The constitutional interpretation of the "best interest" of the child and the application thereof by the courts

Abstract

The “best interests” of the child means considering the interests of the child before a life changing decision is made. The decision makers are required to take into consideration the child’s “best interests” before making a decision concerning the child; hence, the requirement that the “best interests” of the child are of paramount importance in every matter concerning the child. It is a principle developed from the common law that is used to assist the Courts and other institutions in the decision making process in matters affecting children. Institutions and Courts balance these interests in arriving at their decisions. The Courts have a wide discretion on what the “best interests” of a child are and effect should be given to these interests. The Courts have to apply the “best interests” of the child based on the facts of the particular case and simultaneously protect the rights of the child as enshrined in the Constitution. There is no “cast in stone” formula to be followed. Another difficulty is that children’s rights have to be protected in concurrence with those of his or her parents. So, there should always be a balancing of interests of the child and the other interested parties including parents. iv