Defining the standard of the best interest of the child: Modern South African perspectives

Abstract

The standard of the child's best interest has often been described as a golden thread that runs through the whole fabric of the South African law relating to children. The best interest of the child concept as such hasbeen established as a determining factor in decisions relating to guardianship, access and custody of children. With the adoption of the Constitution of 1996, the concept of the best interest of the child has been raised to a new constitutional imperative. The common-law position regarding the protection of children has thus been entrenched by the Constitution. In this regard section 28(2) provides that a child's best interests are of paramount importance in every matter concerning the child. Concern has been expressed about the application of the best interest standard because of its vagueness and indeterminacy. This relates to the subjective application of the standard and the difficulty in providing an objective assessment given the rapidly changing social values, standards and customs of our time.' The purpose of this review is to define the standard of the best interest principle in more assessable terms, thereby enhancing its application. In order to achieve this, the following aspects are considered: An overview of the South African legal foundation, comparative international and regional influences and, lastly, the legal manifestation of the best interest standard in recent South African case law.