Evaluating Judicial Interpretation and Application of the Best Interests of the Child Standard
Year: 2026
Type: article
Abstract: The best interests of the child standard is a cornerstone of international, regional, and domestic child rights law, requiring that a child's welfare be the paramount consideration in all matters affecting them. This study critically examines how South African courts interpret and apply the best interests of the child standard in cases involving custody, adoption, child protection, and other disputes affecting children. It is situated within the broader framework of the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, section 28(2) of the Constitution of the Republic of South Africa, 1996, and section 9 of the Children's Act 38 of 2005. The study is motivated by the continuing vulnerability of children to poverty, abuse, neglect, inequality, family instability, and other socio-economic challenges that undermine the realisation of their rights. The research adopts a qualitative doctrinal methodology, complemented by a case study analysis of selected South African judgments. Primary legal sources, including constitutional provisions, legislation, international and regional instruments, and judicial decisions, are analysed alongside relevant academic literature. The findings demonstrate that South African courts have played a pivotal role in advancing child-centred jurisprudence by giving substantive effect to the best interests principle. However, the study also finds that the inherently flexible and context-specific nature of the principle may result in inconsistent judicial reasoning and varying outcomes in comparable cases. It argues that the effective protection of children's rights requires not only robust judicial enforcement but also child-sensitive court procedures, enhanced psychosocial support services, continuous judicial training, and stronger institutional coordination. The study contributes to ongoing scholarly debates on strengthening the consistent implementation of the best interests standard and promoting meaningful protection of children's rights within South Africa's constitutional democracy.
Language: English
Topic: Family and Matrimonial Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W7225632786
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