Adopted Dilani Butink could hardly believe it this week. After years of legal wrangling, the Court of Appeal in The Hague confirmed what it had suspected for much longer: that the Dutch state and the Child and Future Foundation acted unlawfully when Dilani was transferred to the Netherlands as a baby from Sri Lanka for adoption in 1992.
Butink is one of many foreign adoptees who struggle with falsified or missing information in their adoption file. Without the right ancestry data, a search for biological family is often an impossible quest. This is the first time that a judge has expressed such a critical view of the state’s responsibility in foreign adoptions. With the judgment of the court in hand, Butink can claim damages from the state and the foundation that arranged her adoption at the time – for example for all the costs of her efforts to find her family.
baby gangs
Can other adoptees also draw hope from this statement? It looks like that. Lawyer Dewi Deijle, himself adopted from Indonesia, represents more than a hundred adoptees and has already tried twice on their behalf to hold the state liable for damage suffered. The government has consistently rejected those requests. Deijle postponed a step to court until now. ‘Cause it’s all so hard to prove. During the period that I was adopted, there were already stories about baby gangs robbing and selling children. I may have been one of them, but how can I prove that?’
But Deijle sees the ruling of the court as a basis for a collective lawsuit. For example, the judge now makes it very clear that the Dutch government could not just assume that the adoption data would be valid if the authorities in the country of origin said that everything was correct. According to the judge, such a ‘formalistic and distant attitude’ is insufficient. In other words: the government must not only establish that there are papers, it also has the duty to investigate whether those papers are reliable.
‘Tough slap on the fingers’
“The state often says: we are not liable, we are only a supervisor,” says lawyer Mark de Hek, who represents 21 adoptees from Sri Lanka. “But this is really a big slap on the wrist by the court.” Although every adoption case is different, De Hek also sees enough ammunition in the judgment that he can use to continue the case of his own clients. One of them, Sam van den Haak, who was adopted from Sri Lanka, says he sees the statement as ‘pure recognition’. “Do you know how important this is to me?”
For critical adoptees, this judgment thus provides a new bright spot in what, according to lawyer Deijle, sometimes appears to be ‘an endless struggle’ for justice. For a while, that battle seemed over, when the Joustra Commission reported to the government on its investigation into the adoption chain in early 2021. In a rock-solid report, Joustra made crystal clear how the Dutch adoption system gave room to all kinds of abuses, including organized child trafficking. The then Minister of Legal Protection, Sander Dekker, apologized to adoptees on behalf of the government and immediately suspended all current adoption procedures.
‘Since then, much more attention has been paid to adoptees’, says lawyer De Hek. “Things have gone fundamentally wrong. With that report, their interests have been recognized.’
Even colder letter
Still, disappointments followed. Dewi Deijle: ‘We deliberately submitted our second statement of liability from the government only after the publication of the Joustra report. Then you think: now they can no longer ignore their responsibility? But that liability was also rejected, if possible with an even colder letter than the first.’
And despite all the scandals revealed, there still appears to be a political majority that wants to keep the option of foreign adoption open. In April of this year, Minister Franc Weerwind (Legal Protection) announced that he is already working on a new adoption scheme. One that should rule out abuses, among other things through a stricter selection of countries of origin and better cooperation with those countries.
Simplistic frame
On a broadcast of media logic Professor Marlou Schrover recently explained how strongly thinking about adoption is influenced by imaging. ‘It’s either with us or it’s dead’, according to Schrover, is the simplistic, but rock-solid frame through which adoption is often viewed. Where in any other file such an enormous amount of criticism would have long ago led to a decision to stop, in the case of adoption, according to the professor, this remains a ‘difficult decision to sell’.
The fact that the Court of Appeal has now expressed itself so critically about the great responsibility of the state probably does not change this immediately. However, some of the adoptees will go through life a little lighter after this week. Lawyer De Hek: ‘The fact that the judge, and not just any judge, now also rules that the government has treated the interests of very vulnerable people irresponsibly, gives hope and perspective.’