An individualised, contextualised and child-centred determination of the child’s best interests, and the implications of such an approach in the South African context

Abstract

This contribution deals with the approach that should be adopted when applying the concept of “the best interests of the child” and evaluating the individual factors that are used in determining what is in the child’s best interests. Section 28(2) of the Constitution of the Republic of South Africa, 1996 and Constitutional Court decisions are used as the main sources of guidance on the correct approach. The submission is made that an individualised, contextualised and child-centred determination of the child’s best interests is required. In view of our constitutional values of tolerance of and respect for diversity and pluralism, it is further submitted that we must move away from a mainly Judaeo-Christian, Eurocentric interpretation of “the best interests of the child” to an approach that takes the cultural and religious circumstances, interests and needs of the individual child into account. It is concluded that all factors that are shown to be relevant because they have, or could have, a negative or positive impact on the individual child should be taken into account in a contextualised child-centred way without reducing other constitutionally-protected rights and interests to nothing.