South African courts and the `best interests of the child'

in custody disputes

Frans Mahlobogwane, Department of Jurisprudence, Unisa

Abstract | Umongo
The courts face a complex task when having to determine the best interests
of the child, for there is no easy way of establishing what these interests are.
This article examines interests of the child as listed in McCall v McCall.
Most children who find themselves at the centre of a custody battle suffer
the long-term and short-term stresses of divided loyalty. Several
challenging questions remain: whether determining the best interests of
the child means attending to everything that affects the child or whether
certain considerations should be disregarded; whether the child's interest
should be viewed from a short-term, medium-term or long-term
perspective; whether they should be viewed from a subjective or an
objective point of view. While the author submits that the best interests are
to be determined by adult decision makers, on the basis of objective criteria
rather than on the basis of a child's subjective wishes, he warns against
conceptualising the interests of the child in terms of the interests of parents.
Izinkantolo zibhekana nomsebenzi obucayi uma kumele zithole ukuthi
yikuphi okuzosebenzela ingane kahle kunakho konke, ngenxa yokuthi
akunandlela elula yokuthola ukuthi yikuphi lokho. Umbhali ubheka lokho
okuthiwa okuzosebenzela ingane njengoba kukleliswe kuMcCall v McCall.
Iningi lezingane elizithola liphakathi komdonsiswano wokuthi ngubani
ozogcina izingane, zihlushwa yingcindezi eyenzeka esikhathini eside
nesifushane yokuthi zehlukanise phakathi ukwethembeka kwazo. Kusala
imibuzo eminingi enikezana inselelo: njengokuthi ngabe ukuthola ukuthi
yikuphi okuzosebenzela ingane kahle kusho ukubonelela konke okuthinta
ingane noma ngabe kusho ukuthi izibonelelo ezithile kumele zilahlwe yini;
ngabe lokho okuzosebenzela ingane kahle kumele kubukwe ngeso elibheke
okuzokwenzeka maduzane; esikhathini esimaphakathi nendawo noma
eside; ngabe kumele kubukwe ngasohlangothini olufaka nemizwa yomuntu

30 Codicillus Volume 46 No 1 2005 ISSN 0010 020X # Unisa Press pp 30 34

 South African courts and the `best interests of the child' in custody disputes

ngokuthile noma ngakulolo olubheka isimo sodwa yini. Yize umbhali ebeka
ukuthi lokho okuzosebenzela ingane kahle kumele kuvezwe ngabathathi-
zinqumo abangabantu abadala, bebe bebheke isimo leso ngaphandle
kokuxhuma neminye imifakela, kunokuthi babheke izifiso zengane ezihla-
nganise neminye imizwa, uyexwayisa ukuthi kuqashelwe ukubeka lezo zinto
ezizosebenzela ingane ngokuthi kugxilwe kulokho okuzosebenzela umzali.

1 Introduction
Decisions about which parent to reside with after the parents' divorce have an
enormous impact on children. These decisions are important not only in the short
term, but also in the long term, as they may impact on the children's future
prospects.1 The same applies to children born out of wedlock.
In family law, the central principle relating to children is that any decision made
should be in the best interests of the child. The Convention on the Rights of the
Child provides that the best interests of the child must be a primary consideration in
all actions concerning that child.2 South African courts are also compelled to place
particular emphasis on the best interests of the child, not only because of their role as
upper guardian of all minors3 but also because of the provisions of s 28(2) of the
Constitution of the Republic of South Africa, 1996, which provides that `[a] child's
best interests are of paramount importance in every matter concerning the child'.4
The question of the `best interests' of the child has led to intensive debate in
many reported judgments. What is best for a specific child or children cannot be
determined with absolute certainty.5 The factors to be taken into account when
determining the best interests of the child are unfortunately not comprehensively
specified in our law.

2 Determining the best interests of the child

The courts are left with the task of determining the best interests of the child, but
without a simple and easily applicable way of establishing these interests.6 The
question remains whether determining the best interests of the child means
attending to everything that affects the child or whether certain considerations

1 A Barrat ` ``The best interests of the child'' where is the child's voice?' in Burman (ed) The Fate of the
Child: Legal Decisions on Children in the New South Africa (2002) 145 157.
2 UNICEF, Convention on the Rights of the Child (1989). As a signatory of this Convention, South Africa
currently has a moral obligation to implement its principles.
3 In Fletcher v Fletcher 1948 (1) SA 130 (A), the Appellate Division confirmed that the most important
factor to be considered in issues such as custody and access is the best interests of the children and not the rights
of parents. See also E Bonthuys `Of biological bonds, new fathers and the best interests of children' (1997)
SAJHR 623.
4 Act 108 of 1996.
5 J Heaton `Some general remarks on the concept ``best interests of the child'' ' (1990) 53 THRHR 96 97.
6 E Bonthuys `Epistemological envy: Legal and psychological discourses in child custody evaluations'
(2001) 118 SALJ 329 346.

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Frans Mahlobogwane

should be disregarded. Should the courts take into account that one of the parties
seeking custody has substantially greater income and is able to give the child
better schooling, better medical care, and a less dangerous environment? Should
they look at other considerations, such as homosexuality, religion, race or
ancestry? What about living in a `free country' or being a member of an ethnic
community one has ancestral ties with? Or does `best interests' mean the interests
of the child in as far as nurture and care are concerned, such other considerations
notwithstanding?7

3 Best interests of the child in the light of McCall v McCall

The meaning of the concept best interests of the child is still not clear nor easy to
determine. In McCall v McCall8 King J set out the guiding factors the court must
take into account in relation to the granting of an application as follows:
In determining the best interests of the child, the Court must decide which of the
parents is better able to promote and ensure his physical, moral, emotional and
spiritual welfare. This can be assessed by reference to certain factors or criteria
which are set out hereunder, not in order of importance, and also bearing in mind
that there is a measure of unavoidable overlapping and that some of the listed
criteria may differ only as to nuance. The criteria are the following:
(a) the love, affection and other emotional ties which exist between parent and
child and the parent's compatibility with the child;
(b) the capabilities, character and temperament of the parent and the impact
thereof on the child's needs and desires;
(c) the ability of the parent to communicate with the child and the parent's insight
into, understanding of and sensitivity to the child's feelings;
(d) the capacity and disposition of the parent to give the child the guidance which
he requires;
(e) the ability of the parent to provide for the basic physical needs of the child, the
so-called `creature comforts', such as food, clothing, housing and the other
material needs generally speaking, the provision of economic security;
(f) the ability of the parent to provide for the educational wellbeing and security
of the child, both religious and secular;
(g) the ability of the parent to provide for the child's emotional, psychological,
cultural and environmental development;
(h) the mental and physical health and moral fitness of the parent;
(i) the stability or otherwise of the child's existing environment, having regard to
the desirability of maintaining the status quo;

7 See E Willemsen and M Willemson `The best interest of the child: A child's right to have a stable
relationship must be central to custody decisions', available at www.scu.edu/ethics/publications/iie/n11n1/
custody.html [visited 24 January 2005].
8 1994 (3) SA 201 (C) at 204J 205G.

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 South African courts and the `best interests of the child' in custody disputes

(j) the desirability or otherwise of keeping siblings together;

(k) the child's preference, if the court is satisfied that in the particular
circumstances the child's preference should be taken into consideration;
(l) the desirability or otherwise of applying the doctrine of same sex matching;
(m) any other factor which is relevant to the particular case with which the court is
concerned.

Previously, South African courts relied on some of these factors when deciding
custody matters. It is clear, therefore, that the applicant must satisfy the court, on a
balance of probabilities, that he or she has the intelligence, character, sense of
responsibility and understanding to equip him or her to exercise the custody of a
child in a manner that will be in the best interests of the child. The court has to
consider the ability of a parent to give a child the love and care he or she will need,
and further has to ensure that the parent is a suitable person to be entrusted with the
responsibility of such custody. In other words, the parent should possess the
necessary skills and responsibility to fulfil his or her role as custodian parent in all
respects.
It will also be in the best interests of the child if it is clear that the bond between
the child and the parent is strong, and the child has a good understanding of his or
her parent's care and love for him or her. In the McCall case, the court was
concerned with two separated parents who competed for the custody of their 12-
year-old son. In the event, custody was awarded to the father because his child stated
a clear preference to be placed in his father's care. It was held that if the child has the
necessary intellectual and emotional maturity to express his or her preference and to
make an informed and intelligent judgement, weight should be given to the child's
preference. What should be considered, therefore, is what is in the best interests of
the child.

4 Custody battles
Most parents are usually highly motivated to protect their children's emotions.
However, during the divorce process there may still be high emotions that could
compromise these intentions.9 The antagonism between parents often becomes so
strong that they cannot reach consensus on the best interests of their children, as each
of them wants to be the children's custodian.
Children become the innocent victims of divorce, suffering from the conflict
between their parents. The adversarial legal process itself exacerbates their suffering,
with its focus on the rights of the parents rather than the needs of children.10 Parental
custody disputes expose children to all the long-term and short-term stresses of
divided loyalty. Not only do children encounter conflicts of loyalty at the time of the

9 A Barrat and S Burman `Deciding the best interests of the child: An international perspective of custody
decision making' (2001) 118 SALJ 556.
10 Bonthuys op cit (n 6) at 330 331.

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Frans Mahlobogwane

dispute, but they are also likely to face long-term conflicts of loyalty once the
custody order is granted. This unfortunately cannot be avoided as the option of the
child's remaining with both parents in a common home is no longer available at the
time of a custody dispute.

5 Challenges in determining the best interests of the child

The court's duty is to award custody on the basis of what it believes to be in the
best interests of the child. The problem encountered when dealing with the
concept best interests of the child is the question of whether the child's interests
should be viewed from a short-term, medium-term or long-term perspective, and
whether they should be viewed from a subjective or an objective point of view.11
In my opinion, the child's best interests include long-term and short-term welfare
concerns, consideration of physical and emotional wellbeing, financial interests,
and moral, religious and health interests. While these `best interests' are not
defined in the Convention on the Rights of the Child, it would appear that they are
to be determined by adult decision makers and based on objective criteria rather
than the child's subjective wishes.12 It is therefore clear that the best interests of
the child cannot be determined with absolute certainty but rather rest largely on
speculation.13 It is also clear that the best interests of the child can only be
determined with absolute certainty once the child has reached his or her full
mental capacity.

6 Conclusion
Although the case of McCall provided some guidelines for determining the best
interests of the child, determining these interests in custody cases still remains a
difficult task. This decision is left in the hands of the presiding judge, as the state
has an obligation to safeguard the welfare of children. It is, however, also evident
that conflict between parental authority and the child's best interests is still
unresolved in some of South African case law. The interests of children have been
conceptualised in terms of parental interests.14 The courts should therefore
investigate carefully where the interests of the child are involved. Further, the
approach that they use towards the best interests of the child should always
remain flexible, as different approaches will be emphasised in different situations
and at different times.

11 Heaton op cit (n 5) at 96 97.

12 Barrat op cit (n 1) at 150.
13 Heaton op cit (n 5) at 96.
14 Bonthuys op cit (n 3) at 637.

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