Best interests of the child – difficulties with interpretation and application

April 1st, 2024

Picture source: Getty/iStock

The current adversarial processes in parental responsibilities and rights (ie, care and contact disputes) in the dissolution of marriages and existing family units have been increasingly cited as a concern (A Boniface ‘Family mediation in South Africa: Developments and recommendations’ (2015) 78 THRHR 397; L Claasen and G Spies ‘The voice of the child: Experiences of children, in middle childhood, regarding children’s court procedures’ (2017) 53  Social Work/Maatskaplike Werk 74; Department of Social Development White Paper on Families in South Africa (2012)). Therefore, the South Africa Law Reform Commission Project 100D: ‘Family dispute resolution: Care of and contact of children’ contended that divorces and care and contact disputes are unsuccessfully and ineffectively managed because there is no coherent procedural family law system in place. The Commission suggested a comprehensive analysis of the family dispute resolution process.

Currently, in the South African context, custody investigations are conducted by clinical and educational psychologists and social workers, in particular those who are in private practice (R Fasser Conflicted custody: The unfolding of a professional problem-determined system (PhD of Psychology thesis, Unisa, 2014); N Themistocleous-Rothner Child care and contact evaluations: Psychologists’ contributions to the problem-determined divorce process in South Africa (PhD of Psychology thesis, Unisa, 2017); G Thompson Psychologists’ practices in child custody evaluations: Guidelines, psychological testing and the ultimate opinion rule (PhD of Psychology thesis, University of the Free State, 2012)). These studies advocate standardised procedures and guidelines as the Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Child Custody Evaluation (1994), (2006) which is described by Saini (M Saini ‘Evidence Base of Custody and Access Evaluations’ (2008)  8(1) Brief Treatment and Crisis Intervention 111) as an evidence-based approach in care and contact matters that could assist the court in making recommendations based on the utilisation of the most reliable and appropriate evidence in a deliberate and careful manner.

In family law disputes relating to children, there are currently no guidelines in determining the best interests of the child (BIC). Moreover, in the domain of care and contact disputes no evidence-based guidelines exist to conduct primary care and contact investigations. The absence of guidelines creates disputes between the legal and client systems with the social workers in private practice (SWIPP), which leads to complaints lodged at the South African Council for Social Service Professions (SACSSP). These factors cause challenges within the professional world of the SWIPP.

Literature review
BIC standard

The BIC is the golden thread to all matters involving children – especially guardianship, care, contact, or any other decisions relating to children (M Boyd The determinants of the child’s best interests in relocation disputes (LLM thesis, University of Western Cape, 2015); J Kalamer J Die beste belang-maatstaf en die Kinderwet 38 van 2005: ‘n Grondwetlike perspektief (LLM thesis, Unisa, 2013)). The Convention on the Rights of the Child, 1989 and the African Charter on the Rights and Welfare of the Child, 1990 were the enabling channels for South Africa (SA) to expand its Constitution with the inclusion of a comprehensive children’s rights section.

The BIC is seen as a concrete measure that can guide the courts, although the standards are construed as having several grey areas regarding what the best interests really are. According to L Tolle and W O’Donohue Improving the quality of child custody evaluations (London: Springer 2012), this has been a controversial issue for nearly a third of a century. Harmer and Goodman-Delahunty (A Harmer and J Goodman-Delahunty ‘Practitioners’ opinions of best interests of the child in Australian legislation’ (2013) 21(2) Psychiatry, Psychology and Law 251) refer to numerous critiques of the BIC, arguing that the absence of research with the lack of empirical grounding makes it an unmanageable task for a court to determine what is in the BIC.

In SA, Ferreira (S Ferreira ‘The best interests of the child: From complete indeterminacy to guidance by the Children’s Act’ (2010) 73 THRHR 201) and Heaton (J Heaton The South African Law of Persons 4ed (Durban: LexisNexis 2012)) point out that criticisms of the subjective views or values, cultural beliefs, parental gender, historical, economic, political, religious, sexual orientation, social, and inter-racial factors being incorporated into the BIC can be overcome if the professionals determining the BIC follow a unique, personalised, and child-centred approach, therefore, implying that the principle needs to be flexible (AE Boniface Revolutionary changes to the parent-child relationship in South Africa, with specific reference to guardianship, care and contact (LLD thesis, University of Pretoria, 2007)).

Challenges social workers experience in care and contact disputes

M Saini et al (M Saini, M van Wert and J Gofman ‘Parent–child supervised visitation within child welfare and custody dispute contexts: An exploratory comparison of two distinct models of practice’ (2012) 34 Children and Youth Services Review 163) describe the impact of working with high-conflict families under the pressures of the family law system and a severe lack of resources to manage the process as being major challenges.

In the South African context, extensive literature was obtained by the researcher regarding the general challenges social workers face in various settings, dating as far back as A Kisten (A Kisten Social workers’ experiences of the court process: An examination of the perspectives of social workers in the Durban metropolitan area (MSW thesis, University of KwaZulu-Natal, 2001)). However, there is a dearth of literature regarding challenges experienced in dealing with the care and contact domain in SA. C Combrinck (C Combrinck Experiences of professionals in drafting and implementing parenting plans in high-conflict separation and divorce matters in South Africa (MA (Psychology) thesis, Unisa, 2014) asserts that professionals who deal with high-conflict separating, and divorcing families, need specialised training and knowledge regarding separation, divorce proceedings, and high-conflict situations.

Theoretical framework

The theoretical framework used in this study was systems theory, which explored the experiences of the SWIPP (change agent system) with the interchangeable target system (family) who is in crisis (care and contact dispute), and as a result, interacts with the professional system (legal, court, SACSSP).

Aim of study

The aim of the study was to explore and describe the opinions and experiences of SWIPP regarding the use of the BIC standard in the context of care and contact disputes in areas of Gauteng in SA.

Research approach and design

A qualitative research approach was selected for this study because it explores and aims to understand the meaning of individuals or groups and has the ability of analysing rich descriptive data through data collecting methods such as in-depth interviews and focus groups (J Creswell Research design: Qualitative, Quantitative and Mixed Methods Approaches 4ed (Thousand Oaks, California: Sage 2014); J Mouton Understanding Social Research (Pretoria: Van Schaik Publishers 2013). The researcher selected an exploratory design because it generates initial insights into the nature of the topic and helps the researcher to develop focused questions for the study (C Fouché ‘Evaluation research’ in A de Vos, H Strydom, C Fouché, and C Delport Research at Grass Roots: For the Social Science and Human Service Professions 4ed (Pretoria: Van Schaik 2011) at 449).

Population and sampling

The research study involved a singular population group consisting of SWIPP specialising in care and contact disputes. Therefore, the following inclusion criteria were deemed suitable: SWIPP (not gender specific) of any age group who specialise in care and contact disputes; rendering services in the greater Gauteng area; social workers have a minimum of two years’ experience dealing with care and contact disputes as private practitioners (E Babbie The Basics of Social Research 7ed (Boston: Cengage Learning 2016); D Padgett Qualitative Methods in Social Work Research 3ed (Thousand Oaks California: Sage 2016).

Data collection amid the COVID-19 pandemic

As a consequence of COVID-19, the researcher had to adapt the focus groups and in-depth interviews to an online platform (Zoom) to adhere to the Disaster Management Act 57 of 2002. The study consists of two focus groups of nine participants from Johannesburg and nine from Pretoria, sample size was 18. Data saturation was achieved after four individual interviews were conducted with selected participants from the groups.

Data analysis

ATLAS.ti software was the qualitative computer data analysis programme used in analysing the data (Creswell (op cit)). Data was evaluated through thematic analysis, which is described by Braun and Clarke (V Braun and V Clarke ‘Using thematic analysis in psychology’ (2006) 3(2) Qualitative Research in Psychology 77) as ‘a foundational method for qualitative analysis’. Formation of codes were done by following the eight steps of R Tesch (Creswell (op cit); R Tesch Qualitative Research: Analysis Types and Software 1ed (New York: Routledge 1990)). From the four focus group sessions and the four interview transcripts, codes were formulated, and themes were created by grouping the codes together.


In the following section, narratives are one of the themes identified in the study and related to the study objectives are presented, discussed, and supported through direct quotes from the different participants in presenting themes. The following abbreviations was used to indicate the data collection methods and area collected from – Johannesburg focus group 1 and 2 (JFG1), (JFG2), Pretoria focus group 1 and 2 (PFG1), (PFG2), individual interview (IS).

Theme 1: The best interests of the child (BIC) and the Children’s Act 38 of 2005

The BIC standard is a significant milestone in the assessment and protection of children (United Nations High Commissioner for Refugees Guidelines on Assessing and Determining the Best Interests of the Child, 2018). In this theme, the views of the participants relating to the BIC standard are discussed in sub-themes: BIC as guidelines and experiences of SWIPP.

  • Subtheme 1.1 BIC as guidelines

In SA, the limitations to ‘how to’ evaluate the factors that should be assessed are critiqued (Fasser (op cit); Themistocleous-Rothner (op cit)). Most of the participants implemented the BIC in accordance with international guidelines and verified their conclusions with literature.

The American Family Conciliation Courts in the United States (US) have excellent guidelines, and although they are obviously context specific to the US, I think that they are very good principles to applying forensic practice here (Participant 7 JFG1).

I wish there were more guidelines. There are guidelines around the best interest, but there are not really guidelines around how you go about it, how you conduct a care and contact investigation (Participant 6 PFG2).

The above narratives reflect the lack of guidelines and uniformity for within the SA context. Fasser (op cit) and Thompson (op cit) affirm that in the absence of a model standard for care and contact investigations in SA, there is a tendency for most professionals to use the Model Standards of Practice for Child Custody Evaluation (2006), as promoted by the AFCC. The AFCC practice guidelines consists of 12 comprehensive procedures followed by international custody evaluators and members of AFCC who are involved with research in the family law field.

  • Subtheme 1.3 Experiences of social workers

All the participants experienced challenges in their interactions with the legal system. The vital role players in care and dispute matters consist of attorneys, magistrates, and employees of the offices of family advocates. While these challenges reflect the gaps, they also offer opportunities to address the gaps. The following statements are pertinent:

It is stressful because you get attacked, then by counsel, by court, by the attorneys (Participant 7 JFG1).

The office of the family advocate, and I think their training itself falls far short and I think they should train themselves better (Participant 2 PFG1).

But the understanding out there of the legal system and of the family advocates and of all these people who have to play important roles is very limited (Participant 6 PFG2).

In both the focus groups and the individual interviews, these challenges became a contentious issue as the participants felt threatened, anxious in dealing with these systems, and feared being reported to the SACSSP.

Goldstein (M Goldstein ‘Ethical issues in child custody evaluations’ in M Goldstein Handbook of Child Custody 1ed (Springer International Publishing Switzerland 2016) at 3) refers to the role players within an adversarial process in the legal system as ‘combative attorneys’ and ‘impatient judges’. Interacting with the legal system is one of the most pertinent challenges experienced by participants. The following narrative is pertinent:

… at the end of the day it’s about who has more power [referring to the client’s attorney who has more money to drive the litigation process] than the other one [the social worker] and it sometimes makes my work very difficult (Participant 2 IS).

R Madden (R Madden ‘Legal content in social work education’ (2000) 20(1-2) Journal of Teaching in Social Work 3) then already argued that in order for social work to better manage its professional existence, it would have to become a formidable role player in court proceedings for better decision making for clients. M de Jager (M de Jager ‘How prepared are social work practitioners for beginners’ practice? Reflection of newly qualified BSW graduates’ (2013) 49(4)  Social Work/Maatskaplike Werk 469), S Robbins, V Vaughan-Eden, T Maschi (S Robbins, V Vaughan-Eden and T Maschi ‘It’s not CSI: The importance of forensics for social work education’ (2014) 4  Journal of Forensic Social Work 171), and Sheenan (R Sheehan ‘Forensic social work: Implementing specialist social work education’ (2016) 16(6) Journal of Social Work 726) confirmed that the social worker is not professionally trained at university for the adversarial processes, and therefore, viewed it as in-house training at the organisation (or in the contact of private practice, incumbent on your own sense of training needs).

The following limitations were identified:

The study did not represent the greater population in the multi-cultural SA context, as the data presented by the SWIPP was mainly based on a white-dominated professional perspective. The study sample could have been representative of the other provinces, as well as having a more diverse and multi-cultural facet. The exclusion of social workers who are employed by government or welfare organisations that render statutory services. Future studies need to take the above limitations in regard.


This study aimed to explore and describe the opinions and experiences of SWIPP who use the BIC standard in care and contact disputes. The sample was 18 participants who render services in the Johannesburg and Pretoria areas of Gauteng, SA. The narratives of the participants reveal that, although they make use of the BIC in care and contact disputes, they experience difficulties with its interpretation and application. It is clear from the findings that there is a lack of formally recognised care and contact guidelines in the SA context. The challenges in the professional functioning of SWIPP in this study emerged from their interaction with the legal system, which caused risks in the feasibility of their role and tasks, by being accused of misconduct at SACSSP, which has a negative impact on their professional role.


Although the study focused on SWIPP using the BIC in family law disputes, the social work field in relation to care and contact matters is under-researched. Collaboration between the social work discipline and the legal system needs to be enhanced to act in the best interests of the children who this country aims to serve. This study could be seen as a pilot study towards the extension of future studies related to the BIC and/or care and contact disputes and is relevant to the current social work context in family law disputes in SA and internationally.

Sarie Nell MA (Child and Families Studies) (UWC) is a social worker in private practice in Centurion and Prof Glynnis Dykes PhD Social Work (University of Stellenbosch) is a Associate Professor in Social Work at the University of the Western Cape.

This article was first published in De Rebus in 2024 (April) DR 22.

De Rebus