The Hague Court rules on intercountry adoption cases
On Wednesday 24 November, the court ruled on two cases concerning intercountry adoption. A woman adopted from Bangladesh and a man illegally adopted from Brazil have both filed lawsuits over their adoption. The court in The Hague rejected the woman's claims on the basis of prescription and a substantive assessment. In the case of illegal adoption from Brazil, the court partially allowed the claims. According to Defense for Children, both cases show how complicated it is for intercountry adoptees to recover parentage information, restore identity and seek justice when fundamental rights have been violated.
Case 1: adoption from Bangladesh
In 1976, the then four-year-old woman and her brother were adopted from Bangladesh in the Netherlands. Following an episode of Nieuwsuur in November 2017, the woman realized that her biological mother did not abandon her children, but gave them up under false pretenses and then searched for them for years.
The woman has filed a lawsuit against Terre des Hommes (whose country director at the time had a double function and was also a representative of an adoption organization), adoption organization Wereldkinderen (then BIA) and the State. Its position is that the accused parties contributed to the adoption that allegedly took place under false pretenses. According to the woman, the accused parties also failed to properly investigate abuses in intercountry adoptions from Bangladesh and to inform those involved about this.
Terre des Hommes and Wereldkinderen invoked the fact that the woman was adopted more than twenty years ago and that her claims are therefore time-barred. The court ruled in favor of the organizations in this regard. The court also states that Terre des Hommes was not involved in this adoption at the time. The State initially also invoked statute of limitations, but withdrew it following a report that the Commission Investigating Intercountry Adoption (COIA) issued in February 2021 about abuses in intercountry adoptions and the role that the government plays in this. After substantive treatment, the court considers the woman's claim that her adoption in 1976 from Bangladesh was unlawfully established.
According to Defense for Children, the intercountry adoption cases show how difficult it is to find out what happened, to rectify wrongs and to get justice as an adoptee and as an original parent. Often many years pass, information and evidence can no longer be found, and the case is time-barred. While all those involved in intercountry adoption, except the child itself, have caused this situation, there is no one who bears ultimate responsibility. The adopted child is left empty-handed. According to Defense for Children, these abuses should be prevented in the future by stopping intercountry adoption.
Case 2: illegal adoption from Brazil
A man of Brazilian descent has filed a case against the State . In 1980 he was illegally adopted by his adoptive parents. His legal parents registered his birth as if it were their own biological child. This is eclipse of state; a criminal offense. The man thought he had been adopted himself, but when he went looking for his biological parents, he was told that it was not an adoption procedure. The plaintiff only found out in 2011, the identity of his biological mother, but she had already died in 1985. To date, he has not yet been able to find his biological father.
In 1981 an investigation was started in the Netherlands into illegal adoption practices from South America (particularly in Brazil), the so-called Brazil Baby Affair investigation (BBA investigation), in response to rumors and a known case of illegal adoption. This investigation revealed 42 cases of illegal adoption in the period 1980-1981, including that of the man.
The man holds the State liable for the damage he suffers as a result of his illegal adoption. He holds the State liable for unlawful conduct, and furthermore argues that the State has actively contributed to the illegal adoption by providing the necessary documents to his legal parents and through the involvement of embassy staff. The man also argues that the BBA investigation was not carried out completely and carefully. Finally, the man argues that the State has not done enough to improve his situation and has even hindered him in this by refusing information and help when he asked for it.
The court's final verdict is that the State has acted contrary to Article 8 ECHR. This is because the State failed to take measures in response to the BBA investigation, so that the claimant's right to know his origin was not protected. For example, file information from the Child Protection Board could have been preserved, the registration at the registry office could have been reversed and it could have been checked whether the legal parents were prepared to give the man parentage information. The court partially upheld the illegally adopted man's claims.
The State should have restored the man's identity when he was still a minor and the illegal adoption came to light, but that has not happened. The State must play an active role in restoring identity when it has been unlawfully taken. Defense for Children is pleased that this right to recovery of identity is now being recognised.
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