched: the BIA in the Netherlands presented prospective adoptive parents to the Bengali authorities and arranged the matching between the child and the Dutch couples;
4. the Bangladeshi Ministry of Social Affairs approved the matching and issued the so-called Transfer of Guardianship or Blue Paper: transfer of guardianship to the adoptive parents or BIA;
5. the child was medically examined: the BIA in Dhaka had the adopted children medically examined and during the inspection the age of the child was estimated and recorded (there was no central birth register in Bangladesh, so that the age of children was often unknown, partly because of this);
6. the home prepared a background report, often no longer than one page, describing the reason why the child was put up for adoption;
7. the BIA applied for a Bangladeshi passport for the child to be allowed to travel and sent this to the Dutch consulate in Dhaka;
8. the Dutch consulate arranged the Dutch visas for the children; this required:
- the Bangladeshi renunciation,
- the Bangladeshi passport and
- the Dutch consent in principle.
9. the child traveled to the Netherlands accompanied by escorts, usually BIA employees, and after arrival there the adoption was pronounced under Dutch law by a Dutch court.
The adoption of [appellant]
3.17
On August 17, 1976, an affidavit was drawn up before the Bengali court in Dhaka in which [mother 1] declared that she renounced her daughter [appellant] ([appellant]). This affidavit states, among other things:
“(..)
That I am the mother of female child [appellant] whose date of birth is [date of birth 1]. and she is under my care and custody and I am her guardian. Her father is no more in the world. That I am quite unable to bear the livelihood and other day to day expenses and as such 1 have decided to give her in adoptions and for appropriate rehabilitation as per provisions of the Bangladesh Abandoned Children (Special Provisions) Order 1972 and the Rules made thereunder.
That today I handed over [appellant] to the custody of Netherlands Intercountry Child Welfare Organization, Dacca for her adoption in the family of Mr. & Mrs. [Person 4], and as such I relinquished all my claims whatsoever about the child and in future I shall not make any claim about her.
(...)”
3.18
[Appellant] was then transferred to a children's home in Dhaka.
3.19
On September 24, 1976, the adoptive parents received principle permission from the Dutch Ministry of Justice to adopt a foreign foster child into their family.
3.20
On October 9, 1976, the brother of [appellant] was renounced by [brother 2] (according to the affidavit, his 'brother and legal guardian'). The mother's name is not mentioned in the affidavit.
3.21
A Bengali passport was issued for [appellant] on October 11, 1976.
3.22
On [date 1], [appellant] arrived at Schiphol together with her brother. Upon arrival in the Netherlands, [appellant] and her brother were placed in different families. After three days, [appellant] was placed in the same adoptive family as her brother, namely that of the adoptive parents.
3.23
In a Transfer of Guardianship dated November 26, 1976, it is recorded that the guardianship of [appellant] has been transferred from the Bengali government to another couple as adoptive parents, represented by NICWO. The document was signed on behalf of the Bangladeshi government by the then Director of Social Welfare. On behalf of NICWO, the document was signed by [Person 1] ( "Representative Netherlands Intercountry Child Welfare Organization" ).
3.24
On December 7, 1977, the Child Protection Council issued a report to advise the subdistrict court in Hilversum regarding the provision of custody in respect of [appellant] and her brother. With regard to the date of birth of [appellant's] brother, the report states: "Foster parents felt that an error had been made in stating the boy's date of birth. It seemed to them that he must be older and that [appellant] ] and he otherwise could not be sister and brother. After an X-ray examination and information from the kindergarten teacher, his date of birth was officially changed from [date 2] to [date of birth 2] . "
3.25
After the adoptive parents had first been appointed temporary guardians of [appellant] and her brother, the Amsterdam court pronounced the adoption of [appellant] and her brother by the adoptive parents on [date 3]. The judgment considers that the legal conditions and formalities have been met, both under Dutch law and under the law of Bangladesh.
Signals of abuses in adoptions from Bangladesh and investigations conducted
3.26
In the spring of 1977, two Bengali mothers came to the clinic of the British doctor [doctor] (hereinafter: [doctor]). [doctor] has worked since 1975 as a “medical officer” at the “Medical Project at Kampalur” of Terre des Hommes in Bangladesh. The mothers said that their children had been taken away. According to the mothers, [Person 1] and other employees of Terre des Hommes convinced them to send their children to the BIA children's home, with the promise that they would receive food, clothing and education. When they wanted to visit their children, they disappeared, the mothers said.
3.27
In a letter dated April 20, 1978 to the Terre des Hommes International Federation, [doctor] reported “illegal adoption business run by Mr. [Person 1] ” .
3.28
In May 1978, Weekblad Panorama published an article entitled “Buying a child in Bangladesh” . This article contains allegations of abuse against [Person 1] about (among other things) age falsification and falsely presenting children as each other's family. The article, in which [Person 1] is referred to as [Person 1], states, among other things:
"[Person 1] is also not always honest with the Dutch government. In our country, the rule applies that foreign children can only be adopted if they have not yet reached compulsory school age, i.e. if they are not yet 6 years old. Sit However, if there are some older children in the BIA house, [Person 1] simply makes them a little younger. There is no one who can check that.
A second directive from the Dutch government says that only one child can be included in a family at a time. Unless it concerns closely related children, such as twins or a brother and sister. If a Dutch family wants to adopt two children and there are no twins available, then that is no problem for [Person 1]: "Then we'll just make twins out of that girl and that boy. No one will notice that anyway. "
3.29
After this publication, Terre des Hommes asked [Person 1] to come to its office in The Hague. Terre des Hommes also asked him to resign from his position at BIA.
3.30
In early September 1978, the French newspaper Le Monde highlighted [doctor's] allegations of child trafficking.
3.31
The same month, the then director of BIA traveled to Bangladesh to investigate [doctor's] allegations.
3.32
[Person 1] submitted his resignation to BIA in a letter dated September 15, 1978. BIA confirmed this dismissal in a letter to [Person 1] dated September 23, 1978, with the following reason: “considering your workload and other reasons” .
3.33
In a letter dated January 2, 1979, [doctor] asked the Bengali government to draw attention (in summary) to illegal adoptions and the role of [Person 1] as an employee of Terre des Hommes. In the letter, [doctor] accuses the Social Welfare Department of participating in these illegal adoptions.
3.34
In February 1979, [doctor] left Bangladesh on orders from the Bengali government.
3.35
In March 1979, [doctor] spoke to the board of Terre des Hommes in the Netherlands. Following this conversation, Terre des Hommes initiated an internal investigation into [doctor's] allegations in April 1979. In that context, two of its board members traveled to Bangladesh. Terre des Hommes then concluded that [doctor's] claims were incorrect.
3.36
On May 9, 1979, [doctor] sent a list to the Dutch government with the names of 25 mothers who allegedly gave up their children in Bangladesh under false pretenses. This list also includes [mother 1] (the biological mother of [appellant]).
3.37
On July 4, 1979, a Bengali commission of inquiry, which included the then Director of Social Welfare, published a report following [doctor] allegations. This report concludes that the allegations are unfounded. The report states that all 25 persons mentioned by [doctor] were investigated or heard by the investigative committee. The report states, in brief and concisely, that all 17 parents interviewed, including [mother 1], admitted that they voluntarily gave up their children (for financial, social or medical reasons), that no false promise was made that they would get their children back, that no financial compensation was promised by Terre des Hommes or any other organization and that they realized that their children were intended for intercountry adoption. The report also states that the mothers interviewed, including the mother of [appellant], stated that they did not sign a statement to the effect that they wanted their children back and that [doctor] and his employees“allured them that they would be given cultivable land, plow and cattle, house and other means of their betterment if they sign/put their thumb impression on paper brought to him by Dr. [doctor] .”
The report states that five other persons mentioned by [doctor] are not “camp dwellers” and that no one knows their whereabouts. With regard to the other three people, the report states that they signed a form provided by [doctor] or provided a fingerprint, but that their children were never adopted and that one of them never had children.
3.38
In July and August 1979, Dutch newspapers published about [doctor's] accusations about the involvement of Terre des Hommes and BIA in child trafficking. It was discussed that, according to the Bangladeshi government, the accusations have proven to be unfounded after investigation.
3.39
On September 7, 1979, Dutch justice officials expressed internal doubts about the reliability of the Bengali investigation report.
3.40
On November 5, 1979, the Secretary-General of the United Nations submitted [doctor]'s complaint about the involvement of Terre des Hommes and BIA in child trafficking to the Dutch government.
3.41
On April 2, 1980, twelve biological parents, including [mother 1], sent a letter of complaint to the Bengali parliament in which they described how they lost their children due to deception by employees of Terre des Hommes International Federation and that they were threatened when they asked for their children asked. The letter has prompted Bangladeshi authorities to investigate the complaint.
3.42
Also on April 2, 1980, [mother 1] wrote to [doctor] for help. In this letter she reiterated that she and other parents gave up their children under false pretenses through [Person 1] and corrupt Bengali government employees. The letter states, among other things, that parents were intimidated by [Person 1] not to testify before the investigative committee in July 1979. The letter mentions the complaint they have filed with the authorities against [Person 1] and some of his employees and that the parents are again being intimidated by [Person 1].
3.43
The investigation report of the Bengali authorities was published on December 8, 1980. The report states that, with the exception of [mother 1] and [mother 2], all parents stated that they voluntarily gave up their children for adoption and that the charges are based on false statements.
3.44
On December 7, 1981, the American magazine People devoted an article to [doctor] and his accusations about child trafficking in Bangladesh. The article states, among other things, that some children end up in the sex industry.
3.45
On March 5, 1982, the Bengali magazine Bichitra published an article in which BIA, Terre des Hommes and [Person 1] were accused of trafficking in adopted children, placing these children in brothels, mutilating children to make them suitable for begging and forced Christianization of Muslim children.
3.46
After the army seized power in Bangladesh on March 25, 1982, [Person 1] was arrested by the Bengali authorities on May 20, 1982 on suspicion of child trafficking. In June 1982, the Abandoned Children Order was repealed.
3.47
[Person 1] was fired by Terre des Hommes at some point after his release in October 1982.
3.48
In the second half of 1982, BIA and the Dutch government held consultations on how to deal with the negative publicity in Bangladesh which, according to a message from the Minister of Justice to the Queen of September 15, 1982, was harmful to the Dutch government. was considered for the good name of the Netherlands. In that context, BIA has drawn up reports on the good living conditions of adoptees from Bangladesh in the Netherlands and sent them to the Bangladeshi authorities.
3.49
In March 1983, the criminal prosecution of [Person 1] in Bangladesh ended without a conviction. The written (English) record by [Person 2] (Magistrate 1st Class) states, among other things, that 10 of the 13 investigated declarants have withdrawn their statements and stated that they voluntarily gave up their children. It is further stated that the adoptions took place lawfully and cannot be legally challenged and that the suspicion against [Person 1] is unfounded.
3.50
An affidavit from [mother 1] dated December 2, 1986 reads as follows:
"I, Mrs. [Mother 1] wife of [Person 5] aged about 35 years
residing at [address] , Bangladesh by religion a Muslim do hereby solemnly affirm and state as under:
1. That [Person 3] and [Person 1] of Terre des Hommes
(Netherlands) in 1977 have taken from me my minor son [son's name] who was aged 10
years old at that time and a daughter named [appellant], aged 8 years at that time saying they would take the children to Dhanmondi Baby Home for their maintenance and education.
2. That the said [Person 3] and [Person 1] gave me hope that
we would be entitled to see the children once a week.
3. That after three weeks I went to Dhanmondi Terre Des Hommes Office but I was
not allowed to see the children.
4. That till now I have not heard any news from my children and I suspect that the
children have been taken to foreign countries and have been sold.
5. That I was given hope that a big amount would be given to me for the children
and I shall be provided with a permanent job in Terre Des Hommes (Netherlands) and the children will remain in Dhaka as our own children."
Broadcasting Nieuwsuur, Wereldkinderen project and liability by [appellant]
3.51
On June 3, 2017, the TV program Nieuwsuur paid attention to illegal adoption practices in Bangladesh in the 1970s and early 1980s. The involvement of BIA, Terre des Hommes and [Person 1] was discussed. During this broadcast, old photos were shown of [appellant] and her brother prior to their adoption.
3.52
In 2017, Wereldkinderen started a project called “History & Roots” to collect all available information regarding intercountry adoptions in the years 1970-2000. The aim is to investigate (per country) the history and context of intercountry adoption in the period 1970-2000. At some point, a report was published on Bangladesh (revised version July 2019) which, among other things, discusses BIA's working methods at the time of [appellant's] adoption.
3.53
[appellant] held Terre des Hommes, Wereldkinderen and the State liable in separate letters dated March 11, 2019.
[journalist]'s report from April 2019 stating letters to [appellant] in the 1990s, (whether or not) from or on behalf of her biological mother
3.54
In April 2019, a report was published on behalf of the Shapla Community Foundation – a foundation that represents the interests of adoptees from Bangladesh – on intercountry adoptions from Bangladesh to the Netherlands in the period 1972-1982. The report was written by investigative journalist [journalist] (hereinafter: [journalist]). [journalist] concludes (in short) that there were many abuses during adoptions, that Terre des Hommes and BIA were involved and that Terre des Hommes, BIA and the State did not respond adequately to signals of abuse.
3.55
The report also mentions an interview with a former employee of Terre des Hommes in which she explains that when she and her partner (also a former employee of Terre des Hommes) wanted to adopt a Bangladeshi child, the original surrender papers were no longer returned and that [Person 1] then explained to her that adjustments had been necessary to make the child “adoptable”. According to the former employee, [Person 1] often did not take it so seriously, for example stating that a child had been vaccinated even though this had not happened. The former employees said they could not live with [Person 1]'s working method and returned to the Netherlands in May 1976. There they complained to the foreman of Terre des Hommes, according to the [journalist] report.
3.56
As part of her investigation, [journalist] also spoke with [appellant]. Under the heading “First reunions” (paragraph 6B) it is stated with regard to [appellant]:
" Mother [mother 1] finds son and daughter
Yet something has changed: for the first time [in 1993, as appears from the preceding text,
hof] , a mother from Tongi and a daughter in the Netherlands have been reunited.
Mother [Mother 1], who took the lead in the fight against [Person 1] in the late 1970s and early 1980s, searches for her own son and daughter in the Netherlands via [Person 7]. With results.
Daughter [appellant] is not really happy with the appearance of her Bengali mother. (…) Out of dutifulness, [appellant] tells her biological mother about her and her brother's lives. She also receives messages from [mother 1], who claims that she has never given her children up for adoption and that she has always looked for them. But [appellant] does not believe her mother. 'That really seemed like a sweet talk to me. Part of me was still angry with her and blamed her for giving us up.'
Yet [appellant]'s curiosity has been aroused. She wants to travel to Bangladesh and contacts the adoption organization Wereldkinderen, the successor to BIA, which had arranged her adoption. 'They strongly advised me against it: it would be much too dangerous. That scared me and I decided not to go. I still blame World Children for that: that a real reunion never came about.'
The correspondence stopped in 1996; [mother 1] died that year. [appellant] has never felt sorry about it, she says, until she saw the Nieuwsuur broadcast in 2017 about tampering with Bengali adoptions. 'In it, a mother held up a Bengali newspaper article from the late 1970s. I was scared to death. It contained a photo from when I was little, along with that of my brother. The article was about missing children. Only then did the penny drop for me: my mother really searched for us and fought for us for years. I hated that I never wanted to believe her before.”
In the meantime, the Shapla Foundation is in contact with another son of [mother 1], who has continued to live in Bangladesh. The man says during an interview that his mother was always looking for her two missing children and that her greatest sadness is that she was never able to hold them in her arms again.
In November 2018, [appellant] decided to travel to her native Bangladesh to meet her older brother for the first time since her adoption.
Brothers and sisters find each other
The fact that [appellant] and [brother 1] grew up in the same adoptive family would not have happened in the first instance. Because she and her brother also came to the Netherlands on the same flight, initially they were placed in different adoptive families. [appellant] still remembers well how that went:
'It was all very exciting, such an airplane and so on. I didn't know at all what to expect. But when it turned out at Schiphol that my brother was also there, but that I was not allowed to go with him, it became too much for me. I kicked and cried and tore all of my adoptive mother's clothes. I was unruly for days. With effect, because after a few days I ended up in my brother's adoptive family.'
Apparently the BIA knew quite quickly that the children were brother and sister. In any case, [appellant] could not have told this herself, because she did not yet speak Dutch. It remains unclear where the mistake was made. The adoption papers of brother and sister, which include the name of father and mother, show no similarities. Based on the papers it cannot be deduced that it concerns a brother and sister."
Research report Terre des Hommes September 16, 2020
3.57
The broadcast of Nieuwsuur and the liability by (among others) [appellant] prompted Terre des Hommes to investigate possible irregularities in adoptions from Bangladesh to the Netherlands in the 1970s and early 1980s and the role of Terre des Hommes thereby. On September 16, 2020, Terre des Hommes presented its research report. In summary, this concludes
(1) that Terre des Hommes was not formally involved in adoptions, but that at an operational level things were mixed up with BIA and the NICWO baby home,
(2) that Terre des Hommes was probably aware of [Person 1]'s involvement in adoptions in mid-1976,
(3) that although irregularities have occurred in adoptions from Bangladesh, Terre des Hommes cannot say whether parents were misled at the time as [doctor] claims and whether Terre des Hommes employees were involved in that case, and
(4) that based on the limited information it is difficult to determine what exactly Terre des Hommes knew at what time and what action was taken accordingly.
COIA report February 8, 2021 and response from the State: expertise center, apologies and no longer an appeal to limitation by the State
3.58
In 2019, the State established a committee of inquiry: the Committee on Investigation of Intercountry Adoption in the Past (hereinafter: COIA). The COIA was tasked with investigating:
- the role and responsibility of the Dutch government with regard to intercountry adoption of children in at least the period 1967-1998;
- the existence of possible abuses regarding intercountry adoption of children in at least the period 1967-1998, with the countries Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka being examined as a starting point;
- the Dutch government's awareness of the aforementioned possible abuses;
- the involvement of the Dutch government in the aforementioned possible abuses;
- the awareness and involvement of Dutch mediating parties or other institutions/private individuals with the aforementioned possible abuses;
- the extent to which the possible involvement of the Dutch government and Dutch intermediaries or other institutions/private individuals was incidental or structural in nature;
- the manner in which the Dutch government responded to signals of the aforementioned possible abuses; and
- whether the response has been adequate/sufficient, in light of the role and responsibility of the Dutch government with regard to intercountry adoption of children in at least the period 1967-1998.
3.59
The COIA released a report on February 8, 2021. That report states that the committee focused on the system of intercountry adoption, that it did not examine individual case studies and does not provide an opinion on legal guilt and liability. The report also states that "misconduct" is defined as: actions or omissions in violation of applicable national and international laws and regulations, as well as actions or omissions that are not formally in conflict with those laws and regulations but are ethically irresponsible. . The main conclusions about intercountry adoptions from Bangladesh are as follows (chapter 4.5):
“From at least September 1978, alleged abuses were reported in the media and elsewhere. These signals were ignored and not followed up by action from the Dutch government. The Dutch government did inquire with the local authorities, but did not conduct any investigation itself. There was little control over adoptions from Bangladesh. After allegations of abuses made by various parties, the Dutch government did not initiate an investigation. She did inquire with the Dutch organizations BIA and TdH [Terre des Hommes, court] . The latter two organizations had conducted internal investigations, but concluded at the time that no adoption abuses took place.
Those involved who were interviewed by the committee indicated that there was a disconnect between the work of aid organizations in Bangladesh as a result of the chaos that ravaged the country in the 1970s. Division of tasks was unclear, and those involved, including [Person 1], operated with double hats. Personal interests and mutual contradictions clouded the adoption practice. The government took no action.”
3.60
The COIA report also states that a former BIA board member said he witnessed that [Person 6] (of the Salvation Army) himself changed the date of birth in the passport of that board member's Bengali adoptive daughter and added that she had done that before.
3.61
On the advice of the COIA, the State apologized to adoptees for the State's role in the abuses and promised to establish an expertise center to support adoptees with legal issues and parentage research.
3.54
The State has decided to no longer rely on limitation in procedures such as these.
4Proceedings in court
4.1
[appellant] has summoned the State, Wereldkinderen and Terre des Hommes and has demanded that, in summary, the court
1) declares that the State, Wereldkinderen and Terre des Hommes acted unlawfully towards [appellant] at the time of her adoption and thereafter and that they are obliged to compensate her for the damage that [appellant] suffered as a result;
2) orders the State, Wereldkinderen and Terre des Hommes jointly and severally to pay € 42,000 for non-material damage and to pay € 2,555.02 for material damage, plus statutory interest, and
3) orders the State, Wereldkinderen and Terre des Hommes jointly and severally to pay the legal costs.
4.2
[Appellant] bases her claims on the following, in summary:
4.2.1.
The legal predecessor of Wereldkinderen, BIA, was the only approved Dutch adoption organization in Bangladesh. The BIA representative on site, [Person 1], was responsible for the matching between the adoptive parents and the child, and for the papers required for an adoption. In 1976, he had [appellant's] biological mother, who did not want to give her up for adoption, sign a waiver under false pretenses. She was led to believe that her daughter would be cared for in the area, that she could always visit her, that her daughter would return after receiving training and that she (the mother) would be paid for giving up her her daughter. BIA thus illegally obtained the papers required for the adoption of [appellant].
4.2.2.
Terre des Hommes acted unlawfully towards [appellant] by taking her away from her biological mother under false pretenses. [Person 1], who was also the local director of Terre des Hommes, promised the biological mother of [appellant] that her children would be cared for in the area and would receive training there and could be visited by her. Terre des Hommes was aware of the abuses, now that its own director was involved and Terre des Hommes had been frequently contacted by [doctor]. Given all the media attention, and given the complaints from adoptive parents in the Netherlands, [doctor] and biological parents, Terre des Hommes should have intervened. She should have informed BIA and the State about the irregularities,
4.2.3.
The State has acted contrary to its legal obligation to verify whether the adoption papers were validly drawn up and whether the biological mother has made a well-considered decision about giving up her child for adoption. The State also has the task of providing general preventive supervision and, if necessary, taking enforcement action when third parties do not comply with applicable laws and regulations. The State is liable due to failed supervision and inadequate enforcement, as it was aware, or at least reasonably should have been, of irregularities in [appellant's] adoption case, but refused or neglected to take adequate enforcement action.
4.2.4.
Everyone has the right to identity and to know from whom he or she descends and the right to the necessary information needed to understand childhood and early development, according to the International Convention on the Rights of the Child (CRC) and article 8 European Convention on Human Rights (ECHR). Despite the fact that Wereldkinderen, Terre des Hommes and the State had been aware of the abuses in adoptions from Bangladesh and in particular that of [appellant] for years, they failed to adequately investigate these abuses, in violation of their treaty obligations. and to inform [appellant] of (possible) irregularities in her adoption case. The state, Wereldkinderen and Terre des Hommes should also not have destroyed the adoption file and other relevant documents. For [appellant] this has meant that she did not get to know her biological mother in time and that she does not know who her biological father is and whether he is still alive.
4.2.5.
[appellant] has suffered damage as a result of the unlawful actions of Wereldkinderen. Terre des Hommes and the State. She has been struggling with psychological complaints for years as a result of uncertainty about her identity. She never got to know her biological parents and is often unable to control her emotions because until the end of 2017 she suspected that her biological mother had abandoned her. It is unclear who her biological father is and whether he is still alive. Due to the death of her biological mother several years ago, [appellant] will never see or get to know her. [appellant] is therefore primarily entitled to non-material damages of € 42,000 (€ 1,200 per year x 35 years, calculated from the moment when [appellant] was 12 years old), or at least compensation from November 2017, the moment when [appellant] became aware of the fact that her biological mother did not voluntarily give her up. [appellant] also had to spend many hours investigating her illegal adoption. [appellant] also traveled to London in 2019 to speak with [doctor] and went to Bangladesh to obtain more information and meet family members. These costs for discovering the irregularities amount to € 2,555.02.
4.3.
The State, Wereldkinderen and Terre des Hommes have put up a defense.
4.4.
The court upheld Wereldkinderen's and Terre des Hommes' claim that the statute of limitations had expired and, after examining the substance of the claim against the State, concluded that the State did not act unlawfully. All claims have been rejected and [appellant] has been ordered to pay the legal costs.
5Claim on appeal
5.1
[appellant] has appealed and has raised various objections (grievances) against the judgment. [appellant] claims the same as in the court.
5.2
Grievances 1 to 5 are directed against the court's considerations in the case against Wereldkinderen and Terre des Hommes. With ground 1, [appellant] argues that the court did not, at least insufficiently, take into account the fact that the defendants already knew in 1976 that there were serious abuses in intercountry adoptions, that [Person 1] falsified adoption papers and that [appellant] and her brother had flown to the Netherlands with incomplete and incorrect papers. In the alternative, [appellant] argues that defendants should in any case have been prepared for abuses. After all, since 1971 there had been signs of abuses in other countries (including Brazil and Sri Lanka) and Bangladesh was one of the poorest countries in the world, and also completely destroyed by war. a country par excellence where abuses could occur. Nevertheless, defendants did not take any (precautionary) measures and did not monitor. On the contrary, they have actually encouraged abuses by having everything done by one person ([Person 1]). Ground 2 means that the court did not assess the COIA report on its merits. With ground 3, [appellant] argues that the court wrongly ruled that there are insufficient indications to assume that [appellant] was adopted under false pretenses. [appellant] refers to the undisputed facts and some additional circumstances, including the above-mentioned signals of abuses, the fact that the Transfer of Guardianship was missing when she traveled to the Netherlands and the fact that her brother's file contained many inaccuracies (the signatures under the renunciations were identical, but her brother had been relinquished by someone else and was between [appellant] and her brother according to her brother's papers only 9 months). She also argues that the court wrongly expressed doubts about the veracity of her mother's statement and notes, among other things, that BIA and Terre des Hommes had an interest in the outcome of their internal investigations. With grounds 4 and 5, [appellant] argues that the court incorrectly weighed the points of view (see 6.10 below) in the cases against Wereldkinderen and Terre des Hommes. In the explanation, [appellant] discusses these points of view. Ground 6 means that the court wrongly did not rule that there had been failed supervision by the State. According to [appellant], the State should not have assumed the reliability of the Bengali papers in 1976, because it knew that it was a devastated country without a stable legal system and without adequate supervision. Furthermore, [appellant] argues that the State already had a supervisory role in 1976 in the admission of foreign foster children for adoption. Because the Transfer of Guardianship was missing, the State granted a visa on the basis of an incomplete file. [Appellant] states that the State was aware of the abuses in Bangladesh in any case on September 6, 1978, before the court in the Netherlands ruled on [Appellant's] adoption in October 1978. Ground for appeal 7 is directed against the court's consideration in the case against the State that the State's choice not to conduct an independent investigation does not constitute a violation of Article 8 of the ECHR. The explanatory memorandum does not only refer to the State, but to “defendants”. The grievance refers to the previous grievances. [appellant] argues that defendants had a file in their possession containing, among other things, letters from [doctor]. She finds it incomprehensible that “defendants” never shared that information and even destroyed it. As a result, [appellant] never had the opportunity to judge the accusations himself. The State, Wereldkinderen and Terre des Hommes had a strict obligation to provide information, according to [appellant]. Finally, ground 8 concerns the legal costs. The grievance refers to the previous grievances. [appellant] argues that defendants had a file in their possession containing, among other things, letters from [doctor]. She finds it incomprehensible that “defendants” never shared that information and even destroyed it. As a result, [appellant] never had the opportunity to judge the accusations himself. The State, Wereldkinderen and Terre des Hommes had a strict obligation to provide information, according to [appellant]. Finally, ground 8 concerns the legal costs. The grievance refers to the previous grievances. [appellant] argues that defendants had a file in their possession containing, among other things, letters from [doctor]. She finds it incomprehensible that “defendants” never shared that information and even destroyed it. As a result, [appellant] never had the opportunity to judge the accusations himself. The State, Wereldkinderen and Terre des Hommes had a strict obligation to provide information, according to [appellant]. Finally, ground 8 concerns the legal costs. As a result, [appellant] never had the opportunity to judge the accusations himself. The State, Wereldkinderen and Terre des Hommes had a strict obligation to provide information, according to [appellant]. Finally, ground 8 concerns the legal costs. As a result, [appellant] never had the opportunity to judge the accusations himself. The State, Wereldkinderen and Terre des Hommes had a strict obligation to provide information, according to [appellant]. Finally, ground 8 concerns the legal costs.
5.3
The grievances and the defendants' response to them are discussed in more detail below.
6Assessment on appeal
Applicable law
6.1
As the court rightly established, [appellant]'s claim must be assessed under Dutch law, in short, because [appellant] has her domicile in the Netherlands and the State, Wereldkinderen and Terre des Hommes are domiciled/established in the Netherlands.
Introductory remarks
6.2
On July 12, 2022, this court ruled in another intercountry adoption case 6. Just as in that case (which the court will further refer to as the Sri Lankan case, following the parties), [appellant]'s case concerns a child who was brought from her country of birth to the Netherlands at a very young age to be adopted ([appellant] was around 4 years old at the time and in the Sri Lankan case it involved a newborn baby). The finding in the Sri Lankan case that there is a particularly drastic change in the life of a child, with far-reaching consequences for the future, is equally applicable in the case of [appellant]. This does not alter the fact that there are also important differences with the Sri Lankan case. For example, [appellant] was transferred to the Netherlands in 1976, while the transfer to the Netherlands in the Sri Lankan case took place in 1992. By that time, there were considerably more signals of structural abuses than in 1976. In addition, in 1976 there was hardly a legal framework for intercountry adoptions. The 1986 UN Declaration7 had not yet been adopted and the Foreign Foster Children (Wobp) Act 8 had not yet entered into force. The regulations consisted exclusively of the Aliens Circular (see above: 3.10 and 3.11).
6.3
Another important difference is that the plaintiff in the Sri Lankan case does not know who her biological mother was and that she has (therefore) never been able to find her biological family. [appellant], on the other hand, has always been known with the real name of her biological mother. While the core accusation in the Sri Lankan case was that the adoption papers had been forged, the core accusation in this case concerns the renunciation being concluded under false pretenses.
6.4
The court must assess each case on its own merits. As the court rightly noted, this explains why the outcome in individual intercountry adoption cases can differ.
6.5
Another introductory comment that the court would like to make is that [appellant] does not distinguish between the individual defendants in many places in the case documents. She often speaks about “defendants” in general. For example, ground for appeal 7 is directed against a consideration in the case against the State, but in the explanation [appellant] again speaks of “defendants”. During the further assessment, it is important to keep in mind that each defendant has his or her own role and task.
6.6
The court will now first hear the case against Wereldkinderen and Terre des Hommes. In these cases, limitation has been invoked.
Case against Wereldkinderen and Terre des Hommes :
Appeal to limitation unacceptable according to standards of reasonableness and fairness?
6.7
The court considered, among other things, the following:
- the event causing the damage is the distance from [appellant] in Bangladesh and her crossing to the Netherlands and it is not disputed between the parties that this took place before and on [date 1] respectively (judgment 5.42);
- the twenty-year limitation period of Article 3:310 paragraph 1 of the Dutch Civil Code has (therefore) expired on 4 November 1996 at the latest (judgment 5.20).
These considerations have not been contested. [appellant] has not argued on appeal that the limitation period started running later insofar as her claim is based on the accusation that Wereldkinderen and Terre des Hommes should have conducted further investigation when they received signals of abuses and that they [appellant] should have inform about those signals. The court did respond to that accusation (judgment under 5.14, 5.37-5.39 and 5.54). Moreover, the alleged signals date from the 1970s and early 1980s, so it must be assumed that the limitation period would have already expired at the time of the March 2019 liability claims.
6.8
The claims are therefore in principle time-barred. The key question is whether [appellant] rightly argues that it is unacceptable according to standards of reasonableness and fairness for Wereldkinderen and Terre des Hommes to invoke that limitation period.
6.9
The first point is that the institution of liberating prescription is based on compelling arguments, including legal certainty, the fact that a debtor cannot be expected to keep evidence for years and the fact that the passage of time can cause evidentiary problems and witness statements become less important. can become reliable. In general, the Supreme Court therefore strictly adheres to the limitation rules, even if this is sometimes difficult to accept “from the point of view of individual justice” 9 . Restraint is therefore required when adopting an exception 10. Only in exceptional cases can it be judged that the derogatory effect of reasonableness and fairness precludes an appeal to limitation. This does not alter the fact that there may indeed be cases in which an appeal to limitation must be qualified as unacceptable.
6.10
The following points of view were mentioned in this context in the Supreme Court's judgment of 28 April 2000 in the Van Hese/De Schelde case:
a. whether it concerns compensation for financial damage or for disadvantage that does not consist of financial damage, and - partly in connection with this - whether the claimed compensation benefits the victim himself, his surviving relatives or a third party;
b. to what extent the victim or his surviving relatives have a claim for compensation on other grounds in respect of the damage;
c. the extent to which the person addressed can be blamed for the event;
d. to what extent the person liable had already taken into account or should have taken into account the possibility that he would be liable for the damage before the expiry of the limitation period;
e. whether the person addressed still reasonably has the opportunity to defend himself against the claim;
f. whether the liability is (still) covered by insurance;
g. whether, after the damage came to light, liability has been declared within a reasonable period and a claim for compensation has been filed.
6.11
These points of view must be taken into account when assessing whether, under the circumstances of a specific case, an appeal to limitation is unacceptable according to standards of reasonableness and fairness. Depending on those circumstances, other points of view may also be taken into account in that judgment. The burden of proof and burden of proof rests with [appellant].
6.12
In the opinion of the court, what [appellant] has put forward is too limited to assume that Wereldkinderen's and Terre des Hommes' invocation of limitation in this specific case is unacceptable according to standards of reasonableness and fairness. The court considers this as follows.
6.12.1.
As already considered above, this is a very drastic change in the life of a very young child, with far-reaching consequences for that child's future. It is foreseeable that carelessness surrounding the adoption can result in emotional and psychological damage to the child in question. In this case, [appellant] mainly relies on that type of damage (compare point of view a). Article 8 of the ECHR includes the right to family life, the right to know one's descent and the right to know under what circumstances someone was born or given up. Although Article 8 of the ECHR does not apply in the relationship between a child and the persons and private institutions involved in the adoption of that child, but this does not alter the fact that the persons and institutions involved must have been reasonably aware of the far-reaching interests of the child, even in the 1970s. This means that even then the utmost care could be expected around the entire process. In any case, a mother was obviously not allowed to be persuaded to give up her child under false pretenses.
6.12.2.
If it indeed happened that [appellant] was given up under false pretenses through the actions of [Person 1], then this is a highly culpable act (point of view c). However, whether this happened is now in dispute. Wereldkinderen and Terre des Hommes dispute with reasons that there has been unlawful conduct (attributable to them) by [Person 1]. There are some documents that support [appellant's] position. For example, the file contains the letters and statement from her mother (3.41, 3.42, 3.50) and the letters and list from [doctor] (see 3.26, 3.27, 3.36). Furthermore, more generally, there are some indications that [Person 1] forged papers (see 3.28, 3.54) and it appears that the papers of [appellant]'s brother were (partly) incorrect. However, in this case it is not about her brother but about [appellant] herself and in addition, falsifying a date of birth to make a child "adoptable" - although of course also culpable - is not the same as forcing a mother to do so under false pretenses. to force her to give up her child. Apart from the fact that Wereldkinderen and Terre des Hommes also dispute that [Person 1] forged papers, the statements of the former employees of BIA or Terre des Hommes do not in any case refer to persuading mothers to renounce under false pretenses. do of their children. In addition, the criminal prosecution of [Person 1] ended without a conviction. With regard to Terre des Hommes, it is also worth noting that it is not an adoption organization and is therefore in any case more distant from possible unlawful acts in the context of the adoption of [appellant]. Although it is conceivable that the “double role” that [Person 1] fulfilled at the time caused confusion, this does not mean that it is established that in this specific case this confusion contributed to the (alleged) renunciation under false pretenses. [appellant] by her mother.
6.12.3.
After more than 45 years, the truth is difficult to find out. This is also one of the compelling arguments underlying the institution of limitation (see 6.9 above). Although the burden of proof rests on [appellant] and she is therefore the one who in principle suffers the most from the problems caused by the passage of time, but that does not alter the fact that Wereldkinderen and Terre des Hommes would be forced to take a closer look in the event of a substantive treatment. to defend themselves against serious accusations, while the passage of time inevitably makes this more difficult for them (point of view e). On the basis of the written evidence in this file, it has not been established that [appellant's] statement that there was highly culpable conduct (point of view c) is correct because her mother was allegedly induced to give her up under false pretenses. [appellant] has made an offer of proof. Given the very long passage of time since 1974, it is highly questionable whether the truth could be discovered by interviewing witnesses.
6.12.4.
Be that as it may, the court does not get around to providing evidence because it agrees with the court that [appellant] did not hold Wereldkinderen and Terre des Hommes liable within a reasonable period after the damage came to light (point of view g ). The parties disagree as to when this reasonable period began. [appellant] states that only after watching the Nieuwsuur broadcast in 2017 (see 3.51) did she become aware of the abuses that (according to her) occurred during the realization of her adoption. Before that, she would always have thought that her mother had given her up voluntarily, according to [appellant]. However, it has been established that from the end of 1993/beginning of 1994 she received letters from her biological mother, or at least from someone who claimed to be her biological mother or to act on her behalf. According to [journalist's] report, [appellant] stated in an interview that those letters stated that her mother never gave her and her brother up for adoption and had always looked for them. Confronted with this, [appellant] stated at the hearing before the court that she did not recognize herself in the passages in question and that from 1993 to 1996 she corresponded with a Bengali law firm that said it was acting for her biological mother and was asking for money on her behalf. In the judgment, the court ruled that [appellant] had failed to provide concrete facts and circumstances that would show that [journalist]'s report contained inaccuracies regarding her contacts with her mother. [appellant] subsequently repeated on appeal that she disputes that she could have had reason to suspect that the renunciation was not voluntary as early as the period 1993-1996. [appellant] states that she initially suspected that the letters were written on behalf of her biological mother, but that after the second letter she became suspicious because the letters kept asking for money. [Appellant] then contacted the law firm and was told that the employees of that office did not know her mother. [appellant] subsequently repeated on appeal that she disputes that she could have had reason to suspect that the renunciation was not voluntary as early as the period 1993-1996. [appellant] states that she initially suspected that the letters were written on behalf of her biological mother, but that after the second letter she became suspicious because the letters kept asking for money. [Appellant] then contacted the law firm and was told that the employees of that office did not know her mother. [appellant] subsequently repeated on appeal that she disputes that she could have had reason to suspect that the renunciation was not voluntary as early as the period 1993-1996. [appellant] states that she initially suspected that the letters were written on behalf of her biological mother, but that after the second letter she became suspicious because the letters kept asking for money. [Appellant] then contacted the law firm and was told that the employees of that office did not know her mother.
6.12.5.
However, [appellant] has not substantiated these statements on appeal either. She did not submit the letters in question (they were allegedly lost during a move) and, for example, she also did not submit documents to substantiate the contact with the law firm. Although this would have been obvious, she did not state that she asked her biological brother in Bangladesh about the letters and whether he could tell anything about them. Nor has [appellant] explained how it is possible that some things are expressed in a different way in the report by [journalist] - which is otherwise very detailed and consistent with other statements made by [appellant] and whether she has contacted [journalist] for clarification. requested, which would also have been obvious and on her way. After all, [appellant] herself brought [journalist]'s report into question without any reservations in an introductory summons and also referred to [journalist]'s report in support of some of her own statements. She apparently considers that report to be reliable in general.
6.12.6.
Moreover, [appellant] gives somewhat variable explanations about the content of the letters and her statements do not automatically show that [journalist]'s account is incorrect; on the contrary, those statements seem to at least partly confirm that account 11 . Moreover, although [appellant] cannot remember the exact words, it is certain that the letters stated that her mother had not wanted to give her up. [appellant] confirmed this on appeal 12 . That is also in line with [journalist]'s report. This means that the content of [journalist]'s report has been established as insufficiently refuted.
6.12.7.
Taking everything into account, the court is of the opinion that [appellant] has not sufficiently refuted the fact that [journalist]'s report shows that in 1993/1994 (when she was already well over the age of majority) she had reason to suspect that her mother may not have been had (completely) voluntarily relinquished her and at least to conduct further investigation into this. As already considered above, [appellant] was aware of her mother's real name from the beginning (unlike in the Sri Lankan case). Once she started looking for her biological family, she found them (with help).
6.12.8.
The court therefore assumes that the reasonable period did not only start in 2017 but at the latest in 1996, when the letters stopped according to [appellant]. Even if it is assumed that [appellant] had to be given some time to process the information from the letters and to conduct further investigation, a period of more than twenty years (1996 - liability March 2019) cannot be seen as a reasonable period. .
Conclusion in case against Wereldkinderen and Terre des Hommes
6.13
The conclusion is that [appellant] has not provided sufficient evidence to conclude that it is unacceptable according to standards of reasonableness and fairness for Wereldkinderen and Terre des Hommes to rely on the limitation period in this case. This means that [appellant]'s claims against these two parties must be rejected. The judgment will therefore be confirmed to that extent, with [appellant] being ordered to pay the costs of the appeal, including subsequent costs, plus statutory interest, as claimed by Wereldkinderen and Terre des Hommes. The claim of both parties for a provisional declaration of the costs of the proceedings will also be granted.
Case against the State
6.14
As mentioned, the State does not rely on limitation. The court will discuss the content of the claim against the State.
Insufficient supervision?
6.15
It has already been discussed above (6.12.2. and 6.12.3.) that it has not been established that [appellant] was surrendered under false pretenses. The burden of proof in that regard rests on [appellant]. However, no evidence will be provided, because even if it is assumed that the waiver was concluded under false pretenses, [appellant's] claim against the State will not succeed, for the following reasons.
6.15.1.
The first point is that in 1976 there was no general supervisory framework for intercountry adoptions (see also 6.2. above). The WOBP had not yet come into effect (for a long time) and the State had limited involvement in intercountry adoptions at the time. The regulations were formed exclusively by the Aliens Circular (see above: 3.10 and 3.11). The State therefore had two (main) tasks: a) assessing the suitability of the prospective adoptive parents and b) admitting and arranging the stay of the child to be adopted in the Netherlands. This concerns the task referred to under b). In short, [appellant]'s accusation means that the State should have seen that [appellant's] papers were not in order and that the State wrongly blindly relied on the decision of the Bengali court.
6.15.2.
In itself it is true that the State cannot shift all responsibility to the Bengali authorities and in all circumstances it can suffice to state that it was the responsibility of the Bengali government to ensure that waivers were concluded properly. After all, it already applied at that time that admission of a foreign foster child had to be in the interests of that child (see 3.10) and that, with a view to the child's admission to the Netherlands, the adoptive parents had to demonstrate that the parent(s) and/or legally representative(s) had relinquished the child in a manner that was locally valid and acceptable according to Dutch standards(see 3.11). This means in principle that a (more) active attitude from the State could be expected if there were concrete and sufficiently serious signals that in [appellant's] case something was not right with the waiver or that structural problems were occurring in general. abuses occurred around renunciations in Bangladesh.
6.15.3.
However, it is not substantiated that there were such serious signals in 1976 that intervention was required. It is not clear how the State could or should have suspected that [appellant's] mother had renounced her under false pretenses. Any inaccuracies in the papers of [appellant's] brother do not play a significant role in that context, if only because [appellant] has not explained why the State should have seen reason to compare the papers of [appellant] and her brother. comparable. [Appellant] has also not stated that a visa was applied for at the same time in both cases and, if so, that and why it was/should have been known to the case officer that he was dealing with brother and sister.
6.15.4.
[appellant] points out that the Transfer of Guardianship was initially missing from her papers. The parties dispute whether this document was required for the visa to be granted, but whatever the case may be, it is certain that this document was issued a few weeks after [appellant] traveled to the Netherlands. It is unclear why the absence of this document should have given the State reason to doubt the manner in which [appellant] had been relinquished. At most, it is conceivable that the State should have insisted on issuing this document before admitting [appellant] to the Netherlands, but in that case her entry was only delayed by a few weeks (see also the undisputed consideration 5.64 in the judgment).
6.15.5.
It has not been substantiated which general signals of structural abuses had already reached the State in 1976. The above-mentioned signals via former employees from (according to [appellant]) the period before her trip to the Netherlands (3.55 and 3.60) relate to knowledge at Wereldkinderen and Terre des Hommes. The court rightly considered that before [doctor] sought publicity with his accusations (1978, see, among others, consideration 3.27 above) and turned to the Dutch government (1979, see 3.36), the State had not yet received any reports of abuses in adoptions. from Bangladesh to the Netherlands. [appellant] also argues that there were already signals of abuses in other countries. Because Bangladesh was a poor country that suffered from the effects of war and famine, In her opinion, the State should also have been alert to abuses. In the opinion of the court, this accusation, formulated in general terms, does not provide sufficient basis to assume that the State should have proactively carried out more intensive supervision in 1976, even without concrete signals of irregularities in Bangladesh, and should have investigated more actively in individual cases whether the papers from the Bengali authorities were correct.
6.15.6.
Referring to table 3 from the COIA report, [appellant] also argues that the State was already aware of abuses in Bangladesh in September 1978, i.e. before the court approved the adoption of [appellant] on [date 3]. ] under Dutch law. The court was apparently not informed at the time about the possible abuses, according to [appellant]. However, as the State rightly noted in response 13The COIA report shows that [doctor] only informed the Dutch embassy in London of his complaints in the period January-April 1979. Moreover, he did not send the list of mothers' names to the State until May 1979 (see 3.36). [Appellant] may have an eye on the publications in Panorama and Le Monde in April and September 1978 respectively (see 3.28 and 3.30). It is unclear why the State should have informed the court of these publications. [appellant] does not explain that either.
Insufficient research/information – violation of Article 8 ECHR?
6.16
The court agrees with the district court that the State has not violated any obligation to investigate or provide information. When the State became aware of [doctor's] accusations, it was not obliged to immediately inform [appellant] (or her adoptive parents) thereof. Due care required that he first investigate those allegations. That has also happened, namely by Terre des Hommes, BIA and the Bengali government. The conclusion based on those investigations was that the allegations were unfounded. Furthermore, the criminal prosecution of [Person 1] ended without a conviction. As the court rightly considered, it has not been stated or shown that new facts and circumstances subsequently emerged on the basis of which it could still be concluded that there were indications of a violation of Article 8 ECHR. Under those circumstances, the State did not act unlawfully by not conducting further investigations and/or informing [appellant] on its own initiative. It has not emerged that the State destroyed data.
Conclusion in the case against the State
6.17
The judgment in the case against the State will therefore also be confirmed. As requested, the court will order [appellant] to pay the State's legal costs on appeal, plus statutory interest if the costs are not paid within fourteen days of this judgment, and the court will declare the costs order provisionally enforceable.
Final conclusion and legal costs
6.18
The conclusion is that [appellant's] appeal is unsuccessful. Therefore, the court will confirm the judgment in all three cases and do further justice as shown in 6.13, 6.17 and below.
7Decision
The Council:
In the case against Wereldkinderen
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confirms the judgment of the District Court of The Hague of November 24, 2021;
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orders [appellant] to pay the legal costs on appeal, to date estimated on the part of Wereldkinderen at € 2,135 in court fees and € 2,366 in lawyer's salary, and at € 173 in additional salary for the lawyer, yet to be determined increase by € 90 if this judgment has not been complied with amicably within fourteen days after notification and subsequent service of this judgment has taken place, and stipulates that these amounts must be paid within 14 days after the day of this judgment or, with regard to the amount of € 90, after the date of service, must be paid, failing which these amounts will be increased by the statutory interest referred to in Article 6:119 of the Dutch Civil Code from the end of the aforementioned period of 14 days;
In the case against Terre des Hommes
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confirms the judgment of the District Court of The Hague of November 24, 2021;
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orders [appellant] to pay the legal costs on appeal, to date estimated on the part of Terre des Hommes at € 2,135 in court fees and € 2,366 in lawyer's salary, and at € 173 in additional salary for the lawyer, to be increased by € 90 if this judgment has not been complied with amicably within fourteen days after notification and subsequent service of this judgment has taken place, and stipulates that these amounts must be paid within 14 days after the day of this judgment or, whatever concerns the amount of €90, which must be paid after the date of service, failing which these amounts will be increased by the statutory interest referred to in Article 6:119 of the Dutch Civil Code from the end of the aforementioned period of 14 days;
In the case against the State
- -
confirms the judgment of the District Court of The Hague of November 24, 2021;
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orders [appellant] to pay the legal costs on appeal, to date estimated on the part of Terre des Hommes at € 2,135 in court fees and € 2,366 in lawyer's salary, and stipulates that these amounts must be paid within 14 days after the date of this judgment must have been paid, failing which these amounts will be increased by the statutory interest referred to in Article 6:119 of the Dutch Civil Code from the end of the aforementioned period of 14 days;
In all three cases
- declares the legal costs orders immediately enforceable.
This judgment was given by mrs. EM Dousma-Valk, SA Boele and E. Bauw and pronounced in public on September 12, 2023 in the presence of the clerk.
1Act of 26 January 1956, introducing the possibility of adoption and amendment, in connection therewith, of the Civil Code, the Code of Civil Procedure and the Criminal Code, Stb. 1956, 42, as amended by law of 11 December 1958, establishing Book 1 of the new Civil Code, with the exception of titles 9 and 10, Stb. 1958, 590 and introduced by the Implementation Act of Book 1 of the new Civil Code (Act of 3 April 1969, Stb. 167) and entered into force by decision of 4 June 1969, Stb. 1969, 256.
2Parliamentary Papers II 1979/80, 16 194, nos. 1-2.
3These guidelines are included as Appendix III to the Adoption Note, see footnote 2.
4Appendix V to the Adoption Memorandum, see footnote 2 again.
5Taken from Chapter 4 of the COIA report (see 3.58 below) and also included in the (uncontested) statement of facts of the court's judgment.
6ECLI:NL:GHDHA:2022:1248.
7The Declaration on the legal and social principles relating to the protection and well-being of children, in particular with regard to foster care and adoption, nationally and internationally: United Nations General Assembly Resolution 41/85 of 3 December 1986. For the background to this statement, see the judgment in the Sri Lankan case (ECLI number in footnote 6) under 3.39.
8The Act of 8 December 1988, containing regulations regarding the admission to the Netherlands of foreign foster children, Stb. 1988, 566 – entered into force on 15 July 1989. See judgment in the Sri Lankan case under 3.43 and 3.45 to 3.48.
9Cf. HR 3 November 1995, ECLI:NL:HR:1995:ZC1867.
10HR November 23, 2018, ECLI:NL:HR:2018:2047.
11E.g. MvG 57 “was the first moment in her life that she did not think that her biological mother gave her away out of convenience and, possibly with the exception of a short period in 1993/1994, never looked back at her” and pleadings on appeal 17 “ As It appears from Mrs. [journalist's] report that [appellant] did not believe her biological mother and [appellant] has always continued to blame her mother . "
12MvG 59.
13Response memorandum 4.28.