The best interest of the child: A United States and South African perspective

Abstract

This article examines the different approaches taken in the United States (U.S.) and South Africa with regard to the best interests of students/learners.¹The U.S. has a tradition of invoking a best interest standard for certain kinds of decisions involving children, but that tradition has generally been limited to divorce decrees, while the emphasis in school-related matters has been on rights of parents grounded in the U.S. Constitution and in federal and state statutes. On the other hand, South Africa has enshrined the best interest of the child in its Constitution and it is of paramount importance in all matters pertaining to the child. How these two approaches differ and what the future of the parent-child relationship should be in influencing decision-making regarding learners at schools is the object of this article. The article also considers the relevant U.S. federal constitutional and state statutory interpretations as they differ from the South African constitutional language. This article asks whether the long U.S. constitutional tradition of framing children’s best interests in terms of parental decision-making on behalf of their children needs to be reconsidered. Conversely, in South Africa the most important question is whether courts could very well expand the concept of a parent, while at the same time considering whether the best interest of the child standard is a fundamental right or a rule of construction.