Are South African parents being allowed to get away with murder and if so, why?

In March 2018, a video went viral showing a Phoenix couple hitting, punching, stamping on and verbally abusing a four-year-old girl, ostensibly because she had had an “accident” in the house.

The video, which is so distressing that even hardened child protection advocates shared it with an advisory to viewers, showed the brazen nature of these abusers.

While horrified at the content, many saw it as proof of these “parents’” guilt, an indication that they would certainly be found guilty of attempting to murder an innocent child. They may be correct, but sadly, a conviction is no guarantee of justice for this little girl. How can it be when parents convicted of attempted murder are routinely given suspended sentences and, or, allowed to retain parental rights? And, how can it be when the decision to keep murderous parents out of prison is justified by authorities as being in “the best interests of the child”.

“Best interests of the child” is the guiding principle of the 2005 Children’s Act. It should follow that this directive is governed by the South African Constitution, which enshrines the right to life and the child’s right to be protected from maltreatment, neglect, abuse and degradation.

Yet, “best interests” seems to be open to interpretation within the judiciary, with some officials valuing culture, kin, and material care over safety, and the right for children to be looked after by caregivers that are not neglectful or abusive.

In two recent court cases, two presiding officers from two different provinces chose to subordinate the rights to protection to other, seemingly less important priorities. These rulings bring into sharp relief the way that we determine what our children need to survive and thrive.

In the early hours of the morning on Christmas day 2012, 11-week-old twins were rushed to hospital after a brutal attack at the hands of their own parents. Forensic evidence showed that the injuries to these defenceless babies were caused by “severe direct violence, and a high impact with a blunt instrument”.

The attack left the little boy, Baby J, with a cracked skull and bleeding on his brain, and fractured four of the little girl, Baby M’s ribs. Despite being less than three months old at the time of the attack, Baby M already had older injuries when she was examined on that fateful Christmas Day.

Forensic expert testimony stressed how much force would be required to fracture the soft pliable ribs of a small baby. But mercifully, she recovered. Her brother was not so fortunate. The assault left him permanently disabled: blind, unable to walk, talk, sit or even to chew and swallow. Baby J can only be tube-fed, has undergone two brain operations over the last five years, and shows very limited emotional functioning.

The court ruled that the children’s parents had used “extreme violence” to injure the twins, but could not determine who had done what to each child. Nonetheless, both parents were convicted as accessories to the attempted murder and serious assault of the children.

The state understandably called for imprisonment because of the horrifying nature of the injuries. But, prior to sentencing, the presiding judge instructed the social worker in charge of the case to report on future care options for the children. This was the same social worker who, following the attack, had organised for the twins to be placed in the custody of their maternal grandparents. She also endorsed their mother remaining their primary caregiver. Perhaps this was justifiable prior to the verdict, but she did not amend her recommended care strategy after both parents were found guilty. Sentencing was (it seems) based on this report and, in a little-publicised ruling, the judge gave the couple a suspended sentence.

So, despite the guilty verdict, the children’s mother will continue to be their primary caregiver, and their father will continue to provide for them financially, because according to the judge, “there was a real danger that the children could be left destitute if their parents went to prison”.

The ruling, which has bewildered child protection activists, not only leaves these children in the care of the people who brutally tried to kill them, but justifies it as being in their best interests.

It has been 18 months since we first met a little boy tragically labelled the “latrine baby”. Baby S was 15 days old when his mother tried to drown him in a pit latrine. Taking into account the age of the child and circumstances of the act (this was not a child being abandoned in desperation during the act of his mother giving birth), the court ruled that there was intent to kill, and found Baby S’s mother guilty of attempted murder.

But she was also (inexplicably) given a suspended sentence. The Department of Social Development then tried to place the child in the care of his maternal grandmother. Unlike the twins, though, Baby S’s granny failed to come and collect him, so he was put into a Place of Safety.

It could have been the end of his birth mother’s involvement in his life. But two years later, while he was in the process of being adopted, a magistrate in Children’s Court intervened. This magistrate determined that an adoption placement was not optimal for the child. He insisted that the child be placed with his maternal granny, despite knowing that she had failed to collect him and had made no attempt to make contact with the child while he was in care.

Most troubling, though, is that the magistrate made the ruling in the full knowledge that Baby S’s mother was living in her mother’s home. As with the twins, this magistrate’s ruling (which was again justified as being in the child’s best interests) effectively returned Baby S to the care of the mother convicted of his attempted murder.

Although the “latrine baby” ruling was immediately appealed, these two stories show a disturbing similarity: from the lack of time served by the parents, to the official placement of the children with their grandparents.

While there have been no allegations that any of the grandparents were involved in abuse, the notion that these grandparents are a benevolent presence in the children’s lives is not necessarily accurate.

When he was interviewed about the cases, child protection activist Luke Lamprecht referred to the “myth of the benign granny”: the notion that by dint of their age and status as a grandparent, grannies can only be a force for good.

Lamprecht points out though that in both instances, these grandparents raised a child who went on to be convicted of attempted murder. In addition, the Child Abuse Tracking Study, recently completed by the Children’s Institute, shows that “in many instances, families protect perpetrators or deny the abuse”.

During the trial, the twins’ grandfather denied that any abuse had taken place while the twins lived in his home despite Baby M having injuries that predated the Christmas Day attack. He also testified that the twins’ father had told him that they would ”stick to our story” that Baby J had simply “stopped breathing”.

The lack of time served is equally troubling. Despite the argument that the rulings were based on child-oriented decision-making, the choice to keep these parents out of prison has effectively allowed them to retain parental rights over children they attempted to kill. It is a principle that is mirrored in another very disturbing case that we have been following.

We first met Baby Z in December 2016. She was four months old at the time, having been born extremely prematurely at 29 weeks. Her birth mother, already a mother to four children, conceived Baby Z with a new partner, only to be deserted by him when she told him she was pregnant. She returned to her husband, but hid the pregnancy because she knew that her husband would not accept the infant.

When the pregnancy was too far progressed for her to conceal, she visited a Nigerian drug dealer and purchased pills to abort her child. She then went to a local clinic claiming to be having a miscarriage. It was there where, much to her surprise, the baby was born, alive, albeit a tiny and fragile 1.1 kilograms.

There is no question about Baby Z’s case being attempted murder. A murder or attempted murder can only occur when the victim is alive. But according to the South African law, a child is not alive until they have been born and taken a breath. For this reason, no abortion is murder in South Africa, regardless of how brutal, or how far the pregnancy has progressed.

So, legally, Baby Z was not alive when she almost died, and her mother could not have been charged with her attempted murder. She could have been charged with violating the Termination of Pregnancy Act. But, as is typical in these cases, there was no police investigation.

As a rather disturbing aside, the toothless nature of the Termination of Pregnancy Act means that even those operating illegal abortion clinics can (at worst) be charged with violating the Act and, specifically, with the illegal distribution of medication and practising medicine without a licence in an unregistered facility (there are no related murder or attempted murder charges).

It is the reason why a couple were recently sentenced to only five years imprisonment after pleading guilty to operating an illegal clinic that was responsible for the termination of countless numbers of pregnancies (many likely post-viability, given that this is when women start showing).

The argument that mothers performing illegal late-term abortions should be policed is a controversial one. But regardless of one’s stance, the lack of policing (and the lack of punitive measures in the Termination of Pregnancy Act) has an important, perhaps unintended, consequence. If the child survives, the birth mother retains all of her parental rights.

In Baby Z’s case, the social worker assigned to the case was legally required to trace her birth mother to try to obtain consent to place the child for adoption (which wasn’t difficult, she was not fearful of being charged, so felt no need to hide her identity). She initially seemed willing to consent, but 18 months after the birth, she still hasn’t gone to court to sign the papers. Nor has she seen Baby Z since her birth; this, despite the child almost dying, and her long fight for health.

Although she shows some remorse and (apparently) wants a good home for her child, unless she gives her consent the social worker will have to attempt to get her parental rights rescinded. It is a lengthy and difficult process so is unlikely to occur any time soon. In the interim, Baby Z will grow older in care.

So why are parental rights being retained? Interestingly, there is no assertion that the parents have been rehabilitated, or that the behaviour that led to these children being harmed had been addressed or eliminated (or that attempts to do so have even been made).

This was not a factor in any of the cases. During the trial of the twins’ parents, medical experts asserted that they would have had to apply “severe blunt force trauma” to fracture the little girl’s ribs and the boy’s skull, to inflict that degree of brain damage, not to mention the multiple bruises across the child’s body.

Yet, they showed no sign of remorse, storming out of court following their conviction, and maintaining throughout that they had “no idea what happened to the babies”. Similarly, no mention has been made about why the “latrine baby’s” mom tried to kill her son, or what had been done to help her avoid harming him or another child in the future.

And Baby Z’s mom has never tried to reunify, to see her child, or provide her with any form of care. She has subsequently given birth to another baby. Given this lack of rehabilitation, it appears that it was not a factor considered by the courts.

What this indicates is that the court (and the country’s child protection policy) found other factors more compelling than freedom from harm and fear, like children staying in their culture and not being a burden to the state.

So, given the best interests argument, what could the impact of the decision be? Child protection advocates warn that a tragic number of children end up dead after being returned to abusive parents.

The most recent case is the infamous “Baby Daniel” case where a four-year-old boy was returned to his mother and her partner following an elbow fracture that was flagged by doctors as abuse. Less than six months later, he was murdered in the most appalling way imaginable.

For those who survive, the risk is that the children themselves become violent. A long-term study focusing on more than 2,000 children born 28 years ago shockingly indicated that 99% of the children had been exposed to violence during their childhood, and 60% had experienced it personally. The study also showed that almost 50% of pre-schoolers had been the victim of violence. Most tellingly, it confirmed that violence was frequently inter-generational, thus perpetuating the cycle.

For now, this is speculative, but many of our children are already suffering harm. The right to a family should be paramount, whether that be a biological or psychological family, and attachment is the basic building block of all children’s development.

Making a child wait years for a potentially mythical “family reunification” is undoubtedly a violation of that right. The “latrine baby” is still waiting to hear about his future, which continues to be contested in court. If returned to his granny, and by default his mother, he may suffer the fate of other abused children. But if appeals against the ruling succeed, he may still be adopted.

However, he has already spent four years in care, and even if the adoption proceeds (two years after a family was found for him), he has missed out on years of family care and may find it hard to attach to his new parents.

Baby Z will probably never be returned to her biological mom, but only because she doesn’t want her (if her mother asked for reunification, it would probably be granted by the courts). But her mother’s unwillingness to relinquish parental rights (or complete lack of interest in her child), means that Baby Z is also growing older in care. Even if her mother signs consent for an adoption now, she will probably spend all of her crucial first thousand days outside of a family unit, a particularly troubling situation given the long-term impact of prematurity on her learning potential, health and development.

But what about Baby J, tragically disabled and unlikely to ever function or live independently? Isn’t it “in the best interests” of this severely disabled boy to remain with his most effective caregiver? It may be, until one considers that this caregiver was at best complicit in his abuse, and at worst, responsible for causing his life-altering disability.

Returning to the Phoenix case, it is quite conceivable that the mother who stamped on her child, and the partner who ordered it and lay on his bed calmly filming the beating, will be convicted. But, what sentence will they receive? What will that court consider to be in that little girl’s best interests?

Perhaps it is time to legally test the “best interests principle”, and to ask how the courts and social workers involved should be held accountable if these children do end up dead after being returned to their parent’s care.

Life Esidimeni sets an interesting precedent for holding authorities responsible. If the worst occurred, maybe those who authorised and ordered the return of these children should be as culpable as the children’s murderous parents. We may then question if their “in the best interest of the child” decision would remain the same. DM