Best interests of children 

Sections 7 to 10 of the Children’s Act deal with what constitutes the “best interests” of children.

7     Best interests of child standard  

1)      Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

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;

ii)      gender;

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.

(2) In this section ‘parent’ includes any person who has parental responsibilities and rights in respect of a child.

8     Application 

1)     The rights which a child has in terms of this Act supplement the rights which a child has in terms of the Bill of Rights.

2)    All organs of state in any sphere of government and all officials, employees and representatives of an organ of state must respect, protect and promote the rights of children contained in this Act.

3)     A provision of this Act binds both natural or juristic persons, to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

9     Best interests of child paramount

In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.

10     Child participation

Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.