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Pretoria - The mothers of two babies who were switched at birth at a Boksburg hospital seven years ago are suing the minister of health for several million rand in damages.

The lawyer acting for one mother, Henk Strydom, on Wednesday told the Pretoria News a summons had been issued, and the minister’s office indicated the claim would be defended.

Strydom said it was expected that the claim would be served before the Gauteng High Court in Joburg sometime next year.

The mothers are claiming damages for pain and suffering when the two babies were switched at the Tambo Memorial Hospital in 2010.

It was only nearly four years later, after one of the “fathers” insisted on a paternity test, that it transpired that neither was a biological parent.

Following a court application on how to deal with the matter further, a full bench of the Gauteng High Court, Pretoria, ruled two years ago that the children had to remain with the parents who had raised them.

As it was in the best interests to obtain a court order as soon as possible determining the future of the children, the judges at the time said they would provide their reasons later.

The matter is back in the spotlight after the judges on Wednesday eventually handed down their reasons.

Strydom said they welcomed the judgment, as it gave more legal clarity about the principle of de facto adoptions - adoptions which fell outside the scope of the Children’s Act.

He said the fact that their babies were swopped at birth was still very traumatic for the parents, especially the mothers.

“They are receiving counselling, but it is very difficult for them to work through.”

He confirmed that the children and their mothers were in contact with each other.

The court, two years ago in its order, made provision that the children, now legally adopted by their “psychological parents” (non-biological parents), should have contact with their biological parents.

Veteran child law expert Professor Ann Skelton, of the Centre for Child Law, was from the start of the proceedings appointed to investigate what would be in the best interests of the children.

She presented a report to court in which she recommended that the children continue living in the care of the parents who raised them, who were their “psychological parents". Skelton said this would be in the best interest of the children, but they also had to have the right of contact with their biological parents.

This recommendation was accepted by the judges, who also ordered the de facto adoption by each set of parents of the child they raised. This, in effect, means that the parents are legally recognised as the parents, without having to go through a complex adoption process.

As one of its orders, the judges at the time ruled that the parents, at state expense, had to receive ongoing therapeutic support to assist them to come to terms about what happened and in having contact with each other.

Skelton confirmed that the children and the mothers had contact with each other outside the formal therapeutic sessions. “The solution seems to work and the families and the children are getting to know each other,” she said.

Deputy Judge President Aubrey Ledwaba, during the application two years ago, commented that this was not a case in which one party could claim at the end to have won.

It appeared that the midwife who assisted with the delivery switched the name tags by mistake.

One mother said she was shown a baby girl at birth, but later discovered a boy in the crib with her name tag on. The staff made her believe she had had a boy and she did not question it further. Both sets of parents happily took their babies home and raised them until nearly four years later, when it was discovered that the babies were switched.

Judge Nicolene Janse van Nieuwenhuizen said in Wednesday’s judgment: “The negligence of the staff at the hospital has caused unimaginable pain and suffering to the parents involved.

"This in turn had a negative impact on M (the girl) and Z (the boy) and their siblings. Similarly, the extended families of the children have to deal with the reality that they children they have accepted into their families do not have a biological bond with the family.”

Pretoria News