No compensation for distance mothers
By: mr. Susanna Dijkerman
On 26 January 2022, the District Court of The Hague ruled on the unlawfulness of the actions of the Child Protection Council (hereinafter: the Council) towards mothers in the Netherlands who were forced to give up their child in the period from 1956 to 1984 (ECLI:NL:RBDHA:2022:432). The court ruled that the mothers' lack of freedom of choice was partly the result of a combination of social and religious views at that time. According to the court, it was not the Council's task to advise the mothers on practical and legal options for raising their own child. The Council therefore did not act unlawfully towards the birth mothers.
Background
In the fifties to the eighties, an estimated thirteen to fourteen thousand, mostly unmarried women in the Netherlands who became pregnant unintentionally gave up their baby immediately after birth. These women are called birth mothers. In October 2014, the KRO program Brandpunt paid attention to the unspoken suffering of these birth mothers in its television broadcast 'Mother Soul Alone'. Following parliamentary questions about this, the then Minister of Security and Justice decided in 2015 to have the Scientific Research and Documentation Center of the Ministry of Security and Justice (hereinafter: the WODC) conduct an exploratory study to gain more insight into the problem. The findings of this study were presented in 2017 and it emerged that unmarried pregnant women felt forced to give up their child at the time and were (consciously or unconsciously) ignored in the social dialogue about giving up for adoption. The in-depth follow-up study was stopped in September 2021, following various problems regarding understaffing and reporting. An independent commission has now been set up to investigate the history of the entire system of domestic relinquishment and adoption.
Court case
The claimants in this case are the collective interest group Clara Wichmann, which represents a specific group of birth mothers, and an individual birth mother. The individual birth mother gave birth to a son on 15 February 1968, unmarried, at the Paula Foundation, a Roman Catholic institution for the care of unmarried pregnant women. She eventually gave permission to give up her son for adoption because she felt compelled to do so. The guardianship of the claimant over her son was suspended at the request of the Council in Arnhem on 25 March 1968, after which the adoption of her son became irrevocable on 23 January 1974 by registration of the adoption judgment in the registers of the Civil Registry.
The claimants accuse the State (the Council) of having unilaterally, incompletely and/or incorrectly informed the birth mothers about their rights and/or practical possibilities to raise their child. The claimants state that the State has thereby acted in breach of its international legal obligation to protect family law relationships (including those arising from Article 8 ECHR). The organisation Clara Wichmann claims that the court declares that the State has acted unlawfully towards its supporters and the claimant claims the damage that she has suffered and will suffer as a result of this unlawful act.
The State states that the plaintiffs' legal claims are in principle time-barred, since the longest statutory limitation period of twenty years has now elapsed. The court does not rule on this defence because, according to the court, the State has not acted unlawfully towards the birth mothers.
The Judge's Judgment
The judge states first that it must assess whether the Council acted unlawfully on the basis of the social views of the time. In doing so, the 'view of today' must be disregarded. In assessing Clara Wichmann's claim, the court takes the WODC report from 2017 as its starting point.
The judge comes to the conclusion that:
''The pressure that the mothers involved experienced, which forced them to give up their child, was the result of the interplay of social, societal and religious relationships in that period. Partly in light of this, it cannot be said that the Child Protection Board in particular acted unlawfully towards the mothers. This is all the more true since it was not the task of the Child Protection Board to advise the mothers on the practical and legal possibilities of raising their child themselves.''
The judge adds here that it is possible that the Council has acted unlawfully towards the relevant distance mother in individual cases. In this case, however, the Council has not acted unlawfully towards the individual distance mother either.
''Given the tasks that the Child Protection Council had at the time, and the demarcation of tasks and powers of the Child Protection Council on the one hand and the role of private maternity care institutions on the other, this does not lead to the conclusion that the Arnhem Council failed in its duties with regard to [plaintiff 1].''
Here too, the cause of the claimant's lack of freedom of choice, according to the judge, lies in the pressure exerted by her family and society. In addition, the claimant was of legal age at the time and therefore - at least legally - capable of making independent choices. The court concludes by noting that the legal assessment does not detract from the grief and finds the course of events extremely sad.
All claims of the plaintiffs are dismissed and they are ordered to pay the costs of the proceedings.
And now?
The state invoked prescription and put forward a substantive defense. Earlier, the then Minister of Legal Protection, Sander Dekker, decided that prescription will no longer be invoked in proceedings initiated by adoptees regarding intercountry adoption. What does this mean for the suffering of the birth mothers? Will the state (also) acknowledge this? On November 9, 2021, Sander Dekker announced that a new investigative committee would be appointed early this year to investigate the alleged abuses. 'Recognition tables' would also be organized to discuss the various forms of recognition. One may wonder whether the state does not lose its credibility in the apologies by invoking prescription in the legal debate. And will there be a new investigative committee after the court ruling? We are keeping a close eye on it. Contact one of our lawyers if you have any questions about renouncing parenthood or other related questions.
