LEARNING UNIT 5
CHILD LAW
CHAPTER 15 & 22
SECTION 28 OF THE CONSITUTION
Initially - parental authority.
The Children's Act, 2005 (CA) replaced parental authority
with parental responsibilities and rights.
Children’s rights are no longer confined to the common
law - also in section 28 of the Constitution
PARENTAL AUTHORITY – COMMON
LAW (CL)
Included guardianship, custody an access.
Guardianship per the CL was the purview of the
father.
Guardianship Act of 1993 – both parents were
granted equal & joint guardianship.
VvV
See the comments of the court - pg 287.
Shiftto the concept of POWER to rights and
responsibilities
RIGHTS AND RESPONSIBILITIES
Children’s responsibilities and rights central to the Children’s
Act.
The Act provides that:
1. All proceedings, actions or decisions in a matter must
respect, protect, promote and fulfil the child’s rights set out in
the BOR.
2. Every child has responsibilities appropriate to the child’s age
and ability towards their family, community and state.
BEST INTERESTS OF THE CHILD – PG
287
NB********
Concept of best interests long part of SA law
McCall v McCall, court set out a list of factors that
courts must consider in determining an outcome
that would be in the best interests of the child.
SECTION 7 CHILDREN”S ACT
The Children’s Act sets out the best interests of the
child as a general principle of the Act.
Section7 lists factors that courts must consider
when deciding on the best interests of the child.
FACTORS
SEE pg 287/8.
Section 7(2) - ‘parent’ includes any person who has
PRR in respect of a child.
Previously, the best interests was the child’s best
interests that underpinned the final decision.
Not the interests of either the mother or the father.
ENDURING PRINCIPLE
Child’s best are still paramount i.t.o the Act.
Will be a determining factor in any matter pertaining
to the child.
IMPACT OF THE CONSTITUTION ON THE
CHILD’S BEST INTERESTS
PG 288.
Section 28(2) of the Constitution states:
A child’s best interests are of paramount
importance in every matter concerning the child.
SECTION 28 & UNCRC
Primary Consideration
PARAMOUNT IMPORTANCE.
Refer to the ‘pause for reflection section – p288.
Section 9 – Children’s Act
Wording, though similar to section 28 – narrower
meaning.
Jurisprudence of our courts, particularly the CC,
points to the fact that the child’s rights will NOT
always outweigh other competing rights.
SvM
“The best interests principle can be limited and
cannot assume dominance over other
constitutional right.”
PARAMOUNTCY PRINCIPLE (PP)
Simpler to apply the principle in family
law.
Competing interests are generally the
rights of parents, guardians etc.
PP
PP means that although the rights of the
aforementioned and any others with attachments to
the child will be considered;
Courts MUST make a decision that will realise the
best interests of the child.
FACTORS TAKEN INTO ACCOUNT IN
DETERMINING THE BEST INTERESTS OF
THE CHILD
PG 287
SECTION 7 OF THE ACT.
FACTORS
1. the nature of the personal relationship between:
the child and the parent(s)
the child and any other caregiver or relevant person
•
FACTORS
2. the attitude of the parent(s) towards:
the child
theexercise of parental responsibilities and rights
(PRR) in respect of the child.
thecapacity of the parent(s), caregiver or person to
provide for the needs of the child, including
emotional and intellectual needs
FACTORS
The likely effect on the child of any change in the child’s
circumstances, including the likely effect on the child of any
separation from the parent(s), siblings or caregiver
The practical difficulty and expense of the child having contact
with the parent(s), and whether this will substantially affect the
child’s right to maintain personal relations and direct, regular
contact with the parent(s).
FACTORS
3. the need for the child:
to remain in the care of their parent(s), family and extended family
to maintain a connection with their family, extended family, culture or
tradition
The child’s age, level of maturity and stage of development, gender,
background and other relevant characteristics
FACTORS
The child’s physical and emotional security, and their
intellectual, emotional, social and cultural
development
any disability that the child may have
any chronic illness from which the child may suffer
FACTORS
the need for the child to be brought up in a stable
family environment or, where this is not possible,
in an environment resembling as closely as
possible a caring family environment
FACTORS
4. the need to protect the child from:
any physical or psychological harm that may occur from subjecting
the child to maltreatment, abuse, neglect, exploitation or
degradation, or exposing the child to violence, or exploitation, or
other harmful behaviour
exposing the child to maltreatment, abuse, degradation, ill-
treatment, violence or harmful behaviour towards another person.
FACTORS
any
family violence involving the child or a family
member of the child
which action or decision would avoid or minimise
further legal or administrative proceedings in relation
to the child
