Best Interests of the Child Test

The Children’s Act 38 of 2005 sets out all the factors which a Court must take into account when determining the best interests of a child.

 

Section 7

(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

(a) the nature of the personal relationship between-

(i) the child and the parents, or any specific parent; and

(ii) the child and any other care-giver or person relevant in those
circumstances;

(b) the attitude of the parents, or any specific parent, towards-

(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of
the child;

(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from-

(i) both or either of the parents; or
(ii) any brother or sister or another child, or any other care-giver or
person, with whom the child has been living;

(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) the need for the child-

(i) to remain in the care of his or her parent, family, and extended
family; and
(ii) to maintain a connection with his or her family, extended family, culture, or tradition;

(g) the child’s-

(i) age, maturity, and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability that a child may have;

(j) any chronic illness from which a child may suffer;

(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l) the need to protect the child from any physical or psychological harm that may be caused by-

(i) subjecting the child to maltreatment, abuse, neglect, exploitation
or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation,
ill-treatment, violence, or harmful behaviour towards another person;

(m) any family violence involving the child or a family member of the child; and

(n) which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

(2) In this section ‘parent’ includes any person who has parental responsibilities and rights in respect of a child.

 

 

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