The Best Interests of Children in the South African Constitution
Elsje Bonthuys* 23.09.05
* Associate Professor, University of the Witwatersrand, South Africa.
Summary
The welfare principle in cases involving children has been incorporated in the Bill of Rights of the 1996 South African Constitution, while also remaining a principle of common law. This article investigates the effects of including the best interests principle in the Constitution. It examines, first, whether the best interests principle is a constitutional right, a value, an interpretative tool or a rule of law and argues that, although courts describe it as a right, it is not treated as such. In fact, courts often use the best interests principle to avoid dealing with other constitutional rights of children and family members. The second part examines the role of the constitutional welfare principle in the development of common law rules of family law and finds a great disparity between different courts, some of which ignore the existence of the principle in the Constitution, others assuming that it has the same meaning in the Constitution as in common law and yet others using it to justify drastic changes to common law. The article suggests that the inclusion of the welfare principle in the Constitution should have concrete effects, chiefly to direct courts to conduct a proper examination of the other constitutional rights of children and other family members.
Extract from Preamble:
"The criticisms of the best interests principle, famously set out by Mnookin in 1975, still hold true today. He pointed out that:
"deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself".(1)
In the context of this article it is especially useful to remember that the indeterminancy and judicial discretion which th ebest interests standard invites can easily lead toprejudice and discrimination. A predominant focus on children's interests may obscure the interests of other parties and thus cause unjust results in family law cases.(2) However, despite the shortcomings of the welfare principle, Reece notes that the ideological power of this concept is so entrenched in family law that it is used even to justify arguments for the abolition of the best interests standard (3)
(1) Robert H Moonkin ' Child-Custody adjudication: Judicial functions in the face of Indeterminancy' 1975 (39) Law & Contemporary Problems 226 at 260.
(2) Mnookin 1975 (39) Law & Contemporary Problems 269-270; John Eeklaar 'Beyond the Welfare Principle' 2002 (14) Child & Fam LQ 23 at notes 3-8; Jon Elster 'Solomonic Judgements: Against the Best Interest of the Child' 1987 (54) U Chi L Rev 1 at 16-20
(3) Helen Reece ' The paramountcy Primniple: Consensus or Construct?' 1996 (49) Current Legal Problems 267 at 274