"The best interests of the child : a perspective into the refusal of necessary medical care for children, by parents, on the basis of religious beliefs."

Abstract

The best interests of the child is of paramount importance as indicated by our supreme law of the land, the Constitution of the Republic of South Africa. South African law creates a firm basis for the protection of children’s right. One such right is the right to receive adequate medical care and not to be refused such care for any religious reasons. Parents have the primary and legislative duty to provide the child with all needs required, including the right to health care, in order to ensure the wellbeing and best interest of the child. The “best interests of the child” standard has been one which has received extensive court intervention but application in South African law has been truncated. Parents often refuse medical care for their children based on their personal religious objections, and rather tend to opt for faith healing. Sometimes such refusal tends to harm the child rather than benefit the child. The adverse effects unreasonably placed on children by such refusal, have resulted in severe harm, damage or even death of the child. Often parents are not held accountable. The law needs to promulgate more stringent provisions creating liability on parents who neglect and harm their children. The High court acts as the upper guardian of all children and are obliged to limit parental rights in order to serve the best interests of the child. Although the courts play an active role in the child’s life, the need for intervention by third parties is looked at as a possibility. Third parties who have an interests in the child’s health and wellbeing should be allowed to make decisions regarding heath care which is in the child’s best interest. This dissertation will seek to introduce third party intervention into South African law.