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CHAPTER 2: PARENT & CHILD (THE CHILD'S BEST INTERESTS (Section 7…
CHAPTER 2: PARENT & CHILD
THE RIGHTS & BEST INTERESTS OF CHILD
Section 28 of Constitution sets out rights of children :check: :red_flag:
Some rights set out in this section directly concern relationship between parent & child
Government of SA v Grootboom :warning:
Children's Act =
Legislative mechanism that gives effect to rights of children as set out in constitution & international children's rights treaties
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Act is written from a human rights perspective that emphasises equality & dignity of children :star:
THE CHILD'S BEST INTERESTS
Constitution provides that = child's best interests are of paramount importance in every matter concerning child
Children's Act has a similar provision, stating:
" in all matters concerning the care, protection & well-being of a child the standard that the child's best interests is of paramount importance must be applied
:red_flag: :check:
These provisions echo the requirements of the Children's Convention & the African Charter on the Rights & Welfare of child
The best interest's of the child standard is not new to SA law - courts have applied this principle for many years, especially in divorce cases :red_flag:
Before Children's Act, was no formal definition of, "best interest's of child" or of factors that should be considered in this regard :red_flag:
Section 7 of Children's Act :check: now provides list of factors to be considered when applying best interests of child standard:
Nature of personal relationship between;
a) child & parents or any specific parent
b) child & any other care-giver or person relevant in those circumstances
The attitude of the parents or any specific parent, towards;
a) child
b) the exercise of parental responsibilities & rights WRT child
The capacity of the parents or any specific parent or of any other care-giver or person, to provide for needs of child, including emotional & intellectual needs
The likely effect on the child of any change in the child's circumstances, including likely effect on child of any separation from;
a) both or either of parents
b) any brother/ sister or other child or any other care-giver or person with whom child has been living
The practical difficulty & expense of a child having contact with the parents or any specific parent & whether that difficulty or expense will substantially affect child's right to maintain personal relations & direct contact with parents or any specific parent on regular basis
The need for the child;
a) to remain in care of his/her parent/ family & extended family
b) to maintain a connection with his/her family/ extended family, culture or tradition
The child's;
a) age/ maturity & stage of development
b) gender
c) background
d) any other relevant characteristics of child
Child's physical & emotional security & his/her intellectual, emotional, social & cultural development
any disability child may have
any chronic illness child may have
need for a child to be brought up within stable family environment & where this is not possible, in an environment resembling as closely as possible a caring family environment
need to protect child from any physical or psychological harm that may be caused by;
a) subjecting child to maltreatment/ abuse/ neglect/ exploitation/ degradation OR exposing child to violence or exploitation or other harmful behaviour
b) exposing child to maltreatment/ abuse/ degradation/ ill-treatment/ violence/ harmful behaviour towards another person
Any family violence involving child or a family member of the child
Which action or decision would avoid or minimise further legal or administrative proceedings in relation to child
In many ways, "best interests of the child" is an elusive concept
S v M :warning: