Foster children can claim from RAF for loss of support: court

Foster children have the same rights as other children in a family and cannot be excluded from suing the Road Accident Fund (RAF) for loss of support, the High Court in Pretoria has ruled.

The court was asked for a ruling after the RAF initially refused a loss of support claim instituted by a widow on behalf of her minor foster child.

The child was placed in foster care with her and her husband in 2003 when it was just one year old, but was excluded from suing the RAF for loss of support when the foster father died in a car accident in March 2012.

The child's right to claim was finally established when Judge Dawie Fourie in September ruled against the RAF.

Werner Boshoff, an attorney with medical malpractice law firm CP van Zyl Inc, said although the RAF earlier conceded the merits of the mother's claim, no settlement had yet been reached.

The RAF has also not yet indicated if it will appeal the far-reaching ruling.

Boshoff said the ruling was a great victory for foster children everywhere as it was the first to acknowledge the fact that a foster relationship gave the child exactly the same rights as any other child in a family unit.

The mother is suing the RAF for the money her husband provided in his lifetime for the child's day-to-day needs, medical expenses, school fees and special needs.

Boshoff said the law currently recognised a number of relationships in terms of which someone could claim from the RAF.

"These include the death of a breadwinner, for example that of a spouse, that of a blood relation of appropriate closeness, partners in same-sex unions and life partners.

"In our law 'maintenance' or 'support' not only includes food, clothing and shelter, but also medical care and, in respect of children, education," he said.

In his judgment, Fourie said that in his view a foster parent had the responsibility to ensure that the foster child was treated in a manner substantially similar to other children living in the same household.

The RAF opposed the application, arguing that foster care was generally not considered to be a "permanent placement option" under South African law and the duty of support with regard to these children rested upon the State.

It was argued a child in foster care was not entitled to claim compensation from the RAF due to the death of a foster parent.

Fourie rejected the RAF's argument.

"Section 181 [of the Children's Act] provides that one of the purposes of foster care is to protect and nurture children by providing a safe and healthy environment with positive support.

"The central advantage of a well-functioning foster care arrangement is to enable a foster child to live as part of a family, albeit not his own.

"That is why, in my view, [the regulations] provide that a foster child is treated in a manner substantially similar to other children living in the same household.

"...Foster care is not necessarily a short-term temporary arrangement. A flexible system has been developed... This includes orders to extend the duration of foster care until the child reaches adulthood.

"In any event, the duration of foster care cannot be a determining factor to qualify or negate the rights of children as entrenched in the Bill of Rights or as stipulated in the Children's Act.

"The State is not alone responsible to protect and fulfil the rights of children who'd been placed in foster care.

"The primary obligation to care for a foster child rests upon the foster parent, who has in terms of the Children's Act certain parental responsibilities.

"A foster child grant is a form of financial assistance to supplement and not to replace the financial support for which a foster parent is responsible.

"...In terms of the Children's Act a foster parent has a statutory duty to provide maintenance and support for a foster child," Fourie said.