Centre FOR Child LAW AND NN, NS, LZ THE Presiding Officer OF THE Boksburg Children’S Court, THE Gauteng MEC OF Health AND THE Chief (2017 ) Zapphc 682 PDF

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CENTRE FOR CHILD LAW AND NN, NS, LZ THE PRESIDING OFFICER OF THE BOKSBURG CHILDREN’S COURT, THE GAUTENG MEC OF HEALTH AND THE CHIEF (2017)ZAPPHC 682 PR EC E DE N T SE T: T H E C HI L DR E N A R E TO B E C ON S I DE R ED HAV I N G B E E N A DO P TE D BY T HE PA R E NTS W HO HA D RA I SE D TH EM T H US FA R W I T HO U T N E ED I NG TO G O T HR OU G H A FOR M A L A DO P T I O N P RO CE S S. A LS O T H E C HI L DR E N W I LL CO NT I N U E TO HAV E CO N TACT W I T H T H EI R BI O LO GI CA L PA R E N TS

FACTS OF THE CASE:

Parties Judge: Janse Van Nieuwenhuizen J A: Centre for Child Law 1R: NN 2R: NS 3R: Presiding officer, Children’s Court, District Boksburg 4R: The Chief Executive Officer 5R: Tambo Memorial Hospital 6R: LZ

Background Information 

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Two 5 year old children, M (a girl) and Z (a boy) were accidently switched at birth and were now, not being raised by their biological children Ms NN originally wants her biological child back but changes hejhr mind after seeing how closely bonded M is attached to her mother The point appointed a curator ad litem who was given wide powers to investigate all issues pertaining to the best interest of the child [para 11-12] The fathers in this situation showed great turmoil both at the fact that they were not the biological fathers of the children and also at the thought of the child being removed from them. Mr Lz asked to be added to the proceedings. Parents who raised the children = “psychological parents” [para 6] Child M o Psychological Parents: Ms NS and Mr DL o Biological Parents: Ms NN and Mr Lz Child Z o Psychological Parents: Ms NN and Mr LZ o Biological Parents: Ms NS and Mr DL

LEGAL ISSUE:  

Is it in the best interest of the children to be returned to their biological parents or stay with their psychological parents? What is a suitable legal solution to address the problem?

PRINCIPLE: 

S230(3) of the children’s act 38 of 2005: A child is adoptable if – a. the child is an orphan and has no guardian or caregiver who is willing to adopt the child; b. the whereabouts of the child’s parent or guardian cannot be established;

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the child has been abandoned;

d. the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or e.

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the child is in need of a permanent alternative placement.

S28(2) of the constitution: A child’s best interests are of paramount importance in every matter concerning the child

APPLICATION/ RATIO: Through a process of examining customary law and traditions as well as the psychological bonding of the children, it was determined that it is in the best interest of the child to remain with the psychological parents [para 44]. The obvious alternative is adoption, however the children’s court can only make an adoption order if the child is adoptable according to s230(3) and both children do not fit the requirements of an adoptable child listed in s230(3). [para 46] Unfortunately, legislation in its present form did not provide a legal remedy to the legal rights and responsibilities of the children and their psychological parents [para 47]. Therefore the curator recommended de facto adoption. There was an issue because de facto adoption, which is what the parents already had, does not form part of South African law in a formal sense. However, the court decided that it was not necessary to forge de facto adoption into a specific legal classification as the court was compelled to act in the best interest of the children according to 28(2) and this forms the necessary legal sanction for it [para 63].

CONCLUSION: The court agreed with the recommendations and ordered: 1. Full PRR in respect of M given to her “psychological parents” through the principle of de facto adoption 2. Full PRR in respect of Z given to his “psychological parents” through the principle of de facto adoption 3. The PRR of the “biological mothers” of both children are terminated 4. No PRR of the “biological father” were ever acquired 5. The biological parents are allowed to have reasonable contact with their biological children who are now legally the children of the psychological parents 6. The exercise of the order will be managed by a parenting coordinator 7. All parties will continue to receive therapy until they deem it no longer necessary...