Study Unit 3 - Paramountcy of the best interests of the child Flashcards
(12 cards)
How did the Constitutional dispensation expand the meaning of best interests ?
It broadened its application beyond family law to all legal matters involving children.
What does Section 9 of the Children’s Act 38 of 2005 state ?
The best interests of the child must be a paramount consideration in all matters concerning the care, protection, and well-being of a child.
What does Section 7 of the Children’s Act provide ?
It lists factors to be considered when applying the best interests standard.
What does Article 3 of the UN Convention on the Rights of the Child (UNCRC) state ?
The best interests of the child must be a primary consideration in all actions concerning children by any institution or authority.
What does Article 4 of the African Charter on the Rights and Welfare of the Child state ?
The best interests of the child must be the primary consideration in all actions concerning the child.
What are the three dimensions of the best interests principle according to General Comment #14 ?
- Substantive right, which ensures best interests are assessed and considered in decision-making.
- Fundamental legal principle, if legal provisions are open to interpretation, the one that best serves the child must be chosen.
- Rule of procedure requires an evaluation of the possible impact of decisions on the child.
What did the Constitutional Court rule in S v M ?
- Section 28(2) is a self-standing and enforceable right.
- Courts must function in a child-sensitive manner.
- Sentencing courts must specifically consider the impact of imprisonment on a child.
What are the four duties of the courts in cases involving primary caregivers ?
- Establish whether the child will be impacted.
- Independently assess the child’s best interests.
- Attach appropriate weight to these interests.
- Ensure the child is cared for if the caregiver is imprisoned.
How did the court rule in M’s case ?
The sentence was suspended under conditions, including three years of correctional supervision, home confinement when not working, community service, repayment to victims.
What did the Constitutional Court say about the meaning of “paramount importance” ?
- The best interests principle is broad and flexible, allowing for individualized decision-making.
- Best interests do not override all other considerations but must be given due weight.
- The paramountcy principle ensures that children’s interests are given the highest consideration.
S v M case.
What shift did the S v M case make in Constitutional Court jurisprudence ?
- It emphasized that children’s rights are separate from their parents’ rights.
- The court rejected the idea that parents could use their children to avoid punishment.
What concerns exist regarding the best interests principle ?
Some argue it is overused or too vague, potentially overshadowing other rights in the Bill of Rights.
