Cape Town – The provincial Department of Social Development has been cleared of wrongdoing for circumstances leading to the death of five-month-old Ava Barley at a Pinelands early childhood development (ECD) centre.
Baby Ava died of asphyxiation in 2010 when she rolled off the bed and was wedged between it and a bedside pedestal at Aunty Dawn’s ECD in Verbena Way, Pinelands.
Her parents, Craig and Riette Barley, filed a claim against centre owner and principal Dawn Moore and the department for damages.
The Western Cape High Court had found in their favour, but the department had appealed against the ruling.
On Friday, the Supreme Court of Appeal exonerated the department, saying: “While the regulatory responsibilities of the province must be accepted, this does not necessarily translate into a legal duty to prevent harm to either Ava or to her parents.”
Moore left South Africa before the trial, and the facts surrounding the incident could only be taken from her statement, wherein she said she had left Ava sleeping on the bed between pillows.
When Moore went to check on Ava later in the morning, she found her lying on the floor. Ava was not breathing, and a post-mortem had suggested that vomit on her left wrist was from having been in contact with her mouth, which contributed to the suffocation.
Moore had applied for registration of the facility with the province in February 2008, and later that month the province acknowledged receipt.
However, at the time of Ava’s death, two years after the application for registration of Aunty Dawn’s, there had been no further consideration of the application.
Doctor Badronessa Govender, a registered social worker, visited Aunty Dawn’s, and in her evidence she attributed the failure by the province to process Moore’s application to the province’s prioritising the registration of ECD facilities in previously disadvantaged communities.
Apparently there were more than 1 300 unregistered facilities in the province and many of these were in previously disadvantaged communities, the court said.
During the appeal, the province acknowledged the protection of children as a priority, but denied that it carried the primary responsibility of ensuring the safety of children in the day-to-day operation of privately run facilities.
The department welcomed the court’s decision.