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Wednesday, July 17, 2019
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Foster parent will receive funds after being declined

Landmark judgement affirms that foster children have the same rights as other children in a family

In a landmark judgement the Pretoria High Court has for the first time determined that a foster child has the same rights as other children in a family unity when it came to claiming from the Road Accident Fund (RAF).

Roos Fortuin, the foster mother of an underage child who may not be named instituted a claim for loss of support after her husband Hendrik Albertus Fortuin was killed in a car accident on March 14 2003.

After the RAF initially refuted the claim, they were finally instructed to pay when Judge DS Fourie Roos found in his judgement that a foster child had exactly the same rights as any other child in the family.

Werner Boshoff, an attorney with medical malpractice law firm CP van Zyl Inc. said no settlement figure had as yet been determined but that the ruling was a great victory for foster children everywhere.

"This judgement is the first that acknowledges the fact that a foster relationship gives the child exactly the same rights as any other child in the family unit."

The child was placed in the foster care of the Fortuin family on 14 March 2003 pursuant to an order of the Children's Court. The child was then one year old.

On 10 March 2012 the plaintiff's husband (and foster parent of the child) was fatally injured in a motor vehicle accident

Fortuin issued summons in her "personal and representative" capacity on behalf of the child for the payment of damages suffered as a result of the death of her husband to provide for the day-to-day needs of the child as well as for any other expenses that would arise in bringing up the child including 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 included 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.

According to a statement, in his judgement, Mr Justice 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.

It was argued on behalf of the RAF that foster care was generally not considered to be a "permanent placement option" under South African law and therefore 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 Road Accident Fund due to the death of a foster parent.

The court rejected that argument and found that the RAF was liable and had to pay.

The CP van Zyl defence team was headed up by Advocate Mark Upton assisted by attorney Werner Boshoff for CP van Zyl Attorneys.

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