Policy response report Commission Investigation into Intercountry Adoption in the past
To the President of the House of Representatives
of the States General
Box 20018
2500 EA THE HAGUE
Date
February 8, 2021
Topic
Policy response report Commission Investigation into Past Intercountry Adoption
Directorate-General of Punishment and Protection
Directorate of Coordination Finance, Operations and Legal Affairs
Peat market 147
2511 DP The Hague
Box 20301
2500 EH The Hague
www.rijksoverheid.nl/jenv
Our reference
3205827
Please state the date and our reference when answering. Do you only want to deal with one case in your letter.
On 6 December 2018, I informed the Lower House of my decision to have an independent investigation carried out into past intercountry adoptions. The reason for this was indications of a possible active involvement of one or more persons associated with the Dutch government in illegal adoptions from Brazil. These directions emerged in an appeal to the Government Information (Public Access) Act (Wob). I think it is important, especially for adoptees, that there is clarity about the existence of possible abuses in international adoptions in the past, about the scale on which these occurred and about the role of the Dutch government in this.
Under the chairmanship of Mr. Joustra started an external committee with the investigation in May 2019. The research focused primarily on the period from 1967 to 1998. That is the period from the introduction of the first laws and regulations on intercountry adoption up to and including the entry into force of the Hague adoption convention. The countries Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka formed the starting point of the study, but material from other countries that emerged during the study was also studied. I am grateful to the committee for the thorough report that has been presented to me today.
The Committee concludes that serious abuses occurred in intercountry adoption in all the countries studied. Although the nature and extent varied between countries and over time, the Committee finds that these abuses were an almost permanent and structural problem in intercountry adoption. These include illegal activities such as corruption, falsification of documents, child trafficking, child theft and fraud. But also unethical acts, such as under false pretenses or under moral pressure giving up children. Or abuse of poverty and other socio-economic or cultural circumstances and inadequate archiving.
The Dutch government was aware of adoption abuses. In a number of cases, representatives of the Dutch government were also involved. The mediating agencies, and in some cases adoptive parents, were also aware of abuses.
According to the committee, the social and political image of adopting children from abroad has long been crucial in allowing abuses to be ignored. Intercountry adoption was seen as "doing good" and as a solution for children in poverty and need. There was a strong call from society and politicians to adopt from abroad. Although this provides an explanation for everyone's actions at the time, including that of the government, it is not legitimacy.
The Dutch government has failed to take timely measures to combat adoption abuses: in legislation and regulations, in investigating abuses, in supervision and in enforcement. Many adoptees are unable to find out where they come from because of the way their adoption procedures have gone. That leads to anger, pain and sadness. Inadequate government action allowed abuses to continue. Apologies are in order for this attitude of the government.
Adoptees' confidence in the Dutch government has been violated. The committee rightly concludes that we must make an effort to repair this broken relationship. In addition to offering recognition and apologies, I therefore take measures to support adoptees more in the search for their origins and I am improving their legal position. We must also learn lessons for the future. The committee points to the inherent vulnerabilities of intercountry adoption and states that the current system cannot be maintained. There will therefore be a fundamental rethink of the practice of intercountry adoption. In the meantime, I suspend implementation of adoption procedures. I explain these steps below.
1. Better support for adoptees
Finding their biological parents and / or family is a complicated quest for adoptees. This applies all the more when abuses have occurred in the adoption procedure. The committee's research shows that 51 percent of adoptees have already started looking for their origins. Of those who have not yet searched, more than a third is still considering this. A search is often a laborious process that cannot always be completed successfully.
I agree with the committee that - given the past - the government has a moral responsibility to support adoptees in the search for their origins. The first steps have been taken in this regard in the past period. It is clear that this support needs to be firmer and more professional. I accept the recommendation of the committee to set up an independent national expertise center for this purpose. With this, as the committee also indicates, I want to strengthen the infrastructure in the Netherlands for the quests of adoptees. Individual quests will always have their own interpretation, in which it is up to the adopted person. But the government can offer facilities that help every adoptee. The expertise center will provide theto bundle knowledge in the field of identity issues, quests and assistance. The expertise center thus offers a form of enhanced generic support. For example, adoptees can turn to the expertise center for:
- Access to adoption files and parentage information. The expertise center provides assistance in finding and accessing adoption records. It also has knowledge of the possibilities and risks of DNA research.
- Information about quests. The expertise center acts as a point of contact for adoptees with regard to quests and will build up and open up a relevant network in countries of origin. My Foreign Affairs colleague and I have agreed that the foreign missions will actively help set up and maintain the network of the expertise center on site.
- Psychosocial help. The expertise center itself will offer low-threshold forms of psychosocial help, such as organizing contact with fellow sufferers and guidance in discussion groups. The expertise center can also provide guidance to more specialized forms of psychological help.
- Legal support. The expertise center offers legal support for frequently asked questions among adoptees, for example about name change, revocation of adoption and privacy.
In the development of this service I will also involve questions about the descent and identity of children from new family forms, such as as a result of surrogacy. The Committee rightly states that the government must learn lessons from the past in new family forms that show similarities with intercountry adoption.
It is important that parties already involved in quests for adoptees work together to achieve the above goals. In the coming period, I will therefore further develop the functions of the expertise center and discuss the organizational structure in consultation with interest groups, Fiom and other stakeholders. As the committee states, valuable time should not be lost in view of the advanced age of the biological parents of many adoptees. At the same time, the development must be done carefully, with the involvement of the above parties. I aim to inform your House about this before the summer.
2. Refrain from invoking prescription in proceedings
A situation in which individual adoptees who initiate proceedings against the State often find themselves is that claims in adoption cases are often time-barred. This is because the statute of limitations in these types of cases started to run when the adoption took place. However, those involved were still very young at the time. When the child is an adult and more disconnects from its adoptive parents, the claims are often time-barred.
This absolute limitation period in the Civil Code is the result of a balancing of interests between “on the one hand the interest of the creditor to be able to enforce a claim due to him, and on the other hand the interest of the debtor not to become a legal claim for years to come. faced. ” On the basis of case law of the Supreme Court, the court can in exceptional cases rule that an appeal to prescription is contrary to reasonableness and fairness. Such an exception has not been adopted in proceedings on intercountry adoptions.
However, invoking prescription by the government is often a great disappointment for those involved. In this light, I also look at the motion passed in your House in which the government is requested to abolish or at least significantly extend the limitation period with regard to intercountry adoption by law. However, the extension or abolition of the statutory limitation period requested in the motion can only offer relief for children who are adopted from the moment the amendment enters into force. Claims that have already expired cannot be restored retroactively. A change in the law is therefore not a solution for the existing group of international adoptees. In the light of the results of this report and the wishes of the House of Representatives, they nevertheless deserve the chance of a substantive judgment by the judge. From now on, the State will therefore no longer invoke prescription in proceedings instituted by adoptees regarding intercountry adoption. This applies to both current and future proceedings. I hereby comply with what the motion aims at. This means that the court can assess the content of the claims.
The State will continue to assess the content of liability claims regarding international adoption cases on a case-by-case basis. The report has not changed this. After all, the committee has indicated that it will not rule on legal debt or liability, nor has it commented on individual cases.
3. Suspension of intercountry adoption procedures
The Committee has established that abuses could still have occurred after 1998. This is inherent in the way in which the intercountry adoption system is designed. The committee points out that private elements, such as private intermediaries, make the system susceptible to fraud. In addition, the committee poses questions about the actual possibilities for supervision from the Netherlands, both within and beyond the national borders. In her view, the current adoption system cannot be maintained. She has serious doubts as to whether it is possible to design a realistic public law system in which abuses no longer occur. The committee recommends that pending decision-making on this matter be suspended for intercountry adoptions.
Supervision of the implementation of adoption procedures has been increasingly tightened in recent years. However, the report points to vulnerabilities in the system that cannot be remedied with even more far-reaching measures. An important aspect is that the countries that are members of the Hague Adoption Convention work together on the basis of the principle of trust. I therefore share the Committee's doubts as to whether an alternative adoption system that rules out abuse is really possible.
In addition, the number of intercountry adoptions has fallen sharply in recent decades. While 1,300 international adoptions took place in 2004, there were only 145 in 2019. One of the reasons for this sharp decline in adoption lies in the fact that an adequate form of family care is now being found for many children in the country of birth. In addition, there are more and more alternatives to fulfill a child wish.
All this calls for a fundamental rethink of intercountry adoption. This is also in line with the advice of the Council for the Application of Criminal Law and Youth Protection (RSJ) from 2016, in which it advises conducting an in-depth discussion about the future of intercountry adoption. In the coming months I will explore whether a public-law alternative is conceivable to the current adoption system that complies with the guarantees set by the committee. If it turns out that even with such a scenario the risk of abuse cannot be eliminated, then giving up intercountry adoption will have to be seriously considered. It is ultimately up to a new cabinet to submit the required amendment to the Foreign Children for Adoption Act (Wobka) to the House.
In the meantime, I suspend the adoption procedure. From now on I will not process any new applications to start an international adoption procedure. I will also no longer be issuing principle permissions for adoption. I give those who already have a consent in principle the opportunity to complete their procedure. This concerns adoptive parents who are mediating with permit holders. This concerns roughly 400 files. In all these files I will perform an extra check for the presence of possible vulnerabilities in the procedure. For adoptive parents who do not yet have a consent in principle, this decision means that their adoption procedure will not be continued for the time being. I realize this is painful for them. I will provide an appropriate form of aftercare for them and they are eligible for reimbursement of the costs already incurred. I am talking to the permit holders to see what the consequences of the decision to suspend are for them. I believe that in this way I give a balanced interpretation of the transitional law recommended by the committee.
Finally
These measures will be further elaborated in the coming weeks. Your House will be informed by a spring bill about the budgetary consequences and coverage.
The committee provides answers to questions adoptees have been dealing with for a long time - about the existence of abuses in intercountry adoption in the past and the role of the Dutch government in this. The abuses themselves cannot be reversed. The government does have a responsibility to work to restore trust with adoptees and to provide support in adoptees' quests for their origins. In addition, the committee's report asks for a critical look at the current adoption system. In this way, children can be protected against abuses in the future.
The Minister for Legal Protection,
Sander Dekker
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