Switched at bith
By Roxanne Ker and Jerome Veldsman
On 16 November 2015 the High Court, Pretoria granted an order in Centre for Child Law v NN and Others, concerning two children who were switched at birth.
The order was to the effect that the switch must not be reversed, and that the de facto parents have (by order of Court) full parental responsibilities and rights, to the exclusion of the biological parents; but that the biological parents have reasonable contact rights.
Somewhat unusually, the order was granted with the reasons for the order to follow in due course. On 25 October 2017, the Court delivered the reasons for the order.
Of course, the names of the persons involved are not disclosed in the judgment. Below we make up names, and slightly simplify the facts.
On 2 August 2010, a boy (“Andy“) and a girl (“Betty“) were born in the same hospital in Gauteng.
Andy’s biological mother was Ms Anderson. Betty’s biological mother was Ms Benson. Both mothers had complicated relationships with the respective biological fathers of the children.
Somehow, Andy and Betty were switched at birth. The Ms Benson took Andy home under the assumption that he was her biological son, and the Ms Anderson took Betty home under the assumption that she was her biological daughter.
In 2013, Ms Benson discovered that Andy was not her biological son. An investigation by the hospital revealed the switch at birth, and Ms Anderson was informed. The mothers were distraught, and Ms Benson brought an application in the Children’s Court for the switch to be reversed. The matter was escalated, a curator was appointed to represent the interests of the children, the parents were interviewed, and expert opinions were obtained.
In line with the expert opinions and the wishes of the parents, the Court determined that it would be in the best interests of the children for the switch at birth to be maintained. Then the Court had to find a suitable legal solution to achieve the foregoing.
The Children’s Act 38 of 2005 deals comprehensively with adoption. But the Court held that Andy and Betty did not qualify as being “adoptable” under the Children’s Act. Accordingly, the Court came up with the concept of a de facto adoption, somehow approved under section 28(2) of the Constitution: “A child’s best interests are of paramount importance in every matter concerning the child.”
We are of the opinion that if the Children’s Act is interpreted “through the lens of the Constitution“, Andy and Betty could qualify as being “adoptable”, and that would have been a more suitable legal solution. The Court order does not deal with matters such as inheritance, whilst the Children’s Act would automatically have addressed the now outstanding matters.