DAMAGES FOR DEPRIVATION OF PARENTAL CARE: INITIATING A GROUNDBREAKING NEW REMEDY FOR CHILDREN M v Minister of Police 2013 (5) SA 622 (GNP)

Abstract

In South Africa, as in many other jurisdictions, it is well established that where a parent is unlawfully and culpably killed by a third party any surviving children may claim for loss of support. Detailed rules on damages available in terms of the common law loss of support action have developed over a long period of time. However, the action has generally remained subject to a major limitation. The loss which can be claimed for must be pecuniary or material. This is in accordance with the principle that only patrimonial damages may be awarded in terms of the loss of support action. Thus, damages which can be claimed by children unlawfully deprived of a parent are restricted to compensation for loss of future maintenance they will no longer receive. In reality, the harm and deprivation children experience after death of a parent tend to be much more than what has been recognized as suitable for compensation by means of patrimonial damages. Particularly where there was a close relationship, bereavement may cause long-term emotional harm. The child may also lose out on important life-skills training and guidance that the parent would foreseeably have provided for many years until the child reached maturity. Without such guidance, the child may never achieve his or her full potential. So the child may be significantly disadvantaged even beyond maturity.

Unfortunately, in the face of centuries of entrenchment of the law, our courts have been unable to extend the loss of support action to fully cover all aspects of a deprivation of nurturing. They have thus not been able to address some of the most severe dimensions of harm typically suffered when children are wrongfully deprived of parents. South Africa has not been alone in this. Such claims are blocked by the Fatal Accidents Act 1976 in England, where damages can only be claimed for pecuniary loss. Although this was criticized by the Court in, for example, Hay & Anor v Hughes, there appears currently to be no attempt to amend the Act. Similar legislation in Australian states and territories also does not make provision for claims by children for non-pecuniary damages. This is with the exception of the Northern Territory of Australia where the Compensation (Fatal Injuries) Act allows a child to claim damages for loss of care and guidance of a parent wrongfully killed.

Fortunately, in the democratic era South Africa has benefited from an infusion of modern, children’s rights-based legislation. Some of the new statutory provisions allow for a reconceptualization of the law governing parent-child relationships. Of foundational importance is the declaration that “every child has the right − … to family care or parental care …” in section 28(1)(b) of the Republic of South Africa Constitution Act, 1996. As will be further discussed below, the actual content of parental care has been to some extent clarified in section 15 of the Children's Act 38 of 2005 (the Act).

The references to parental care in modern South African legislation provide scope for judges to develop the detail of the law in accordance with a children’s-rights approach. In M v Minister of Police (M) Mohle J grasped an excellent opportunity to do so and opened the way for future compensation of children for non-material aspects of parental loss. He did this with creative and ground-breaking interpretations of section 28(1)(b) of the Constitution and section 15 of the Act.  In our discussion we provide an analysis and appreciation of the judgment. We show that, whilst M is important for its initiation of a new remedy from which many children can benefit in the future, it is in some respects less than perfectly clear, and therefore leaves important aspects for further development. We consider the implications of the judgment and how South African law needs to be further evolved if children unlawfully deprived of their parents are to be fully compensated for resulting harm.