Published On: 18th November 2025
Authored By: Kicó Moeng
Graduate
The Best Interests of the Child in South African Family Law: Evaluating Parental Plans and Judicial Consistency under Section 28(2) of the Constitution
- Introduction
The principle that the best interests of a child is of supreme importance and has become the foundation of South African Family Law. This concept anchors every judicial decision that concerns the care, contact, guardianship and the maintenance of a child. This standard is rooted in both international and domestic law and requires that the courts ensure all the decisions being made that affect the child prioritise the child’s physiological, emotional and physical well-being above any other considerations [1]. Regardless of its constitutional status, the application of this principle still remains complicated and sometimes even fluctuates and this is largely due to the wide judicial discretion such a principle affords. In this article, it will examine how South African courts decode and then implement the best interests of the child standard and with particular emphasis on parental plans and the function of judicial consistency under the Children’s Act 38 of 2005 and section 28 (2) of the South African Constitution.
- Legal Framework
The Constitution of the Republic of South Africa 1996 expressly provides in section 28(2) that “a child’s best interests are of paramount importance in every matter concerning the child” [2]. This clause has constitutionalised the best interests principle, prioritising it from a social or moral guideline that binds to a constitutional standard.
The Children’s Act 38 of 2005 puts into practice this constitutional mandate. Section 7 of the Act lists elements that need to be considered when determining a child’s best interests which includes the child’s age, views, cultural background, developmental needs and the capacity of parents to provide from those needs [3]. The Act introduced parental responsibilities and rights [4] institutionalised parenting plans [5] as a framework for cooperative parenting and minimize litigation following family breakdowns. Additionally, section 10 of the Act reinforces a child’s rights to participate in matters affecting them, aligning South African law with international instruments such as the United Nations Convention on the Rights of the Child (CRC) [6] and the African Charter on the Rights and Welfare of the Child (ACRWC) [7]. These tools draw attention to the fact that the child’s views must also be given due weight depending on their age and maturity.
- Judicial Application of the Best Interests Principle
The judiciary has constructed a rich body of case law which interprets the best interests standard with the leading authority being McCall v McCall 1994 (3) SA 201 (C). This case provided a set of requirements that are still used by courts to analyse which parent is best suited to care for a child [8]. Elements include stability, moral fitness, affection, character, and the ability to provide guidance. Although the McCall test predates the Children’s Act and the Constitution, its principle remains influential.
In another case, S v M 2007 (2) SACR 539 (CC), the Constitutional Court extended the principle beyond custody disputes and held that sentencing decisions affecting a parent must also consider the impact on the dependent children [9]. Sachs J highlights that children are ‘innocent victims of their parents’ misdeeds and that the state bears a duty to protect their interests even in criminal proceedings.
The decision taken in Bannatyne v Bannatyne 2003 (2) SA 363 (CC) reinforced that the implementation of maintenance orders is a constitutional imperative linked to the best interests principle [10]. The Court held that failure to pay maintenance violates the rights of the child and also undermines gender equality as women unduly bear the burden of care.
In the same manner, in F v F 2006 (3) SA 42 (SCA), the Supreme Court of Appeal dealt with the tension between a parent’s right to freedom of movement and a child’s best interests in relocation cases. The Court held that while the relocating parent’s autonomy must be respected, the primary consideration remains the child’s welfare and the maintenance of a meaningful relationship with both parents [11].
In recent years, the case JG v CG 2012 (3) SA 103 (GSJ) depicted how courts incorporate parenting plans into judgments to promote shared parental responsibility [12]. The court approved the idea that structured parenting plans reduce conflict and encourage both parents to act collaboratively in the child’s best interests.
Although these judgments demonstrate the flexibility of the principle, they also enhance inconsistency. Courts often emphasise different factors depending on context and so that can lead to unpredictability. The absence of a strict hierarchy among the section 7 factors means that judicial discretion plays a decisive role in determining outcomes.
- Parental Plans and Cooperative Parenting
The Children’s Act introduced parenting plans as a core system for addressing and settling disputes regarding parental responsibilities and rights [13]. A parenting plan is a written agreement which sets out arrangements relating to the child’s maintenance, contact and care. This must be developed with the aid of a family Advocate, a psychologist or a social worker and must be in the child’s best interests to be made an order of court.
Parental plans embolden parents to communicate, compromise and focus on the child’s welfare rather than adversarial litigation. These plans also allow flexibility to accommodate changes in a child’s developmental stage or the parental circumstances. The Family Advocate plays a significant role as that office investigates the circumstances and then makes fit recommendations to the court [14].
Nonetheless, while parenting plans are formulated to reduce conflict, they can be eroded by non-compliance or poor enforcement methods. The courts have sometimes failed to monitor the implementation of these plans which then lead to situations where one parent dominates decision-making. Efficient supervision and enforcement remain key to ensuring that parenting plans truly do advance the child’s interest.
- Challenges and Critique
Despite the constitutional entrenchment of the best interests principle, its application remains riddled with obstacles. The most significant issue is judicial inconsistency which arises from the open-ended nature of the test. Courts are free to weigh factors differently, which can result in divergent outcomes for similar cases.
Additionally, through statutory requirements, the child’s participation remains irregularly implemented and many courts still rely on expert reports and adult testimony rather than engaging directly with children’s views as projected in section 10 of the Children’s Act [15].
Socioeconomic disparities also play a significant role. Access to family court services, legal representation, and psychological evaluations can be limited for financially struggling parents which then undermines the fairness of proceedings. Maintenance enforcement remains a persistent weakness, despite constitutional recognition in Bannatyne.
Eventually, the intersection of culture and gender equality complicates the application of the best interests principle, particularly in customary law settings. Courts must balance cultural practices with constitutional imperatives of equality and dignity, often without clear statutory guidance.
- Conclusion
The best interests of the child principle represents one of the most progressive features of South African family law, providing a constitutional safeguard for children’s welfare. Through the Children’s Act, the legislature sought to codify and institutionalised this principle, promoting a holistic and child-centred approach to family disputes.
On the other end of the spectrum, the same flexibility that gives the principle its adaptability also creates inconsistency and uncertainty. Courts continue to deal with balancing competing parental rights, cultural values, and the evolving needs of children. To enhance consistency and effectiveness, future reforms should:
- Strengthen the enforcement of parenting plans;
- Promote the participation of children in all decisions affecting them; and
- Provide clearer statutory or judicial guidelines to harmonise the application of section 7 factors.
Ultimately, achieving uniformity in the application of the best interests principle requires both judicial sensitivity and systemic reform which ensures that every child’s welfare remains truly supreme in the eyes of the law.
Reference(s):
[1] Constitution of the Republic of South Africa, 1996 s 28(2).
[2] Constitution of the Republic of South Africa.
[3] Children’s Act 38 of 2005 s 7.
[4] Children’s Act 38 of 2005 s 7 ss18-22.
[5] Children’s Act 38 of 2005 s 7 ss 33–35.
[6] United Nations Convention on the Rights of the Child (1989).
[7] African Charter on the Rights and Welfare of the Child (1990).
[8] McCall v McCall 1994 (3) SA 201 (C).
[9] S v M 2007 (2) SACR 539 (CC).
[10] Bannatyne v Bannatyne 2003 (2) SA 363 (CC).
[11] F v F 2006 (3) SA 42 (SCA).
[12] JG v CG 2012 (3) SA 103 (GSJ).
[13] Children’s Act 38 of 2005 s 33.
[14] Office of the Family Advocate, Department of Justice and Constitutional Development, Annual Report 2023/24.
[15] A Skelton, ‘The Development of a Best Interests Test: South African Child Law in the Constitutional Era’ (2007) International Journal of Law, Policy and the Family 21(2) 178.
