ARTICLES

Reconceptualising the 'paramountcy principle': Beyond the individualistic construction of the best interests of the child

Admark Moyo

Lecturer in Law, Midlands State University, Gweru, Zimbabwe; PhD Candidate, University of Cape Town, South Africa

SUMMARY

This article laments the individualistic construction of the best interests of the child principle. Decision making in a family context goes beyond a mere trumpeting of the interests of the individual child and involves balancing various competing interests. Decisions often claimed to be made in the interests of children are not just about children - they are an attempt to balance the competing interests of family members. A child's best interests are often limited by the broad interests of the community (especially in communitarian societies) and the rights of others, particularly the rights and interests of parents, siblings, caregivers and other persons exercising parental responsibilities. Consequently, decisions made in a family context usually seek to balance different family members' rights and interests. Drawing inspiration from literature on the subject, the article advocates the adoption of a holistic approach to the welfare principle. It is shown, towards the end of the article, that the South African courts and legislature have rightly endorsed the notion that the fact that the best interests of the child are 'paramount' does not mean that it is not limitable. Much depends on the competing interests at stake, the factors that must be weighed in the process of making a value judgment and the weight to be accorded to each factor in light of the facts of each case.

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* LLB (Fort Hare), LLM (Cape Town); admarkm@gmail.com. I am indebted to the two anonymous reviewers for their scholarly and detailed comments on a draft of this article. I also wish to thank Dr Amanda Barratt, Prof Jonathan Burchell and other members of the Department of Public Law at the University of Cape Town for their comments on earlier drafts of the article.
1 Art 3(1) United Nations Convention on the Rights of the Child, GA Res 44/25, annex, 44 UN GAOR Supp (No 49) 167, UN Doc A/44/49 (1989) entered into force 2 September 1990.
2 Art 4(1) African Charter on the Rights and Welfare of the Child, OAU Doc CAB/ LEG/24.9/49 (1990) entered into force 29 November 1999.
3 Sec 28(2) Constitution of the Republic of South Africa, 1996.
4 Sec 9 South African Children's Act 38 of 2005.
5 In the juvenile justice context, Cameron J in Centre for Child Law v Minister of Constitutional Development (Centre for Child Law) Case CCT 98/08 [2009] ZACC 18, para 29, interprets the provision that the 'child's best interests are of paramount importance' to mean that the child's interests are 'more important than anything else'. However, Cameron J acknowledges that a wide spectrum of factors is relevant in determining the interests of the child.
6 See M Minow & ML Shanley 'Relational rights and responsibilities: Revisioning the family in liberal political theory and law' (1996) 11 Hypatia 4 23.         [ Links ]
7 See BB Woodhouse 'The constitutionalisation of children's rights: Incorporating emerging human rights into constitutional doctrine' (1999-2000) 2 University of Pennsylvania journal of Constitutional Law 1.         [ Links ]
8 See Re L (Minors (Police Investigation: Privilege) [1997) AC 16 33B.
9 Art 4 African Children's Charter.
10 See eg the Divorce Act 70 of 1979 and the Mediation in Certain Divorce Matters Act 24 of 1987.
11 See art 18(1) CRC.
12 See art 3(1) CRC.
13 R Hodgkin & P Newell 'Best interests of the child' in R Hodgkin et al (eds) Implementation handbook for the Convention on the Rights of the Child (2007) 35 38.         [ Links ]
14 See art 4(1) African Children's Charter.
15 J Herring 'Welfare principle and the rights of parents' in A Bainham et al What is a parent? A socio-legal analysis (1999) 89 101.         [ Links ]
16 Herring (n 15 above) 101-102. For a critique of the individualistic nature of human rights, see K Marx 'On the Jewish question' in J Waldron (ed) Nonsense upon stilts: Bentham, Burke and Marx on the rights of man (1987) 146-147; K Marx 'On the Jewish question' in D McLellan (ed) Karl Marx: Selected writings (1971) 54; CR Sunstein 'Rights and their critics' (1995) 70 Notre Dame Law Review 727 732.
17 C & Others v Department of Health and Social Development, Gauteng & Others 2012 2 SA 208 (CC).
18 C (n 17 above) para 27; see also para 36,
19 J Herring 'The Human Rights Act and the welfare principle in family law - Conflicting or complementary?' (1999) 11 Child and Family Law Quarterly 223 225.
20 See art 5 CRC.
21 On the indeterminacy of the welfare principle, see RH Mnookin 'Child custody adjudication: Judicial functions in the face of indeterminacy' 1975 (39) Law and contemporary problems 226; R Mnookin In the best interests of children (1985) 257; J Goldstein et al Beyond the best interests of the child (1980); S Parker 'The best interests of the child - Principles and problems' in P Alston (ed) The best interests of the child: Reconciling culture and human rights (1994) 26-41.
22 MS v M 2008 3 SA 232 CC.
23 MS v M (n 22 above) para 23.
24 See para 25 of the judgment.
25 As above.
26 See para 26 of the judgment.
27 As above.
28 As above.
29 See sec 36 of the South African Constitution; see also A Skelton 'Constitutional protection of children's rights' in T Boezaart (ed) Child law in South Africa (2009) 280-282.
30 MS v M (n 22 above) para 112.
31 Case CCT 63/10 [2011 ] ZACC 7; MS v S (Centre for Child Law as Amicus Curiae) 2011 2 SACR 88 (CC) para 35.
32 As above.
33 n 31 above, para 37.
34 MS v M (n 22 above) para 42.
35 See T Nhlapo 'Cultural diversity, human rights and the family in contemporary Africa: Lessons from the South Africa constitutional debate' (1995) International journal of Law, Policy and Family 208.
36 Nhlapo (n 35 above) 221.
37 For a detailed discussion of reciprocal support obligations, respect and restraint, see BA Rwezaura 'Changing community obligations to the elderly in contemporary Africa' (1989) 4 journal of Social Development in Africa 5; A Twum-Danso 'Reciprocity, respect and responsibility: The 3Rs underlying parent child-child relationships in Ghana and the implications for children's rights' (2009) 17 International journal of Children's Rights 415; NA Apt 'Ageing and the changing role of the family and the community: An African perspective' (2002) 55 International Social Security Review 39 44; NA Apt & M Grieco 'Urbanisation, caring for elderly people and the changing African family: The challenge of social policy' (1994) International Social Security Review 111-22; TN Nhongo 'Impact of HIV/AIDS on generational roles and intergenerational relationships' paper presented at the workshop on HIV/AIDS and Family Wellbeing, Namibia, 28-30 January 2004; E Goody Context of kinship: An essay in the family sociology of the Gonja of Northern Ghana (1973).
38 A Armstrong A child belongs to everyone: Law, family and the construction of the best interests in Zimbabwe Innocenti Occasional Papers, Child Rights Series 11 1995 5; T Kaime The African Charter on the Rights and Welfare of the Child: A socio-legal perspective (2009) 114.
39 Armstrong (n 38 above) 7.
40 Armstrong (n 38 above) 8. This argument ties in well with Cohen's contention that 'corporate kinship in which individuals are responsible for the behaviour of their group members is a widespread tradition. But in addition, the individual person and his or her dignity and autonomy are carefully protected in African traditions, as are individual rights to land, individual competition for public office, and personal success'. R Cohen 'Endless teardrops: Prolegomena to the study of human rights in Africa' in R Cohen et al (eds) Human rights and governance in Africa (1993) 1 14.
41 M Minow Making all the difference: Inclusion, exclusion and American law (1990) 277.
42 J Waldron 'The role of rights in practical reasoning: "Rights" versus "needs"' (2000) 4 The journal of Ethics 115 124 132.
43 See art 5 of CRC, stating that parental rights and responsibilities must be exercised in a manner consistent with local custom.
44 See P Alston 'The best interests principle: Towards a reconciliation of culture and human rights' in Alston (n 21 above) 1-25; A An-Na'im 'Cultural transformation and normative consensus on the best interests of the child' in Alston (n 21 above) 62-81.
45 Davis writes: 'People are not meant to be socialised to uniform, externally imposed values. People are to be able to form families and other intimate communities within which children might be differently socialised and from which adults would bring different values to the democratic process.' PC Davis 'Contested images of family values: The role of the state' (1994) 107 Harvard Law Review 1348 1371.
46 United Nations Committee on the Rights of the Child General Comment 11 (2009) 'Indigenous children and their rights under the Convention' 12 February 2009, CRC/C/GC/11 para 30.
47 General Comment 11 (n 46 above) para 31.
48 The CRC Committee maintains that where the child's interests as an individual are affected, courts and administrative bodies should consider only the affected child's interests as primary.
49 General Comment 11 para 32.
50 General Comment 11 para 33.
51 Kaime (n 38 above) 118; C Himonga 'The right of the child to participate in decision making: A perspective from Zambia' in W Ncube (ed) Law, culture, tradition and children's rights in Eastern and Southern Africa (1998) 95.         [ Links ]
52 Kaime (n 38 above) 117-118.
53 Kaime (n 38 above) 115.
54 See generally RS Rattray Ashanti law and constitution (1956) 13; H Kuper Kinship among the Swazi (1962) 96.
55 B Rwezaura et al 'Parting the long grass: Revealing and reconceptualising the African family' (1995) 35 journal of Legal Pluralism 25 32-33,         [ Links ] explaining that 'a wife's agricultural work was institutionalised into a wife's service to her husband and his family'; 'a man's agricultural or other productive work was institutionalised into the labour obligations of kinship'; and 'women and children were considered to be resources which men wanted to amass ... as illustrated by the fact that ... a man's wealth did not draw a distinction between people and material possessions'.
56 See C Bledsoe Women and marriage in Kpelle society (1980) 55.
57 See generally P Jones 'Group rights and group oppression' (1999) 7 journal of Political Philosophy 353-377;         [ Links ] C Bentley 'Whose right it is anyway? Equality, culture and conflicts of rights in South Africa' Democracy and Governance Research Programme; Occasional Paper 4.
58 P Alston 'The best interests principle: Towards a reconciliation of human rights and culture' in Alston (n 21 above) 1 21.
59 H Bosman-Swanepoel et al Custody and visitation disputes: A practical guide (1998) 48-49.
60 See DS Koyana et al Customary marriage systems in Malawi and South Africa (2007) 39, arguing that '[a] dispute over child custody would be resolved not by reference to a particular system of customary law, but by applying the principle of the best interest of the child'; see also TW Bennett A sourcebook of African customary law for South Africa (1991) 291 and Hlope v Mahlalela & Another 1998 1 SA 449.
61 C Himonga 'Implementing the rights of the child in African legal systems: The Mthembu journey in search of justice' (2001) 9 The International journal of Children's Rights 89 109.
62 Himonga (n 61 above) 110.
63 See eg art 8 European Convention.
64 Preamble CRC. See also arts 3(2), 5, 7, 9, 10 & 16.
65 Art 5 CRC.
66 Art 14(2) CRC.
67 This is a presumption (couched as a principle) that it is in the best interests of the child for parents who never married or who later divorce, to have access to the child and to contribute towards her upbringing.
68 Art 18(2) CRC.
69 See also art 17(1) of CCPR prohibiting unlawful and arbitrary interferences with family privacy and art 17(2) promising everyone the right to protection against such interference; see also art 16(3) of the Universal Declaration of Human Rights and art 23(1) affirming that 'the family is the natural and fundamental group of society and is entitled to protection by the state'. See also art 10(1) of ICESCR.
70 J Eekelaar 'The emergence of children's rights' (1986) 6 Oxford journal of Legal Studies 161; 'The eclipse of parental rights' (1986) 102 Law Quarterly Review 4; BB Woodhouse 'A public role in the private family: The Parental Rights and Responsibilities Act and the politics of child protection and education' (1996) 57 Ohio State Law journal 393; P Montague 'The myth of parental rights' (2000) 26 Social Theory and Practice 47; D Archard 'Child abuse: Parental rights and the interests of the child' (1990) 26 journal of Applied Philosophy 183-194.
71 H LaFollette 'Licensing parents' (1980) 9 Philosophy and Public Affairs 182-97; HB Eisenberg 'A "modest" proposal: State licensing of parents' (1994) Connecticut Law Review 1415-1452.
72 Gillick v West Norfolk and Wisbech AHA and Department of Health and Social Security [1986] 1 AC 112 170D-E.
73 See A Bainham 'Is anything now left of parental rights' in R Probert et al (eds) Responsible parents and parental responsibility (2008) 23-42; S Gilmore et al 'Introduction: Parental responsibility - Law, issues and theses' in Probert et al (above) 1-22; S Gilmore 'The limits of parental responsibility' in Probert et al (above) 63-83; H Reece 'The degradation of parental responsibility' in Probert et al (above) 85-102.
74 MS v M (n 22 above) para 134.
75 See sec 7 Children's Act.
76 T Ezer 'A positive right to protection for children' (2004) 7 Yale Human Rights and Development Law journal 1.
77 D Kennedy 'The dark side of virtue' in H Steiner et al (eds) International human rights in context: Law, politics and morals (2008) 494.
78 For the codification of children's responsibilities, see art 31 of the African Children's Charter and sec 16 of the South African Children's Act.
79 See J Herring Family law (2007) 395-396.
80 N Lowe & G Douglas Bromley's family law (1998) 326.
81 MF Lucker-Babel 'The right of the child to express views and to be heard: An attempt to interpret article 12 of the UN Convention on the Rights of the Child' (1995) 3 The International journal of Children's Rights 391 400.
82 See art 3(1) CRC.
83 See arts 18(1), 27(2), (3) & (4).
84 See art 18(1) of CRC and compare with art 3(1) of CRC.
85 See European Court of Human Rights in B v United Kingdom judgment of 8 July 1987, para 60.
86 Art 9(3) CRC.
87 Hence, art 9(1) states that 'a child shall not be separated from her parents against their will . [unless] separation is necessary for the best interests of the child'. It is not clear whose 'will', but read with art 9(2), it seems the 'will' is that of both parents and the child.
88 M Guggenheim What is wrong with children's rights (2005) 20.
89 See CM Macleod 'Conceptions of parental autonomy' (1997) 25 Politics and Society 117 119; see also D Archard Children, family and the state (2003) 97, arguing that '[b]eing a parent is extremely important to a person. Even if a child is not to be thought of as property or even as an extension of the parent, the shared life of a parent and child involves an adult's purposes and aims at the deepest level . parents have an interest in parenting - that is, in sharing a life with, and directing the development of their child. It is not enough to discount the interests of a parent in a moral theory of parenthood. What must also merit full and proper consideration is the interest of someone in being a parent.'
90 See Meyer v Nebraska 262 US 390 (1923); Pierce v Society of Sisters 268 US 510 (1925); Wisconsin v Yoder 406 US 205 (1972).
91 Guggenheim (n 88 above) 23.
92 Arts 8(1) & (2) European Convention.
93 See A McCall Smith 'Is anything left of parental rights?' in E Sutherland & A McCall Smith (eds) Family rights: Family law and medical advance (1990) 10, arguing that '[t]he right to the society of the child is a parental right and it is appropriately considered as a parent-centred right, and it has nothing to do with any consideration of the welfare of the child. This right is accorded to thoroughly disagreeable parents in exactly the same way as it is accorded to those who are more congenial company from the child's point of view.'
94 Bainham (n 73 above) 23-42.
95 Under art 3 of CRC, the welfare principle - while broad - is not applicable to family relationships. The closest CRC comes is to recognise the application of the principle to private social welfare institutions.
96 Bainham (n 73 above) 31.
97 As above.
98 Bainham (n 73 above) 33.
99 Bainham (n 73 above) 37.
100 B Lindley 'State intervention and parental autonomy in children's cases: Have we got the balance right?' in A Bainham et al (eds) What is a parent? A socio-legal analysis (1999) 197 199-200.
101 Of course, many other cases go unreported.
102 I Thery 'The interest of the child and the regulation of the post-divorce family' in C Smart & S Sevenhuijsen (eds) Child custody and the politics of gender (1989) 78 92.
103 As above.
104 As above.
105 As above.
106 G van Bueren The international rights of the child (1995) 73 77-86.
107 J Locke Some thoughts concerning education (1693) para 81 and J Locke Two treatises of government (P Laslett ed Cambridge 1988) (1690) (First or second Treatise), Second Treatise, paras 55-57, 304-05 and paras 58, 61 & 63, 306-309. For a similar approach, see LM Purdy In their best interest? The case against equal rights for children (1992).
108 1994 3 SA 201 (C).
109 McCall (n 108 above) 205A-F.
110 Re A (Male Sterilisation) [2000] I FLR 549.
111 Act 38 of 2005.
112 Sec 7 reads: '(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 other 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 age, maturity and stage of development; gender; background; and 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
113 Sec 7(1)(a) Children's Act.
114 See sec 7(1)(m) Children's Act.
115 Sec 7(1)(d) Children's Act.
116 Sec 7(1)(k) Children's Act.
117 Sec 28(1) entrenches children's rights '(d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f) not to be required to perform work or provide services that (i) are inappropriate for a person of that child's age; or (ii) place at risk the child's well-being, education, physical or mental health spiritual, moral or social development'.
118 Sec 7(1)(l) Children's Act.
119 Sec 7(1)(b) Children's Act.
120 Sec 31(2)(a) Children's Act.
121 Sec 31 (2)(b) Children's Act.
122 Sec 7(2) states that 'parent' includes any person who has parental responsibilities and rights in respect of a child.
123 Sec 7(1)(e) Children's Act.
124 Sec 24(2) Children's Act.
125 See sec 4(3) of the Children's Act.
126 MS v M (n 22 above).
127 Minister of Welfare and Population Development v Fitzpatrick & Others 2000 3 SA 422 (CC); 2000 7 BCLR 713 (CC).
128 Para 18 of the judgment.
129 MS v M (n 22 above) paras 24 & 26.
130 Sec 7(1)(b) Children's Act.
131 Sec 7(1)(f) Children's Act.
132 Sec 7(1)(k) Children's Act.
133 S King 'Competing rights and responsibilities in inter-country adoption: Understanding a child's right to grow up in the context of her family and culture' in C Lind et al (eds) Taking responsibility, law and the changing family (2011) 257 259.
134 See the Preamble and arts 3(2), 5, 7, 9, 10 & 16 CRC.
135 See secs 6(3), (4) & (5); 7(1)(a)-(f), (k) & (n); 31(2)(a), 33(1), (2) & (3) & 70-73 Children's Act.
136 See sec 10 Children's Act.
137 Sec 6(5) Children's Act (my emphasis).
138 Secs 31(1 ((b)(i) & 18(3)(c) Children's Act read together.
139 Sec 31 (1)(b) Children's Act.
140 Sec 31(2)(b) Children's Act; see also sec 18(5).
141 Sec 6(3) Children's Act.
142 Secs 7(1)(a), (b), (d), (f), (g), (h) & (k) read with sec 9.
143 M de Jong 'Child-focused mediation' in Boezaart (n 29 above) 112 114.
144 See K Sandberg 'Best interests and justice' in Smart & Sevenhuijsen (n 102 above) 100 107.
145 As above.
146 As above.
147 Sec 42(8) Children's Act.
148 Sec 2(e) Children's Act.
149 Sec 49(1) Children's Act.
150 Sec 70(1) Children's Act.
151 See secs 70 & 71 Children's Act.
152 Sec 72 Children's Act.
153 Sec 49(2) Children's Act.
154 MS v M (n 22 above) paras 18-19; holding that a child should be 'constitutionally imagined as an individual with distinctive personality, and not merely as a miniature adult waiting to reach full size'.
155 Bonthuys argues, eg, that in cases of relocation by a custodian parent, the child's right to parental care should be balanced with the parent's right to care for the child and to have a relationship with him or her. In deciding the child's interest, the court should weigh parental rights to care for the child, to free movement and to a profession against the rights of the child and of the non-custodian parent. See E Bonthuys 'The best interest of children in the South African Constitution' (2006) 20 International journal of Law, Policy and the Family 23 39.
156 Herring (n 19 above) 223.
157 D Inwald 'The best interest test at the end of life on PICU: A plea for a family centred approach' (2008) 98 Archives of Disease in Childhood 248 250.
158 For an argument for the abandonment of the welfare principle, see H Reece 'The paramountcy principle: Consensus or construct?' (1996) 49 Current Legal Problems 267.