The Best Interests of the Child and its Collective Connotations in the South African Law

The best interests of the child is often used in the sphere of child protection and children’s rights to influence decisions regarding children. Initially having an exclusive welfare connotation, the content and the significance of best interests has changed over the years with the best interests being currently entrenched in legal documents such as international human rights conventions and national constitutions. Acknowledging the complexity of defining and establishing the ambit of the best interests, this article focuses on a very narrow aspect of the best interests - its applicability to decision-making concerning groups of children and children generally. This article is an inquiry into whether the current South African law accommodates the application of this principle to decisions concerning groups of children or children generally. This inquiry is important from at least three perspectives. Traditionally, the best interests of the child created a conflict between the rights and interests of the individual child with the rights and interests of others. Applying the best interests, and its paramountcy, to groups of children or children generally has the potential to increase the areas of conflict between the rights and interests of children and the rights and interests of others. This will inevitably make the decision-making process more complex. Second, the best interests of an individual child might be very different from the best interests of a group of children or children generally. Consequently, the criteria for establishing what is in the best interests of children as a group need to be adequately developed. Lastly, the application of the best interests to groups of children or children generally helps fulfil the potential of the best interests principle as a tool for improving the state performance in terms of children, by obliging state organs to consider this principle in all decision-making connected to children (directly or indirectly), including drafting of legislation, policy making or budgeting which do not have an obvious connection with children.