Court Judgement Sri Lanka Adoptees: ECLI:NL:RBDHA:2024:16503, Rechtbank Den Haag, C/09/651762 / HA ZA 23-691

ECLI:NL:RBDHA:2024:16503

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AgencyThe Hague District Court

Date of pronouncement16-10-2024

Date of publication16-10-2024

Case numberC/09/651762 / HA ZA 23-691

Areas of lawLaw of Obligations

Special featuresFirst instance - multiple

Content indication

Adoption judgment. Eight adopted children, adopted from Sri Lanka in 1983-1990, accuse the State of irregularities in their adoption. As a result, they may not have been able to find their biological parents. The accusations concern: failure to supervise the intermediary, errors in the granting of visas, violation of Article 8 ECHR. The claims are dismissed. In line with the judgment of the Supreme Court of 19 April 2024, ECLI:NL:HR:2024:622 . When assessing, take into account the circumstances, legal standards, insights and social views of the time.

LocationsRechtspraak.nl

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verdict

THE HAGUE COURT

Team trading

case number / roll number: C/09/651762 / HA ZA 23-691

Judgment of October 16, 2024

in the matter of

1[claimant 1] ,

at [place of residence 1] , plaintiff 1

2. [claimant 2] ,

at [place of residence 2] , plaintiff 2

3. [claimant 3] ,

at [place of residence 3] , plaintiff 3

4. [claimant 4] ,

at [place of residence 4] , plaintiff 4

5. [claimant 5] ,

at [place of residence 5] , plaintiff 5

6. [claimant 6] ,

at [place of residence 6] , plaintiff 6

7. [claimant 7] ,

at [place of residence 7] , plaintiff 7

8. [claimant 8] ,

at [place of residence 8] , plaintiff 8

hereinafter jointly referred to as claimants,

lawyer Mr. SJ de Groot in Amersfoort,

in return for

THE STATE OF THE NETHERLANDS (MINISTRY OF JUSTICE AND SECURITY) ,

in The Hague,

defendant, hereinafter: the State

lawyer Mr. EV Koppe in The Hague.

1What is this case about?

The claimants were adopted in Sri Lanka by Dutch adoptive parents in the period 1983-1990 and came with them to the Netherlands. They have not been able to find out who their biological parents are on the basis of their adoption files.

This is a great sorrow for the claimants. They have heart-rending questions about their identity and descent. The claimants hold the State liable for irregularities in their adoptions and the lack of correct information about their biological parents. According to the claimants, the State should have supervised the intercountry adoptions better at the time, the State made mistakes in granting visas and the State did not provide correct information. The claimants refer to the report of the Joustra committee (2021). This established that there were structural abuses in intercountry adoptions at the time, in which the State 'looked the other way'.

The State does not agree with the plaintiffs' claim for liability.

When assessing the State's actions, the circumstances and knowledge at the time must be taken into account. Whether the actions were unlawful is determined by the (legal) standards and social views at the time. This was recently explained by the Supreme Court in a similar adoption case 1 . The court was unable to establish any errors or contradictions in the plaintiffs' adoption files that were apparent and so serious that the State could be accused of not having recognised them at the time. The court also established that the State's supervision at the time did not fail and that Article 8 ECHR was not violated. In this judgment, the court therefore dismisses the plaintiffs' claims.

This outcome conflicts with the general sense of justice and must even more so with the individual sense of justice of the claimants. After all, they suffer from the irregularities that must have taken place during their adoptions and as a result of which they were unable to trace their biological parents. Furthermore, in his response to the report of the Joustra committee, the Minister for Legal Protection acknowledged that abuses could continue because the government's actions were inadequate. He has apologized for this and made it clear in these proceedings that these apologies also apply to the claimants. However, these apologies are of little significance in these legal proceedings. No matter how distressing the situation is for the claimants, the court must test the State's actions against the (legal) standards and social views of the time.

2Process flow

2.1.

The course of the procedure is apparent from:

• -

the summons of July 25, 2023 with productions 1 to 49;

• -

the conclusion of the answer with productions 1 to 4;

• -

the interim judgment of the court of 6 September 2023;

• -

the court's email regarding the pleading time and the Supreme Court judgment of 4 June 2024;

• -

productions 50 to 52 and USB stick of claimants, received on 13 June 2024;

• -

production 53 of claimants, received on June 25, 2024.

2.2.

The oral hearing took place on 4 July 2024. Mrs. De Groot and Koppe presented and submitted written pleadings. During the oral hearing, the parties explained their positions and answered questions from the court. The clerk took notes of the proceedings at the hearing.

2.3.

Finally, the verdict date has been set for today.

3The facts

Claimants

3.1.

Claimants 1 to 8 were all born in Sri Lanka. Claimants 1 to 7 were adopted in the period between October 1983 and February 1987 and claimant 8 was adopted in 1990 by Dutch adoptive parents under Sri Lankan law and came to the Netherlands. In the Netherlands, claimants were subsequently adopted under Dutch law. They have not been able to find out who their biological parents are based on their adoption files.

The State

3.2.

Under legislation and regulations, the State has tasks and powers in the area of ​​the adoption of minors from abroad, the granting of temporary residence permits (hereinafter also referred to as: visas) to transfer these minors to the Netherlands and the granting of residence permits for these minors in the Netherlands.

Flash

3.3.

In the adoption in and from Sri Lanka, the adoptive parents of the claimants used the services of Stichting Foundation Life Adoption Service and Happiness (hereinafter: Flash). Flash was a Dutch organisation for the mediation of intercountry adoptions and active in the adoptions of children from Sri Lanka, among other places. Flash appeared in the news several times in a negative light in the eighties. In 1989, Flash obtained a permit as referred to in article 15 of the Foreign Foster Children Admissions Act. Flash ceased to exist in 2010.

Relevant regulations, policies and practices in Sri Lanka for adoption

3.4.

In the Netherlands, the possibility of adoption was legally introduced in 1956 and has been regulated in Articles 1:227-1:229 of the Dutch Civil Code (BW) since 1 January 1970. The request for adoption could only be granted on the basis of the then Article 1:227 BW: “if the adoption is in the obvious interest of the child, both from the point of view of breaking the ties with the parents and that of confirming the ties with the adopters, (…) and the conditions set by the following article have been met.”

3.5.

From the 1970s onwards, adoptive parents increasingly turned to non-European countries, including Sri Lanka, to find a foster child.

Adoption from Sri Lanka: 2 phases

3.6.

The adoption procedure from Sri Lanka was as follows.

Adoption first took place in Sri Lanka, by prospective adoptive parents under Sri Lankan law. This adoption procedure in Sri Lanka took place outside the jurisdiction of the Netherlands and Dutch law did not apply to it. Adoptive parents took the initiative themselves or received help from mediators. Since 1967, the State has developed a policy with guidelines for the adoption of foreign foster children. Based on these guidelines, adoptive parents had to obtain permission in advance for the adoption of a foreign foster child (the so-called principle permission), they had to demonstrate by means of documents that the biological parents had given up the foster child and that the authorities in the country of origin agreed to the adoption. Subsequently, after the adopted children had lived with their adoptive parents for a year (from 1974), they were adopted again in the Netherlands under Dutch law. This second step was necessary because adoption under Sri Lankan law was not recognised in the Netherlands on the basis of the then common international private law 2 .

3.7.

Until the entry into force of the Foreign Foster Children Admission Act in April 1989 (hereinafter: the Wobp) 3 , the conditions for obtaining approval in principle and the requirements for admitting a foreign foster child were laid down in the then immigration policy 4 . These conditions have been enshrined in the Wobp virtually unchanged.

What preceded the creation of the Wobp

3.8.

The Adoption Memorandum of 1980 5 addressed the problems caused by the increasing interest in foreign foster children and the resulting need for regulatory measures. In 1982, on the recommendation of the Minister and State Secretary of Justice, a bill for a partial statutory provision regarding the admission of foreign foster children was submitted 6 . In its advice from 1982 and 1983, the then Youth Policy Council, an advisory body to the Dutch government, expressed doubts about the course of events in some of the intercountry adoptions and pointed out possibilities for control and requirements for mediation agencies. The advice from 1982 states, among other things 7 :

“The biggest problem with international adoption is that in various countries of origin such a consideration hardly occurs, that it is too easily assumed that the parents or the single mother of the child will not be able to care for it and that many Dutch couples and various private mediators or mediating agencies also accept this all too easily and hardly or never ask whether the child has really been relinquished. This careless mediation from the Netherlands even extends to other European countries. This leads to the issue of relinquishment declarations in various countries of origin of dubious origin and that Dutch people, whether or not they know or suspect this, make use of this. By not restricting mediation in the Netherlands, let alone having the reliability of foreign mediating agencies or persons investigated, the government has encouraged these practices and has already created an unfavourable image of our adoption policy in other European countries. The proposed emergency law, which only criminalizes the failure to possess a Dutch principle permit, is not an answer to the real problems.”

3.9.

In a letter dated March 31, 1987, the Child Protection Council in Zutphen wrote to the Standing Committee for Justice, among other things:

“Over the years, when conducting such investigations and during follow-up contacts with foster parents, employees of the Zutphen Council have regularly been confronted with reports that raised serious questions about the reliability of the situation in which the mother gave up her child, of the mediation and the matching. In the opinion of the Zutphen Council, mediation and matching are not only and primarily the responsibility of the country of origin and the mediating organisations, but are equally the responsibility of the Dutch government. By conducting foster parent investigations, many employees feel increasingly involved in and partly responsible for maintaining questionable situations. There is a discrepancy between, on the one hand, the necessary care that the Council devotes to the investigation and advice regarding the principle approval to be granted by the department and, on the other hand, the lack of quality guarantees and subsequent control of mediation and matching. Suspicious situations of giving up, questionable mediation and ill-considered matching are matters that do not serve the interests of the foreign foster child at all. Following recent reports about worrying situations surrounding relinquishment and mediation in Sri Lanka and the findings submitted to the Zutphen Council by foster parents, the Zutphen Council has asked the department to investigate the accuracy of these reports.”

3.10.

During the parliamentary debate on the Wobp, the following was noted regarding the countries of origin and their views on intercountry adoption 8 :

“In response to the question from the members of the PvdA faction regarding the countries of origin and the attitude of these countries towards the adoption of ‘their’ children, I can report that the most important supplying countries are: Sri Lanka (until 1 June 1987), India, Colombia and Korea. In general, it can be said that the countries from which most children come hold the same views as the Netherlands with regard to intercountry adoption. These views correspond with the UN Declaration of 3 December 1986 (...).”

3.11.

The following comments have been made regarding the criteria used to determine the validity of the declaration of renunciation by the biological parents and the verification thereof 9 :

“Of course, careful consideration is needed before surrendering. Every parent must have the opportunity to fully realize the consequences of surrendering.

Documents must be submitted to demonstrate that renunciation has been made in a locally valid and acceptable manner according to Dutch standards. This means that at least one document signed by the natural parent(s) must be present. An acceptable manner of renunciation may also be assumed in the case of adoption by the adoptive parents in the country of origin by court order. In that case, the declaration of renunciation will usually be made by the natural parent(s) to the judge. It must be taken into account that the regulations regarding adoption differ from country to country. In connection with the application for a provisional residence permit, the embassy on site verifies whether renunciation has been made in an acceptable manner. The starting point for this verification is that if the declaration of renunciation has already been submitted in the procedure followed abroad and has been found to be in order, an in-depth check is no longer necessary. In practice, this method of testing has never shown that declarations of renunciation are defective (…)

The members of the aforementioned faction also asked the question whether it should not be considered to impose an obligation on permit holders to record information relating to the child and to transfer it to the foster parents in order to enable them to answer as well as possible questions about the child's own origins and background, which usually arise at a later stage in the child's life.

I recognise the need for the permit holder to have information about the child's background in order to arrive at a judicious placement. By virtue of his function as mediator, he has an obligation to make an effort to obtain as much information as possible about the child's background for the benefit of the prospective foster parents. In this connection, I do not consider it impossible that in the event of proven negligence in gathering information or deliberately providing incorrect information, liability of the permit holder may arise on the basis of the contractual obligation entered into with the prospective foster parents to provide mediation. For that reason, I see no reason to include a special provision in the bill regarding liability on this point.

I would also like to point out that a permit holder is entirely or largely dependent on the authorities with which he maintains relations abroad for the purpose of obtaining that information. Information will sometimes not be available, for example when it concerns a foundling, and it is also not always possible to obtain complete certainty about the correctness of the information provided. This can therefore only involve an obligation to make an effort.”

Relevant provisions of the Government Information (Public Access) Act

3.12.

The Wobp came into effect in April 1989.

Article 8 Wobp contains conditions for admission and residence of foreign foster children. Prospective adoptive parents had to, in essence:

• -

provide a medical certificate;

• -

satisfactorily demonstrate by means of documents that the relinquishment by the parent or parents of the foreign foster child was properly arranged;

• -

satisfactorily demonstrate by means of documents that the authorities in the country of origin consented to their taking in the child.

Based on Article 25 paragraph 2 of the Government Information (Public Access) Act, the (then) Child Protection Councils and the Immigration and Border Control Service monitored compliance with the obligations of Article 8 of the Government Information (Public Access) Act.

In addition, a licensing system for intermediaries was introduced in the Wobp. In Articles 16 and 20 to 23 of the Wobp, conditions are set for the license holder and their activities.

Under Article 25, paragraph 1, of the Government Information (Public Access) Act, officials of the Ministry of Justice were responsible for monitoring compliance with the obligations of permit holders.

Article 18 of the Decree establishing the Decree on the admission of foreign foster children and amending the Implementation Decree on Child Protection 10 (hereinafter: the Bobp) stipulates that permit holders must maintain a file on the mediation they have provided. The file must contain copies of all correspondence conducted with regard to the admission of the foreign foster child, as well as copies of the documents presented upon the child's entry into the Netherlands. Furthermore, it must contain all data that the permit holder has obtained in the country of origin with regard to the foreign foster child. Article 17 of the Bobp stipulates that the permit holder must collect the most complete data possible with regard to the origin and background of the foreign foster child in the country of his or her origin. According to the parliamentary history, this is an obligation to make an effort 11 .

2021: COIA Commission report and findings on adoptions from Sri Lanka

3.13.

In 2019, the State set up a committee of inquiry called the Committee for the Investigation of Intercountry Adoption in the Past (also known as the Joustra Committee, hereinafter: the COIA). The COIA was commissioned to investigate the role and responsibility of the Dutch government in the intercountry adoption of children in the period 1967-1998; the existence of possible abuses with regard to intercountry adoptions in, among other places, Sri Lanka, the awareness of these abuses among the Dutch government and the manner in which the Dutch government responded to possible abuses. The COIA issued a report on 8 February 2021 (hereinafter: the COIA report 12 ). The COIA concludes in this report that serious structural abuses occurred in the intercountry adoptions in Sri Lanka and that the State was aware of this. The COIA based its report, among other things, on archival research and on interviews in Sri Lanka and the Netherlands. The COIA did not investigate individual cases and did not make any rulings in personal cases.

3.14.

Relevant passages from the COIA report regarding the adoption procedure in Sri Lanka read:

“The rise of intercountry adoption, in addition to domestic adoption, meant that the law [ 13 ] was no longer applicable to the changed situation from the 1970s onwards. This old legislation also left room for fraud and corruption by judges, lawyers and civil servants: payments to such persons were only prohibited in the years that followed. In addition, there was a lack of adequate supervision of compliance with the law. The dysfunction of the Sri Lankan authorities and institutions (including children's homes) facilitated fraud, bribery and document forgery [ 14 ]. In 1992, the Sri Lankan adoption law was tightened. (…) This happened partly as a result of signals of structural abuses in adoptions abroad (…).

The adoption procedure [ 15 ]

After the necessary adoption documents had been arranged in the Netherlands, they had to

are legalized. This legalization procedure in the Netherlands took place successively

a Dutch notary, the court, the Ministry of Justice, Foreign Affairs

and the Dutch embassy in the Sri Lankan capital Colombo. The embassy

then sent the originals to the Sri Lankan adoption authorities. The prospective adoptive parents then had to wait until they were matched with a child, this could

months. After a child was assigned, the parents had to go to Sri Lanka for the

continuation of the procedure.

After the 1979 amendment, foreign prospective adoptive parents had to submit their adoption application to the Commissioner of Probation and Child Care Services. They also had to submit a declaration of consent from the birth parents and a health report of the child. (…)

During the procedure in Sri Lanka, the prospective adoptive parents were assisted by a

Dutch mediator. The mediators had local intermediaries who assisted them

helped on the spot. Within ten days of arrival, the prospective adoptive parents received a

request from Sri Lankan Child Protection Agency for an interview. This was carried out

by a social worker. Who had to assess the social and psychological suitability of

to determine the prospective adoptive parents. After this interview a report was drawn up that

was filed in a Sri Lankan court within a month. During the trial

the birth mother had to reconfirm the previously signed renunciation.

Then came the verdict, after which adoption documents and a passport were issued.

After this the procedure on the Sri Lankan side was completed.”

Apologies Minister

3.15.

Following the COIA report, the Minister of Legal Protection (hereinafter: the Minister) apologized to adoptees for the role of the State in the abuses observed 16 . On the advice of the COIA, an independent national center of expertise was established on March 23, 2023, called INEA (Identity, Aftercare, Recognition and Adoption Issues).

Correspondence between parties

3.16.

Since 26 March 2019, one or more claimants have repeatedly held the State liable in writing. The State has promised claimants not to invoke prescription and has rejected liability.

4The dispute

4.1.

The claimants claim in summary - provisionally enforceable by judgment

I a declaration that the State is liable to the claimants;

II to order the State to compensate the claimants for all damages, costs and interest suffered and yet to be suffered by them, to be determined by statement and settled in accordance with the law, increased by the statutory interest from the date of the claim, alternatively from the date of the summons until the date of full payment;

III to order the State to pay the costs of these proceedings, including subsequent costs.

4.2.

According to the claimants, the State has acted unlawfully towards them. They base this on the following grounds.

I. Unlawful conduct as a supervisor .

The State has not acted as a reasonable supervisor by:

a. not to intervene in intercountry adoptions of children from Sri Lanka, although there was a high risk of abuse and there were negative signals about the state of affairs surrounding adoptions in Sri Lanka;

b. insufficient supervision of Flash; the State should not have processed adoption applications via Flash because there were indications that Flash was not reliable 17 ;

c. for claimant 8: to grant Flash a permit in 1989 to mediate adoptions from Sri Lanka, despite the signals about Flash 18 and the contradictions in the files.

II. Insufficient control and errors in issuing visas .

When granting temporary residence permits (hereinafter: visas), the State did not adequately check whether the applicants' files were correct and consistent and did not exercise sufficient control over the implementation of regulations regarding the granting of visas and permits. The many errors and irregularities in the applicants' files were concrete indications of adoption fraud.

III. Violation of Article 8 ECHR . The State violated Article 8 ECHR by failing to adequately ensure correct and complete information in the applicants’ files before they were adopted. The applicants were unable to trace their biological family because information in the adoption files was incorrect or incomplete. The European Court of Human Rights (hereinafter: ECtHR) has ruled that information about one’s own (biological) descent is a fundamental right that falls under the right to privacy.

4.3.

The claimants claim to have suffered damage as a result of the State's actions. None of the claimants know who their biological parents are and whether or not they wanted to give them up. Crucial questions about their origins and identity can therefore not be answered and the claimants suffer non-material damage as a result, which is an infringement of the person on the basis of article 6:106 paragraph 1 sub b BW.

The claimants also suffer material damage because they have incurred and have to incur costs for research into their biological family and/or changes in official documentation. This is damage as referred to in article 6:96 paragraph 2 sub a BW.

The claimants request referral to the damage assessment procedure. The damage is sufficiently plausible. If the State had built in more control mechanisms and had maintained better supervision, the irregularities surrounding the adoptions of the claimants could have been discovered earlier. The claimants would then either not have been adopted or would have had the correct papers.

4.4.

The State puts forward a reasoned defence.

4.5.

The parties' positions will be discussed in more detail below, insofar as relevant.

5The assessment

5.1.

Dutch law applies to this case.

The scope of the assessment

5.2.

In these proceedings, the claimants are exclusively representing their own individual interests, and not in a collective action within the meaning of Article 3:305a of the Dutch Civil Code. The court must therefore only assess whether the State has acted unlawfully towards the individual claimants. They do not further rely on unlawful legislation and regulations. In its assessment, the court therefore assumes that the applicable regulations for the admission of adopted children between October 1983 and February 1987 (the Aliens Circular 1975, part G-7 and the Aliens Circular 1982, chapter B-18) and (for claimant 8) the Wobp and the Bobp are lawful.

5.3.

The adoption procedure had two phases: first, the claimants were adopted by their Dutch adoptive parents in Sri Lanka under Sri Lankan law, after which they came to the Netherlands with a visa. They were then adopted in the Netherlands under Dutch law. Although the claimants claim that the adoptions in the Netherlands were unlawful, 19 they have not provided any specific explanation. The court therefore disregards this claim and assumes that the claimants' Dutch adoption judgments are lawful and irrevocable and that the grounds for adoption in the Netherlands were considered to be present at the time and must be considered correct in these proceedings. Whether and what consequences this should have for the claimants' claims has not been a subject of the parties' debate, so the court leaves this open.

5.4.

The assessment therefore focuses on the adoption procedures of the claimants in Sri Lanka, their arrival and admission to the Netherlands, the mediation in this by Flash and the granting of a permit by the State to Flash after the introduction of the Wobp. The court must assess on a case-by-case basis, based on specific facts and circumstances that were relevant to the adoptions of the claimants in Sri Lanka and their arrival in the Netherlands, whether the State acted in breach of obligations under the regulations applicable at the time, as set out in paragraph 5.2., Article 8 ECHR and unwritten law.

5.5.

The court must assess on the basis of the knowledge, standards and social views at the time of the adoptions of the claimants. Knowledge acquired afterwards and social views and standards on adoptions that have changed since then must be disregarded by the court 20 .

5.6.

Below the court assesses in succession:

I. Was there supervisory liability?

II. Was the visa granting unlawful?

III. Is Article 8 ECHR applicable or violated?

I. Was there supervisory liability?

5.7.

The claimants argue that the State acted unlawfully towards them, because it failed in its supervisory task with regard to the claimants' adoptions. In other words: according to the claimants, there is supervisory liability.

5.8.

The court will now further examine the question of whether supervisory liability applies in the present cases. In particular, with regard to the assessment framework, the conclusion of Advocate General Snijders at the Supreme Court of 27 October 2023, ECLI:NL:PHR:2023:958, at marginal numbers 7.1 et seq. Reference is made to that conclusion for (further) sources and references.

The plaintiffs' arguments

5.9.

According to the claimants, the State could and should have known that fraudulent practices and baby trafficking were involved in adoptions from Sri Lanka in general, and through the agency Flash in particular. Attention is drawn to various signals, including:
(a) a newspaper article from 1981 about “baby farms” in Sri Lanka (production 5 with the summons),
(b) newspaper articles, apparently from the late 1970s, about an adoption scandal in New Guinea in which the agency Flash played a (leading) role (productions 6 and 7 with the summons),
(c) a report from 1981 in Bild am Sonntag about the sale of babies from Sri Lanka via the agency Flash (production 8 with the summons),
(d) a report of a conversation on 28 August 1979 between the head of the Child Protection Directorate and the director of the Bureau Intercountry Adoption (hereinafter: BIA) following a newspaper article in Trouw about an adoption scandal. The report states that a participant in the conversation notes that “the BIA is an agency that is critical of the papers and that he strongly doubts this critical attitude on the part of Mr Versteege” (production 10 with the summons), where Mr Versteege refers to the Flash foundation,
(e) a contribution to Judicial Explorations from 1979 by the then director of the BIA in which proposals are made to impose additional requirements on adoptions in order to prevent abuses as much as possible (production 11 with the summons),
(f) newspaper articles about an international conference of mediation organisations from 1981, in which it is stated, among other things, that stricter controls and a code of conduct for mediators are urged (productions 12 and 13 with the summons),
(g) Second Chamber documents from the period 1978-1981 from which it follows that signals about possible abuses in intercountry adoptions were discussed in the Second Chamber (productions 15, 16 and 18 with the summons),
(h) a note from the Ministry of Justice dated 20 September 1979 in which, apparently in response to a parliamentary question, it is stated, among other things: “Perhaps Flash does not work entirely as it should, but I find the article in Trouw, given the available data, to be unfounded. No evidence of any criminal offence.” (production 17 with the summons),
(i) a report from the Youth Policy Council from 1982 on problematic aspects of intercountry adoption, 21
(j) the signals referred to in the COIA report, including the connection made between the Flash mediation organisation and illegal adoptions in South America.

5.10.

Based on these signals, the State should, according to the claimants, firstly not have allowed adoption applications from Sri Lanka at all. Secondly, the Ministry of Justice should not have processed adoption applications via Flash as an intermediary organisation. Thirdly, the State should have checked better whether the children's files were correct and consistent before granting a temporary residence permit (hereinafter: visa). And with regard to claimant 8, the claimants claim that the State wrongly granted a permit to Flash.

5.11.

During the oral hearing of the case, the claimants focused their plea on the point of supervisory liability on the granting of visas. According to the claimants, the State should have exercised supervision by announcing that no visas would be granted to Sri Lankan children mediated by Flash 22 .

5.12.

The issue of whether or not to grant visas will be dealt with separately under II. It should already be noted that the State's power to grant or not to grant visas to adopted children did not concern a supervisory power, but a statutory task.

Assessment Framework: Key Points

5.13.

The State/the government 23 supervises compliance with laws and regulations in various ways. The powers and obligations of the government as supervisor are laid down in laws and regulations, such as the General Administrative Law Act and special laws.

5.14.

Supervisory liability may arise if the supervisor (in this case the government) has not fulfilled its task properly. The supervision must then have the intention to prevent the damage suffered by the person holding the supervisor liable (relativity requirement).

5.15.

It is important that the government, in exercising supervision, generally has policy space (space in the use of powers) and assessment space (space to determine whether the case for which the power was granted occurs). Both terms fall under the more general term decision space.

5.16.

The discretion that the government has in the implementation of supervision means that the judge must exercise restraint in answering the question of whether the supervisory task has been properly fulfilled. This restraint is understood in such a way that the judge does not assess whether he himself would have exercised the supervision differently, but whether the government could reasonably have exercised the supervision in the way in which he did so in practice.

5.17.

It should also be noted that for a successful appeal to supervisory liability, there must normally be a concrete supervisory failure 24 : the supervisor has not intervened despite concrete indications that the regulations to which the supervision relates are not being complied with. In the words of Advocate General Snijders, there must be sufficiently serious and concrete indications for the supervisor to assume (the possibility of) the violation of the rule in question and the resulting risk of damage, and that risk and that damage must also be sufficiently serious in nature and extent (paragraph 7.6).

Supervision under the Government Information (Public Access) Act (Wopp)

5.18.

The nature and scope of the State's supervisory task in intercountry adoptions, and in particular that of Sri Lanka, must be examined in relation to the applicable legislation and regulations, in this context the Government Information (Public Access) Act (Woppa).

5.19.

Article 25 paragraph 1 Wobp entails that supervision is exercised on compliance with the provisions of or pursuant to articles 16 and 20-23 Wobp. These provisions as well as articles 12-19 Wobp based on article 16 paragraph 8 Wobp (and therefore applicable pursuant to that provision) state the obligations of the permit holder. Supervision pursuant to the law is therefore aimed at compliance with these obligations.

5.20.

According to Article 23 paragraph 2 Wobp, the permit holder reports annually on his activities both in and outside the Netherlands to the Minister and also sends the Minister his balance sheet and statement of income and expenditure with explanation within six months after the end of the financial year. Article 26 Wobp gives the officials charged with supervision the authority to gather information.

5.21.

The explanatory memorandum to the draft of the Wobp states, in accordance with what follows from the law, that the Wobp provides for supervision of the activities of license holders. The scope of the supervision based on the Wobp is therefore the same as that of the introduction of a licensing system in the Wobp, namely that intercountry adoptions take place in a responsible manner. As regards the method of supervision, it is clear from the law and the explanatory memorandum to the draft that consideration was given to supervision by means of the reports. Further supervision was not considered necessary at the time. Further supervision was of course possible, but not mandatory. In that sense, there was ample policy scope for the State as supervisor.

5.22.

It should be noted that checks also took place (a) by monitoring compliance with Article 8 of the Wobp by prospective foster parents upon the child's entry into the Netherlands (provided for in Article 25 paragraph 2 of the Wobp, which was entrusted to the secretaries of the child protection councils and the officials responsible for the supervision of aliens and border control) and (b) because the permit holder had to inform the Minister, on the basis of Article 21 paragraph 6 of the Wobp, of each admission of a foreign foster child by foster parents who were registered with him at the time of admission (which made it possible to check whether a self-employed person was involved, because he was not registered in this way). The plaintiffs' arguments do not relate to these forms of supervision.

5.23.

With regard to supervision under the Wobp, the Supreme Court considers in its judgment of 19 April 2024 25 (following the aforementioned conclusion) :

“The court rightly considers that the State’s actions as supervisor must be examined with restraint for unlawfulness. However, contrary to what the court considers, the applicable regulations do not imply that the State as supervisor is obliged to rigorously assess whether the Foundation complied with the statutory standards in a specific case of adoption (see what is stated in the Advocate General’s Opinion under 7.9-7.10). Nor can this judgment in a case such as the present one, in which the adoption took place in accordance with the regulations and procedures applicable in the Netherlands, be supported by the general signals of abuses mentioned by the court. The court’s judgment therefore demonstrates a failure to appreciate the restraint that must be exercised with which the State’s actions as supervisor must be examined, or is insufficiently motivated.”

Application to the present case: no supervisory liability

5.24.

In the summons and in the written pleadings, the claimants draw attention to various signals that abuses have occurred in intercountry adoptions since the 1960s. These signals – including human trafficking and illegal adoptions in and from Sri Lanka – were reported in the House of Representatives and in newspapers.

5.25.

Given the assessment framework briefly outlined above, the government's supervisory task in intercountry adoptions had a fairly limited content. For example, the government could not assess in each adoption whether the mediation organisation concerned had complied with the legal standards. It mainly concerned supervision on the basis of the annual reports to be submitted by licence holders. However meagre that may seem with the knowledge of today, this was in fact all that was considered necessary at the time in the context of supervision of mediation organisations. Further supervision was possible, but the State had considerable policy freedom in this regard. This means that it cannot be quickly judged that the State should have used such forms of further supervision.

5.26.

The signals of abuses mentioned by the claimants are - given the restraint to be exercised by the court in its assessment - insufficient to conclude that the State failed in its supervisory task as elaborated above. Even if these signals are taken into account, there was no supervisory framework on the basis of which the State could have intervened in the manner intended by the claimants.

5.27.

In view of the statutory regulations in force since 1989 and the discretionary power that the State had as supervisor, it cannot be judged that the State could not or should not have allowed adoption requests from Sri Lanka (any longer) on the basis of those general signals. Nor can it be judged in that context that adoption requests from the mediation organisation Flash should not have been processed. The supervision was not aimed at such far-reaching interventions. Nor can it be judged, in view of that context, that the State should have supervised the collection of parentage data by Flash. The fact that all kinds of critical notes can now rightly be made about this does not change the assessment. The court must make that cautious assessment in accordance with the supervisory framework that applied at the time. And that supervisory framework did not provide for an in-depth review by the State of specific adoptions in which Flash was involved, with the possibility of far-reaching sanctions if the adoptions in question did not withstand the test of criticism.

5.28.

Furthermore, the claimants have not sufficiently substantiated the claim that Flash should not have been granted a permit under the Wobp. The issuing of permits is not part of the supervisory task of the State. The supervision of those permit holders is of course subject to that supervisory task. Given the limited scope of the supervisory framework described above, it has not been sufficiently explained - as will be discussed further below - on what basis the State could have refused or revoked Flash's permit.

5.29.

In their pleadings, the plaintiffs' lawyers put forward four arguments as to why the present case differs from the case that led to the judgment of the Supreme Court referred to in paragraph 5.23 and partly quoted. They argue that, unlike the aforementioned case, supervisory liability can be assumed in the present case. These arguments will be discussed below.

5.30.

The first argument 26 is that in the present case the adoptions of the claimants did not proceed in accordance with the regulations and procedures applicable in the Netherlands. The court does not accept this argument. The distinction between adoptions that did and did not proceed in accordance with the regulations and procedures applicable in the Netherlands refers to the difference between legal and illegal adoptions. In the case of illegal adoptions, the applicable regulatory framework and procedures are deliberately ignored or circumvented when adopting children. This is not the case in the present cases. The applicable regulatory framework and procedures were applied in themselves, or at least it does not follow from the claims of the claimants that this would be otherwise. Rather, the issue is whether, although the regulations and procedures applicable at the time were followed, justified criticism of the course of events can still be expressed on all sorts of points. But that does not make the adoptions in this case illegal. In this respect, the court notes, for the sake of completeness, that if there was indeed an illegal adoption, it is questionable whether the State could have supervised it. It is very possible that an illegal adoption takes place outside the State's field of vision.

5.31.

The second argument of claimants 27 is that in the present case, concrete signals of abuses have been put forward. This argument is also rejected by the court. It is clear that there have been signals that abuses occurred in intercountry adoptions via the mediation organisation Flash. But these are general signals. It is not the case - at least that does not follow from the positions taken by claimants and their substantiation - that concrete cases of adoptions have been brought to the attention of the State in which it was clear that there were abuses. In that sense, the signals mentioned by claimants do not contain sufficiently serious and concrete indications for the supervisory authority to assume (the possibility of) the violation of the relevant rule and the resulting risk of damage, which risk and which damage are sufficiently serious in nature and extent.

5.32.

The third argument 28 relates to the granting of visas, while the adoption files were incorrect. According to the claimants, the State therefore actively cooperated and contributed to the damaging events (the adoptions), unlike in the previously mentioned case. This third argument relates to the statutory task of the State in granting visas and will be discussed further under II in this judgment. In this context, the claimants speak of failed supervision of Flash. The obligation to demonstrate in the visa application that an acceptable renunciation had been made in Sri Lanka lay with the adoptive parents and not with Flash, pursuant to Article 8 of the Wobp. The claimants have not specifically stated that obligations under Article 25 paragraph 2 of the Wobp (supervision of compliance by prospective adoptive parents with Article 8 of the Wobp, see paragraph 5.22) have been violated.

5.33.

Fourthly, the claimants argue that in the present case - unlike the case referred to in paragraph 5.23 - the granting of the permit to Flash is under assessment 29 . Granting a permit is something different from supervising (the activities of) permit holders. In that sense, the claimants' argument goes beyond the scope of supervisory liability.

5.34.

Furthermore, it is important that the claimants do state that the State was not allowed to grant the claimants a permit to mediate in intercountry adoptions, but that they have not provided sufficient motivation for this statement. The signals of abuses mentioned by the claimants are not sufficiently concrete to be able to judge that, as regards Flash, there is “well-founded fear that the applicant will not comply with the provisions of or pursuant to this Act, or that the applicant is expected to have too few future opportunities with regard to mediation in the adoption of foreign children” (Article 17 of the Government Information (Public Access) Act).

Conclusion

5.35.

The foregoing leads to the conclusion that in the present case the State cannot be held liable by the claimants in its capacity as supervisor for the damage suffered by them as a result of abuses during their adoptions. Such liability, as considered above, has no basis in the Wobp in force since 1989 – and therefore only applicable in the case of claimant 8.

5.36.

Nor can supervisory liability be based on the regulations preceding the Wobp, since the Wobp in fact partly enshrined the existing (policy) rules and partly tightened those rules with a view to supervision of intercountry adoptions. Moreover, the claimants have not pointed to any specific supervisory obligations in the previous regulations. The court will therefore also reject the positions taken in this regard with regard to claimants 1 to and including 7.

II. Was the visa granting unlawful?

5.37.

The claimants accuse the State of not having adequately checked whether the claimants' files were correct and consistent when issuing visas for entry into the Netherlands. As a result, the State has violated the applicable regulations. It appears from errors and contradictions in the adoption files that it was not certain for each of the claimants that

adoption was in the best interests of the child;

that no acceptable future was available in the country of origin;

that the parents had relinquished the child in a locally valid and acceptable manner according to Dutch standards and that the authorities in the country of origin agreed to the adoption.

The many errors and irregularities in the files were concrete indications of adoption fraud. If the State had built in more control mechanisms and had maintained better supervision, the irregularities surrounding the adoption could have been detected. The claimants would then either not have been adopted, or would have had the correct papers, claimants say.

Starting point: the regular visa application procedure has been followed

5.38.

Although not all claimants have submitted visas, it follows from their statements that the regular visa application procedure was followed for each of them and a visa was issued. The court therefore assumes that the visa was granted regularly for all claimants, that is to say in accordance with the regulations applicable at the time. It must be assessed whether errors were made in the visa granting.

Conditions for issuing a visa

5.39.

It is not disputed between the parties that, on the basis of the Aliens Decree and the Aliens Circular 30 (for claimants 1 to 7) and on the basis of the Wobp (for claimant 8), virtually identical conditions were imposed on admission. The child's arrival in the Netherlands had to have been arranged in a responsible manner and a visa had to have been issued. With a view to the child's admission to the Netherlands, the foster parents had to demonstrate by means of documents that

the biological parent(s) and/or legal representative of the child had relinquished the child in a locally valid and acceptable manner according to Dutch standards,

the authorities in the country of origin could agree to the adoption of the foreign foster child by the foster parents,

it was not plausible on the basis of a medical statement that the child suffered from a dangerous contagious or long-term physical or mental illness.

5.40.

Furthermore, it is not disputed between the parties that the consulate in Sri Lanka 31 checked, on the basis of the documents to be submitted by the adoptive parents, whether the conditions for issuing a visa were met.

Composition of adoption files

5.41.

In support of their claims, each claimant submitted an adoption file with documents about his or her adoption (hereinafter: the claimants' adoption files). The claimants specifically identified the irregularities and/or contradictions therein. The claimants' adoption files contain a variety of documents, such as parental renunciations, rulings by Sri Lankan judges, but also handwritten notes, correspondence between Flash and adoptive parents and statements by adoptive parents. The claimants did not specify which documents their adoptive parents enclosed with the visa application at the time.

5.42.

The State disputes that the adoption files of the claimants demonstrate that the State wrongly granted visas or that errors were made in the procedure. According to the State, it has not been demonstrated or made plausible that a large number of documents in the adoption files of the claimants were submitted with the visa application.

5.43.

The court states the following. In order to be able to assess whether the State made mistakes in granting the visa (in the sense that the State overlooked 'contradictions and signs of fraud'), it should be established in each individual case which documents the adoptive parents submitted with their visa application. The burden of proof and substantiation for this lies with the individual claimants. However, the claimants have not sufficiently substantiated that the composition of the claimants' adoption files is identical to the visa applications from that time. The claimants also do not state that they can demonstrate exactly which documents their adoptive parents submitted to the consulate with their visa application.

5.44.

Given the passage of time of (well) more than thirty years and the obstacles that claimants encounter in requesting their files, this can hardly be expected of claimants. On the other hand, the court sees no reason to reverse the burden of proof or to assume an increased burden of proof on the part of the State. The passage of time also plays tricks on the State, while it has not been stated or demonstrated that the State could or can be held to a retention obligation. The court will therefore not proceed to provide (further) evidence regarding the exact composition of the individual visa applications, so that this composition cannot be established.

5.45.

The State does not argue that the claims of the claimants should fail on this. However, the State does deny with reasons that the claimants have demonstrated with their adoption files that visas were wrongly granted in their case. The State explains this as follows.

5.46.

Referring to the Aliens Decree, the Aliens Circular and the Government Information (Public Access) Act, the State argues that it was obvious that adoptive parents had to submit the following four documents to collect a visa at the consulate in Sri Lanka:

• -

i) a declaration of renunciation by the biological parents (hereinafter: the renunciation);

• -

ii) an adoption order of the Sri Lankan court (hereinafter: the adoption order);

• -

iii) a passport;

• -

iv) a health declaration.

If those documents form part of the applicants' adoption files and they do not contain any obvious errors or contradictions, the State argues that it must be assumed that the visas were granted lawfully at the time. If these documents have not been submitted in these proceedings, it must be assumed that they did form part of the visa application at the time, because a visa was granted. If there are irregularities in other documents from the applicants' adoption files, it cannot be inferred that the visas were wrongly obtained, because the applicants have not made it plausible that those documents formed part of the visa application, the State continues to argue.

5.47.

At the hearing, the claimants stated that at least a fifth document must have been part of the visa application at the time, namely (v) an application form for the residence permit, which had to be sent to the State in advance. In the court's opinion, the claimants have made this sufficiently plausible, so that the court assumes this.

The claimants have not substantiated that - in addition to the five documents mentioned - other documents or papers had to be (and were) submitted with the application. At the hearing, the claimants' lawyer did state that the ' Report on the condition of the child and family ' would have been submitted with the visa applications, but the court rejects this position because it is not sufficiently substantiated. In a number of adoption files, a ' Report on the condition of the child and family ' was submitted, but the claimants have not or insufficiently explained the function and origin of these documents when granting the visa. Without an explanation that is lacking, the court cannot determine that this document had to be submitted with the visa application and/or had to be checked at the consulate in Sri Lanka on the basis of the applicable regulations.

5.48.

The court will therefore limit its further assessment of the alleged irregularities to possible irregularities in

• -

i) the waiver,

• -

ii) the adoption order,

• -

iii) the passport,

• -

iv) the health declaration and

• -

v) the application for a residence permit.

The court will not consider other documents from the adoption files of the claimants in the individual assessment below, because it has not been established that these documents were submitted with the application. By limiting the assessment to the five documents mentioned, the claimants are not disadvantaged. The court refers to what it considered in paragraphs 5.43-5.44.

The court further agrees with the State that to the extent that any of documents (i) to (v) were not submitted by the claimants in these proceedings, it must be assumed that those documents were part of the visa application at the time, because a visa was granted.

Further starting points for the assessment under II

Private International Law

5.49.

According to the private international law applicable at the time, the correctness of the content of official documents from other states, such as deeds and court decisions, was relied upon in principle . 32 Whether the child had been properly relinquished for adoption and whether an intercountry adoption was in the best interests of the child was answered according to the law and by the competent authorities of the country of origin. After all, the adopted child fell under the jurisdiction of the country of origin. Because the weighing of the aforementioned interests had taken place in Sri Lanka, the Dutch authorities were in principle allowed to rely on the presence and correctness of the relinquishment declaration and the adoption order of the court in Sri Lanka. Contrary to what the claimants claim, when granting the visa, no in-depth or additional check was required to be carried out on the question of whether the child had been relinquished locally in a valid and acceptable manner according to Dutch standards and whether an acceptable future was not in store for the adopted child in the country of origin.

Confirmation of this position of the legislator can be found in the legislative history of the Wobp (see, among others, marginal numbers 3.11-3.12 with footnotes).

5.50.

The court realises that this starting point for the assessment of the claimants must clash with the COIA report. It concludes that in Sri Lanka there were serious structural abuses in intercountry adoptions and that the State was aware of this and 'looked the other way'. However, the COIA did not investigate individual cases and did not make any rulings in personal cases and the conclusions of the COIA cannot be used as established facts to underpin the individual claims of the claimants. Furthermore, the COIA report reflects progressive insights into intercountry adoptions. The experience gained in recent decades with intercountry adoption, the information obtained about what can go wrong in practice and the changed social views on intercountry adoption in recent decades may not be taken into account when assessing government action in the period between 1983 (claimant 1) and 1990 (claimant 8). What matters is whether the State, in the circumstances at the time and with the knowledge and social views at the time, acted unlawfully towards the individual claimants.

5.51.

The consideration of whether the adoption was in the best interests of the child was also subsequently discussed in the Dutch adoption procedures of the claimants and these latter procedures and the considerations therein must be considered lawful, see also paragraph 5.3.

Flash

5.52.

In connection with the visa granting, the claimants also referred to the exceptional position that Flash allegedly had in the mediation procedures. The court rejects this argument, because the claimants confirmed at the hearing when asked that Flash did not make use of this exceptional position in their own adoption procedures. The claimants also referred to general signals in the media about Flash regarding irregularities in the mediation. These arguments also carry no weight in the question of whether the individual visa granting for the claimants was lawful. Only if concrete signals, in a manner recognizable to the consulate, of irregularities by Flash could be found in the individual files, could this play a role in the assessment. However, the claimants did not refer to this.

Science in Hindsight: DNA Testing and 'Acting Mothers'

5.53.

Before the court proceeds to assess the individual adoption files, it further considers the following. Claimants 1, 2, 4 and 5 were each adopted simultaneously with a (presumed) twin sister or brother. They subsequently determined, on the basis of DNA tests, that they are not related to their twin sister or brother. Claimant 4 subsequently heard from her adoptive parents that she came to the Netherlands on the papers of a girl who was too ill to travel and had stayed behind in Sri Lanka. Claimants 5, 7 and 8 subsequently turned out not to be related to their presumed biological mother and were confronted with so-called 'acting mothers', women who pretended to be their biological mothers but turned out not to be. It applies to all claimants that they have not been able to trace their biological parents on the basis of their adoption files.

Based on the findings of the claimants, it is plausible that irregularities occurred in the individual adoption procedures of the claimants in Sri Lanka and in the searches for the biological parents. It can also be said that the apparent course of events at the time is difficult to accept in the light of current social views on adoption. This is extremely distressing for the claimants. However, only findings that were known to the State at the time the visa was granted can be taken into account in the assessment. However, it has neither been stated nor proven that the aforementioned findings of the claimants were known to the State. These findings cannot therefore be taken into account in the assessment of whether the State lawfully granted a visa in the individual cases. In each individual case, it must be assessed on the basis of the documents (i) to (v) submitted whether those documents contain errors or contradictions that are known to the State and are so serious that the State can be accused of having granted a visa at the time.

The individual adoption files

Claimant 1

5.54.

According to the register, claimant 1 was born on [date of birth 1] 1983 and was adopted on 15 November 1983 under the name ' [claimant 1] ', together with a presumed twin brother. Claimant 1 states that there are contradictions in his adoption file regarding the gender designation, spelling of his name and the knowledge of his biological father. On this basis, claimant 1 argues that it has not been established that his parents gave up his identity in a locally valid and acceptable manner according to Dutch standards. The State should not have issued a visa before the ambiguities and contradictions had been clarified.

5.55.

The court does not agree with claimant 1. The State has given a reasoned refutation of claimant 1's arguments. It follows from the submitted renunciation of the mother and the adoption order of the District Court of Colombo that renunciation was made and the adoption was pronounced of twins, both male, and that the name of claimant 1 was spelled as ' [claimant 1] '. The State was entitled to assume the legal validity of the mother's renunciation and the adoption order of the Sri Lankan court. The submitted health certificate also states that [claimant 1] is male. The fact that a (v) was placed behind the name ' [claimant 1] ' in Flash's application for a residence permit of 4 November 1983 does not mean that the validity of the renunciation and the adoption order should be doubted. It is not known whether the alleged contradictions concerning the father (unknown according to the birth register; place of residence unknown according to a ' Report About Condition Of The Child and Family ' on Flash letterhead) were submitted with the application. Whatever the case: they do not further justify the judgment that the State, on that ground and despite the presence of a declaration of renunciation and an adoption order, should not have issued a visa.

Claimant 2

5.56.

Claimant 2 was adopted on 3 or 5 October 1984 as one half of a twin girl. According to claimant 2, her passport was clearly forged or at least this passport was not valid, because the name of her supposed twin sister was crossed out and replaced by her name. At the hearing, the lawyer for claimant 2 stated that this passport, the renunciation and the ' Report on the condition of the child and family ' contained concrete indications of fraud. The age difference between claimant 2 and her adoptive parents was also more than forty years, which was in conflict with the Aliens Circular. Finally, claimant 2 points to contradictions in various documents regarding, among other things, the name and origin of the mother. The visa should not have been granted, according to claimant 2.

5.57.

The court does not agree with claimant 2. The State has motivatedly refuted the arguments of claimant 2. Based on the submitted declaration of renunciation and in particular the adoption order of the Sri Lankan court, there was no reason for the State to refuse the visa. The fact that the name of her sister has been crossed out in her passport and replaced by the name of claimant 2 is insufficient to conclude that the passport is false. The manual crossing out also does not clearly indicate an invalid passport. The crossing out in the passport was apparently not a reason not to admit claimant 2. Claimant 2 does not explain why she should not have been admitted to the Netherlands with this passport. If the ' Report on the condition of the child and family ' had been submitted, the alleged contradictions do not yet mean that a visa should have been refused on that ground. The mere reference to the age difference of more than forty years between claimant 2 and her adoptive parents is insufficient to establish that the visa was granted in violation of the Aliens Circular, because the principle that the age difference could not exceed forty years could be deviated from in appropriate cases and it has not been demonstrated that permission had not been granted for this.

Claimant 3

5.58.

Claimant 3 has stated that her adoption file contains various irregularities, such as an incorrect date and place of birth. Claimant 3 now knows from her biological family that she was born on [date of birth 2] 1981, while her adoption file alternately mentions [date of birth 3] 1981 or [date of birth 4] 1981 as her date of birth. In addition, the file contains no documents about the suitability of her adoptive parents, while there were already two disabled children in the family and she was abused by her adoptive father. A visa was wrongly granted, according to claimant 3.

5.59.

The court does not agree with claimant 3. The State has given reasons for its refutation of claimant 3's arguments. Claimant 3 does not explain how the consulate in Colombo should have inferred from the adoption order of 26 November 1984 and the visa application of 27 November 1984 that claimant 3's date of birth was incorrect. In light of the State's defence that the different dates of birth in April and July 1981 are apparently related to the different spelling of dates in English and Dutch, claimant 3 has not sufficiently motivated that this concerns a recognisable irregularity on the basis of which the visa should not have been granted. Claimant 3 later submitted the consent in principle of her adoptive parents in the proceedings.

When the visa was granted, it could not have been apparent to the consulate that the adoptive parents were unsuitable and that a visa should therefore have been refused. None of the other alleged irregularities, such as the time at which the visa was allegedly applied for and the time at which claimant 3 entered the Netherlands, can support the conclusion that a visa was wrongly granted.

Claimant 4

5.60.

Claimant 4 was adopted as one half of a twin. However, she is not related to her adoptive brother. She knows from her adoptive parents that the girl that her adoptive parents were originally going to adopt was not allowed to travel with the adoptive parents to the Netherlands at the last minute for health reasons. However, before their departure from Sri Lanka, the adoptive parents were offered claimant 4 for adoption through the mediation of Flash. Claimant 4 was then taken to the Netherlands by the adoptive parents on the adoption papers of the sick twin sister and adopted there. So a baby switch took place. Claimant 4 points out various irregularities in the adoption documents of the sick twin sister. For example, the name of the adopted brother has been crossed out in the passport and replaced by the name of the sick twin sister. The photo of the sick twin sister in the passport shows a spot on her head. Claimant 4 does not have a spot on her head. A visa was wrongly granted before the uncertainties were clarified, according to claimant 4.

5.61.

The court does not agree with claimant 4. The State has motivatedly refuted the arguments of claimant 4. Based on the submitted declaration of renunciation and the adoption order of the Sri Lankan court, there was no reason for the State to refuse the visa. The fact that the name of the adopted brother was crossed out in the passport and replaced by the name of the sick twin sister is insufficient to conclude that a visa should not have been granted. None of the other alleged contradictions, such as the different ages of the mother, can support that conclusion. To the extent that claimant 4 wanted to argue that the photo in the passport (girl with a spot on her head, while claimant 4 does not have a spot on her head) should have been a reason not to grant claimant 4 a visa, or at least not to admit her, she has not made it plausible that this should have been noted at the consulate or at customs. Claimant 4 has also not stated or substantiated that the baby swap mediated by Flash should have been known to the State at the time the visa was granted and admission to the Netherlands.

Claimant 5

5.62.

Claimant 5 was adopted together with a supposed twin sister. Both appear not to be related to their biological mother named in the documents, so claimant 5 assumes that she and her sister cannot be related either. Claimant 5 points out various irregularities in the files: given their weight, the girls would have been swapped in the passports, they have different places of birth, the names of claimant 5 and the mother are spelled differently in the various documents, there is a line in the ' Report about condition of the child and family '. If a proper check had been carried out, a visa should not have been granted.

5.63.

The court does not agree with claimant 5. The State has motivatedly refuted the arguments of claimant 5. The renunciation and the adoption order of the Sri Lankan court do not show any apparent contradictions, nor does claimant 5 allege any. In view of these documents, the State was allowed to grant a visa. None of the other alleged irregularities lead the court to the conclusion that a visa was wrongly granted.

Claimant 6

5.64.

Claimant 6 points to various irregularities in her adoption file. Her name is spelled differently and on the birth certificate, the relinquishment and a ' Report about the condition of the child and family ' a different name of the biological mother is mentioned than in a handwritten health declaration. Her birth certificate shows a different place of birth than in the health declaration.

5.65.

The State has given reasoned refutation of the arguments of claimant 6. According to the State, the fact that the name of the biological mother in the declaration of renunciation differs from that in the handwritten health declaration must have been overlooked by the assessors of the visa application. According to the State, the assessor was entitled to rely on the declaration of renunciation and the adoption order, the latter of which the claimant did not submit, but which must be assumed to have been submitted with the visa application. According to the State, the fact that the assessors did not notice the inconsistency in the health declaration (the different name of the biological mother) does not alter this, because the health declaration was submitted and examined with the aim of establishing that the adopted child did not suffer from a dangerous contagious disease or have a long-term mental or physical disability 33 . The health declaration was therefore not submitted with the aim of establishing whether the other conditions for admission and residence in the best interests of the child had been met.

5.66.

The court agrees with the State in this. The State was entitled to assume, on the basis of the renunciation and the adoption order, which plaintiff 6 subsequently submitted in the proceedings, that the conditions for admission and residence in the interest of the child had been met. Both documents mention the same biological mother and were signed by a Sri Lankan judge. For the decisive importance of these documents in the granting of the visa, the court refers to paragraph 5.49.

The court agrees with the State that it is plausible that the assessor overlooked the fact that the written health declaration of claimant 6 contained a different name for the mother than the one mentioned in the renunciation and the adoption order. In this regard, the court takes into account the purpose for which the health declaration was submitted, as described in paragraph 5.65. It is very plausible that the examining officer therefore only looked at the health information about claimant 6. In the court's opinion, the State cannot be held so seriously to blame by not checking the name of the mother in this health declaration and/or not recognising the contradiction in the names of the mothers, that it can be judged on this basis that the State acted unlawfully in granting the visa. The other alleged contradictions also do not lead the court to the conclusion that a visa was wrongly granted.

Claimant 7

5.67.

Claimant 7 subsequently turns out not to be related to her supposed biological mother and has been confronted with a so-called 'acting mother'. According to claimant 7, this means that her adoption papers contain incorrect information about her biological mother/parents. Claimant 7 furthermore does not state any specific contradictions or irregularities in her adoption file that should have been apparent to the State and should have led to a visa being refused. She also does not make any specific accusations against the State in other respects. The court concludes that on the basis of the statements of claimant 7 it cannot be established that the State acted unlawfully towards her.

Claimant 8

5.68.

Claimant 8 was adopted in 1990. He was unable to find birth certificates for himself and for the biological mother named in his documents. Much later, the mother named in the documents declared that she was not his biological mother, but an 'acting mother'. Claimant 8 points out various irregularities in his adoption file. For example, different ages of the mother are mentioned and place names are spelled differently. If the checks during the visa application had been carried out correctly, it would have been found that birth certificates were missing and no visa would have been issued.

5.69.

The court does not follow claimant 8 in this. The State has motivatedly refuted the claims of claimant 8. Claimant 8 has submitted a copy of his passport, a waiver and a health declaration. He has not pointed out irregularities in these documents. He has not substantiated that the other alleged irregularities were known to the State at the time and/or that they could lead to the conclusion that the State acted unlawfully by granting a visa.

III. Conflict with Article 8 ECHR?

5.70.

According to the claimants, the State has violated the provisions of Article 8 ECHR. Article 8 provides, among other things, for the right to private and family life.

5.71.

In this context, the claimants argue, in summary, that their right to an intact family life has been violated because 34 :
- they were adopted when they should not have been adopted,
- the claimants' adoption files are not complete and/or correct, because it was not properly verified whether the adoption files were correct before the adopted child entered the Netherlands,
- the claimants have not been able to trace their biological family because the information in their adoption files was not correct and/or incomplete.

5.72.

Before the court can proceed to a substantive assessment of the arguments mentioned, it must be considered what the scope of the ECHR is, more specifically whether the ECHR applies in this case. In this connection, the following is considered.

5.73.

Article 1 ECHR states:

The High Contracting Parties shall assure to everyone within their jurisdiction the rights and freedoms set forth in Title I of the present Convention.

5.74.

In view of this provision, the applicability of Article 8 ECHR in this case depends on whether the applicants were subject to the jurisdiction of the Dutch State at the time of the adoption procedure in Sri Lanka. It has already been held that the applicants' adoption procedures in the Netherlands must be considered lawful.

5.75.

The applicability of the ECHR concerns, firstly, persons who are present on the territory of the signatory States. These States exercise jurisdiction over them. Secondly, under certain circumstances, a State may exercise jurisdiction over persons outside its territory. This includes persons who have a special relationship with a State and therefore remain subject to the jurisdiction of that State abroad. This includes diplomatic and consular officials 35 .

5.76.

Following AG Snijders 36 the court finds that the claimants were not subject to the jurisdiction of the Dutch State at the time of the adoption procedures in Sri Lanka that were aimed at their adoptions there. The claimants were in Sri Lanka, not on the territory of the Dutch State. The State was not involved in the adoption procedures in Sri Lanka. Nor was there any extraterritorial jurisdiction.

5.77.

At the hearing, the claimants further stated 37 that Article 8 ECHR does apply because the State had jurisdiction in the supervision of Flash and exercised that supervision in the Netherlands. Furthermore, checks on the visa requirements took place at the ministries and at the consulate of Sri Lanka. The court first notes that, to the extent correct, this does not affect the previous judgments that the State is not liable in connection with inadequate supervision of Flash and that the State did not act unlawfully in the performance of its statutory task in granting visas to the claimants.

5.78.

Furthermore, the claimants have also failed to provide sufficient concrete circumstances that could lead to the conclusion that the State has violated Article 8 of the ECHR. The core of the claimants' reproach is that the State has not ensured that the adoption files were complete and contained as much correct information as possible, for example by checking the accuracy of the data in the ' Report on the condition of the child and family ' 38 .

However, the State was not legally obliged to monitor or ensure the completeness and accuracy of the descent data from Sri Lanka in each adoption file. The claimants also fail to provide sufficient detail on how the State could have actually achieved this in their files, given that the information came from Sri Lanka. The court also takes into account the State's defence that Article 8 ECHR does not provide an absolute right to complete and correct coordination data, but requires a weighing of interests and that there may have been many reasons (which were beyond the State's and/or Flash's sphere of influence) why the correct descent data were not included in the claimants' adoption files.

5.79.

The foregoing leads to the conclusion that Article 8 ECHR does not apply in this case, or at least that it has not been established that the State has violated Article 8 ECHR.

Conclusion

5.80.

The plaintiffs' claims are dismissed.

Legal costs

5.81.

Following the COIA report of 8 February 2021, the Minister acknowledged that abuses could continue due to inadequate government action and apologized to claimants 39 and other adoptees for the abuses in intercountry adoptions identified in the report. The announced measures to provide more support to adoptees in their search for their origins have remained limited and, according to claimants, inadequate. There are many more intercountry adopted children who are considering holding the State liable and initiating proceedings following the COIA report. This stood in the way of a settlement between the parties in advance. Claimants had little choice but to initiate proceedings. Both parties need a judgment deciding on the liability of the State. In all these circumstances, the court sees reason to compensate the legal costs in these proceedings in the sense that each party bears its own costs.

6The decision

The court

6.1.

dismisses the claims,

6.2.

compensates the costs, in the sense that each party bears its own costs.

This judgment was rendered by Mr. IAM Kroft, Mr. M. Dam and Mr. W. Limborgh and pronounced in public on October 16, 2024.

1HR 19 April 2024, ECLI:NL:HR:2024:622 and the preceding conclusion of AG Snijders, ECLI:NL:PHR:2023:958

2Recognition of foreign adoptions in the Netherlands developed after the Hague Adoption Convention was established in 1993.

3Act of 8 December 1988 containing regulations regarding the admission of foreign foster children in the Netherlands with a view to adoption (Act on the Admission of Foreign Foster Children) (Stb. 1988, 566)

4Appendix V to the Adoption Memorandum with part G-7 of the then applicable Aliens Circular, as amended on 15 October 1975, later Aliens Circular 1982, part B-18.

5Practical matters concerning adoption and adoption preparation (Parliamentary Papers II 1979-1980, 16 194, no. 2)

6Ro 3.9 – 3.11 are derived from ECLI:NL:HR:2024:622: ro 2.2. The parties have also referred to the quotations reproduced there. See also AG Snijders, ECLI:NL:PHR:2023:958; ro 4.11- 4.20.

7Youth Policy Council, Children through the back door! Problematic aspects of international adoption, May 1982, p. 12-13.

8Parliamentary Papers II 1987/88, 20046, no. 6, p. 3

9Parliamentary Papers II 1987/88, 20046, no. 6, p. 10

10Decision of 4 July 1989, Stb. 1989, 262

11See also the conclusion of AG Snijders, ECLI:NL:PHR:2023:958, paragraph 4.20.

12Report of the Commission for the Investigation of International Adoption, February 2021. Appendix to Parliamentary Papers II 2020/21, 31265, no. 79

13Pg. 92, note 263 of the COIA report states: Adoption of Children Ordnance, Law No. 6 of 1977 (Act No. 38 of 1979), Chapter 76, Part 1, Section 3.6.'

14Note 264 of the COIA report states: 'interviews by Commission in Sri Lanka'.

15Note 269 of the COIA report states: 'Adoption in Sri Lanka' [unpublished edition, 27-2-1989] pp. 17-18, MinJus Archive, OBP11 file, folder 3'.

16See the Minister’s speech upon receipt of the COIA report, prod. 3 claimants.

17Internal note MvJ 1979, MvJ to the Lower House that the reliability of Flash must be checked, so according to the claimants the State should have suspended adoptions until that check.

18Signals as mentioned in dgv. 3.3.-3.5., 2.15-3.17 and 3.21

19Summons par. 6.23.

20See also the conclusion of AG Snijders, 27 October 2023, ECLI:NL:PHR:2023:958, paragraphs 10.2-10.7.

21Youth Policy Council, Children through the back door! Problematic aspects of intercountry adoption, May 1983.

22Plaintiffs' pleadings, 2.11.

23The terms “State” and “government” are used interchangeably. They refer to one and the same entity.

24In very exceptional cases, general supervisory failure could also lead to liability of the supervisor, but such exceptions do not apply in the present cases.

25ECLI:NL:HR:2024:622, paragraph 3.3.2.

26Pleadings, 2.5.

27Pleadings, 2.6.

28Pleadings, 2.10.

29Pleadings, 3.1. et seq.

30In particular, section G 7 of the Aliens Circular 1975 and Chapter B 18 of the Aliens Circular 1982 (hereinafter: VC 1982), as subsequently amended in parts. Chapter B 18 VC 1982 contains special regulations regarding the admission and further residence arrangements of foreign foster children and regarding the procedure that must be followed when processing applications to admit a foster child of non-Dutch nationality. These regulations are essentially the same as the regulations included in section G 7 of the Aliens Circular 1975.

31After prior authorisation by the Visa Service of the Ministry of Foreign Affairs on the advice of the Department/Directorate of Immigration Affairs of the Ministry of Justice, see CvA 4.32

32See ECLI:NL:RBDHA:2023:17538, paragraph 2.6. See also Strikwerda (footnote 35 in cva). See also Wijn (footnote 36 in cva)

33As prescribed in Chapter B-18 Vc 1982, par. 2.1.2.

34summons at marginal numbers 6.24 et seq.

35In this regard, see in more detail: Opinion of Advocate General at the Supreme Court L. Valk of 24 April 2020, ECLI:NL:PHR:2020:412, paragraph 4.4 et seq.

36ECLI:NL:PHR:2023:958, paragraph 6.20 and note 92.

37Plaintiffs' pleadings 5.4 et seq.

38Plaintiffs' pleadings 5.1. and 5.9.

39Letter dated 20 July 2021 on behalf of the Minister to claimants, pg. 2, production 36 claimants.