Are there limitations on the child’s best interest principle?

The best interests of the child is a concept known in the South African law prior to the advent of the new constitutional dispensation. It has been used by courts from the late 19th century in cases concerning custody and the relationship between children and their parents.

The child’s best interest principle now exists in terms of the Children’s Act 38 of 2005 (the Children’s Act) and in section 28 of the Constitution of the Republic of South Africa which sets out the rights of children. Section 28 (2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Further, section 28 (3) also states that “child” means a person under the age of 18 years unless majority is attained earlier. This article explores the conviction surrounding the best interests of the child and the limitations on the principle.

South Africa ratified the United Nations Convention on the Rights of the Child (CRC) on 16 June 1995. The preamble of the CRC states that by reason of a child’s physical and mental immaturity, children must be safeguarded and provided with legal protection prior to and after birth. Appreciation and recognition of a child as a human being with rights determines the distance to which the law will stretch to protect the child. The registration of a child at birth regulates the security of the child’s future and the alternative of adoption permits children who would otherwise not have the opportunity to flourish in a safe and loving environment.

The African Charter on the Rights and Welfare of the Child article 3 advocates for non-discrimination against children based on parentage, language, birth, nationality, and social origin. Article 4 calls for the best interests of the child to be the paramount consideration to the point of allowing the child to find expression directly or through a representative. Mhlantla J in Nandutu and Others v Minister of Home Affairs and Others 2019 (5) SA 325 (CC) held that although s 28(2) of the Constitution provides that a child’s best interests are paramount, jurisprudence provides that the rights of the child do not supersede other rights as rights can be limited. However, the point of the child’s best interest principle is to ensure that in the application of s 36 limitation clause in the Constitution, the interests of the child are not just considered but prioritized.

Article 3(1) of the CRC extended the scope of application of the best interests of the child significantly, by providing that, ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.

Despite its recognition in powerful legal instruments, the concept of the best interests of the child remains somewhat controversial. The main concerns in relation to it are its alleged indeterminacy or vagueness, and its potential to mask paternalistic decisions concerning children. With it came an understanding of the complexity of the best interests of the child as a legal norm. The recognition of the best interests of the child in human rights instruments added a new layer to the meaning of the best interests of the child. What was once a principle or a guideline in making decisions concerning children mainly in disputes between parents, was now adorned with human rights dimensions, which are still to be figured out.

Legal perspective provides that to become a legal subject and as such a bearer of rights and responsibilities one must first be born because legal subjectivity begins at birth. Every human being in South Africa is recognised, but not every human being has legal capacity. The child’s best interests principle essentially applies where persons with legal capacity exercise choice to pursue the best interests of the unborn child. The unborn child only exists in law as far as an individual with legal capacity is willing to give them legal recognition and ordinarily that would be the expectant mother. A legal limitation exists in respect of the unborn child’s rights in that the unborn child’s rights begin and end with the parents’ rights.

Declaring section 28(2) of the Constitution a right makes section 36 of the Constitution (limitation of rights clause) the only way in which this section can be limited. One of the concerns in relation to the classic approach to the best interests of the child has been that it could be manipulated to suit the interests of adults. The application of section 36 of the Constitution introduces structure and reduces the potential arbitrariness in the process of limiting the best interests of the child. A further positive aspect is that violations of section 28(2) leads to remedies.

The African Charter on the Rights and Welfare of the Child provides that the promotion and welfare of the child’s rights implies performance of duties on the part of everyone. There are areas in law where the best interests of the child are lacking for instance at birth and/or the process of adoption, etc. It is understood that no right is absolute, but the problem is children are discriminated against in favour of subjective rights without fully securing and exploring alternative measures in some instances. The best interests of the child is used to indicate the outcome which may be best for a child in a particular context. It is also used to refer to the right of the child to have his/her best interests considered and given paramount importance.

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