Best Interest of Minor child

Prior to the Children’s Act 38 of 2005 (“the Act”) the term ‘best interest of the minor child’ was a non-defined term, the meaning of which had to be traced through various case law. Section 7 of the Act however now defines the best interest standard which must be considered when any matter pertaining to minor children are considered.

Section 7 of the Act states that the following factors need to be taken into account when considering the best interest of the child:

The nature of the personal relationship between-

•     the child and the parents, or any specific parent; and
•     the child and any other care-giver or person relevant in those circumstances;

The attitude of the parents, or any specific parent, towards-

•     the child; and
•     the exercise of parental responsibilities and rights in respect of the child.

The capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

The likely effect on the child of any change in the child’s circumstances, including the              likely effect on the child or any separation from-

•     both or either of the parents; or
•     any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

The practical difficulties and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

The need of the child-

• to remain in the care of his or her parent, family and extended family; and
• to maintain a connection with his or her family, extended family, culture or tradition;

The child’s-

• age, maturity and stage of development;
• gender;
• background; and
• any other relevant characteristics of the child;

The child’s physical and emotional security and his/her intellectual, emotional, social and cultural development;

Any disability that a child may have;

Any chronic illness from which a child may suffer;

The need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

The need to protect the child from any physical or psychological harm that may be caused by-

• subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behavior; or
• exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behavior towards another person;

Any family violence involving the child or a family member of the child; and

Which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

Section 9 of the Act and Section 28 of the Constitution confirms the principle that in all matters concerning the care, protection and well-being of a child the best interest standard must be applied and is paramount.

Contact us to assist you in insuring that your children’s interests are protected.