The Best Interests of Children in the South African Constitution

Abstract

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.

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