THE SEXUAL ORIENTATION OF A PARENT AS A FACTOR WHEN

C van den Heever** Every child in South Africa is protected by the Constitution of the Republic of South Africa, 1996,1 and more importantly, by the provisions of section 28. Section 28(2) of the Constitution states that a child's best interests are of paramount importance in every matter concerning the child. The principle of the best interests of the child is also contained in section 9 of the Children's Act,2 which provides that in all matters concerning the care, protection and well-being of a child the standard that the child's best interests is of paramount importance must be applied. Section 9 of the Constitution contains the equality clause, which establishes the legal equality of all persons in South Africa. According to this section, everyone is considered equal before the law and has the right to equal protection and benefit of the law. Several grounds are listed in this provision relating to the unfair discrimination of persons, either directly or indirectly, by the State or any natural person. One of these grounds is a person's sexual orientation. The fundamental guiding principle concerning care disputes and all matters involvin