Dilani Butink equated in Sri Lanka adoption case

This week, the Court of Appeal in The Hague ruled in favor of Dilani Butink in the case she had brought against the Dutch state and the Stichting Kind en Toekomst. The case had previously been time-barred, according to the court. She was proven right on appeal.

The case in brief

Dilani Butink was born in Sri Lanka in 1992 and adopted shortly afterwards by her Dutch adoptive parents. She has not been able to find her biological parents on the basis of her adoption papers. After Zembla television broadcasts in 2017 about abuses during adoption from Sri Lanka, she held the State and the Foundation liable. Dilani states that her adoption was made carelessly, leaving her in uncertainty about her origin and the circumstances under which she was given up. According to her, this is a violation of her fundamental rights and the State and the Foundation have acted unlawfully because of the role they played in the realization of the adoption.

Invocation of prescription expired/unacceptable

The court upheld the appeal of the State and the Foundation to the statute of limitations in 2020 and rejected Dilani Butink's claims. In the appeal, the State dropped the limitation defence. The Court finds the Foundation's appeal to prescription to be unacceptable. This allowed the case to be dealt with substantively.

Wrongful act by the Foundation

The Court considers that the Foundation has three core obligations:

1) Only mediate in an adoption in the best interest of the child.

2) Not paying a disproportionately high fee in the context of the mediation and not aiming for profit.

3) Collect as complete information as possible about the origin and background of the child in the country of origin.

In the opinion of the Court of Appeal, the Foundation has not sufficiently fulfilled the core obligations referred to by relying without doubt on the Sri Lankan papers and assuming that the information was brief because “it always happened that way”. Certainly at a time when there were clear signs of abuses in international adoptions, including adoptions from Sri Lanka. Signals that were (partly) the reason for the introduction of a licensing system, more control obligations for Dutch licensed intermediaries and more supervision by the Minister of the intermediaries. According to the Court, the Foundation could therefore be expected to be aware of these developments. This should be for her reason to observe maximum care and vigilance. According to the Court, the Foundation should have made more effort to obtain as much information as possible about the reasons for the distance and about Dilani Butink's descent. According to the Court of Appeal, the Foundation has not acted with sufficient care. According to the Court, the Foundation thus acted unlawfully towards Dilani Butink.

Wrongful act by the State

In the opinion of the Court of Appeal, the State has also failed to act. The State could and should reasonably have supervised the way in which the Foundation fulfilled its obligations more and better. The Court of Appeal considers that it is plausible that the State would have discovered the abuses through closer supervision. The State could have taken action on this. There is nothing to show, however, that the State critically inquired about the way in which the Foundation fulfilled its core obligations in practice during audits of the Foundation. The State should have done this. According to the Court, the State thus acted unlawfully towards Dilani Butink.

New civil procedure

With this ruling, Butink can start a new civil procedure. In those proceedings it will be examined whether the wrongful acts of the State and the Foundation have resulted in damage and, if so, what the nature and extent of that damage is.