’n Regsteoretiese en funks ionele perspektief op die beste belange van die (minderjarige) kind

Abstract

In most modern legal systems the principle of the child’s best interests is held to be the panacea for adjudication in cases of interference within an intact family unit or remediation whenever the family is split apart. But with the same conviction one has to say that the principle is not sofinely tuned. As a simple rule of decision it must be rejected , because its content oscillates between it being a (paramount?) consideration amongst others and it being a norm depicting and weighing competing interests (rights). It is the premise of this article that even though the principle is indeterminate it can be made meaningful as an explicit criterion (amongst others) for adjudication only in cases where the court has already intervened within a parent-child relationship and wishes to resolve the whole issue as efficaciously as possible. It is further suggested that the principle should not be applied when there is state intervention in an intact family unit. Under these circumstances the best inte re st of the child and the preservation of family life result in an undeniable paradox. The tension cannot be resolved by applying the superficially simple rule of decision, namely the child’s best interest. A more exact test needs to be applied to remove some of the anomalies and uncertainties of the well-known concept. The author of this article suggests an approach of a more delictual nature. The question needs to be answered at what stage does it become unlawful for parents to infringe upon their child’s (subjective) rights or breach their legal duties towards their child, justifying court intervention in the family unit. The (positive) law has not specifically determined this boundary of (objective) unreasonable conduct and one has to rely on indicia relevant to a particular case, in accordance with the convictions of the community, such as the special relationship between the parties, the particular conflicting interests of the parties, the motives of the parlies, and appropriate considerations of social policy. In this way the concept (of the child’s best interests) can be simplified and elucidated.
https://doi.org/10.4102/koers.v56i1.731
PDF

Copyright information

  • Ownership of copyright in terms of the Work remains with the authors.
  • The authors retain the non-exclusive right to do anything they wish with the Work, provided attribution is given to the place and detail of original publication, as set out in the official citation of the Work published in the journal. The retained right specifically includes the right to post the Work on the authors’ or their institutions’ websites or institutional repositories.

Publication and user license

  • The authors grant the title owner and the publisher an irrevocable license and first right and perpetual subsequent right to (a) publish, reproduce, distribute, display and store the Work in any form/medium, (b) to translate the Work into other languages, create adaptations, summaries or extracts of the Work or other derivative works based on the Work and exercise all of the rights set forth in (a) above in such translations, adaptations, summaries, extracts and derivative works, (c) to license others to do any or all of the above, and (d) to register the Digital Object Identifier (DOI) for the Definitive Work.
  • The authors acknowledge and accept the user licence under which the Work will  be published as set out in https://creativecommons.org/licenses/by/4.0/ (Creative Commons Attribution License South Africa)
  • The undersigned warrant that they have the authority to license these publication rights and that no portion of the copyright to the Work has been assigned or licensed previously to any other party.

Disclaimer: The publisher, editors and title owner accept no responsibility for any statement made or opinion expressed by any other person in this Work. Consequently, they will not be liable for any loss or damage sustained by any reader as a result of his or her action upon any statement or opinion in this Work. 
In cases where a manuscript is NOT accepted for publication by the editorial board, the portions of this agreement regarding the publishing licensing shall be null and void and the authors will be free to submit this manuscript to any other publication for first publication.

Our copyright policies are author-friendly and protect the rights of our authors and publishing partners.