Chapter 2
Commitment to support the best interests of the child

A rights-based approach focuses on making human rights real.

The South African Cconstitution defines a child as “a person under the age of 18 years” and this is supported by other legal instruments like the African Charter on the Rights and Welfare of the Child.

The African Charter on the   Rights and Welfare of the Child

In Africa, diversity in children is recognised and the African Charter on Rights and Welfare of the Child (ACRWC) recognises the rights of all children to be celebrated in their diversity. The ACRWC was adopted by the Organisation for African Unity in 1990. It recognises that all African children deserve respect and have a right to have a say in decisions made about them. It sets out the rights of African children. The Convention has four central principles at the heart of its definition of children’s rights:

  • Children should not suffer discrimination.
  • States should act in the best interests of the child.
  • Children have a right to survival and development.
  • Children’s views should help to shape decisions.

The ACRWC also contains some specific provisions not in the United Nations Convention on the Rights of the Child (UNCRC), for example special consideration for the education of pregnant children and the extension of protection for refugee children. It also discusses the issue of children’s responsibilities. South Africa has signed and ratified the ACRWC to show that it agrees to it

Section 28 of our Cconstitution specifies particular conditions relevant to children in South Africa. The most significant clause indicates that the best interests of children are paramount. Section 28 (2) specifically provides that “[a] child’s best interest are of paramount importance in every matter concerning the child.” This means in all courts of law, decisions must be made in the best interest of the child. Chapter 2 documents all the rights found in the Bill of Rights of the Constitution, thus this principle is a considerable fundamental right. It is this clause of the best interests of the child which makes the South African constitution one of the most progressive in the world in terms of the rights of children.

As pPrincipals and teachers, you need to understand that you are an extension of government. You are state officials and as such are not operating in your personal capacity. As a government official you are obligated to act in accordance with the constitution.

The South African Constitution and the Bill of Rights

The South African Constitution is the highest law in our country. The Bill of Rights is in the South African Constitution and our government has a duty to safeguard, protect and promote all the rights in the Bill of Rights. For example, The Bill of Rights specifies the rights for all South Africans, including for example:

  • the right to a name and identity
  • the right to life
  • the right to equality – not to be discriminate against
  • the right to a healthy environment
  • the right to social assistance
  • the right to food
  • the right to clean water
  • the right to shelter
  • the right to health care
  • the right to schooling.

How the law applies to transgender and gender non-conforming students/learners

Transgender and gender non-conforming children/adolescents are equally protected by the rights framework. In particular, the best interest of the child principle can be demanded when dealing with transgender and gender non-conforming children/adolescents.

The CRC makes a provision of non- discrimination (essentially the right to equality) on the basis of race, sex, ethnic group, language, etc. that transgender and gender non-conforming children should be protected from discrimination on the basis of sex (which is an expressly included ground), and gender identity.

It is found in the CRC that children shall be assured the right to express their views freely in accordance with the child’s age and level of maturity in matters concerning the child. This principle and provision can be similarly found in the Children’s Charter.

Accordingly, it is asserted that transgender and gender non-conforming children must have the right to express their individual positions in matters concerning them. Moreover, it is required in proceedings involving them that their expressions be factored in decision-making processes.

Additionally, it is noted that the careful consideration of the child’s/adolescent’s age and level of maturity is centred on the evolving capacity of the child/adolescent which remains cogent.

Case sStudies on how the interest of the child (BIC) principle have been applied in South African law can be found in your resources tab.