Court/Judicial body: Constitutional Court of South Africa
Date: 26 September 2007 CRC
Provisions: Article 3: Best interests of the child Regional
Provisions: Article 30(1) of the African Charter on the Rights and Welfare of the Child, expressly dealing with ”Children of Imprisoned Mothers”
Background: M, a 35 year old single mother of three minor boys, was charged and subsequently convicted of 38 counts of fraud on 3 different occasions and was sentenced to 4 years direct imprisonment. M was the sole custodian of the three boys and was the primary caregiver of the minor children. She appealed against the sentence on the basis that her imprisonment was not in the best interests of her minor children.
Issue and resolution: Best interests of children in proceedings indirectly concerning them. The sentence was suspended; the mother was not send to prison and was instead put under a correctional supervision order.
Court reasoning: The best interests of the child must be a paramount consideration in all proceedings affecting them, and it is clearly in the best interests of the minor children that they continue to receive primary care from their mother. If M were to be sent to jail, the children would suffer loss of maternal and emotional support, loss of home and community, disruption in school routines and transportation, and potential separation from their siblings, all of which could negatively impact their developmental process.
Excerpt citing relevant human rights
Provisions:  Secondly, section 28 must be seen as responding in an expansive way to our international obligations as a State party to the United Nations Convention on the Rights of the Child (the CRC). Section 28 has its origins in the international instruments of the United Nations. Thus, since its introduction the CRC has become the international standard against which to measure legislation and policies, and has established a new structure, modelled on children’s rights, within which to position traditional theories on juvenile justice. I do not suggest that a children’s rights model for juvenile justice, where children themselves are directly in trouble with the law, should automatically be transposed to sentencing in cases where children are only indirectly affected because their primary caregivers are about to be sentenced. What should be carried over, however, is a parallel change in mindset, one that takes appropriately equivalent account of the new constitutional vision.  Regard accordingly has to be paid to the import of the principles of the CRC as they inform the provisions of section 28 in relation to the sentencing of a primary caregiver. The four great principles of the CRC which have become international currency, and as such guide all policy in South Africa in relation to children, are said to be survival, development, protection and participation. What unites these principles, and lies at the heart of section 28, I believe, is the right of a child to be a child and enjoy special care. …  These considerations reflect in a global way rights, protection and enments that are specifically identified and accorded to children by section 28. They are extensive and unmistakable. Section 28(1) provides for a list of enforceable substantive rights that go well beyond anything catered for by the common law and statute in the pre-democratic era. For present purposes, it is necessary to highlight section 28(1)(b) which states that “[e]very child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment”. …  Once more one notes that the very expansiveness of the paramountcy principle creates the risk of appearing to promise everything in general while actually delivering little in particular. Thus, the concept of “the best interests” has been attacked as inherently indeterminate, providing little guidance to those given the task of applying it. Van Heerden in Boberg states that: “[T]he South African Constitution, as also the 1989 United Nations Convention on The Rights of the Child and the 1979 United Nations Convention on the Elimination of All Forms of Discrimination Against Women, enshrine the ‘best interests of the child’ standard as ‘paramount’ or ‘primary’ consideration in all matters concerning children. It has, however, been argued that the ‘best interests’ standard is problematic in that, inter alia: (i) it is ‘indeterminate’; (ii) members of the various professions dealing with matters concerning children (such as the legal, social work and mental health professions) have quite different perspectives on the concept ‘best interests of the child’; and (iii) the way in which the ‘best interests’ criterion is interpreted and makers within the same country) is influenced to a large extent by the historical background to, and the cultural, social, political and economic conditions of the country concerned, as also by the value system of the relevant decision-maker.” …  The curator and the amicus also pointed out that South Africa’s obligations under international law underscored the special requirement to protect the child’s interests as far as possible. Article 30(1) of the African Charter on the Rights and Welfare of the Child, expressly dealing with “Children of Imprisoned Mothers”, provides that: “States Parties to the present Charter shall undertake to provide special treatment of expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and shall in particular: (a) ensure that a non-custodial sentence will always be first considered when sentencing such mothers; (b) establish and promote measures alternative to institutional confinement for the treatment of such mothers; (c) establish special alternative institutions for holding such mothers; (d) ensure that a mother shall not be imprisoned with her child; (e) ensure that a death sentence shall not be imposed on such mothers; (f) the essential aim of the penitentiary system will be the reformation, the integration of the mother to the family and social rehabilitation.” …  Howells is an example of a case where attention was carefully given to the interests of children. The appellant had been convicted in the Regional Court of having defrauded her employer to the extent of approximately R100 000. She had been sentenced by the Regional Court to four years’ imprisonment in terms of section 276(1)(i) of the CPA. The appellant was divorced and had three dependent children. Two factors counted strongly against her: she had spent most of the proceeds of her crime on gambling, and she had a previous conviction for fraud. Van Heerden AJ introduced the constitutional dimension in the following manner: “I have anxiously considered the effect on the minor children of the sentence imposed by the magistrate, bearing in mind the constitutional injunction that ‘a child’s best interests are of paramount importance in every matter concerning the child’, as also the constitutionally entrenched right of every child ‘to family or parental care, or to appropriate alternative care when removed from the family environment’” Van Heerden AJ observed further that the best interests of the child principle, which formed part of our common law as developed by the courts, had been given international significance by the ratification by South Africa of the CRC, which provides in Article 3(1) that “[i]n 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.”
Follow up: This case has set a precedent in South Africa that wherever possible, primary caregivers of minor children should not be sent to prison.
CRIN comments: This case is consistent with the CRC. As discussed by the Court, Article 3 of the CRC requires the best interests of the child to be of paramount importance in all proceedings involving them. Even when children are not the direct subjects of legal action, as here, their best interests must still be considered whenever the proceedings could have an impact on their lives. Citation: 2008 SA 232 (CC) 261 Link to Full Judgment:http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2007/18.html&query=%20M%20v%20S This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice. Countries South Africa CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.