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Article by listed attorney: Fawzia Khan

Children’s interests vs. parent’s interests. Which one does the court consider when there is a dispute around the care and contact of minor  children?

The rights of children to bond with and foster a loving, well-balanced and nurturing relationship with their family especially their biological parents is set out in the Children’s Act and in our Constitution. Apart from saying that a child has the right to food, shelter, having basic health care services and social services available to him or her, Section 28 (1) of our Constitution also seeks to give children extra protection by saying that all children have the right to a name and nationality. Children also have the right not to be abused, neglected, degraded or in any way maltreated. Whilst the intention behind these legal provisions is to ensure that everything should be done to promote a healthy parent-child relationship, where it can be proven that it’s no longer in the child’s best interest to remain with his family, the law allows for the removal of the child from his family. Of course this would be an extreme measure and one which is not lightly taken by the court. Section 28(2) of the constitution goes even further and says that a child's interests are of paramount importance in every matter concerning the child.

In care and contact disputes, our law takes a child-centric approach rather than focusing on the needs and wishes of the parents. This means that in all matters affecting minor children, our courts have to consider what is in the best interests of the child rather than what is in the best interests of the parents.

The way the court is required to make this determination is for it to hear the evidence from all the role players in the life of the child. These would include the child himself provided he is old enough. The ‘voice of the child must be heard’, is a phrase often used when the court is expected to take into account the wishes of the child. The child’s parents, or where appropriate other caregivers such as grandparents, could also be allowed to provide input into what is in the child’s best interest, as well as other third parties such child care experts, being psychologists, social workers or family or school counselors. Lastly the all important recommendations of the Family Advocate regarding what is in the best interest of the child, also provides vital guidance to the court in this regard.

(See alsoHelping children to get through a divorce )

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