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Introduction

On 7 April, the Court of Appeal in Amsterdam delivered its long-awaited judgment in the case of Dilani Butink, a Dutch adoptee from Sri Lanka, who brought proceedings against the Dutch State and the adoption agency for their role in her adoption in 1992. She has been unable to trace her biological parents through her adoption records. Butink alleges that her adoption was not carried out with due care, leaving her in lasting uncertainty about her origins and the circumstances of her relinquishment. The Court of Appeal rejected her claims, bringing to an end a legal dispute that had lasted for eight years.

The case has come to symbolise a broader struggle for justice. It had been seen as a test case, one that might finally compel the State to confront its role in past intercountry adoptions and move beyond apology towards real accountability. For many, the judgement is therefore a profound disappointment, reinforcing the sense that justice remains out of reach. In this post, I argue that this outcome is not only the result of judicial reasoning (open as it is to critique) but also reveals deeper structural limitations of tort law in addressing harms that are systemic, historically embedded, and difficult to prove.

A Long Legal Battle for Justice

The case has a long procedural history which also reflect the (legal) complexity of intercountry adoption cases. In 2019, Dilani Butink initiated proceedings, becoming the first intercountry adoptee to sue the Dutch State and the adoption agency for their role in intercountry adoption. She argued that the agency had failed to properly assess the soundness of her adoption despite reports of abuses in Sri Lanka at the time, and that the State had failed to adequately supervise the agency it had accredited. The District Court in The Hague dismissed her claims, emphasising that the reported abuses did not relate to her individual case and accepting the State’s and the adoption agency’s reliance on the statute of limitations.

However, the case took a turn in the appeal proceedings in 2022. Following the publication of the Joustra report, the State withdrew its reliance on the limitation defence. Unlike the District Court, the Court of Appeal in The Hague upheld Butink’s claim, finding that the State and the adoption agency had failed to exercise due care in a context where serious risks of irregularities in intercountry adoption from Sri Lanka were known. This was a landmark ruling as it was the first judgement holding adoption stakeholders in the receiving countries responsible for having acted unlawfully in past intercountry adoption cases.

Both the state and the adoption agency appealed the decision, arguing, in essence, that the agency had relied on the information provided by the Sri Lankan authorities and had no reason to doubt its reliability. Since there were no indications of abuses in Butink’s adoption, it could not be blamed for the fact that she is now unable to trace her biological parents. In 2024, the Dutch Supreme Court overturned the ruling of the Court of Appeals and referred the case to the Court of Appeal in Amsterdam, which ultimately rejected Butink’s claim, bringing the long-running case to a close.

The Appeal of Tort Law

The case of Dilani Butink is one of a few cases in which intercountry adoptees have taken the Dutch State to court. All these cases form part of a broader struggle for justice, in which adoptees have long called attention to the structural and long-term harm caused by intercountry adoptions and the State’s role in enabling and sustaining these practices. What is at stake is not only what went wrong in these individual cases, but whether the State will take responsibility for its role in (past) intercountry adoptions. Because even though an official apology was offered to adoptees, many claim that this has not translated into meaningful actions of redress.

These cases brought by intercountry adoptees exemplify a broader trend in which victims of historical injustice increasingly turn to civil tort proceedings when institutions fail to adequately acknowledge or address the harm they have caused. Tort proceedings become a legal and social platform through which individuals can draw attention to wrongdoing, articulate claims of injustice, and contest prevailing understandings of responsibility. As Immler observes, “the absence of dialogue is the starting point (…) of all these legal proceedings, because no one was willing to listen or engage in conversation. In this sense, litigation can be understood as the outcome of a failed dialogue—one that ultimately compels the defendant to engage and enter into a relationship that had previously been denied.”

For victims of historical injustice, taking legal action against powerful institutions can feel both emancipatory and empowering. However, this empowerment comes at a high personal cost and unfolds within profoundly unequal power relations, where individuals are forced to confront well-resourced state actors in lengthy and exhausting legal battles. Although the Dutch government ceased invoking statutes of limitation (which usually happens in tort proceedings on cases of historical injustice), it has continued to vigorously contest adoptees’ legal claims. By 2022, the government had spent approximately €600,000 on legal fees in a series of appeals, financial resources that adoptees simply do not possess.

The Limits of Tort Law

Tort proceedings are not only financially and emotionally demanding, they also offers an extremely challenging avenue for achieving justice in cases of historical injustice, including intercountry adoption. To succeed in a tort claim under Dutch law (art. 6:162, 6:163 BW), four elements must be established (requirements that are largely similar in other legal systems): 1. unlawfulness (conduct that violates (legal) duty to act), 2. damage (harm suffered), 3. causation (a link between the conduct and the harm), and 4. relativity (the rule that was breached must be intended to protect the interest that was harmed).

These strict requirements are often difficult to prove in cases of historical injustice. Tort law is  designed to deal with individualised events that cause easily identifiable harm, whereas historical injustice typically involves diffuse, long-term, and systemic forms of harm. This creates particular difficulties for establishing causation, as the harm often results from a complex chain of events involving multiple actors over time, rather than a single identifiable act. In addition, such claims are frequently confronted with limitation periods, as the relevant events may have taken place decades earlier, even though the harm only becomes visible or fully understood much later.

In the case of Dilani Butink, the requirement of unlawfulness proved to be the decisive barrier to holding both the adoption agency and the Dutch State responsible. The Court of Appeal in Amsterdam held that neither the State nor the adoption agency acted unlawfully when assessed against the legal and societal standards of the time, arguing that the signs of abuses in adoptions from Sri Lanka were not specific enough to trigger a duty to act. The case illustrates the limits of tort law in addressing cases of past intercountry adoptions, limits that stem from its temporal focus on past standards, its demanding evidentiary requirements and, more generally, its tendency to individualise harm and responsibility.

1. Temporal lock-in: tort law ties injustice to past standards

A first limitation concerns the temporal perspective of tort law: Tort law looks to the past through the lens of that time, not the present. The central question in the Butink case was whether the adoption agency and the State acted unlawfully by breaching a duty of care: should the agency have exercised greater diligence in investigating the reliability of her adoption and should the State have done more to supervise this? This question had to be assessed on the basis of the legal and societal norms, as well as the knowledge at the time.

The Court of Appeal in The Hague answered this question in the affirmative. Pointing to recurring reports of adoption abuses in Sri Lanka and to the specific circumstances of Butink’s case, in particular the last-minute exchange of the baby, it concluded that the agency should have made greater efforts to obtain as much information as possible about the reasons for and the circumstances of her relinquishment and background. The State could and should have exercised more stringent oversight of the agency, critically examining how it fulfilled its core obligations in practice.

The Supreme Court overturned this ruling, arguing that the Court in The Hague relied too heavily on general signals of abuses in intercountry adoption, without properly weighing the specific facts of this individual adoption. It thereby largely followed the opinion of the Attorney General, which criticised the judgement for having been made with the benefit of hindsight: “I think the court’s judgment is partly influenced by the changed perspective on intercountry adoptions. The court reasons towards the conclusion that the agency should at the time have requested all information (…) which we now know to be of great importance to them, based on the experiences of the large group of adult adoptees that now exists in our country.”

I am not convinced by this argument and consider that the Court of Appeal’s judgment could also be sustained when assessed against the standards of the time. It is true that perceptions of intercountry adoption have shifted. Reports on abuses – including the Joustra report – have exposed the risks inherent in intercountry adoptions, and there is now greater awareness of their impact on adoptees’  identity. However, this does not mean that such concerns were entirely absent in the past. In fact, the legal framework and parliamentary history show that, already in the 1980s, it was recognised that adoptees have a significant interest in knowing their origins. This, in turn, required careful verification of foreign procedures and the collection of as much information as possible about a child’s background. This awareness hence persisted despite the idealistic narrative of intercountry adoption.

The Court of Appeal in Amsterdam acknowledged that the way the adoption was arranged would not be allowed today and is now considered unacceptable, but emphasised that standards at the time were different: “There are insufficient grounds to conclude that the State and the agency, based on the knowledge and prevailing social views at the time, should have assumed that adoptions from Sri Lanka were generally not in the best interests of the child, or that the findings of the Sri Lankan authorities could not, as a rule, be regarded as accurate and reliable. Nor are there sufficient grounds to conclude that, according to the knowledge and social views of the time, the risk of irregularities in adoptions from Sri Lanka was considered so significant that it outweighed the broadly held belief in the Netherlands that such adoptions served the interests of the children concerned.” It also noted that there were no sufficiently clear indications of irregularities in Butink’s own case that would have required further investigation or greater diligence.

The reasoning of the Supreme Court and the Court of Amsterdam reveals a deeper limitation of tort law that also becomes visible in other cases of historical injustice. By tying the assessment of unlawfulness to the norms, knowledge, and practices of the time, tort law tends to defer to the very frameworks within which harmful practices emerged. As a result, conduct that conformed to prevailing standards – even if those were shaped by colonial assumptions, institutional blindness or misplaced trust – may escape legal qualification as wrongful. This creates a structural difficulty: the more normalized and institutionally embedded a practice was, the harder it becomes to challenge it through tort law. In this way, tort law risks reproducing, rather than correcting, the limitations of the past, leaving it ill-equipped to address historical injustices.

2. Epistemic barrier: strict proof requirements in conditions of uncertainty

Another limitation lies in the evidentiary demands of tort law. To establish liability, claimants must provide sufficiently concrete evidence of wrongdoing and demonstrate a clear link between the conduct and the harm suffered. In the case of Dilani Butink, the Supreme Court held that general evidence of systemic abuse was insufficient to establish liability on the part of the adoption agency or the State. Instead, unlawfulness had to be assessed in light of the specific circumstances of the individual adoption. In other words, reports about abuses in adoptions from Sri Lanka were not enough; what mattered was whether there were sufficiently concrete indications of irregularities in the individual case. Butink would thus have had to provide further evidence showing that the warning signs in her case were sufficiently concrete and specific to trigger further scrutiny.

However, this is precisely the kind of evidence that is often inaccessible to adoptees. Typically possess only very limited – and frequently inconsistent – information about their own adoption. Gaining access to additional information is often extremely difficult. Records are held by multiple actors across different jurisdictions, and access to them is frequently restricted, delayed, or denied altogether. Adoptees are thus dependent on institutions that control access to the very information they need in order to substantiate their claims. Even where access is granted, documentation may be incomplete, selectively recorded, or shaped by the interests of those involved. The passage of time further undermines the availability and reliability of such documentation: in some cases, relevant evidence may no longer exist at all. Over time, files may have been lost or destroyed, while memories fade and become unreliable.

Taken together, this makes it extremely difficult – and in many cases impossible – to reconstruct what actually happened in an individual case. Tort law, however, requires that claims be supported by sufficiently concrete evidence. In practice, this turns the absence of evidence, which often is a direct result of how the system itself was organised and operated, into a barrier to accountability. The more effectively irregularities were concealed or normalised at the time, the harder they are to uncover and prove years later. Adoptees are thus not simply faced with a lack of evidence; they are structurally prevented from accessing the information needed to substantiate their claims, and are effectively required to prove facts about their own histories that they are unable to know.

3. Reduction of systemic harm to individual fault

Finally, a more general limitation concerns how tort law allocates responsibility. Tort law focuses on assessing responsibility on a case-by-case basis, demanding proof of concrete wrongdoing and causal links in individual adoption trajectories. This requirement persists even when broader investigations, such as the Joustra Commission, have established structural patterns of abuses and state awareness. When the Dutch government was criticised for dragging out legal proceedings the Minister defended this approach by emphasising precisely this need for individualised assessment, stating: “Things did go wrong in the past, but not everything that went wrong can be laid at the government’s door. Sometimes it was also due to abuses in the countries of origin or misconduct by intermediary agencies. As you have read in the report, prospective parents were sometimes involved as well. They occasionally pushed the boundaries and at times crossed them. I do not think it is justified for the government to assume liability for everything that went wrong. This really needs to be assessed on a case-by-case basis.”

Indeed, as my own research has shown, intercountry adoptions operated through a wide range of arrangements – both agency-based and so-called private adoptions – involving multiple actors in both sending countries (state authorities and private intermediaries) and receiving countries (adopters, adoption agencies, and public authorities). The large-scale harms associated with intercountry adoptions did not result from the conduct of a single actor, but arose from a complex transnational process involving multiple intermediaries, institutions, and jurisdictions. Tort law, however, requires a clear link between harm and individual wrongdoing. Again, as the Supreme Court emphasised: general evidence of systemic abuse is insufficient to establish liability; responsibility must instead be assessed on a case-by-case basis, in light of the specific circumstances of each adoption.

Tort law individualizes harm which is, in the context of intercountry adoption, fundamentally structural. Intercountry adoptions were and are driven by demographic and economic asymmetries between sending and receiving countries, substantial financial interests, poverty, weak regulatory oversight, and a prevailing idealistic narrative. Tort law tries to reframe this complex reality into a narrow question: did a particular defendant breach a duty of care owed to this claimant? This framing depoliticizes the injustice and recasts adoptees as victims of isolated errors rather than as rights-holders affected by systemic abuses. By focusing on the behaviour of identifiable actors, tort law tends to fragment responsibility and overlook the structural conditions that shaped such practices. As a result, harms that emerge from systemic dynamics are difficult to attribute to any one actor. What is structural in reality is thus recast as incidental in law.

How to Move Forward

However, if tort law is not the right vehicle, the question becomes: what is? If dialogue with the Ministry proves difficult, and tort law does not offer an appropriate avenue for justice, how can the state be moved to actually take responsibility? How can it be compelled to translate apology into meaningful forms of recognition and redress that respond to the structural and long-term harm caused by intercountry adoption?

A crucial step, I argue, is to reconstruct as far as possible what actually happened. Without a clearer understanding of the practices, decisions, and institutional roles that shaped intercountry adoptions in the past, responsibility will remain elusive. This calls for sustained efforts in archival research and historical investigation, aimed at uncovering how adoption procedures were organised, what risks were known, and how the Dutch State and other actors were involved in and responded to these practices. Such efforts should build on the work of the Joustra Commission, while seeking to reconstruct in greater detail how the system operated in practice and how responsibilities were distributed over time.

Such research is essential for shifting the debate from isolated cases to a broader understanding of the adoption system as a whole. The key question is not only what went wrong in individual adoptions, but also how intercountry adoption was facilitated, organised, and normalised by stakeholders in the receiving countries over time. By reconstructing the role of the Dutch State and the networks in which it operated, it becomes possible to better assess where responsibilities lie and to what extent the State contributed to sustaining these practices. This, in turn, can provide a more solid foundation for discussions on accountability and appropriate forms of recognition and redress. Only through a more comprehensive and transparent understanding of the past can meaningful steps forward be taken.

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