Perspectives on the best interests of the child : developments in the interpretation and application of the principle in the South African law relating to custody

[摘要] ENGLISH ABSTRACT: The Constitution of the Republic of South Africa entrenches the best interests of thechild as being of paramount importance in all matters concerning the child. Thiscommitment to the promotion of the welfare of children is not unique to modernSouth African law, but is an acknowledged principle of the common law andinternational child law as well. With such well-established recognition the question,which forms the primary focus of this study, arises whether the principle of the bestinterests of the child is workable and applicable in real life scenarios where thecustody of a child has to be decided. The challenge to the application of the principlein this context is to reach a decision that will protect the parent-child relationshipregardless of the marital breakdown. The question is whether the principle allows forand creates an honest awareness of and commitment to the welfare of children thatinfluence decisions in this context or whether courts and decision-makers merely paylip service to it in order to conceal the haphazard way in which custody is awarded.In order to determine the workability and applicability of the principle, it is necessaryto know how the principle has evolved in the South African legal context. Throughthe examination and analysis of existing literature, international conventions,legislation and case law, a number of different perspectives on the developments inthe interpretation and application of the principle are provided. These perspectivesculminate in the useful and constructive insight and conclusion that the value of theconcept is dependant upon the correct approach to the principle and its characteristics.The defining characteristic of the principle of the best interests of the child is itsinherent vagueness and indeterminacy. Though this subjects the principle to seriouscriticism, this study supports the argument that indeterminacy is in fact essential. Itensures not only the flexibility of the concept, rendering it applicable to the time,cultural sphere and social context and unique circumstances of each case it is appliedto, but a holistic approach to the child as individual and family as a unit as well.This holistic approach forms the foundation of the lists of criteria in McCall v McCall1994 (3) SA 201 (C) and the Children's Bill, thereby establishing the workability andvalue of the principle for fair and just results in all decisions pertaining to the custodyof children.

[发布机构] Stellenbosch University