Abstract
The aim of this study was to analyse the application of the best interests of the child principle in care and divorce matters in South Africa. The United Nations Convention on the Rights of the Child articulates a comprehensive scheme of rights specifically tailored to children. The 1996 Constitution of the Republic of South Africa “includes specific rights for children resembling those articulated in the Convention on the Rights of the Child. South African courts and other Commonwealth courts have long emphasised the notion that the ‘best interest of the child’ plays a significant role in care decisions. When the courts decide any question with respect to a child’s upbringing, it is under the duty to have regard to the ascertainable wishes and feelings of the child concerned. Although South Africa has incorporated children’s rights in the Constitution, there are still substantial numbers of children in South Africa, who do not enjoy the protection that the Convention on the Rights of the Child demands.” In this dissertation, the writer examined the role of the courts in applying the best interests of the child in care and divorce matters to ensure their protection and participation. The study found out that the facilitation of children’s participation is still not being fully incorporated by the courts.
Key words:
Best interests of the child, care, protection, children’s rights, child participation, and divorce
5
List of abbreviations and acronyms
ACRWC: African Charter on the Rights and Welfare of the Child
ACERWC: African Charter Committee of Experts on the Rights and Welfare of the Child
AU: African Union
Constitution: Constitution of the Republic of South Africa
CC: Constitutional Court
CRC: United Nations Convention on the Rights of the Child
OAU: Organisation of African Unity