Judge orders that a year old child be returned to biological mother
In a landmark case, Francistown High Court this week reversed a legal child adoption and ordered a 15 –months -old baby girl to be returned to her biological mother.
Judge Lot Moroka ruled that the adoption process of the little girl was tainted with flaws and had been carried out in a haphazard and hurried manner, without considering the traumatic and roller coaster of emotions the mother was going through after she was raped.
This was after the adoptive mother, a senior government employee’s impassioned plea to be allowed to keep the child she had nursed for the past one year fell on deaf ears.
The woes of the two women began when a middle aged Letlhakane woman and mother of four (names withheld) was brutally raped on her way back from shopping at one of the local malls in Francistown on
March 06, 2016.
“Between her home and Nzano shopping centre laid a bush along which a narrow foot path snakes through. Alone, apprehensive she walked through the bush hopeful no harm would befall”, related the woman to the court.
As she walked deep into the bush her fear became reality, as a man sprung from the thicket, pounced on her and gagged her mouth shut to stop her from screaming for help.
With a knife hard pressed against her neck, the stranger dragged her deeper into the bushes, away from the footpath and raped her without a condom.
“Disheveled, ashamed I walked home and told no one of the ordeal. I didn’t report the rape to the police. I felt dirty and all I wanted was to clean myself”, she continued.
“I filled up the bath tub with water; soaked in the water. Praying that I had not contracted any disease or fallen pregnant.”
The intrusion of the rapist had however implanted seeds of a permanent reminder of her rape. She had conceived and was pregnant.
When she discovered she was pregnant the first thought that occurred to her mind was to commit an abortion.
Four months pregnant, the woman approached Somerset Extension clinic, termination of the pregnancy. She was however turned down, and referred to a social worker at Francistown city council for help.
It was during her consultation with the social worker, that she was advised and asked to consider giving up the baby for adoption, an option she agreed to.
In the subsequent counselling sessions. The expectant woman renounced her rights over the unborn child, and applied to the Magistrate for the renunciation of the rights.
On November 06, 2016, she gave birth to a bouncing baby girl. And a twist and change of heart gripped her, when she heard the first cry of the little one.
The cry lingered, echoed and triggered the motherly love and affection for the little girl. Even though she was not allowed to see and touch the new life she had brought into the world.
She wanted her baby back. Repeatedly the mother of four demanded the nurses to bring back her child. Only to be reminded that she had given up her parental rights.
Eight days later, the lowly paid cleaner was discharged from hospital empty handed.
Meanwhile, when her parents heard news of the birth of their grandchild, they travelled from the mining village of Letlhakane, but their expectations to see their daughter and the baby were crushed, as they were met with the sight of their daughter grieving the loss of the child.
It was under this cloud of dismay that the family sought an explanation from the social services offices and demanded the baby back only to be told the she had been adopted and the process was irreversible.
Crushed and dissatisfied, the family sought legal recourse. Legal aid came to their rescue and the matter landed in court.
In the final deliberation of the matter, Judge Moroka spotted loopholes in the counselling sessions the woman was taken through.
“From the first contact with the applicant before any counselling began, the social worker suggested adoption. To a client reeling under the trauma of rape. Two things went wrong; first the suggestion to give away the child was made without prior therapy. Secondly, the principle of giving the client various alternatives to choose from was not honoured,” pointed out Judge Moroka.
“She was presented with only one option. A choice without alternatives is no choice,” emphasized the Judge who further noted that there were no records in the social welfare officer’s notes to indicate that the expectant woman had gone through sessions of trauma counselling.
“Trauma counselling was critical to firstly rid her of feelings of self hatred and hatred for the product of rape. Therefore when she made the decision to relinquish her parental rights, she was not in a position to think rationally,” continued Justice Moroka.
“Her status as a victim and the turmoil she was going through was not addressed. This was unfortunate.”
Moroka went on to state that the victim’s consent to forfeit her rights as a parent and to give the child away was not properly obtained.
He noted that an evaluation after birth should have done, to assess how the victim related to the baby before a final decision was made.
Although a fairly wealthy parent, who has the ability and prospects to adequately provide had adopted the 15- month- old baby, which is in sharp contrast, to the humble one room rented apartment the biological mother lives in, Judge Moroka observed that, “ child care is a wider ambit. Circumstances of her birth are matters which will one day have to be dealt with. When this happens the social safety network of parents and relatives will provide last time of defence.”
“The presence of her biological mother will provide a shock absorber of the news. It is in the best interest of the child that she be returned to her biological mother. This has long term benefits for the child,” said Judge Moroka as he concluded her judgment.
Overjoyed and relieved, the biological mother left the court satisfied with the ruling as her close knit family pledged their support in raising the child.