Court orders swopped babies to remain with families raising them

March 23rd, 2016
x
Bookmark

Two pairs of baby boy and girl shoes

By Nomfundo Manyathi-Jele

The Gauteng Division Pretoria (GP) in Centre for Child Law v NN and NS (GP) (unreported case no 32053/2014, 16-11-2015) (Ledwaba, Mabuse and Janse van Nieuwenhuizen J) has ordered that two children who were swopped at birth must remain with the families who have raised them.

At the beginning of the court process, one of the mothers in the application initially wanted her biological child back, while the other mother did not want to exchange the children. This left the High Court with the decision of whether the children should be returned to their biological parents.

In May 2014 the director of the Centre for Child Law at the University of Pretoria, Professor Ann Skelton, was appointed as the curator ad litem by the court to investigate and make recommendations on the outcome that would be in the best interests of the children.

In November 2015 the court ruled that the five-year-old boy and girl were to be considered having been adopted by the parents who had raised them thus far without them needing to undergo a formal adoption process. The court also ordered that the children continue to have contact with their biological parents.

According to the curator’s report, both children were born on 2 August 2010. The children, M and Z are different genders. M is a girl and Z is a boy. The curator said that this is the first known case where children of different gender were swopped.

Background

The curator had her first meeting with both mothers on 6 June 2014. She said that at these meetings Ms NS told her that she had been admitted at Tambo Memorial Hospital on 2 August 2010. She had to have a caesarean section and was taken to theatre. ‘She explained that she was awake during the delivery… . She thinks she remembers being shown a baby girl, but the baby was taken away by a nurse just after the birth because she (Ms NS) had to be given oxygen. Her baby was not in the same ward as her, but had been admitted into a separate ward.’

The next morning she had asked to see her baby and was told that the baby was in ward number four. Her baby, a girl, had a tag on her wrist, which had her surname, NS. She visited her baby several times in ward four, fed her and cared for her. They were both discharged and she took the baby home. Ms NS duly registered the child as M, reflecting herself as the mother and Mr DL as the father.

According to the curator, all went well until July 2013 when a matron from Tambo Memorial Hospital called Ms NS. She was asked whether the baby was still with her. When she answered in the affirmative, she was told that someone from the Department of Health wished to tell her something about the baby, and was asked to come to the hospital.

The following month she went to a meeting at the hospital. On arrival she was told that a woman had come forward and told them that she was given a child that was not hers. The hospital had checked with several other mothers who had given birth around the time of 2 August 2010, and now they wanted to check whether her child was hers. A DNA test was done.

About a week later, Ms NS was picked up at work and taken to the laboratory to be briefed about the results. She was then told that the baby was not hers.

According to the curator, Ms NS informed her that she was still doubtful about whether the children had actually been swopped. In particular she doubted the DNA tests that had been shown to her because, she said, they did not prove 100% that she was the mother of child Z. The report states that Ms NS remembered being shown a paper that said 85%. She had asked for a separate test and the father of her child had gone for that test, but she said that the results had not been made known to her.

Initial meeting with Ms NN

Later that afternoon the curator met with Ms NN and her lawyer, Henk Strydom of Strydom Attorneys, who was acting on a pro bono basis.

The curator states that at the time that Ms NN gave birth in 2010, she admitted herself to the Tambo Memorial Hospital as she suffers from diabetes. She was scheduled for a caesarean section. She was awake during the procedure, and was shown the baby immediately after the birth, it was a girl. The baby was then taken away.

‘The following day, she asked where her baby was and was told that, if she feels strong enough, she can go see her child. … [A]fter three days, she felt strong enough and went to see the child. In the designated room, she found only one baby – a boy – with a tag with her surname attached to his wrist.

She then went back to the sister in charge to tell her that this baby was a boy, whereas she had been shown a baby girl after the birth. The sister concerned laughed at her and said she must be confused because she was ill. When she persisted that her child was a girl, it was suggested that she was trying to abandon the baby. She remained doubtful but eventually became persuaded that she must have originally been mistaken, and she was then discharged from the hospital. Ms NN duly registered the child, under the name Z,’ the report states.

The report goes on to state that approximately three years later, on 3 July 2013, Ms NN went to the Maintenance Court to claim maintenance from the father of the child, as they had since separated. Paternity tests were required. She was then called in and told that they had bad news for her – the child was neither hers nor the fathers. She was very shocked.

The nurse at the hospital that conducted the DNA tests had advised her to go back to the hospital she gave birth at, to get clarity and find her biological child. The report states that Ms NN said that Tambo Memorial Hospital did not initially show interest in her story. Only after she showed them the results did they take the matter seriously.

According to the report, Ms NN has struggled financially as she is unemployed and she has been unable to get maintenance from her former boyfriend because he is not the biological father of Z. He is though the biological father of her older son.

The curator states: ‘Ms NN struck me as being far further down the road of acceptance of what had happened. Although she has experienced great heartache, she is a practical person who wants to move forward. She in fact expressed frustration with how slowly things are moving. At this initial interview, she told me that her preference was for her biological child, M, to be placed into her care. Although she would like to keep both children, she acknowledged that this was an unlikely outcome of the process.’

In June 2014, the Wits Law Clinic informed the curator that they would be Ms NS’s attorneys.

The DNA test results

In her report, the curator goes on to say that she scrutinised the DNA results. In summary, the interpretation of the results is as follows:

  • Ms NN is excluded from being the biological mother of the boy, Z.
  • Ms NS is excluded from being the biological mother of the girl, M.
  • Ms NN appears to be the biological mother of the girl, M. The probability that Ms NN is the biological mother of M is 99.99%.
  • Ms NS appears to be the biological mother of the boy, Z. The probability that Ms NS is the biological mother of Z is 80.5%. This test was done on 21 August 2013. A further test done just a week later, on 29 August 2013, indicated that the probability that Ms NS is the biological mother is 99.99%.

What happened in August 2010

The curator then turned her attention to trying to find out what had happened at Tambo Memorial Hospital on the day M and Z were born that resulted in the babies being swopped. Following a written request, she was received by the Chief Executive Officer (CEO) of the hospital, Doctor Avis Naidoo, and two other representatives from the hospital.

The curator was told that Ms NN came to the hospital (Tambo Memorial) on 1 August 2013, and sat outside the CEO’s office requesting to speak to the CEO. She then told the CEO she wanted her own baby, as the one she had was not hers. She showed them blood test results which confirmed her story. Her story also sounded credible to them in the way that she recounted details about what had happened.

According to the report, after receiving the news, the hospital then consulted all records of the day the children were born. There were 11 children born by caesarean section at the hospital that day, in five different operating theatres. At first, they did not know what they were looking for. From the records, they narrowed down possible swops to eight children, then to three, then two males and one female child.

From their records, they saw a pattern: The same midwife attended to both mothers although the caesarean sections were done in different theatres. They then considered what Ms NN told them, that she was told her child was a girl but was given a boy. Ms NS was the first to be tested, and was told the results.

‘It appears that the files and/or name tags were accidentally swopped by the midwife. The hospital’s procedure regarding the identification of babies and their mothers was explained. Every mother’s admission file has two blank tags inside. One tag is meant for the baby and the other one for the mother. The tags would then be completed with the name and gender of the child only once the baby is born, in the theatre. … Both babies were admitted into the baby ward, independent of their mothers’ admission. Z was admitted by virtue of his mother being diabetic, and the other due to her weight,’ the report states.

The curator’s report goes on to say that the hospital was also very busy on the day the mothers gave birth, with very few midwives present, resulting in one midwife attending to several patients. At that time, retired nurses had been called in due to lack of midwives. Further, the (building) structure of the hospital was not conducive, as the theatre and other related wards, were not on the same floor. Patients were transferred from different floors; this also meant that midwives also had to work on different theatres and floors.

According to the report, the Tambo Memorial hospital team acknowledged that it was regrettable that the complaints by Ms NN to the nurse in charge about her baby being the wrong gender, was not escalated to a higher level by that nurse. Had the error been discovered then, far less trauma would have occurred.

According to the report, the curator then asked about preventative measures that would be introduced to avoid a repetition of such occurrences. ‘The team explained that from the theatre, the midwife accompanies the new mother to the ward where she will be kept together with the child. Further, they have made sure that one midwife would attend to only one mother at a time. The management of the files and the tags is subjected to stricter rules, and there is cross checking of these details before the mother and baby leave theatre,’ the report states.

Follow-up meetings

According to the report, at follow-up meetings, Ms NN said that it would be sad to take M away from a father who loved her. She also said that she was worried about Z if the other family was unable to love him.

Ms NS and Mr DL both expressed a clear preference to continue caring for M, the child that they had been raising. They see her as their own child, are firmly bonded with her, and Mr DL also referred to traditional ceremonies and family acceptance as reasons why ‘giving away’ their child is unthinkable to him.

The report also states that there was a psychologist team put together to work with the children and the mothers. Every second Friday the children and mothers were brought together in contact sessions. Individual therapy was also provided. The team informed the curator that although the sessions were going ‘quite well’ in terms of the mothers and children getting to know one another, and it was apparent that the bonding of the children, with each of the mothers they were raised by, was very strong. It was acknowledged by the psychologist team that the original aim to place the children back with their biological mothers was unlikely to succeed.

Legal issues arising

The curator said that there were several legal issues that arise from the matter. These include a civil liability, parental responsibilities and rights, as well as adoption.

On the civil case, the curator stated that the parents had suffered a lot and continue to be under considerable stress. She adds that although financial assistance will not solve all the problems, it will ease their current difficulties in numerous ways.

Speaking on parental responsibilities and rights, the curator said: ‘With regard to the natural mother of a child, the simple fact of her giving birth to a child is sufficient to provide her with full parental responsibilities and rights, which is conferred by operation of section 19 [of the Children’s Act 38 of 2005 (the Act)].

Thus in this case, Ms NS acquired full parental responsibilities and rights of Z as soon as he was born, and Ms NN acquired full parental responsibilities and rights with regard to M. They have never exercised these responsibilities and rights because each of them went home with the other’s child. Although they have de facto excercised full parental responsibilities with regard to the child that resides with each of them, they do not have such rights and responsibilities de jure,’ the report states.

The curator goes on to say that with regard to fathers, the automatic acquisition of rights is more complex. A married father automatically acquires full parental responsibilities and rights on the birth of the child, if he is married to the child’s mother, or was married to her at any time between conception and birth, or after the child’s birth.

Section 21 of the Act states that an unmarried biological father acquires full parental responsibilities and rights in respect of the child:

‘(a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or

(b) if he, regardless of whether he has lived or is living with the mother –

(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;

(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.’

The curator notes that neither of the fathers of the children in the current case were married to the mother at the time of their biological child’s birth and that neither was living with the mother in a permanent life partnership at the time of his biological child’s birth.

‘Mr DL accepted the child M as his – this is clear from the fact that she was registered under his surname and was also recognised as his child in customary law rituals that he initiated. He has been involved in her upbringing and he has contributed to her maintenance. However, as she is not his biological child (a requirement of s 21) none of these actions give him any rights under the law. He has not automatically acquired legal responsibilities or rights towards M because she [is] not his biological child, and he has not acquired any responsibilities or rights towards Z, who is his biological child, because he has not carried out any of the required acts under s 21 in relation to Z.

Mr LZ accepted the child Z as his, he has been involved in his upbringing, and may have contributed to the maintenance of the child in the early stages of the relationship though he has failed to do so for some time. However, as Z is not his biological child (a requirement of s 21) none of these actions give him any rights under the law. He has not automatically acquired legal rights or responsibilities towards Z because he is not his biological child, and he has not acquired any responsibilities or rights towards M who is his biological child, because he has not carried out any of the required acts under section 21 in relation to M,’ the report states.

The curator said that an obvious solution to this matter was adoption but added that it was likely that M and Z do not qualify as ‘adoptable children’ because according to s 230(3) of the Act, a children’s court may only make an adoption order if the concerned child is ‘adoptable’. 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 parents or guardian cannot be established;

(c) 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) the child is in need of a permanent alternative placement.’

The curator recommended that the court should enable the children’s ‘psychological parents’ – those who have raised them thus far – to adopt the children without having to go through the usual adoption processes.

Recommendations

The court agreed with the recommendations and ordered:

  • Full parental responsibilities and rights in respect of M have been acquired by NS with retrospective and prospective effect through the operation of the principle of de facto adoption, and that all responsibilities and rights are to be applied as if she is the adoptive parent of the child.
  • Full parental responsibilities and rights in respect of M have been acquired by DL with retrospective and prospective effect through the operation of the principle of de facto adoption, and that all responsibilities and rights are to be applied as if he is the adoptive parent of the child.
  • The parental rights and responsibilities that NS has in respect of Z are terminated.
  • No parental responsibilities and rights have been acquired by DL in respect of Z.
  • NS is granted the right to have reasonable contact with Z.
  • DL is granted the right to have reasonable contact with Z.
  • Full parental responsibilities and rights in respect of Z have been acquired by NN with retrospective and prospective effect through the operation of the principle of de facto adoption, and that all responsibilities and rights are to be applied as if she is the adoptive parent of the child.
  • Full parental responsibilities and rights in respect of Z have been acquired by LZ with retrospective and prospective effect through the operation of the principle of de facto adoption, and that all responsibilities and rights are to be applied as if he is the adoptive parent of the child.
  • The parental rights and responsibilities that NN has in respect of M are terminated.
  • No parental responsibilities and rights have been acquired by LZ in respect of M.
  • NN is granted the right to have reasonable contact with M.
  • LZ is granted the right to have reasonable contact with M.
  • The exercise of contact of this order will be managed by a parenting coordinator.
  • The therapeutic support and integration programme being provided by the Child and Adolescent Family Unit (CAFU) shall continue until the parties agree that the service is no longer required.

The order also states that a parenting coordinator will be appointed on agreement by the parties on a suitably qualified person within 30 days of the order and that the payment of fees of the parenting coordinator shall be met by the fourth respondent, the Gauteng MEC of Health.

The powers and duties of the parenting coordinator include to –

  • evaluating the processes being carried out by the CAFU in order to decide when the children are ready for the introduction of a parenting plan;
  • coordinating the development of a parenting plan by the parents; and
  • resolving any possible conflicts that may arise through a facilitation process, and where such facilitation efforts fail, formulate directives to resolve the dispute, which will be binding on the parties until such time as a court directs otherwise or until the parties jointly agree otherwise.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2016 (April) DR 5.

X
De Rebus