The best interests of the child and the Constitutional Court

The Constitutional Court has developed a comprehensive child-friendly jurisprudence on the best interests of the child provision in s 28(2) of the Constitution. There are, however, concerns that the concept of the best interests of the child is being over-used by the Court to the detriment of other relevant children's rights. The Court has not explicitly defined the content of s 28(2) in the name of preserving its flexibility. This article canvases the jurisprudence on the best interests of the child, and then it presents and analyses the use of s 28(2) by the Court in J v National Director of Public Prosecutions & Another (Childline South Africa & Others as amici curiae) and Raduvha v Minister of Safety and Security (Centre for Child Law as amicus curiae). These cases show that despite the declared reluctance of the Court to give formal clarity to the content and the scope of s 28(2) of the Constitution, it may be starting to systematise its approach to the application of this section. In these cases, the Court spells out the legal content of the provision and uses it as a subsidiary tool in the absence of another legal provision relevant for the issue raised. These cases contribute to the clarification of the best interests jurisprudence. The further development of this good practice would be facilitated by the courts acknowledging the diversity of legal sources and functions of the best interests of the child concept. An awareness of the complex nature of the best interests concept enables its principled legal development, without endangering the flexibility of its application on which the success of the concept rests