To act in accordance with the best interests of a child is a constitutional principle which is strictly enforced in our law. Section 28 of the Constitution contain the rights of every child in South Africa.

To enforce the principles of Section 28, the Children’s Act 38 of 2005 was enacted. The act aims to define parental responsibilities and rights and to the set out the principles relating to the care and protection of children.

The “best interest of the child principle” is not only important for the daily care of a child, but it is also applied in divorce, family and maintenance matters.

There are various factors which need to be considered when determining the best interests of the child such as:

  1. The relationship between the child and the parent(s).
  2. The attitude of the parent(s) towards the child.
  3. The mental capacity of the parent(s).
  4. The effect any change in environment would have on the child.
  5. Financial circumstances of the parent(s).
  6. The child’s age, maturity, gender, background, and any other factor that the court might deem important.

The above factors are especially important in divorce matters and matters where a parent wants access to his/her child. If two individuals wish to get divorced, they would have to satisfy the court, that any minor children the parties might have, would be taken care of. The best interest of the child is further applied to help determine the primary residence of a minor child.

The principle is further applied when a variation of primary residence is sought or when a parent wants to approach a court to obtain access to his or her minor child.

As such “the best interest principle” is one that is used daily and to the extent that some legal writers even feel that the principle might be over utilised in South African law.

In conclusion, it is important for every parent/guardian to familiarise themselves with “the best interest principle”, as it can be applied to every situation in which a minor child is involved.

As such if a parent believes that his or her child would be better taken care of in his or her care, the court can be approached to determine same and make an order accordingly.

For any further queries on this matter please feel free to contact Tuckers attorneys on 011 897 1900, 076 777 1920 or

Article contributed by Tiaan Vermuelen of Tuckers Attorneys.