THE BENCH
Official Newsletter of the Judicial Officers Alliance of South Africa
Seventh Edition · October 2026
Children’s Rights of Access: Balancing Contact and Protection
The Children’s Act 38 of 2005 and the Best Interests Standard
The best interests of the child remain paramount in every matter concerning contact and care.
Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The Children’s Act 38 of 2005 operationalises this principle. Magistrates sitting in the children’s courts and in maintenance and domestic violence matters regularly make orders regulating contact (access) between a child and a parent or other person. When determining contact, the court must consider the factors listed in section 7 of the Act, including the nature of the personal relationship between the child and the parent, the capacity of the parent to meet the child’s needs, the likely effect of any change, and any family violence. Where there are allegations of domestic violence or child abuse, contact may be supervised or suspended pending investigation. The child’s views, having regard to the child’s age, maturity and stage of development, must be given due consideration (section 10). Orders should be clear, specific as to times and places, and accompanied by mechanisms for enforcement. Where appropriate, the court may appoint a family advocate or a suitably qualified professional to investigate and report. The overriding objective remains the protection of the child while preserving, wherever possible, meaningful relationships with both parents.
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