Blog | Liability for adoption abuse; an update
Blog written by Team Adoption of SAPPersonal Injury Lawyers
, consisting of: Saskia de Groot, Mark de Hek and Sharon Soeltan
Since the 1970s, more than forty thousand children in the Netherlands have been adopted from abroad. Around the same time, the first reports of adoption abuse appeared in the media. About the forgery of documents, the exploitation of poverty among birth mothers and the relinquishment of children for payment or under duress. However distressing the signals may be, they do not lead to critical reflection in the public and political debate, let alone a reconsideration of the system of intercountry adoption.
After Zembla investigated the abuses and fraud in 2017, SAP Personal Injury Lawyers held the Dutch state liable on behalf of a group of adoptees in 2018. The state rejects liability because there is 'insufficient evidence'.
Joustra Committee investigation
Following all the media attention and the various information requests (so-called Wob requests) relating to adoption abuses, the Minister of Legal Protection set up an independent committee on April 18, 2019.
This committee (Joustra committee) released a report in 2021. This report concludes that there have been structural abuses in intercountry adoptions: there was widespread fraud, child trafficking, theft and kidnapping.
The Dutch government was aware of adoption abuses from the late 1960s. In addition, the government has failed to fulfill its responsibilities and obligations and failed to intervene when there was reason to do so. The signals were known to the Dutch government, according to internal correspondence from government agencies. Government officials also acted contrary to the rules.
The government has not taken effective action against the abuses. According to the Joustra committee, the response was absent, looking away and not taking action. The Dutch government has not sufficiently fulfilled its supervisory task. Although the government was generally well aware of abuses, little, no or no action was taken.
Comment stands
In response to the report, the Minister for Legal Protection stated that the government should have taken a more active role to prevent abuses. An adoption freeze will be imposed immediately. Despite the fact that apologies have been offered and that mistakes have been made, the State has not yet acknowledged any liability. At the end of 2020, SAP Personal Injury Lawyers called on the state not to invoke the statute of limitations in these types of cases. The Minister for Legal Protection subsequently promised that the government will no longer rely on the limitation period in legal actions relating to adoptions from abroad. The question remains, however, what the commission's report means for such legal actions.
Ongoing proceedings
Various proceedings are now underway against the Dutch state and adoption organizations.
In July this year, SAP Personal Injury Lawyers initiated proceedings against the Dutch state on behalf of eight people who were adopted from Sri Lanka in the 1980s and 1990s. There was fraud in their adoptions. For example, names have visibly been changed on passports and adoption files contain conflicting dates of birth, places of birth and names of biological parents. Four of the eight adoptees were said to be part of twins according to their adoption file, which turned out to be incorrect after DNA tests. Only one of them has been able to find her biological family. The adoptees have incurred costs in the form of DNA tests, search trips, name and date of birth changes and psychological help. They were all adopted through the Flash Foundation, a now defunct adoption agency that had been associated with baby trafficking and adoption fraud since the 1970s and was investigated by the Public Prosecution Service. In these ongoing proceedings, we are awaiting the statement of defense (the defense) from the state.
Earlier, another law firm initiated proceedings on behalf of Dilani Butink, who was adopted from Sri Lanka in 1992. Dilani was adopted through the organization Kind en Toekomst and holds both this organization and the Dutch state liable.
The Court of Appeal in The Hague [1] concluded in July 2022 that both the adoption organization and the state are liable. Kind en Toekomst should have investigated whether the adoption was in the best interests of the child and whether the mother had renounced it in an acceptable manner. The organization could not simply rely on Sri Lankan papers and should have collected information itself. The Dutch government should have monitored Child and Future more strictly. Due to the signals of structural abuses, the government had to realize that the paperwork from the Sri Lankan authorities could not be relied on.
At the end of last year, the state decided to appeal against this ruling. In cassation, the Supreme Court tests whether the legal rules have been properly applied. The opinion of Advocate General Snijders was recently published, in which he advises the Supreme Court.
Advice of the Advocate General in the case of Dilani Butink
According to the advice of the Advocate General, the above requirements cannot be imposed on Kind en Toekomst and the Dutch government under the adoption law that has applied since 1989. According to this law, the assessment of whether the adoption is in the best interests of the child and whether the child has been properly relinquished is up to the state of origin, which means that the Dutch adoption organization and the government may rely on the judgment of those authorities. This could only be different if there were such strong signals of abuses in intercountry adoptions from Sri Lanka that there could be insufficient confidence in the involvement of the Sri Lankan authorities. According to the advice, these signals did not exist: there were signals of abuse, but not in the case of regular adoptions where licensed Dutch adoption organizations had mediated in accordance with local procedures. According to the advice, there was no reason for distrust, and the Dutch state and adoption organization did not act unlawfully during the adoption.
The Supreme Court's ruling in this case is expected to follow on April 19, 2024. In a large number of cases, the Supreme Court adopts the Advocate General's conclusion, but that is not always the case.
Significance for ongoing procedure
Both Dilani Butink and the eight adoptees for whom a procedure was recently initiated were adopted from Sri Lanka, which means that some of the signals about the method of adoption from this country are similar. However, a large number of the eight adoptees in the recent lawsuit were adopted before 1989, i.e. before the law to which the above advice refers came into effect.
In addition, our clients have been adopted through the Flash organization. Since the 1970s, there have been many signals of abuses and associations with baby trafficking and fraud about this organization, which were widely reported in the media. In 1979, according to a front-page article in Trouw, Flash was involved in an adoption scandal in New Guinea, in 1981 the German newspaper BILD reported the news that the foundation sold (sick) babies to German parents for sums of 35,000 Marks and in 1983 Flash played according to a Brazilian newspaper, a role in the kidnapping of Brazilian babies.
The clients for whom we started the procedure have also been adopted with obvious errors in the adoption files. This also means there are concrete signals that there was fraud and that a visa should not have been issued.
We will have to wait and see how the Supreme Court rules on the responsibilities of the state and how this test will play out in Dilani's case and the recently started lawsuit for the eight adoptees.
[1] The Hague Court July 12, 2022, JA 2022/120