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118 S. African L.J. 556 (2001)
Deciding the Best Interests of the Child: An International Perspective on Custody Decision-Making

handle is hein.journals/soaf118 and id is 566 raw text is: DECIDING THE BEST INTERESTS OF THE CHILD: AN INTERNATIONAL PERSPECTIVE ON CUSTODY DECISION-MAKING* AMANDA BARRATTt Senior Research Assistant, Centre for Socio-Legal Research, University of Cape Town SANDRA BURMIANt Professor of Law and Director of the Centre for Socio-Legal Research, University of Cape Town INTRODUCTION It has become a legal incantation that 'the best interests of the child' are the overriding consideration in deciding custody cases. The United Nations Convention on the Rights of the Child, ratified by virtually every state, requires that 'in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration',1 and many countries have incorporated this standard into their constitutions2 or their child and family legislation.3 The substantive content of the 'best interests' standard varies across jurisdictions, but typically includes such factors as the child's own wishes; his or her physical, emotional, and educational needs; the desirability (or otherwise) of continuity of present circumstances; the child's age and gender; the capacity of the parent to provide for the child's educational, emotional, psychological, and cultural * This study is part of a larger inter-disciplinary research project on Legal Decisions about Children, being conducted by a consortium of universities in South Africa and abroad. The research was sponsored by the National Research Foundation and the University of Cape Town Research Committee, which we acknowledge with thanks. The views expressed in this work and the conclusions drawn are those of the authors and should not be regarded as those of the sponsors. t BA (Hons) (Cape Town) LLB LLM (Unisa). f: BA LLB (Cape Town) MA DPhil (Oxon),Advocate. Convention on the Rights of the Child 1989 (art 3). 2 Examples of constitutions with children's rights clauses, include the Constitution of the Republic of South Africa Act 108 of 1996 (s 28); the Constitution of the Republic of Namibia 1990 (art 15); the Constitution of the Republic of Uganda (s 34). 3 Family legislation that requires the child's best interests to be considered when making custody orders includes the Ugandan Children's Statute 6 of 1996 (s 4), the Ghanaian Children's Act 560 of 1998 (s 2); the Nigerian Matrimonial Causes Act of 1970 (s 71(1)); the Australian Family Law Act of 1975 (s 65); English Family Law Act of 1996 (s 11).