Section 7 (1) of the Children’s Act 38 of 2005 (hereinafter “the Act”) states
that whenever a provision of this Act requires the best interests of the child
standard to be applied, the following factors must be taken into
consideration where relevant, namely:
(a) The nature of the personal relations hip between –
(i) The child and the parents, or any other specific parent; and
(ii) The child and any other care-giver or person relevant in those
circumstances;
(b) The attitude of the parents, or any specific parent, towards –
(i) The child; and
(ii) The exercise of parental responsibilities and rights in respect of
the child;
(c) The capacity of the parents, or any specific parent, or of any other
caregiver or person, to provide for the needs of the child, including
emotional and intellectual needs;
(d) The likely effect on the child of any change in the child’s circumstances,
including the likely effect on the child of any separation from;
(i) Both or either of the parents; or
(ii) Any brother or sister or other child, or any other care-giver or
person with whom the child has been living;
(e) The practical difficulty and expense of a child having contact with the
parents, or any specific parent, and whether that difficulty or expense
will substantially affect the child’s right to remain personal relations and
direct contact with the parents, or any specific parent, on a regular
basis;
(f) The need for the child –
(i) To remain in the care of his or her parent, family, extended
family; and
(ii) To maintain a connection with his or her family, extended family
culture or tradition;
(g) The child’s –
(1) Age, maturity and stage of development;
(2) Gender;
(3) Background; and
(4) Any other relevant characteristics of the child;
(h) The child’s physical and emotional security and his or her intellectual,
emotional, social and cultural developments;
(i) Any disability that a child may have;
(j) Any chronic illness from which the child may suffer;
(k) The need for a child to be brought up within a stable family
environment and, where this is not possible, in an environment
resembling as closely as possible a caring family environment;
(l) The need to protect the child from any physical or psychological harm
that may be caused by –
(i) Subjecting the chid to maltreatment, abuse, neglect, exploitation
or degradation of exposing the child to violence or exploitation or
other harmful behaviour; or
(ii) Exposing the child to maltreatment, abuse, degradation, ill-
treatment, violence or harmful behaviour towards another
person;
(m) Any family violence involving the chid or a family member of the child;
and
(n) Which action or decision would avoid or minimise further legal or
administrative proceedings in relation to the child.
