Best Interests of the Child

best interests of the childChildren are one of the most vulnerable groups in society, and the law places a lot of emphasis on protecting children in every way possible. One such protection is the preservation of the child’s best interests in legal proceedings. In section 28(2) of the Constitution is entrenched the right of a child: that the best interests of the child be of paramount importance when directing matters in which the child is affected. The Children’s Act 38 of 2005 further emphasizes the right and best interests of the child. However, what does “the best interests of the child” entail?

Firstly, it cannot be emphasised enough that the best interests of the child is of the utmost importance in all matters concerning the child. This means that from criminal cases involving a child; to cases of adoption; to divorces involving a child or children the court must put the interests of the child first.

When considering the best interests of the child section 7 of the Children’s Act 38 of 2005; contains factors to be taken into account. The list is extensive, but by no means a closed list, as the court may take into consideration any factors it deems relevant. A few of factors include;

  • The child’s age, gender, maturity level, level of education, background and any other relevant characteristic of the child;
  • The nature of the personal relationship between the parent, or caregiver, and the child;
  • The capacity of the parent, or caregiver, to provide for the child;
  • The attitude of the parent in respect of the exercise of parental rights and responsibilities; or the attitude of the parent towards the child.

Please consult the Act or your Attorney for further factors.

The best interests of the child means that the way proceedings are conducted are adapted to suit the needs of the child and to protect the welfare of the child. Also, any order made by the court must be promoting the best interests of the child. This may even include limiting or removing parental rights from a parent, for example, the amount of contact with the child a parent is permitted to have,  or if visitation with the child has to be supervised.

When it comes to such orders, or any matter involving a child, the Family Advocate must be consulted. The purpose of the Family Advocate is to assess matters involving a child and make recommendations to the court as to what order would be in the best interests of the child. The Family Advocate is mainly consulted in divorce or domestic dispute proceedings involving children, and may not be subpoenaed by court to give evidence on behalf of any party.

South African law places a lot of emphasis on protecting the best interests of a child throughout legal proceedings of any nature. What is discussed above is the tip of the iceberg.  For further information please contact your Attorney.


Republic of South Africa. (2005). The Children’s Act, Number 38. Government Printer

Bonthuys, E. (2006). The Best Interests of Children in the South African Constitution. International Journal of Law, Policy and the Family, 20(1), 23 – 43. Retrieved March 8, 2016, from

Republic of South Africa. (2011, July 6). Consult a Family Advocate Retrieved March 8, 2016, from The Department of Justice and Constitutional Development: