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Switched at birth

in Family Law by Mona Emera on

It can be a parent’s worst nightmare, and there’s even a TV show about it - finding out your child was switched at birth.

This scenario happened to two French couples in 1994, when years after the birth of their children they realised their daughters didn’t look like each of the parents. Subsequent DNA testing confirmed that neither of them were the parents. In 2010 the couples took the private clinic to court alleging negligence of the clinic and staff.

In February this year the families involved were awarded millions of dollars in damages.

It is worth mentioning that both children chose to stay with the mother that had raised them, rather than choosing to live with their biological mother.

The case raises interesting questions about what would happen in Australia if a similar situation occurred.

In Australia, the Family Court will consider any application made by a non-parent provided they have played a significant role in the child’s life, and in some cases they will even consider applications by people who have not been a big part of a child’s life such as extended family.

When considering this type of application, the Court will look at the relationship between the child and the person seeking custody or visitation. In the French case, the children would have no doubt developed a very close relationship with the parents who had raised them, and possibly other relatives, even though they were not related by blood.

The wishes of the children are important in a case like this if the children are old enough and mature enough to express their views.

An error such as having children swapped after birth no doubt causes considerable distress to the families involved. It could even have been exacerbated if one of the children wanted to return to their biological parents, potentially leaving one set of parents without a child.

At the end of the day, the Family Court is obligated to make care and custody decisions which are in the best interests of the children. 

For more information, visit our Family Law services.

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