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What are the best interests of a child?

When it comes to the best interests of a child, there is no standard definition. However, as set out by the Children’s Act 38 of 205, the principle is aimed at protecting and honouring the interests of the child involved in situations such as separation or divorce. The child’s best interests are a priority throughout a separation or divorce process.

Best interest decisions are usually made by taking into account a number of factors related to the circumstances of the child and their care. The overriding concern is the child’s safety and well-being on various levels. Section 7 of the children’s Act 38 of 2005 highlights the factors which must be considered when a decision regarding the care of a minor child has to be made:

  • The nature of the personal relationship between:
    • the child and the parents, or any specific parent; and
    • the child and any other caregiver or person relevant in those circumstances;
  • The attitude of the parents, or any specific parent, towards:
    • the child; and
    • the exercise of parental responsibilities and rights in respect of the child;
  • The capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs;
  • 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:
    • both or either of the parents; or
    • any brother or sister or other children, or any other caregiver or person, with whom the child has been living;
  • 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;
  • The need for the child:
    • to remain in the care of his or her parent, family and extended family; and
    • to maintain a connection with his or her family, extended family, culture or tradition;
  • The child’s:
    • age, maturity and stage of development;
    • gender;
    • background; and
    • any other relevant characteristics of the child;
  • The child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; any disability that a child may have;
  • Any chronic illness from which a child may suffer;
  • 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;
  • The need to protect the child from any physical or psychological harm that may:
    • Subject the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
    • Exposing the child to maltreatment, abuse, degradation, ill-treatment,
  • Any family violence involving the child or a family member of the child; and which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.


If you would like to find out more about your child’s best interests and how to incorporate them into your parenting plan you can call Melissa on: 072 590 9517, email or visit

Amani Mediation are based in Rivonia, Johannesburg and specialise in Family and Divorce Mediation. We employ a holistic approach to Divorce Mediation, working closely with a small network of psychologists, social workers and attorneys who share our philosophy.

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