CREDITS
By Ockert Vermaak

The well-being and welfare of children are paramount in any society. In South Africa, the Children’s Act 38 of 2005 reinforces this principle by placing a significant emphasis on the best interest of the child. Section 7 of the Act, in particular, serves as a cornerstone in ensuring that decisions regarding minors prioritize their welfare above all else.

Defining the Best Interest of the Child:

The concept of the best interest of the child encompasses various factors and considerations aimed at promoting the holistic development and protection of minors. It emphasizes the child’s physical, emotional, and psychological well-being, as well as their safety, security, and need for stability.

Key Considerations Under Section 7:

1. Primary Consideration: Section 7(1) of the Children’s Act explicitly states that in all matters concerning the care, protection, and well-being of a child, the child’s best interest is of paramount importance. This provision underscores the fundamental principle that decisions must prioritize what is best for the child, even if it conflicts with the interests of other parties involved.
2. Factors to be Considered: Section 7(2) outlines specific factors that must be taken into account when determining the best interest of the child. These factors include:

• The child’s need for parental care and guidance.
• The child’s wishes, where appropriate, considering their age, maturity, and level of understanding.
• The child’s cultural and religious background.
• The child’s relationships with family members, caregivers, and other significant individuals.
• The child’s physical, emotional, and educational needs.
• Any special needs or vulnerabilities of the child.
• The likely effect of any changes in the child’s circumstances.
• Any relevant social or economic factors affecting the child or their family.

3. Holistic Approach: Section 7 promotes a holistic approach to decision-making concerning children. It recognizes that each child is unique and that their best interest requires a comprehensive assessment of their individual circumstances, needs, and rights.
4. Balancing Act: While the best interest of the child is paramount, Section 7 acknowledges that achieving this may require a delicate balance between competing interests, such as parental rights, cultural considerations, and societal norms. However, the child’s welfare should always take precedence.

Implementation and Application:

In practice, Section 7 of the Children’s Act guides various legal proceedings and administrative decisions involving children. This includes matters related to primary care (custody), guardianship, adoption, child protection, and parental responsibilities and rights. Courts, social workers, and other relevant authorities are tasked with ensuring that the best interest of the child is upheld in accordance with the provisions of the Act.

Section 7 of the Children’s Act 38 of 2005 underscores South Africa’s commitment to prioritizing the welfare and best interest of minors in all aspects of their lives. By considering a range of factors and adopting a child-centered approach, the Act seeks to promote the healthy development, protection, and well-being of children across the country. In doing so, it upholds the rights and dignity of every child, ensuring that their voices are heard and their needs are met.