Is it possible for the courts to compensate parents for moral and material damages in the case of adopting a child and then learning that the child suffers from a serious illness?
This case has recently been debated by the High Court of Justice of Castilla y León, which has issued a judgment rejecting the request for a million-dollar compensation made by a couple who adopted a girl of Vietnamese origin. In this case, the plaintiff couple claimed the financial responsibility of the Autonomous Community of Castilla y León (specifically, of the Social Services Management of the Junta de Castilla y León and Ecai Niños Sin Fronteras, the latter contracted by the Management) for the material and moral damages suffered as a result of the defective processing and resolution of an International Adoption Case in Vietnam, by virtue of which the appellants were given a minor who suffered from a disease that was not included in the agreement between the parties.
Specifically, they allege that the application for the Declaration of Intercountry Adoption was “clear and concise”, including a series of circumstances such as the nationality of the minor (Vietnamese), the preference on her age (from 0 to 3 years old) or the availability to adopt two siblings (a negative answer was given).
To the acceptance of a minor with special needs, an affirmative answer was given to those consisting of “unilateral cleft lip, nevus hemangiomas, pigmentation alterations, amblyopia, ptosis, microtia without hearing loss, congenital deformities in upper and lower limbs, moderate cardiopathy, indicating also that they would accept any other type of similar special need that does not affect a normal development of daily life with adequate treatment”, It was clear that their Schedule 2 category fell under Classification C and that they did not contemplate, nor did they include, the health situation that the adopted child unfortunately suffered. As stated in the sentence, which has been echoed by the newspaper El PaísIn its appeal, the adopting couple argued that an adoption process must be carried out with the maximum guarantees and in accordance with the conditions of the adoptee’s state of health, agreed upon and accepted by both parties in the contract.
“It should not be forgotten that the Junta de Castilla y León assessed their suitability based on their request and therefore, on the mild special needs that the parents were willing to accept, since with all certainty, due to the health circumstances of the adoptive mother, they would not have been declared suitable for the adoption process of a minor with the serious special needs of the little girl, since the mother has had serious difficulties in the daily care of the minor”.
On the other hand, they alleged that “no rule obliged the parents to bear the damage suffered and inherent to the adoption of a minor with West Syndrome and Dandy Walker Syndrome, precisely because they had delimited the specific characteristics that they would accept in the minor, having caused an unlawful damage due to the irresponsible modus operandi of the Management of Social Services of the Junta de Castilla y León and the Ecai Niños Sin Fronteras (Children Without Borders).
Finally, they assured that there is the necessary cause and effect relationship between the abnormal operation of the Child Protection and Care Service of the Junta de Castilla y León, which hired Ecai Niños Sin Fronteras, who “has not taken the least care to examine the medical situation of the adopted child, which is now causing both material and moral pain to the adopting parents”.
In short, the defective processing and resolution of the international adoption file in Vietnam and the lack of information resulted in the awarding of a girl of several months of age suffering from a serious illness (a congenital anomaly acquired during the embryonic period), which they did not realize until the diagnosis in a Spanish hospital.
Administrative Liability: Yes or No?
The Court’s response, however, is contrary to what was defended by the parents.
Thus, the judgment issued, dated July 30, 2018, does not appreciate the responsibility of the Management nor of the collaborating entity.
In fact, according to the judgment, the applicants were at all times informed of the risks involved in an international adoption, especially when it comes to children with special needs.
These are the arguments of the sentence:
“It should be noted that the Green Passage or List 2 is the term used by certain countries for the international adoption of children suffering from physical or psychological illnesses or disabilities and children over 6 years of age and sibling groups.
This is the path to which most of the children in orphanages belong.
And although, as recognized in the aforementioned Report – issued by the Head of the Child Protection and Care Service – these special needs are generally not extremely serious, the risks of a country including a child in this pathway with a situation or problem that exceeds what is reasonably acceptable to the adoption applicants also exist and the families are informed of this.
Thus, there will never be any certainty that the Social Services Management, nor the Ecais, will be able to know exactly what the real and specific problems of each child who is included in this category of special needs by the countries of origin are.
For this reason, it is said that the information received at the time of placement is presumed to be true, since it is the only possible information available, running the risk that the child may present or may present other unknown problems in the future.
In view of the foregoing considerations of a factual nature, we understand that the appellants were duly informed by the respondent Administration of the international adoption process in Vietnam, as well as of the inherent risks related to the adoption of children with special needs, via Green Passage or List 2, since in these cases there is very limited information on the real situation of the child, both at the family and health level, and there is a lack of the appropriate background information on the child, both at the family and health level, as well as a lack of information on the child’s real situation, as well as a lack of information on the child’s family and healthsituation.
The appellants have in fact discarded the possibility of carrying out complementary tests in the country of origin after being offered a recommendation by the Ecai (…), and we therefore agree with the Court’s decision.), so we agree with the contested decision in considering that in view of the factual relationship described, it is not possible to appreciate any breach of the obligations of information and control that legally correspond to the Autonomous Administration in the adoption process nor, consequently, a causal relationship between the alleged damage and the operation of the public service, so that from this perspective the claim cannot succeed, since it should be remembered that
the “Approval” given by the Management of Social Services to the assignment was agreed on the basis of health reports from that country, which the defendant Administration could not verify, and of which it had already warned the adopters that they were not exhaustive, so that from this perspective it cannot be maintained that a legitimate trust has been generated in the absence of serious pathologies not manifested externally, nor that therefore the principle of good faith that must govern the actions of the parties has been infringed”.
