The best interests of whose child? : an examination of African customary law in matters relating to children switched at birth.

Abstract

Children switched at birth present not only emotional trauma but also a legal battle for all parties concerned. Thus the story of M and Z (an African boy and girl) switched at birth in OR Tambo Hospital on August 2, 2010 elucidates this challenge aptly. This challenge plays itself within the contested legal systems being the Common law system (Western Law) and African customary law, which bears different consequences for the same event of children being switched at birth. Therefore, the research interrogates the rules of African family law, particularly those related to children and their parenthood. Equally important is African laws approach to the legal status of the parents’ vis-à-vis the children switched at birth, as well as the compatibility of this approach with the Constitution and the Children’s Act. An analysis of similar cases of children switched at birth suggests that family mediation, a practice mandatory amongst African societies, must be used in such matters rather than lengthy court battles. Consequently, the benefits of family mediation and parenting co-ordination are discussed emphasizing the use of parenting agreements in resolving conflicts in matters relating to children switched at birth.