Abstract
On 19 April 2024, the Dutch Supreme Court rendered a ruling in the case of Dilani Butink, a Dutch adoptee from Sri Lanka who initiated legal proceedings against the adoption agency and the Dutch state. The latter, the plaintiff asserted, had failed to adequately investigate the legitimacy of her adoption in 1992 amidst widespread reports of abuses occurring in Sri Lanka during that period. She argued that this negligence had contributed to the ongoing uncertainty regarding her origins and the circumstances of her relinquishment for adoption. Claiming violations of her rights to identity and origin under the ECHR, the plaintiff demanded financial reparations from the two stakeholders. The Supreme Court's ruling in this case serves as a significant point of reference in the ongoing discourse on reparation in the aftermath of past illegal intercountry adoption, not only in the Netherlands but also in other European countries. This case note explores the complexities surrounding the questions regarding accountability of stakeholders in the receiving countries in cases of illegal intercountry adoptions.
Keywords
Introduction
On 19 April 2024, the Dutch Supreme Court rendered a ruling in the case of Dilani Butink, a Dutch adoptee from Sri Lanka (hereinafter ‘the plaintiff’) who initiated legal proceedings against the adoption agency and the Dutch state. 1 The latter, the plaintiff asserted, had failed to adequately investigate the legitimacy of her adoption in 1992 amidst widespread reports of abuses occurring in Sri Lanka during that period. She argued that this negligence has contributed to the ongoing uncertainty regarding her origins and the circumstances of her relinquishment for adoption. Claiming violations of her rights to identity and origin under the ECHR, the plaintiff demanded financial reparations from the two stakeholders. The Supreme Court's ruling in this case serves as a significant point of reference in the ongoing discourse on reparation in the aftermath of past illegal intercountry adoption, not only in the Netherlands but also in other European countries. This case note explores the complexities surrounding the questions regarding the accountability of stakeholders in the receiving countries in cases of illegal intercountry adoptions.
Relevant facts
The plaintiff was born in Sri Lanka in 1992 and adopted by a Dutch couple a few days after. The adoption took place with the involvement of an accredited Dutch adoption agency (hereinafter ‘the agency’). Her adoptive parents had originally travelled to Sri Lanka to adopt another child, who was subsequently withdrawn from the adoption process by her grandfather. The director of the Dutch agency reassured the parents that they would get another baby. Indeed, about a week later, the plaintiff, only one or two days old at the time, was offered to the adoptive parents. On 4 March 1992, the Sri Lankan court pronounced the Sri Lankan adoption after a hearing. One day later, the Dutch embassy in Sri Lanka issued a visa for the plaintiff and on the same day, she flew to the Netherlands with her adoptive parents. In the Netherlands, she was registered with the municipality and adopted according to Dutch law.
In 2009, the plaintiff began to search for her biological parents in Sri Lanka. However, her root searches were not successful, as the available information about her origin was scarce and obscure. In particular, she discovered that the hospital where she was allegedly born had no record of her birth certificate, and the biological mother listed on the certificate had never been registered as a patient there. Moreover, another child’s birth had been registered with the municipality under the plaintiff’s birth certificate number. The course of events leading up to her adoption (that is, the baby exchange) and the discrepancies in her paperwork, combined with widespread reports of irregularities in adoptions from Sri Lanka during the late 80s and 90s, led the plaintiff to suspect that she became a victim of illegal adoption practices.
In 2019, the plaintiff initiated legal proceedings against the agency and the Dutch state, seeking a declaratory judgment that both parties had acted unlawfully toward her, according to article 6:162 of the Dutch Civil Code. She claimed that the latter had violated her right to respect for private and family life, in particular, her right to know (or be able to know) her own identity and origin, as laid down in Article 8 ECHR, as well as the relevant Dutch laws in force at the time. According to her, they were to blame for the uncertainty surrounding her origin and the circumstances under which she was given up for adoption. In particular, she claimed that the agency did not sufficiently investigate the soundness of her adoption, and that the state failed to properly monitor the agency. She requested both parties be ordered to pay compensation for the harm she had suffered.
In 2022, the Court of Appeals in The Hague 2 – unlike the court of first instance 3 – upheld the plaintiff’s claim. It found that the agency violated its core obligations laid down in the WOBP (Act on the Placement of Foreign Children with a View to Adoption), 4 namely, to only arrange an adoption that was in the child's best interest 5 and to gather as complete information as possible regarding the child’s origin and background in the country of origin. 6 This is because the agency simply relied on the Sri Lankan paperwork despite recurring reports about structural abuses in intercountry adoptions from that country. 7 However, it should have made greater efforts to obtain as much information as possible about the reasons for and the circumstances of the relinquishment and the plaintiff’s background. This was particularly critical given the questionable last minute ‘baby exchange’ incident. 8
The court subsequently concluded that the Dutch state must also have been aware of irregular adoption practices in Sri Lanka. 9 Given that the interests of children – especially vulnerable individuals – were at stake, the State could and should have exercised more stringent oversight of the agency, critically examining how it fulfilled its core obligations in practice. Specifically, the State should have required the agency to make greater efforts to gather information about the child's background and the mother's reasons for relinquishment. This would include details such as the number and substance of conversations with the biological mother, how contact with her was initiated, evidence that she relinquished the child voluntarily and fully informed, her reasons for doing so, any exploration of care options within the child's family, the father's name etc. Moreover, if this information could not be obtained, the State should have mandated that the agency at least document the efforts made to acquire it and the reasons for any gaps. 10
Both the agency and the State filed an appeal in cassation with the Dutch Supreme Court. The agency argued, in principle, that it was entitled to rely on the findings of the Sri Lankan authorities, considering that there were no signs of abuse in the plaintiff's case. The state claimed that it had no reason to systematically monitor whether adoption agencies complied with their obligation to gather as complete information as possible about the origin and background of children being adopted.
The reasoning of the court
The Supreme Court ruled in favour of the agency and that the Court of Appeals’ judgment cannot be upheld. First, the court stressed that, according to Dutch laws at the time of the adoption, the agency was entitled to rely on the information provided by the Sri Lankan authorities concerning the child’s relinquishment and their determination that the adoption was in the child’s best interests. Dutch law did require the agency to make an effort (inspanningsverplichting) to verify that the procedures in Sri Lanka were properly followed and to gather as much information as possible about the background and the parents of the child. However, the laws did not impose an obligation on the agency to conduct its own investigations (onderzoeksverplichting) into the legitimacy of the relinquishment or whether the adoption was in the best interests of the child. 11
The plaintiff's adoption, the court stressed, took place in accordance with the Dutch regulations and procedures. This is because the relinquishment deed was signed by the woman who appeared at the court hearing in Sri Lanka as the biological mother and the Sri Lankan court had ordered the adoption. Hence, according to Dutch standards, the biological mother relinquished her child in a sound manner. This provided an acceptable basis, by Dutch norms, that the adoption was in the best interests of the child. 12
However, the question then was whether, despite formally adhering to the applicable laws and procedures, the agency still acted unlawfully toward the plaintiff. This is because despite the general signs of abuse, the agency had failed to make more effort to obtain as much information as possible about the reasons for relinquishment and about the origin of the child to be adopted, and to ascertain whether and how it had been investigated that the biological mother had relinquished her child in a manner acceptable to Dutch standards.
The Supreme Court ruled that when answering that question, all the circumstances of the case should be considered, including not only general signs of abuse in Sri Lanka, also from before the regulations in effect at the time of the adoption were introduced, but also the circumstances of the specific case. 13 However, according to the Supreme Court, the Court of Appeals had not clearly considered some of the circumstances of this individual case put forward by the two parties. In particular, the court failed to consider the fact that the adoption followed the prescribed procedures and occurred at a time when international adoption from Sri Lanka was again permitted (after Sri Lanka had lifted the temporary ban and strengthened its adoption regulations and procedures). 14
Regarding the role of the State, the Supreme Court ruled that the applicable regulations did not impose a duty on the State, as a supervisory authority, to rigorously verify whether the agency complied with legal standards in a specific adoption case. The court should have assessed the State’s actions with restraint, and in reaching this judgment, it should not have relied solely on general indications of misconduct. 15
The ruling of the Supreme Court is in line with the conclusions of the Advocaat Generaal (hereinafter ‘A-G’), who identified the changed perception of international adoptions as the central issue in this case. 16 He argued that the Court of Appeal’s decision, which stated that the agency should have made greater efforts to request all available information at the time, reflects today's understanding of the crucial importance of this information and the experiences of the many adult adoptees that now live in the Netherlands. 17 This is combined with the positive mindset toward intercountry adoption at that time and a quick assumption that adopting a child from a developing country was in their best interests, whereas less attention was paid to the potential needs of that child as an adult. 18
The case was referred to the Amsterdam district court, which now has to render a new decision in this case, determining whether the agency and/or the State acted unlawfully toward the plaintiff.
Context
Intercountry adoption has been a prominent issue in the Netherlands, sparking political and societal debate for many years. On 8 February 2021, Sander Dekker, then Minister for Legal Protection, issued an apology to the victims of illegal intercountry adoption, 19 following the recommendations of the Committee Investigating Intercountry Adoption in the Past, led by Tjibbe Joustra (hereinafter Joustra Committee). 20 The committee uncovered systemic abuses in adoptions from Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka to the Netherlands between 1967 and 1998, including cases of child abduction, purchase, bribery and document falsification. Notably, it concluded that Dutch state and adoption agencies had been aware of these practices abroad yet failed to take adequate measures to prevent them. 21
For many years, a growing movement of adoptees in the Netherlands had been demanding justice for the human rights violations experienced by them and their biological families. 22 The individuals that were adopted to the Netherlands between the late 60s and late 90s have become adults, and many developed an interest in their origin. Some managed to trace back their families and discovered that their adoption paperwork was wrong and that they were adopted illegally. Others – like the plaintiff in this case – were unsuccessful in their root searches due to the inconsistent and/or scare information on their documents but have strong reasons to believe that they were adopted illegally considering the circumstances of their placement and the reports about systemic adoption abuses at the time. 23 Both groups of adoptees claim that their right to know (or be able to know) her own identity and origin, laid down in Article 8 ECHR, has been violated.
After years of unsuccessful attempts to hold the Dutch state and adoption agencies accountable – including unproductive talks with the minister – some adoptees initiated legal proceedings against these stakeholders, seeking compensation. The release of the Joustra report and the minister’s apology provided significant momentum to their cause, leading many adoptees to feel that their suffering was finally being acknowledged. However, despite this official apology, the victims are still waiting for meaningful reparations. 24 The Dutch state and adoption agencies seem determined to evade compensating those who were or suspect to have been adopted illegally. Notably, they appealed two landmark rulings: one from the district court in The Hague in 2021 25 and another from the Court of Appeals in The Hague in 2022 (discussed in this article), both of which had mandated compensation for two adoptees from Brazil and Sri Lanka, respectively.
The Supreme Court’s decision has made reconciliation and justice even more elusive for adoptees in the Netherlands. A few months after this ruling, the district court in The Hague also dismissed compensation claims brought by eight individuals adopted from Sri Lanka between 1983 and 1990. 26 Referring to the Supreme Court's judgment, the district court reasoned that the Dutch state's actions must be evaluated according to the laws and norms of that era. Despite acknowledging the systemic adoption irregularities in Sri Lanka, the court concluded that the State could not be held accountable, as the plaintiffs’ adoption documents showed no apparent mistakes or inconsistencies.
Discussion
There is general agreement about the fact that the actions and omissions of the Dutch state and the adoption agencies have to be assessed based on the laws applicable at the time the adoptions took place – also the Court of Appeals explicitly stressed that in its judgment. However, there is disagreement regarding the question if the stakeholders acted without due diligence and care, and hence unlawfully towards the plaintiff, by trusting the Sri Lankan authorities despite recurring reports about abuses in that country. The Court of Appeals answered this question in the affirmative, arguing that the Dutch agency should have made greater efforts to obtain as much information as possible about the adoptee, while the Dutch state should have exercised more stringent oversight of the agency. However, according to the Supreme Court, not only general signs of abuse in Sri Lanka, but also the circumstances of the plaintiff's specific case should be considered when answering this question.
So what were the general signs of abuse in Sri Lanka that the Dutch stakeholders had knowledge of at the time? Between 1976 and 1993, there were several Dutch media reports about illegal intercountry adoptions, including from Sri Lanka.
27
Additionally, in 1990 and 1991, the Dutch consulate in Colombo raised alarms with the Dutch Ministry of Foreign Affairs, drawing attention to frequent reports in the Sri Lankan media about ‘baby farms’ and an ‘active trade in children’. State institutions in the Netherlands also addressed the risks of irregularities and abuses in international adoptions, particularly from Sri Lanka. For instance, in 1987, the Dutch Council for Child Protection wrote to the Justice Commission, reporting that its staff frequently received information that raised serious concerns about the reliability of circumstances surrounding mothers’ relinquishments, as well as about the placements themselves, specifically mentioning the situation in Sri Lanka.
28
The issues surrounding Sri Lankan adoptions were also addressed during the parliamentary discussion of the WOBP, the first Dutch law on intercountry adoption, multiple times. In its report, the Joustra Committee made the following conclusions regarding adoptions from Sri Lanka: The Dutch government, specifically the Ministries of Justice and Foreign Affairs, repeatedly became aware in detail of abuses in Sri Lanka from the early 1980s onwards. Issues such as baby farming and even ‘outright child abduction’ were raised by involved parties. Generally, no action was taken in response. Even when Dutch diplomats on the ground raised alarms, no follow-up occurred. Despite this knowledge and the desire for a stricter approach, the Netherlands continued to refer to the Sri Lankan authorities for solutions. Dutch adoption agencies were also aware of the adoption abuses in Sri Lanka.
29
Regarding the first argument, Sri Lanka indeed imposed a temporary ban on intercountry adoptions in 1987 due to growing concerns over irregularities and abuses. This ban was lifted in 1988, allowing intercountry adoptions to resume under more stringent regulations aimed at preventing abuses. However, reports about irregularities in Sri Lankan adoptions continued to emerge (for example, the warnings from the Dutch embassies in 1991 and 1992 and the ongoing media coverage as mentioned above). This is not surprising. In the past, numerous sending countries have tried to limit the risk of abuse by reforming their adoption system but came to realize that irregularities continued. 30 This has to do with the inherently criminogenic nature of the intercountry adoption system in general (which is based on the economic and demographic asymmetries between the sending and the receiving countries) and of the adoption systems in the countries of origin in particular (due to extreme poverty and corruption). 31 Therefore, the Supreme Court rightly emphasized that general signs of abuse predating the updated legislation should also be factored in when assessing whether there were specific signs of abuse at the time of the adoption. 32
The stakeholders’ second argument was also taken up by the A-G in his opinion. He analysed the legislative history of the WOBP and came to the conclusion that ‘according to [the legislator’s] observation, there were no problems with regular intercountry adoptions [carried out] by the existing Dutch agencies’. 33 He furthermore found that ‘for the government, there was […] no reason to doubt the integrity of the intermediaries used by the Dutch agencies (in regular adoptions)’. 34 Indeed, at the time many reports about abuses in Sri Lanka concerned adoptions that took place without the involvement of a Dutch agency and in circumvention of the official adoption procedure. Private adoptions are particularly prone to abuses and irregularities. 35 Private adoptions are directly arranged between the adopters and the birth parents or the organization caring for the child (for example, orphanage). The former would typically use an unauthorized private contact (for example, foreign social worker, nurse, doctor, or attorney) in the sending country, acting as an intermediary which often offers a shortening or circumvention of the time-consuming official adoption placement procedure. They locate a child, secure the necessary consent to an adoption and prepare the adoption paperwork. 36 A study that was conducted by Bach in Germany in the late 1980s shows a clear link between private adoptions and illegal practice. 37
However, an official adoption placement procedure does not guarantee protection against illegal practices, and adoptions through agencies are not inherently free from abuses. Time and again, irregularities have surfaced in adoptions facilitated by accredited agencies. This is largely due to the structural weaknesses mentioned above, which enable abuses even within officially sanctioned procedures. In sending countries with high levels of corruption, like Sri Lanka, there is the risk that regulatory institutions that ought to serve as guardians in the adoption system do not prevent illegal adoptions but actually facilitate them. 38 This awareness must have already existed back then as some reports about abuses in Sri Lanka concerned agency adoptions. For instance, according to the Joustra report, the Dutch ambassador in Sri Lanka made reports about adoption abuses in 1991, referring to a non-specified Dutch adoption organization that was directly involved with a baby farm. 39 In the same year, it also became known that a Sri Lankan lawyer, who was the intermediary of a Dutch agency, was arrested as he was suspected to have arranged children in circumvention of the official procedures and through baby farms. 40 The fact that abuses also affected agency adoption was then also the reason why another Dutch agency decided to abstain from placing children from this country and why the ban on intercountry adoptions imposed by the government affected all adoptions. 41 The A-G’s conclusion that the general signs of abuse only concerned agency adoptions and that the Dutch government viewed regular intercountry adoptions as unproblematic is thus difficult to maintain.
Given the fact that reports about irregularities in Sri Lankan adoptions continued to emerge after Sri Lanka lifted its ban on intercountry adoptions, and that they did not only concern private adoptions, combined with the dubious ‘baby exchange’ incident in the plaintiff’s individual case, the argument that the agency should have pursued more comprehensive information on the adoptee's background – and that the Dutch state should have implemented stricter oversight – appears well-founded. 42 However, it remains to be seen whether these factors will suffice for the Amsterdam district court to conclude that the Dutch agency and the State acted unlawfully by trusting the Sri Lankan authorities regarding the adoption’s legitimacy or if, like the district court in The Hague in a case mentioned above, it requires more concrete evidence that also the plaintiff’s individual case was affected by abuse. The latter court dismissed compensation claims by other Sri Lankan adoptees, arguing that there were no mistakes or inconsistencies in the documentation that would lead to the assumption that their adoptions were affected by abuses. 43
Conclusion
The Dutch Supreme Court's decision in the case of Dilani Butink highlights the complex questions regarding the accountability of stakeholders in the receiving countries in cases of illegal intercountry adoptions. The ruling furthermore underscores the high threshold adoptees must overcome to seek justice. The Joustra Committee concluded that there were systemic abuses in adoptions from Sri Lanka, Bangladesh, Brazil, Colombia and Indonesia between the late 60s and 90s and that the Dutch stakeholders had knowledge thereof. The numerous reports about irregularities arguably cast doubt on the legitimacy of all international adoptions from these countries. However, the Dutch Supreme Court stressed that general signs of abuse are not enough to hold the stakeholders in the receiving countries accountable. Rather, also the circumstances of the adoptee's specific case must be considered, many individuals adopted from countries in which wide-scale abuses took place are unable to point to concrete signs of abuse in their case. Their adoption paperwork does often not contain apparent mistakes or inconsistencies, and due to the passage of time, they might be unable to produce the necessary evidence to demonstrate irregularities in their case that stakeholders should have recognized or acted upon. This is due to the fact that they might have been ‘laundered’ through the adoption system, an important feature of an illegal adoption that hides the illegal origin of the adoptee and often makes it impossible to identify the adoptee as illegally obtained. 44 Consequently, for many suspected victims of illegal adoption, seeking legal compensation becomes an almost insurmountable challenge. This case thus highlights the urgent need to think about other non-legal forms of reparation in the aftermath of illegal intercountry adoption.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
