The double punishment of "stolen babies" in the face of justice

In France, people who were illegally adopted internationally are trying to make their voices heard by the courts. As this phenomenon does not currently constitute a criminal offence, the fight is likely to be difficult.

There are 120,000 children who have become French through international adoption between 1980 and today. A figure that is largely underestimated, without counting all the cases where the children arrived without a visa. So how many were there illegally? The question makes all those involved in adoption tremble. " We don't have precise figures on the number of illicit practices, we would have to do it case by case," notes Fábio Macedo, a doctor of history at the University of Angers.

The criminal response is also summary: "There is no specific law on illegal adoptions."  Joseph Breham, a criminal lawyer, firmly establishes this statement. He clarifies the legal situation in which people who have been adopted illegally find themselves.

"There is no specific law on illegal adoptions."

Joseph Breham, criminal lawyer

The lawyer has mastered this subject well to work, with his colleague, Noémie Saidi-Cottier, on the Malian case against the authorized adoption organization (OAA) "Le Rayon de soleil de l'enfant étranger". The establishment, which is said to be at the origin of several illegal adoptions between Mali and France, is currently the subject of an investigation after the lawyers of nine "adoptees", men and women who are sometimes well into their forties, filed a complaint for the offense of receiving stolen goods... All of them were adopted in France under an adoption regime that is not the same as in the country of birth; sometimes to the detriment of the wishes of the biological families. This goes hand in hand with the falsification of documents, false declarations and breach of trust by the parents. With no way of knowing their initial ties, these adoptees live in a biological void. "I know I have a brother, but no one wants to tell me ," complains Marie Marre, one of the plaintiffs in the Malian case and spokesperson for the movement [1].

A legal void

The Malian affair begins with the lie of the OAA Rayon de soleil, which modifies the adoption-protection judgment of Malian law – a form of adoption that stops at 18 years old – into a full French adoption. In this case, “legally, we never had other parents ,” explains Maître Breham. The French adoption should have taken the form of a temporary delegation of parental authority that does not remove the filial link between the child and the biological parents. This was not the case. Sometimes, the children were reported as orphans, when they were not. Evidence of fraud amplifies the future charge, the organization having inflated its bill to the adoptive families. “20,000 francs. The adoption fees were nevertheless 3,000 francs at the time.”

A real legal headache begins. "It's like fitting a Malian circle into a French square ," caricatures the lawyer, as the case seems "insoluble ." Because international law for this type of case is currently non-existent.

"The government has been impressed by the lobbying of adoptive parents."

Fábio Macedo, doctor of history at the University of Angers.

It is also a question of acting quickly. Lawyers are faced with the statute of limitations on the facts, the classification of evidence, the loss of archives and the death of witnesses, "as with sexual violence against children, there is no suitable procedural framework". The freedom of speech and the story of the victims take on major importance in these two types of cases, since the acts have destroyed entire sections of life.

Cunning. The lawyers base their reasoning on the concealment of fraud. " Does fraud mean that there is merchandise ?", asks Marie Marre. Maître Breham dismisses this hypothesis: " It is not the children who are being defrauded, it is the rights of the parents over the children, obtained from a lie. The fraud cannot be a person."

By concealing fraud, the lawyers expose to justice the falsified documents, archived by the organization Rayon de soleil in France. "Illicit money is confused with so-called clean money. The reuse of dirty money is concealment." This is ultimately the only reasoning that will hold up to filing a complaint with the public prosecutor and hoping to end up with an indictment without implicating the adoptive parents...

Debate in the dock

Concealing fraud seems a weak qualification for such a serious case. While human trafficking, kidnapping and even sequestration have been considered, although hardly tenable, these charges always incriminate the parents. However, in the Mali case, "the applicants had no problems with their adoptive parents. There was no clear indication that the parents were aware," says Maître Breham.

Who should be put on the bench of the accused? If in the Malian case the adoptive parents are not targeted, this is not always the case. Yooree is a Korean child adopted at the age of 11 in 1984, through the OAA Les Amis des enfants du monde. In Korea, her name and status were changed. In France, she was assaulted by those she coldly called her "adopters" and sexually abused from the first day by her "rapist" adopter. Yooree and her lawyer chose to file a complaint against X to "cover all the actors in the adoption for the investigation".

For its part, the complaint filed for Mali implies a lack of vigilance on the part of French magistrates. "It was enough to call the liaison magistrates to obtain a copy of the Malian Civil Code ," says the lawyer, and compare the terms when registering the adoption. Various correspondences between the institutions, relayed by the researchers in 2023, clearly show a dysfunction in international adoptions. The scandal was there in the 1980s, but it was kept quiet. French governments failed to suspend international adoptions as soon as suspicions were raised. According to Fábio Macedo, "the government let itself be impressed by the lobbying of adoptive parents."

It was years later that the complaints were filed. But the cases dragged on. After a simple complaint was filed, the lawyers in the Malian case filed a complaint with civil action six months later. Maître Breham wondered:

"I had five or six meetings with the judge to make her understand the case... if I didn't have 15 years of experience at the bar, would it have gone through?"  Further proof that criminal law lacks "the appropriate offence."

The qualification of this future crime divides the actors of the adoption world. To facilitate legal procedures, the UN and associations demand that these illegal adoptions be judged as crimes against humanity. Crimes without a statute of limitations. "We are very far from the crime against humanity , justifies Maître Breham. We are not on a desire to enslave a class of the population." "It is making shortcuts of history. It is dangerous" , also considers Maître Hervé Boéchat, lawyer in Switzerland, speaker at the conference "A century of adoption of children in France", last June, in Angers. The legal procedures being "practically impossible to establish" , it seems more essential to him to "repair" the past by "welcoming the victims to tell their story".

A political awareness?

The various cases of illegal adoptions (Mali, Sri Lanka, Guatemala, Korea, Ethiopia) have many similarities. By sharing their stories, adoptees have united. Some are at the origin of associations such as RAIF, Voix des Adoptés, AdopteEcoute, Collectif des adoptes français du Mali. They have written books, delivered their testimonies, they try to weigh in with government institutions. Their fight to make their voices heard has freed the speech of adoptees.

The work of researchers also plays an essential role. In addition to the numerous reports produced by the professor of contemporary history in Angers, Yves Denéchère, a specialist in the subject, there has been added the "Historical study on illicit practices in international adoption in France", written jointly with Fábio Macedo, commissioned by the University of Angers and financed by the Ministry of Europe and Foreign Affairs.

The French government announced at the end of 2022 that it would launch an inspection mission on illicit practices in international adoption in France. Adoptees, associations, OAA, International Adoption Mission and researchers were interviewed. Lawyer Joseph Breham, who was aggressive on this issue, was not interviewed. The departments of the ministries concerned (Children, Justice, Foreign Affairs) were to submit their results within six months. As of the end of November 2023, they have still not reached the ministerial offices.

There are many hopes for the results of this mission and the government measures that could be taken. The associations are calling for "practical responses", including the creation of a DNA bank. In some countries, by cross-referencing DNA, the bank has made it possible to find the parents of missing children. The adoptees are also asking for their administrative procedures to be made easier. More than anything else, they hope that France will publicly acknowledge its mistakes.

But the road to repentance is long. The inspection mission, which is not independent, "is not a commission of inquiry," observes Maître Joseph Breham . "These people (inspectors from the three ministries concerned, editor's note) have no power." It is also not certain that the results will be made public. Which could escalate the tension between adoptees and institutions. " A nice report" which would nevertheless allow "to mobilize legislators on this issue." It is not impossible that awareness will one day lead to the creation of a working group on the need for an international treaty that would create a specific offense for illicit adoptions. In the meantime, Joseph Breham, who does not do fictitious law, is certain that a reform, even if only French, is possible. He would like to see a law certifying that it is illegal,  "by fraudulent means, to have obtained an adoption contrary to the laws of the country of origin or the country of arrival" . So that justice can be rendered quickly to the adopted.

[1] “Adoptions in Mali: in search of truth”; https://vodflash.tv5monde.com/redacweb/mali/MALI_ADOPTION_200604.mp4.