The contribution of the South African Constitutional Court to the jurisprudential development of the best interests of the child

This contribution contains an analysis of the ‘best interests of the child’ jurisprudence of the Constitutional Court of South Africa (the Court), in as far as this jurisprudence reflects the position of the Court that the constitutional provision of the best interests of the child recognises a self-standing right. The jurisprudence of the Court is not analysed from a critical perspective, but rather with a view of establishing what is, in the Court’s view, the independent legal content of the constitutional provision of the best interests of the child. A brief comparative analysis will show that the Court is not alone in viewing the best interests of the child as creating a self-standing right, and shares this position with the Committee on the Rights of the Child and other national courts. The analysis of the Court’s relevant case-law shows that certain entitlements and obligations can be sourced to the application by the Court of the constitutional provision of the best interests of the child. In this manner, the Court created various positive obligations for the state, which, arguably, could not have been created by relying exclusively on other constitutional rights which the children enjoy. While more conceptual clarity is needed in terms of how the best interests of the child operates as a self-standing right indicates nonetheless the position of the Court that children need child-focused legal institutions to respond to their needs as legal subjects.