The 'best interests of a child' standard in education : an overview of South African case law

• Author: Susan Coetzee,Riana Mienie
• DOI: 10.10520/EJC162995
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 90-117

BAEd BEd MEd DEd Certificate Programme in Law LLB, Associate Professor, University of South

*

Africa.

LLB LLM, Senior Lecturer, University of South Africa.

**

In this article a ‘best interests of the child standard’ will be used as an umbrella concept to cover

1

the best interests of a child as a right, an interpretive legal principle and a rule of procedure. See

para 6 of CRC Committee on the Rights of the Child ‘Comment number 14: Comment on the right

of the child to have his or her best interest taken as a primary consideration’ CRC/C/GC/14/2013.

‘Child’ will refer to a person under the age of 18 years. When reference is made to learners, it will

refer to learners who will be protected by the ‘child’s best interests’ standard, eg children under the

age of 18 years.

UN Doc A/44/49(1989) (hereinafter CRC). Ratified by South Africa on 16 June 1995; OAU Doc

2

CAB/LEG/24.9/49 (1990) (hereinafter ACRWC). Ratified by South Africa on 7 January 2000.

In this article, the Consolidated Children’s Act as amended by the Children’s Amendment Act 41

3

of 2007 and the Child Justice Act 75 of 2008, updated to GG 33076 of 2010-04-01, were used

(hereinafter Act 38 of 2005).

Laerskool Middelburg v Departementshoof, Mpumalanga Departement Onderwys 2002 JOL 10351

4

(T) 10 (hereinafter Laerskool Middelburg) available at:

http://www.fedsas.org.za/downloads/12_53_4 9_Die%20Laersk ool%20Middelburg%20en%20%

E2%80%99n%20ander%20v%20Die%20Departementshoof%20Mpumalanga%20se%20Depart

ement%20van%20Onderwys%20en%20andere.pdf (accessed 2014-02-10). Note this case report

uses page numbers and not paragraph numbers.

The ‘best interests of a child’ standard in

education: An overview of South African

case law

Susan Coetzee and Riana M ienie**

*

1 Introduction

South African courts are obliged, in terms of international and national law, to

apply the ‘best interests’ standard in all cases where a child’s or children’s rights

and interests will be affected by their decisions. International law in this regard

1

includes article 3(1) of the Convention on the Rights of the Child (CRC) and

article 4(1) of the African Charter on the Rights and W elfare of the Child

(ACRWC). National law in this regard includes section 28(2) of the Constitution

2

of the Republic of South Africa of 1996 (Constitution) and section 7 of the

Children’s Act 38 of 2005 (Children’s Act). This obligation to apply the ‘best

3

interests of a child’ standard also applies to cases dealing with education. Except

4

The ‘best interests of a child’ standard in education 91

Banach ‘The best interests of the child: Decision-making factors’ (1998) 79(3) Families in Society

5

331 at 334.

Head of Department, Department of Education, Free State Province v Welkom High School; Head

6

of Department, Department of Education, Free State Province v Harmony High School 2013 9

BCLR 989 (CC) para 129 (hereinafter Head of Department v Welkom and Harmony High Schools).

Nieuwenhuis, Beckmann and Prinsloo Growing human rights and values in education (2007) 98.

7

CRC Committee on the Rights of the Child ‘Comment number 5: Comment on General Measures

8

of Implementation of the Convention on the Rights of the Child CRC/C/GC/5/2003 paras 45-47.

Hammarberg (2008) ‘The principle of the best interests of the child – what it means and what it

9

demands from adults’. Speech delivered by Commissioner for Human Rights of the Council of

Europe, Strasbourg, 30 May Comm DH/Speech (2008)10 available at:

http://wcd.coe.int/ViewDoc.jsp?id=1304019 (accessed 2014-02-10).

Reyneke The best interests of the child in school discipline in South Africa LLD thesis Tilburg

10

University (Tilburg) (2013) 42.

for the legal obligation, the close relation between the ‘best interests of a child’

standard and education is undeniable. Because the right to an education is an

empowering one, it will always be in the best interests of any child to receive a

good education. Similarly, if a child is in a situation where his or her best interests

in the school context are disregarded, his or her education will suffer as a result.

By observing the ‘best interests of a child’ standard, one facilitates, as Banach

describes it, ‘the circumstances under which a child can be allowed to develop

physically, intellectually and emotionally into a well-adjusted adult’.5

The promotion and full application of the ‘best interests of a child’ standard

in the education sphere requires that the Department of Basic Education,

provincial departments of education, school principals and governing bodies take

note of the importance of the ‘child’s best interests’ standard to school

administration. Schools, as organs o f state, have a constitutional dut y to observe

6

and promote the ‘best interests of a child’ standard. This obligation is also

7

supported by international law. The Committee on the Rights of the Child, for

example, holds that:

Every le gislative, admin istrative a nd judicia l body or ins titution is re quired to apply

the best interests' principle by systematically considering how children’s rights and

interests are or will be affected by their decisions and actions.8

The ‘best interests of a child’ standard should, as Hammarberg suggests,

‘influence law-making, administrative decisions and all other actions affecting the

child’. Thus, the adoption of a school’s code of conduct, policies by the school

9

governing body, the decision about whether or not to admit a child to the school

or to discipline a learner, should always be based on the ‘best interests of a child’

standard.

10

Social workers, family advocates, psychiatrists, educators and other

professionals may attach totally different meanings to the notion of a child’s best