A child’s best interests are of paramount importance in every matter concerning the child in terms of Section 28(2) of the constitution, says Centre for Child Law director Karabo Ozah.
Ozah said this section required that where there were competing interests in a matter, the interests of the child must receive the highest consideration.
“Furthermore, in a decision, it must clearly be explained how what is in the best interests of the child was determined and where the decision limits the child’s rights,” she said.
In disputes about parental responsibilities and rights, the court has to make a decision that safeguards and promotes the best interests of the child, she added.
The determination of what was in the best interest of the child would depend on the facts of each case – in line with what section 28(2) of the constitution required.
“Section 7 of the Children’s Act 38 of 2005 lists factors that a court must consider in the process of determining what is in the best interests of the child,” Ozah said.
The child may at times be appointed a legal representative or curator ad litem to make submissions to the court concerning what the child wants and what would be in the best interests of the child, particularly when the matters are areas of high conflict.