Babies Switched at Birth
It would be a nightmare situation for any parent – giving birth to a healthy baby, taking it home from the hospital, nurturing and caring for it, falling in love with it . . . only to find out later that they were sent home with the wrong child. By the time the mistake is realised, a parent couldn’t possibly imagine being expected to hand back a child they already consider their own.
While stories of babies being switched at birth are rare, it has happened.
Channel 9’s 60 Minutes program aired one such story in 2012. In South Africa 24 years ago, two women, Sandy Dawkins and Megs Clinton Parker, gave birth to two little boys. Sandy, a single mother who was struggling financially, went home with Robyn. Gavin went home with Megs, who was wealthier. A paternity test when the boys were 18-months-old highlighted the fact that Gavin wasn’t Megs’ son. At that point, the mothers could have agreed to swap their sons, but they chose not to do so.
They loved the boy they had raised and decided it would be too heartbreaking for the boys and themselves to swap. In a cruel twist of fate, when the boys reached 15, Robyn decided he wanted to live with his biological mother. Megs ended up with both boys, and Sandy none.
A similar incident also happened in America. Callie Johnson and Rebecca Chittum were switched at birth in 1995, and ended up remaining with their non-biological families. It was only when the girls were three that the mistake was discovered. In 1999, the biological mother of Rebecca sued for custody but a judge decided (based on the report of a child psychologist) that it was best if both girls remained with the families that raised them.
How would an Australian court decide?
In some cases that have been reported, the switched children have ended up remaining with their non-biological families, yet staying in touch or having regular contact with their biological families. So how would our courts make a decision if one of the parties wanted their biological child back and the other didn’t, under Australian law?
S 60CA of the Family Law Act directs the court to regard the best interests of the child as the paramount consideration. But how does the court determine what is in a child’s best interests?
S 60CC(2) of the Act sets out the two primary considerations to be taken into account. It requires that the children a) benefit from meaningful relationships with both parents and b) are protected from physical or psychological harm. In the American case of Callie and Rebecca, it took three years of court battles before a judge, using a child psychologist’s report, determined that it would be too psychologically damaging to separate the girls from the families that they had grown up with.
Additional considerations
In deciding what is in the best interests of a child, the court will also have to look at the additional considerations as set out in the Act. The court is required to assess, among other things:
- The views expressed by the child and any factors relevant to the weight the court should give the child’s views.
- The capacity of each parent to provide for the child’s needs.
- The attitude of the parent towards the child and the responsibilities of parenthood.
- Any family violence involving the child or a member of the child’s family.
- Whether any family violence order applies.
How much weight is given to the parenthood factor?
In custody case Donnell v Dovey(2010) FamCAFC 15 (10February 2010) the judge said that “the first stated primary consideration is a matter which has to be given due weight having regard to the fact that it is referred to as a primary consideration, but cannot be seen as a defining consideration in respect of any parenting order. Any order that is made, it goes without saying, must be consistent with the best interests of the child.”
In Yamada v Cain (2013) a mother appealed against custody orders placing her child in the care of her husband’s great aunt. The mother’s primary claim (on appeal) was that the court did not consider parenthood as paramount when making the decision of who should get custody of her child. The mother argued that the federal magistrate should have considered the child’s relationship with her parent as the primary factor and her relationship with her great aunt on a lesser level.
In disagreeing, the Family Court stated that maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent and that the law “recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting.”
In a case of babies being switched at birth in Australia, it would seem that the best interests of the child would be the main consideration, rather than simply biological parenthood alone.