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The ‘best interest of the child’ principle is a term that is commonly used by our courts and legal practitioners in matters involving children. This principle serves as a cornerstone in the protection of children’s rights and aims to ensure that all decisions affecting children prioritise their wellbeing above anything else. 

What do legal practitioners mean when they refer to the best interest of the child? Should this principle only be exercised in legal matters? What factors does one need to consider when determining the best interest of a child? 

When will this principle be applicable? 

Any law, action or decision concerning children must be approached with their interests as the primary consideration whether it be a divorce matter between parents, relocation of a child to a new country or determining contact arrangements between children and divorcing parents. 

This principle is not only limited to legal matters but extends to decisions made by parents as well as social workers and psychologists who work with children. 

Factors to consider

The phrase ‘best interest of the child’ may seem broad and ambiguous however, this was done intentionally since no case is the same when it involves children.  The broad principle allows for the flexible application and ensures that each child’s individual needs are considered.  

To assist the court and legal practitioners determine what is in the best interest of a child, Section 7 of the Children’s Act 38 of 2005 sets out factors to consider when making this decision. These factors include but are not limited to:

  1. The child’s age, maturity, and stage of development

    A child’s needs and understanding differ at various stages of life, and decisions should be tailored to their developmental level.

  2. The child’s views and preferences

    Where appropriate, a child’s own views should be taken into account, depending on their age and ability to understand the implications. It is important to note that this does not mean that the child ought to carry the responsibility of making a decision but rather that they should have the opportunity to freely express their views and that there is an obligation to listen and consider these views.

  3. The child’s physical and emotional security

    The decision should ultimately ensure that the child is safe and free from any harm, both physical and emotional.

  4. The child’s need for care and protection

    This includes shielding the child from abuse, neglect, exploitation or exposure to harmful environments.

  5. Preservation of family relationships

    The Act encourages maintaining a child’s family ties and relationships, unless these pose a risk to the child’s well-being.

The ‘best interests of the child’ principle forms the backbone of South African child law. It provides the framework to ensure that every decision affecting a child is made with consideration to the wellbeing of a child as the paramount concern.

For assistance with child-related aspects whether it being parenting plans, divorce or a relocation application contact Curran Attorneys on (021) 671 9322 for assistance.