The Interests of Parents vs The Interest of a Child

Jan 23, 2024 | , , , , | News

There are various reasons why an agreement must be prepared between the parents of a child to regulate the relationship between both parents and the child, such an agreement is known as a parenting plan. Often times this is required after a divorce between the parents of a minor child.

Parenting

 

When there is a minor child involved and the parties cannot agree to the terms of a parenting plan, the Court, as the upper guardian of a minor child, will determine and make a ruling on the arrangements between the respective parents and the child. What must be kept in mind is that every child has the right to have his or her best interests considered to be of paramount importance in every matter dealing with aspects that would affect him or her.

In a matter dealing with a parenting plan or Court is tasked with the duty to ascertain what the best interest of the child is and thereafter make an appropriate ruling on what arrangements will be best for the child. It is vital for the Courts to ensure that its findings are in the best interest of the child at the given phase of the child’s life and further that the decision is not based on the interests of its parents, but rather of the interest of the child.

In the case of L.B. vs L.A.E (8551/2022) [2023] ZAGPPHC 1915 (21 November 2022), the child felt that she was torn between two different households and the parents could not come to an agreement between themselves. The Court had to determine what the best interest of the minor child is regarding the contact arrangements, and opened with a quotation from Nelson Mandela:

History will judge us by the difference we make in the everyday lives of children

 

In the aforesaid case, the Court reiterated that the question regarding what the child’s best interest entails, is a factual one that has to be determined in accordance with the circumstances and merits of each case:

Heaton in the Journal for Juridical Science aptly explains this child centred Individualized approach as follows: 

Everybody or person who has to determine the child’s best interest must evaluate each individual case or situation in light of the individual child’s position and the effect that the individual child’s circumstances are having or will probably have on the child.

 

International Law requires all parties, including the Courts to adhere to the “best interest” standard where children are involved[1]. Our Constitution[2] and the Childrens Act[3] also dictates that the best interest of a child is paramount where decisions regarding a child is made. A Court is further assisted with the Guidelines of the Children’s Act with specific factors to take into account when determining the best interest of a child[4]

In this case the Court highlighted that it is important to remember at all times that the Court should strive to find the best interests of the child and serve his or her interest. This standard directs the Court to exercise its discretion to promote the interest of the child. The interest of the parents is secondary to the best of interest of the minor child

The Court further had consideration to expert reports which included phycologists, as well as a report by the Family Advocate in determining the best interest of the child. The Court had to determine what would be in the best interest of the child with regards to the contact arrangement between the parents, bearing in mind that the child felt that she was being torn between two different households, but both parents wanted the child to be with them. 

In making a decision on this specific instance, the Court kept in mind the following quotation from the case of B vs S where the Court held that contact is the right of the child and not the right of the parent

The Court further stated that: 

An independent expert alerted me to the fact that at this stage the minor child did not express a desire for more contact with her father. This is rather the need of the father. The needs of the parents are not the test. The only question is what is in the best interest of the child.

 

It is of vital importance for parties to remember that when a minor child is involved, all disputes must be attempted to be resolved amicably, while keeping the best interest of the child at heart at all times, and thereby setting aside their own needs and desires.

 

[1] Article 3(1) of the CRC, 989 describes best interest of the child as primary consideration.
[2] Section 28(2) of the Constitution of the Republic of South Africa.
[3] Section 9 of the Childrens Act 38 of 2005.
[4] Section 7 of the Childrens Act.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Author:

Petra van Vuuren

Petra van Vuuren

Petra joined CK during 2019 as an associate and was appointed as director during June 2022.

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