In a report that may have far
reaching consequences for two toddlers, their parents (both bioloical and
“adoptive”) and their future generations, Professor Ann Skelton recommended
that two toddlers swapped at birth be kept by their “adoptive parents” (BDlive,
26 November 2014). Skelton, Director for Child Law, of the University of
Pretoria’s was appointed by the North Gauteng High Court, in a modern day dilemma
of ancient King Solomon tale of one baby two mothers to investigate what would
be best for the two toddlers. Armed with the “wisdom of King Solomon” and the
sword of the Children’s Act (Act 38 of 2008) and the Constitution of 1996
(section 28(2)) Skelton reckoned that it was best for the two toddlers to be
left where they are (with their non-biological parents) – while their
biological parents are allowed
reasonable access to them. I should be quick to admit that I have not seen the
actual report, but I rely on the electronic news reports. If what is reported
in the news reports is correct about what transpired and what Professor Skelton
recommended, then I do not think that the recommendations should be allowed to
stand. It is reasonabe to accept that Skelton made her recommendations on the
basis of the constitutional paramountcy of the best interests of the child, as
contained in section 28(2) of the Constitution and section 9 of the Children’s
Act (both read with section 7 of the Children’s Act, the standard for the best
interests of the child). However, my own prima
facie take on the matter is that the recommendtions of Skelton should be
rejected by the high court. My argument is based on the same principle of the
supremacy of the best interests of the child in every matter involving a child
and some crucial factors pertaining to both children. I thus illustrate these
factors in conjuction with the legal framework which I assume was instrumental
in Skelton’s recommendations. I begin by making reference to the relevant law.
The law
Section 28(2) of the Constitution of
the Republic of South Africa states: “a child’s best interests are of paramount
importance in every matter concerning the child.” This same principle is
re-itterated in section 9 of the Children’s Act in an elaborate manner. Section
9 states: “in all matters concerning the care, protection and well-being of a
child the standard that the child’s best interests are of paramount importance,
must be applied.” Section 7 of the same Act on the other hand lists numerous
factors to be considered as a standard of the best interests of the child.
These range from nature of the personal relationship between the child and “the
parent”, to the attitude of the parents towards the child and their
responsibilities towards it, to their capacity to provide for the child’s
needs, to the likely effect of the changed circumstances on that child, and to
the child’s age, maturity and stage of development, gender and other
characteristics of the child. They also include the child’s physical and
emotional security, intellectual, emotional, social and cultural development as
well as the need for the child to maintain a connection with his family,
extended family, culture or tradition.
It is
now settled what paramouncy of the best interests of the child principle entail
that the decision makers (such as adjudicators) in matters involving children
must show a bias towards the interests of the child, judged by weighing the
factors just cited, among others (see
for example section 8 of the Children’s Act). It is also widely accepted
that the child’s bests interests involve immediate (or short term) interests,
mid-term interests and long-term interests. These interests ought to be
balanced and the “adjudicator” must exerise value judgment in coming to what is
best for the child. For example, while on the the short term it may be
beneficial, emotionally, for a child to remain with a certain parent but have
long term psychological damage. In the present matter, the dilemma arises from the
fact that the interests of the child are competing against the interests of
another child, the same age (both children are four years old). Thus any one
trying to resolve the condondrum, will always have difficulty in coming to an
equitable resolution. However, there are key factors that weigh against the
recommendation that has been reached by Skelton. But first, I need to consider
some of the basis for her report.
The merits
According to the BDlive report, the
two mothers are devastated and shocked by the revelations. One mother was hospitalised
upon learning that the girl she so dearly loved is not hers. This mother and
her “devastated former boyfriend” are even doubting the results of the DNA. This
father (former boyfriend) firmly believe that the girl is his child and thus
has a very strong relationship with her. He even name her after his own mother.
The other mother (who cares for the baby boy) initialy wanted her baby girl back but later changed
her mind. Her main concern is seemingly motivated by her care for both
toddlers. She is concerned about the girl losing a father who loves her. She is
also concerned about giving the boy to parents who may not love him. These are
genuine concerns indeed. They are highly relevant in determining the best
interests of the two toddlers. However, the best interests of the child go
further than these and there are also long term interests. My assertion is that
long-term best intersts of the two toddlers should override short-term interests.
Also not to be ignored is the fact that at the centre of the dilemma, there are
two individual children. Thus, their best interests should not be conflated
together. Instead, the best interests of each child should be considered
separately, and (maybe to some extent) collectively.
Financially,
the two toddlers are likely to be in a similar position, as the respective
biological and non-biological parents whould likely succeed in their delictual
claims for negligence against the MEC for health and the hospital. So over and
above what their biological parents may afford, their financial position may be
improved. What is at issue are the best interests based on their emotional,
social, and psychological needs. It also lies on the age, maturity and stage of
development of each child, as well as the likely effect of the changes in their
circumstances on each child. The emotional, social and psychological needs of
each child is that he or she be with a loving parent and a stable home environment.
However the circumstances may change which no doubt will negatively affect each
child. Still no one can say that this will cause a permanent psychological
damage to each one of them. Thus, the critical question is: will each child
suffer an irreparable emotional and psychological harm if remove from the
present family environment to its biological parent(s)? Significantly, the two
are only four years old. They will likely recover quickly. They may, of course,
require psychological help, icluding each child maintaining some relationship
and contact with the non-biological parent(s).
The
girl, meanwhile, used to having a loving father. A change is likely to
adversely affect her more than it does to the boy. However, she will have a
loving mother to care for her. She will also be united with her father – the
man that the mother was suing for the girl’s maintenance. By law, if the man is
the girl’s father, he will be entitled to full parental responsibilities in
respect of the child in terms of section 18 of the Children’s Act. It is likely
that this man rejected the boy because he genuinely believe that he was not his
child and may feel otherwise towards the girl (if indeed she is his child).
On the
other hand, the attitude of the parents (particularly, towards their biological
child) is equally important. This attitude will also be critical in the
emotional and psychological recovery of each child. Notably, one mother is torn
between two parts – wanting to keep the boy for the sake of the non-biological
father who has fallen in love with the girl child. This “father” is so much in
denial to the point of disputing the DNA results. Thus, the position is that
the girl’s biological mother loves her (but is worried that she will lose a
loving father). She is amenable to giving the boy to its biological parents,
but only worried if he will find love. It is also appears that the boy’s
bilogical mother is not opposed to
receiving him back. It also appears that the boy is used to being without a
father. So, if returned to his mother he will be without a father should the
mother’s former boyfriend reject him.
That
the father disputes the DNA test results can easily be resolved with the
perfomance of fresh tests (but it seems he is the only one in denial). It is
crucial that he no longer live with the boy’s mother.
Moreover,
Skelton’s recommendations set a bad precedent. Parents should not be allowed to
reject their bilogical children in preference for a non-biological child. Yes,
it was a mistake. However, the truth is now know. Parents must accept it and
help the children to move on with their life. Most importantly, Skelton has
recommended that the children be kept by non-biological parents and that
biological parents be allowed reasonable contact to them. This is not in the
children’s long term best interests. Skelton’s recommendtions should not be
allow to stand. Instead, each child should be handed back to its bilogical
parents, with a reasonable access or contact for non-biological parents. Both
biological and non-biological parents, with the help of professional must
explain what happened to the two children and tell them who their real parents
are. However, I reckon that any contact with the non-biological parents should
be temporary to enable the two toddlers to cope. This contact will allow for
emotional healing and psychological acceptance of the changes. What the two
babies need most is pschological treatment and constant monitoring by social
workers. At four-years old, the toddlers are still young and will recover
emotionally, psychologically and otherwise.
Also
not to be ignored is a child’s right to identity, including a name (including
family name) and cultural rights. Significantly, one father actively involved
in the life of the girl child (supposedly including his extended family) is a
culturalist. He has performed traditional ceremonies for the girl, already. On
the other hand, no evidence is there that a similar ceremony was performed on
the boy, suggesting that the boy’s “adoptive” mother (including her family) is
not into customary rituals. If that were the case, a child who should have had
a traditional ceremony performed in his behalf has not had that, while a girl
who should have no rituals performed on her behalf has had it done for her.
This practice is likely to happen also in future. This cannot be in the best
interest of any of the two toddlers indulge in a culture not hers or to be
deprived of his family culture. It is this father who will teach him
traditional rituals of his family.
Further,
in terms of the African culture, the boy needs his family name. If he does not
get it, he will be perceived as an outcast by his incestors. As as a result such,
he may suffer misfortunes in life until he is integrated into the family in a
traditional way. This is better done now when he is still a child and his father
is still alive, than later in life. Therefore, customarily, it is the boy that (perhaps)
needs this father more than the girl.
Conclusion
In conclusion, the recommendations
of Professor Skelton do not resolve the dilemma. Instead, she is inadvertantly
persuading the court to pospone resolution of this dilemma. It is better that
the error is corrected now while the two children are still young to allow
their psychological healing process to
take place. It is in their best interests that they begin living with their
respective bihosological parents to bond with them and learn their respective
family traditions and ethos.
Post Script
One lingering question that I am
unable to take out of my mind is: where were the two fathers, especially the one who is refusing to accept the DNA
test results, when the babies were swapped in hospital? I understand that the
one father had to be sued for maintenance before he acted. However, it is
different with this one who “claims” to be so much attached to girl. Being a
responsible father means that he should have been present at the hospital when
the baby was born (unless he has a plausible for his absence). The law allows
for family responsibility leave in respect of matters such as the birth of a
child. I understand that public hospitals normally do not allow fathers in the
theatre when a child is born. Still one may wait outside the theatre to immediately
welcome your baby while its mother lies in pain.
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