Abstract
The South African jurisprudence on the rights of children is vibrant and generally progressive, and is supported by an enabling constitutional and statutory framework. The majority decision in Le Roux v Dey 2011 3 SA 274 (CC), however, ignores the rights of children, and this is in stark contrast to some of the minority judgments in the same case. This contrast is surprising, considering that all of the judges applied the same legal framework. With reference to an emerging interest in defining children's rights approaches to judging, this article critically analyses the majority and minority judgments, and establishes their vulnerabilities and strengths as children's rights judgments. In the process, suggestions are made in relation to defining a children's rights approach to judging.
Highlights
Litigating children's rights is no longer a novelty in South Africa
Much progress has been made through litigation in terms of individual outcomes for children and in relation to the rights of children generally.2. It is whether the formal legal protection cemented through a vibrant children's rights jurisprudence has led to judges embracing a children's rights perspective or approach to adjudication
Restorative Justice Centre. Buthelezi 2012 Obiter 719; Campbell 2011 SALJ 419; Fagan 2011 SALJ 395; Milo and Palmer 2011 http://www.thedailymaverick.co.za/article/2011-03-17-analysiscomprehensively criticised the majority for ignoring the best interests of the child in section 28(2) of the Constitution,46 and Sloth-Nielsen and Kruuse have written critically of the contrast between the majority judgment and the tradition of the South African courts to give special protection to children
Summary
Litigating children's rights is no longer a novelty in South Africa. In an enabling constitutional and statutory context, courts are often called on to decide matters concerning children. The questions addressed here are whether a children's rights approach is inherently present in judgments with a childfavourable outcome; and whether a children's rights perspective arises as a matter of necessity from children's rights being entrenched in constitutions or children's rights statutes Both questions are answered in the negative, confirming what has been said by other commentators10 - that something more is needed than an enabling legal framework (international or national) to secure a children's rights approach to judging. Tobin mentions the understanding of the legal content of a right as one of the features of a child rights approach, but in a wider decision-making framework (Tobin "Development of Children's Rights" 37) This feature is apposite for a children's rights approach by courts and is included by the present author in the above definition. Conclusions are drawn in part 6, where observations are made in relation to the contribution of this case to understanding what a children's rights approach is or ought to be
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