Section 28(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) states that a child’s best interests are of paramount importance in every matter concerning a child. Courts are thus mandated by the Constitution, which is the highest law in the land, to always give effect to what would be best for the child. This article will briefly consider and analyse this right as contained in our Bill of Rights in order to establish how the best interests of a child are determined by the courts.
Any attempt to define the constitutional right as enshrined in section 28(2) of the Constitution should commence with a discussion of the Children’s Act 38 of 2005 (“the Act”). The Act was specifically adopted to give effect to certain rights of children as contained in the Constitution and to set out principles relating to the care and protection of children. Section 7 of the Act sets out factors which must be considered when the best interests of the child standard are applied. These factors are:
“(a) the nature of the personal relationship between—
(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those circumstances;
(b) the attitude of the parents, or any specific parent, towards—
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child—
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(g) the child’s—
(i) age, maturity and stage of development;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l) the need to protect the child from any physical or psychological harm that may be caused by—
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.”
The High Court has, with reference to the factors set out above, stated that the list “constitutes a non-exhaustive checklist of criteria which serve as guides relevant to the application of the best interest standard”. 1 It is accordingly clear that courts can consider any relevant factor when determining what the best interests of a child are. Courts may accordingly have recourse to any source of information of whatsoever nature when determining what would be in a child’s best interest. The “child’s best interests should [accordingly] not be mechanically sacrificed on the altar of jurisdictional formalism”. 2 The High Court is the upper guardian of children in South Africa and should not let legal niceties frustrate it in ensuring that a child’s best interest is protected and advanced in any matter before it. 3 This means, in short, that a court should have regard for any evidence and factors placed before it, and should allow parties to a dispute concerning a child as much leeway as possible to introduce relevant evidence. Courts can allow this due to its extremely broad powers in establishing what is in the best interests of a child in any given matter. 4 This will place the court in the best possible position to protect children.
There are also other legislative interventions aimed at protecting and advancing the best interest of children. One such example is the Mediation in Certain Divorce Matters Act 24 of 1987 (the Mediation and Divorce Act”). The Mediation and Divorce Act contributes to advancing the best interests of children in South Africa by making provision for the appointment of a Family Advocate by the Minister of Justice and Constitutional Development. The Family Advocate is, in terms of section 4 of the Mediation and Divorce Act, responsible for conducting an enquiry in divorce matters and thereafter furnish the court with a report and recommendations concerning the welfare of the minor children in any marriage about to be dissolved. This advances the best interests of children since the evidence is placed before the court by an independent third party who does not have a personal interest in the matter.
In conclusion, the best interests of any child are always of paramount importance in any matter concerning the child and must be given effect to. The legislator has adopted various pieces of legislation, in line with international conventions, in order to advance this constitutional right. What would be in a child’s best interest is a factual inquiry and courts should consider as much evidence as possible, including expert evidence by trained professionals, when considering this constitutional right.
- Constitutional of the Republic of South Africa, 1996.
- Children’s Act, 38 of 2005.
- Mediation in Certain Divorce Matters Act, 24 of 1987.
- AD and another v DW and others (Centre for Child Law as amicus curiae; Department for Social Development as intervening party)  ZACC
- B v B (CA&R60/2017)  ZAECGHC
- Baloyi v Baloyi (6208/2014)  ZAGPPHC 728
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)