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Reconceptualising the ‘paramountcy principle’: Beyond the individualistic construction of the best interests of the child
https://www.ahrlj.up.ac.za/images/ahrlj/2012/ahrlj_vol12_no1_2012_admark_moyo.pdf
Admark Moyo* Lecturer in Law, Midlands State University, Gweru, Zimbabwe; PhD Candidate, University of Cape Town, South Africa
Abstract
This article laments the individualistic construction of the best interests of the child principle. Decision making in a family context goes beyond a mere trumpeting of the interests of the individual child and involves balancing various competing interests. Decisions often claimed to be made in the interests of children are not just about children – they are an attempt to balance the competing interests of family members. A child’s best interests are often limited by the broad interests of the community (especially in communitarian societies) and the rights of others, particularly the rights and interests of parents, siblings, caregivers and other persons exercising parental responsibilities. Consequently, decisions made in a family context usually seek to balance different family members’ rights and interests. Drawing inspiration from literature on the subject, the article advocates the adoption of a holistic approach to the welfare principle. It is shown, towards the end of the article, that the South African courts and legislature have rightly endorsed the notion that the fact that the best interests of the child are ‘paramount’ does not mean that it is not limitable. Much depends on the competing interests at stake, the factors that must be weighed in the process of making a value judgment and the weight to be accorded to each factor in light of the facts of each case.
Introduction
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.
A child’s best interests are of paramount importance in every matter concerning the child.
In all actions concerning the care, protection and well-being of a child the standard that the best interest of the child is of paramount importance, must be applied.
Generally, the provisions referred to above reflect the seriousness with which the law treats children’s interests.
The term ‘paramountcy principle’ is used loosely to refer to what is commonly known as the best interests of the child. Therefore, the terms ‘paramountcy principle’ and the best interests of the child are used interchangeably in the article. The article argues, firstly, that the ‘paramountcy principle’ casts such an individualistic and ‘bossy’ image of the child as to suggest that when decisions affecting children are made, nothing except the best interests of the child matters.
Narrowly constructed, the ‘paramountcy principle’ requires decision makers to religiously follow what the child needs or wants without reference to other competing interests. Secondly, it is shown that the paramountcy principle may be of limited relevance to communitarian societies. These societies are built on the importance of group solidarity and collective interests. Thirdly, parental rights and interests are very important in family relationships and it is argued by the author that parents and other holders of parental responsibilities have a wide discretion when making decisions affecting children.
Break
The ‘paramountcy’ principle is unduly individualistic
It may be argued that the paramountcy principle casts such an individualistic and ‘bossy’ image of the child as to suppose that nothing matters except that child’s best interests. First, the paramountcy principle (if not its interpretation) is unduly narrowly individualistic and fails to reconcile the rights of children and those of parents. Those who argue for children’s liberation tend to construe human rights protection as a zero-sum game in which children’s gains are adults’ losses, rather than as a uniform enterprise in which children’s rights add value to the existing body of parental rights.
Lord Nicholl remarks that ‘the principle must not be permitted to become a loose cannon destroying all else around it’.8 Interpreted strictly, the paramountcy principle requires decision makers to do what is best for the child, no matter how marginal the benefit or the interests of others. It requires that only the interests of the child be considered, nothing more, nothing less. The African Charter on the Rights and Welfare of the Child (African Children’s Charter) heightens this individualism by boldly claiming that the best interests of the child are ‘the’ primary consideration in all actions concerning the child undertaken by any person or authority
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. I had always wanted to marry me a man directly from Ireland. I now know why God didn’t fulfill that wish as I wouldn’t have understood one word he said! I have a hard enough time with the West Virginia hillbilly (his description, not mine) that I DID marry