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Sandra Burman
excerpted from: Sandra Burman, THE BEST INTERESTS OF
THE SOUTH AFRICAN CHILD, 17 International Journal of Law, Policy and the
Family 28-40 (April, 2003).
In common with a large number of other countries around the world,
South Africa has over the last few decades adopted the standard of 'the
best interests of the child' as the measure for all legal decisions on
children made within the Roman-Dutch legal system, the common law of the
country. The standard is also entrenched in the Constitution that was
brought into effect after the 1994 elections, which heralded the new
South Africa, and is a key part of the
Convention on the Rights of the Child, ratified by South Africa on 16
June 1995. It is also part of the African Charter on the Rights and
Welfare of the Child, which was ratified on 7 January 2000 and provides
that '[i]n all actions concerning the child undertaken by any person or
authority the best interests of the child shall be the primary
consideration'. However it is arguable
that the concepts inherent in the standard are foreign to a large
section of the South African population - an import from an alien world.
Politically, its adoption was probably inevitable, but a basic clash of
concepts results, creating problems that should not be ignored. This
article is not intended to be a discussion of the merits of culture
versus interests or rights as norms, but rather an outline of what is
happening or is likely to happen in South Africa as the two come into
conflict over issues of custody and similar matters.
Further, given that the standard has been imported and is ostensibly
suited to the social mores of the rest of the population, it must be
asked whether its operation is similar to that in other countries that
have adopted it. A major determinant of how effectively it operates is
the range of possibilities available to the courts in deciding on what
the best interests of the child are in any given situation. This article
does not purport to review the use of the standard in the case and
statute law of the country - that has been done by various other
writers, eg Sloth-Nielsen (1995), Palmer (1996) and Clark (1998, 2000) -
but to look at the wider situation in which it is applied. The article
therefore outlines the effects on the operation of the standard of a
host of factors in South Africa, particularly in custody cases, and
briefly discusses the consequences.
Before embarking on these discussions, however, it is necessary to
paint in the relevant basics of the legal background.
2. HOW CUSTODY DECISIONS ARE MADE IN SOUTH AFRICA
A. Custody on Divorce
Under the common law of South Africa, divorces may be obtained either
in the High Court or, since a Pilot Project Family Court was initiated
in five centres in the 1990s, in one of the five Pilot Project courts.
Judges preside in the High Court, and Presiding Officers, graded as
Regional Magistrates, in the Family Court. By statute, the papers for
all High Court divorce cases involving minors are reviewed by the Family
Advocate's Office, where legally qualified family advocates at each seat
of the High Court are assisted by social workers appointed as family
counsellors. Originally family advocates
reviewed only High Court divorce papers, but since November 2001 it has
become obligatory for them to review Family Court papers too.
Even before that date it had become increasingly common for at least
some of the Family Courts to refer the papers to them (Burman et al,
2000; Glasser, 2002). The family advocate reports to the judicial
officer on each case (though most commonly merely approving the
settlement arrived at by the parties), and the recommendation is usually
accepted. However, most cases where lawyers are involved (almost all in
the High Court but only some 20 per cent in the Family Court, in the
Western Cape at least ) are settled in
advance in the lawyers' offices, sometimes after lengthy and prolonged
bargaining, and subsequently merely endorsed by the court. Lawyers may
therefore play a crucial role in shaping the custody agreement. In the
relatively rare cases where the disputing
parties have the will and finances to employ psychologists or private
social workers (neither of which are available through the state), these
may also play an important part in the final custody decision. Research
by the Centre for Socio-Legal Research has indicated that the process is
much influenced by questionable assumptions by the professionals as to
what the family advocates and judges will consider to be the child's
best interests (Burman and McLennan, 1995; Burman et al, 2000).
B. Custody Decisions where No Divorce is Involved
The allocation of custody usually arises on divorce, but the High
Court has an inherent jurisdiction as the upper guardian of minors and,
in appropriate circumstances, will intervene and allocate guardianship
or custody to one parent only, or even to a third party. In addition,
under the Child Care Act 74 of 1983, and the Criminal Procedure Act 51
of 1977, a child may be placed in an institution or in the custody of a
third party. Such non-parental custody is potentially becoming
increasingly important in the light of the HIV/AIDS epidemic, as shown
below.
3. A VARIED SOCIETY
South Africa has a very varied population. There are 11 official
languages and at least 19 religious
affiliations to which between 1 and 10.7 per cent
of the population adhere, as well as others with smaller numbers of
followers. Moreover, even today the
population is 'racially' categorized into the so-called 'population
groups' (for affirmative action purposes) - African (77 per cent); white
(11 per cent); coloured (9 per cent); and Indian/Asian (3 per cent).
Among the Africans there are nine major linguistic groups,
many of whose members still retain allegiances to their chiefs. In
addition, waves of refugees from the rest of Africa are arriving in
ever-increasing numbers, fleeing war or economic deprivation. With the
abolition of apartheid legislation on inter-racial marriage and
segregated housing for each population group, increasing numbers of
marriages are taking place across these group boundaries, raising a host
of problems on divorce from the clash between the different expectations
of the parties and their families.
In addition, even within ostensibly relatively homogeneous groups,
wide variations in life styles and attitudes exist between those who
urbanized many decades ago and those newly arrived from the rural areas,
quite apart from the 46 per cent who are still resident in the rural
areas. Adherence to African customary
law is probably the most relevant aspect of this, with some living
according to the law of their group, a small proportion entirely
according to Roman-Dutch and statutory law, and most according to a
mixture of both systems. Thus, for example, the payment of bridewealth
is still observed by the majority, even those who live most of their
lives outside the ambit of customary
law, and has considerable implications for attitudes to the children of
the marriage (Burman, 1984(a); Burman and Van der Werff, 1993).
South Africa recognizes African customary law as a parallel system of
law to the civil law but with limited application only to those
classified as African whose lifestyle brings them under its operation.
It embraces a view of society different from that of the civil law,
being based on the group rather than on the individual. Thus in
customary law the interests of the extended family override those of
individual members, potentially setting it on a collision course with
the civil law on a number of issues. The uneasy co-existence of the two
systems has been further complicated by recent legislation that for the
first time requires customary law marriages to be dissolved by civil law
courts, not just family agreements as
in the past. In addition, as mentioned above, the international
instruments which have been ratified and the 1996 Constitution are based
on the rights of the individual, not the family group. Little has yet
come before the courts involving custody clashes between the two
systems, but the best interests of the child standard is potentially one
focus of such a collision. As the above legislation is so recent, it has
not yet been possible to study its effects on customary law divorces,
but it seems likely to be a major cause of confusion in so far as it is
not simply ignored.
In the case of Muslim and Hindu marriages, the civil law does not yet
afford recognition of the religious
marriage, although a couple may bring
their union within the ambit of the civil law by making a second, civil
law marriage. This second marriage may be conducted by a magistrate or
by an imam or Hindu priest who has been appointed as a marriage officer,
but, even where the celebrant is also a religious official, the marriage
is a civil law marriage, not one by religious law. Furthermore, before
becoming a marriage officer, it is necessary to pass an examination and
swear an oath to abide by the laws of the state, which do not sanction
polygamous or potentially polygamous marriages other than those under
customary law. This has the result of excluding most Muslim imams and
Hindu priests, among others. Thus, most people who choose to be married
only by these religious officials are not legally married according to
state law. While most such couples would resort to a religious divorce
by their own authorities, should one party appeal to the courts (as
upper guardian of children) for a custody order, the standard of the
best interests of the child would be applied, irrespective of the values
of the religions involved. Both systems give priority to the rights of
certain family members over the interests of the child, again
constituting the same type of clash of concepts outlined above with
regard to customary law, and with practical problems resulting. Thus,
for example, Pearl (1989) explains that:
Islamic law has developed a series of norms whereby the
responsibility for the early life of a child is that of the mother and
the later life that of the father.
The ages where physical custody, or hadana, of the mother is transferred
to guardianship, or wilaya, of the father will vary from school to
school, but the principle remains the same in all Islamic schools.
In contrast, as Pearl points out, the Convention emphasizes equality
of parenting as a norm.
The essence of such clashes is that they represent different
worldviews that are essentially irreconcilable. It is true that 'clever
lawyers' may find ways ostensibly to reconcile the systems. The concept
of the best interests of the child does not stipulate what constitutes
the most important elements in those interests, although various legal
systems have developed lists of factors they regard as worthy of
consideration. Nor does the concept itself imply how such factors should
be weighted in deciding on custody allocation. It is not, for example,
inherent in the concept that greater weight should be placed on the
ability of one parent to provide better than the other for a child's
creature comforts, as against the ability of the second parent to
provide better for the child's emotional needs. The weighting of the
various psycho-legal shopping lists of criteria available from
legislative and academic sources are all affected by the social and
political ideas of the time. Thus, the application of the 'universal'
concept of 'the best interests of the child' could, on the same facts,
conceivably produce opposite custody allocations in different societies
or in the same society at different periods.
Given this latitude, sleight of
hand may produce a result acceptable to both parties. It may be argued,
for example, that it is in the child's best interests to receive the
emotional support of his customary law family group according to that
society's rules, with the male head of that family duly awarded custody
- an outcome presumably acceptable to the family. But it begs the
question of how the customary law family sees the issue. For them, the
issue is not what is in the child's best interests but what is in the
extended family's best interests, and if the child suffers for the
family, so be it. And, as this is a head-on clash of values, insoluble
clashes over custody decisions do seem to be inevitable some of the
time, however clever the lawyers and judges.
There has been much writing on the issue of reconciling culture and
human rights (eg a special two-part issue of The International Journal
of Law and the Family, 8(1) and (2), 1994; Alston, 1994; Douglas and
Sebba, 1998; Ncube, 1998). This article does not set out to consider
whether that is possible or even desirable in the abstract. However, as
apartheid showed, when part of the population mistrusts the values of
the judiciary and the laws, it ignores the courts. South Africa had, and
still has, a plethora of informal courts, unrecognized but with
enforcement provided by the community (Burman and Schärf,
1990). It therefore seems likely that if the state courts, in attempting
to apply an interpretation of the best interests of the child, come to
decisions that are foreign to the parties' way of thinking, people will
take custody and similar disputes
elsewhere. Such cases may end up either with the parties' own customary
or religious leaders, or in the murky area that exists in every society
where might is right, the child going to whoever can seize and hold him
or her.
4. A THIRD WORLD COUNTRY
There is, however, a set of difficulties with applying the standard
of the best interests of the child in South Africa that are of a
different order of problem. They are not problems involving inherent
incompatibility with the standard but rather social problems that limit
all or most of the possibilities that might normally be considered when
making custody decisions according to the best interests of the child.
Many similar limitations are present in most countries of the world to
varying degrees, particularly in sub-Saharan Africa, but the effect of
their extent and concentration in South Africa at present makes the
operation of the best interests standard almost unrecognizable in many
cases. They are outlined separately below but interact with each other
in numerous ways.
A. Economic Problems
The disparity in GNP between the handful of First World countries and
the rest of the world is very great. South Africa falls into the latter
group, although it is not among
the world's poorest countries. However, wealth is more unevenly
distributed than in most countries, resulting in a small percentage of
the population enjoying a very high standard of living, while the
remainder lives on or below the poverty line.
Chronic unemployment rates are high at over 30 per cent, and over 40 per
cent for women, with the rate being highest for rural African women.
For 2001 the figure being cited was that 45 per cent of the working age
population was looking for work or had given up looking.
There is a great shortfall in housing: by the beginning of 2000 South
Africa's housing shortage was estimated at between three and four
million units, with the most optimistic forecast of meeting this backlog
estimating that it might be addressed in 15 to 20 years. Shanty
towns extend in vast swathes round the cities. Further, the entire
governmental system is drastically short of funds for the schemes
necessary to rectify the imbalances left by apartheid, and lack of funds
also reduces staff training to deal with the complexities of
administration, with sometimes disastrous results. No sections of the
government are feeling the effects of this more than the Departments of
Justice and of Social Development. All these features have a
considerable impact on the application of the doctrine of the best
interests of the child.
In the first place, given the amount of unemployment, the low level
of women's earnings, and the great dearth of housing, at divorce many
parents, particularly women, are
in no position to contest custody at all, and African women have always
been particularly affected (Burman, 1984(b); Burman and Fuchs, 1990).
The limited welfare system provides for a very small grant for children
under the age of 7, but that, and free clinic treatment, is all the
state aid available for children living with their parents, other than
for profoundly mentally or physically disabled children. Schooling is
not free and school feeding schemes fairly rare.
On divorce, necessity frequently dictates the custodian, making for
certainty of dispute outcome without any court fight. However,
interviews with relevant officials have indicated that some place a
higher value on the parental bond than even acute physical deprivation
for the children. Where custody is disputed, it may be awarded on such
grounds to, for example, mothers living in leaking shacks.
It may therefore be seen that the standard of the child's best interests
is not making for certainty in the application of the law, since courts
do not necessarily apply the same criteria.
Lack of national funding also has a major effect on those cases where
the court decides a child's best interests would be best served by
placing him or her in non-familial care. Foster grants are small,
limiting the number of caregivers willing to take in non-familial
children. Children's homes are few and very overcrowded, limiting the
court's options. Frequently children must perforce be left in totally
unsuitable situations because of lack of alternatives.
B. Drink, Drugs, Violence, and Prison Populations
Many countries have problems with drink and drugs users, but in South
Africa both problems occur very widely, particularly that of drink,
partly for historical reasons. In the Cape the wine farmers
traditionally paid their labourers partly with drink, usually
distributed throughout the day - known as the dop system. As a result,
the labourers and their families have a long history of heavy dependency
on drink, as can be seen from such factors as the prevalence of foetal
alcohol syndrome among their children, even though efforts are now being
made to stamp out the dop. In other
parts of the country in the early colonial period the colonists' alcohol
became very popular in many areas, being stronger than that commonly
brewed by the indigenous population for normal consumption, and was used
in part payment for trade on occasion. Various other factors
subsequently affected the widespread alcoholism now found in many
sectors of the population.
Marihuana (known as dagga) grows locally but hard drugs have recently
become a major problem as South Africa's trade isolation ceased with the
end of apartheid and drugs flooded into the country.
Together with alcoholism, they have become an important factor in
widespread domestic violence, which in turn reflects a generally violent
society. This latter
partly explains the large numbers in jail, although this figure has been
considerably swelled by the current breakdown in the court system,
resulting in a disproportionate number of awaiting-trial prisoners.
One consequence of this combination of factors is the far from
unknown situation where a court, deciding on child custody, is faced
with the unsuitability of both parents as custodians, due to alcoholism,
drug use, or confinement in jail. However, the lack of children's homes
and shortage of non-familial foster carers makes something of a mockery
of the standard of the best interests of the child in such cases (Burman
and McLennan, 1995).
5. HIV/AIDS
However, the biggest limitation on the range of possibilities in
deciding on a child's best interests in custody and related cases is
still developing. UNAIDS estimated in its global summary of the
worldwide situation in December 2001 that 40 million people were living
with HIV/AIDS, with 28.1 million in Sub-Saharan Africa. South Africa has
one of the fastest growing epidemics in the world, with approximately
4.7 million South Africans (one-in-nine of the population) infected with
HIV at the end of 2000. The highest numbers are concentrated in rural
KwaZulu-Natal Province. Younger people are the most severely affected,
with about 60 per cent of all adults who acquire HIV becoming infected
before they turn 25. Young women are particularly vulnerable, biologically
and socially. Research shows that HIV infection among women is the
fastest growing segment of the AIDS epidemic - which is not surprising
given that expectations of male and female behaviour differ radically,
particularly in African society. An unequal balance of power favours
men, who in most cases have greater control than women over when, where,
and how sex takes place. Approximately 36.2 per cent of pregnant women
at public clinics in Kwa-Zulu tested HIV positive in 2000, up from 32.5
per cent in 1999. For the first time, deaths in KwaZulu-Natal
outstripped births.
The government has been unable to afford the provision of
anti-retroviral drugs to prolong life for most of the population.
Nor, until recently, would it provide drugs short-term for infected
pregnant mothers in an attempt to reduce mother-to-child transmission of
HIV, which otherwise occurs in about 34 per cent of such births,
although various provincial and private initiatives were doing so in
parts of the country. A national programme of drug distribution to
pregnant women at 18 'research sites' was begun, and officially intended
to expand as soon as the provinces are ready with counselling services
and advice on preventing the transmission of the virus to infants during
breastfeeding. The Western Cape implemented the expansion of the
programme throughout the province, and Gauteng and Kwa-Zulu Natal
announced that they intended to do so too, but none of the other
provinces felt able to follow their example. One, Mpumalanga, actually
sacked a hospital supervisor for
'insubordination' in allowing distribution of free anti-retrovirals by a
non-profit NGO working with rape survivors on hospital premises.
The Treatment Action Campaign (TAC), South Africa's leading AIDS
activist group, criticized the research sites as limited, too late, and
a drop in the ocean among the country's 1.3 million annual births.
In an attempt to force the government's hand, the TAC and others took
the issue of the compulsory provision of Navirapine before the High
Court in December 2001, which ruled in their favour, but the government
appealed to the Constitutional Court. It finally lost the case in early
July 2002, when the Constitutional Court ruled that the government
should remove the restrictions preventing Navirapine from being made
available at public hospitals and clinics that were not research and
training sites. The court also ordered
the state to take reasonable measures to extend testing and counselling
throughout the public health sector to facilitate the use of Navirapine.
However, the order to provide the drug at state birthing institutions
was qualified by the condition that it applied only where the facilities
existed to do so, which is likely to leave a high proportion of the
country's births unprotected, particularly in rural areas short of
counsellors. And the case applied only to pregnant mothers at the time
of the birth. There is still no state provision of anti-retroviral drugs
to HIV-positive people, including mothers after the birth, most of whom
die within a few years.
Already in 1999 the estimated number of AIDS orphans was put at some
420,000, with an estimated 3.1 million
maternal orphans under the age of 18 in around 2015, and with 5.7
million children - roughly one-third of all children under the age of 18
- having lost one or both parents. At
present many households are already headed by children, too young to
earn or receive the small foster grant, but with siblings too old to
receive the even smaller state grant. Households like that are in
desperate need, many relying totally on handouts from charity for food,
clothing, and, if they are lucky, school fees. They also suffer from the
widespread stigma attached to HIV/AIDS infection, and resulting
discrimination. The extended family,
which has until now been a source of assistance in such cases, is under
such severe strain that it can no longer be counted on to absorb
orphans. The widespread customs of the sororate and levirate also
decrease the chances that family members will be available to care for
the children. Newspaper and other
reports tell of large increases in the number of street children
(Stephenson, 2000). A new phenomenon has recently been noted of
adolescents sent from their homes to the city to fend for themselves or
to stay with distant relatives, usually without birth certificates, with
the result that the relatives cannot apply for foster grants for them
and may not be able to get them accepted in any school.
The list of ills resulting includes more adolescents indulging in crime,
more economic and sexual exploitation
of children, and a rise in the rate of children born out of wedlock,
already over 70 per cent in the major urban areas (Burman and Preston-Whyte,
1992). In the longer term, there are fears that 'socially speaking, the
consequences of raising such large numbers of children without love or
support from primary parents may prove costly for the region'.
A more vivid drawing of this scenario describes 'feral orphan gangs
roaming the city streets terrorising its citizens and fighting for a
fragile survival ...'.
In situations like these, there is no easy answer to the questions of
whether the courts should intervene in child-headed households or with
street children or children suffering gross neglect. In the first place,
it may be faced with difficult questions involving which child's best
interests should be accommodated where, as seems likely, there is a
collision between those of the care-giving child and those being cared
for. But even before a court can consider whether intervention is in the
best interests of a child, it has to have alternatives available where
it can place any children for whom removal is desirable, and, as noted
above, these are in very short supply.
Acceptance in the few new children's homes being set up to meet the
crisis is perforce usually restricted to the growing number of abandoned
or orphaned children who are themselves infected. Foster or adoptive
homes are also dwindling, especially for infected children or those
whose parents died of AIDS. In
addition, for different reasons both African and Muslim custom regard
adoption as unacceptable, although Pearl (1989) points out that in Islam
variants of adoption techniques can be introduced. The African
objections are not so easily circumvented, notably those that centre on
the need for a child to be recognized by the family's ancestors.
6. CONCLUSION
The concept of the best interests of the child allows for
considerable scope as to what criteria should be used to decide the
child's best interests. Reviews of current South African law show that,
given South Africa's heterogeneity, there is virtually no agreement on
what values should dictate the choice between alternatives for the child
even in normal situations. These, however, are not normal times. In many
cases there is no choice between alternatives because there are no
alternatives available. Of the factors removing choices, the size of the
AIDS epidemic in South Africa currently puts the country in a class of
its own, but other parts of Africa have already faced similar situations
and the forecasts for parts of Asia are not encouraging. Of the other
factors outlined above that delete choices, most Third World countries
have them to varying extents. In such situations the best interests of
the child frequently cannot be considered at any but the most basic
level of survival. This is not, however, to argue for the eradication of
the standard of the best interests
of the child - it is probably here to stay and in theory a strong case
can be made for it being an admirable standard, one to be striven for.
But in the situations of many countries in the world, it is a Utopian
doctrine that deludes the classes in power into believing that the
interests of children are being taken care of. The reality for a large
number of children is very different.
For those sections of the population who do not subscribe to the
values of the standard, it is worse than a delusion: it is a foreign
import that distorts the operation of their legal systems and perverts
the way society provides for its members. In countries where the values
of all or part of the society are based on group rights, not those of
the individual, the adoption of the Convention of the Rights of the
Child ceases to be a pious, if overly optimistic, attempt at social
engineering, and becomes a recipe for social and legal conflict. As the
Convention was not adopted by South Africa with any interpretative
declaration, its operation cannot be limited to only some sections of
the society. While the proponents of social engineering may hope
eventually to change norms sufficiently to reconcile the clash between
custom and rights in African societies based on African customary law,
some religious law is by its nature not amenable to such pressure, even
if political leaders are. If the peoples of Third World countries in
particular are not to become increasingly sceptical about ratifying UN
conventions, their leaders need to be fully
aware of the implications for the laws and interests of all their
members, and as regards not only theory but also reality, however
awkward.
[a1]. Director, Centre for
Socio-Legal Research, University of Cape Town, Private Bag, Rondebosch
7701, South Africa. |
