The 'best interests of the child', parents' rights and educational decision-making for children: A comparative analysis of interpretations in the United States of America, South Africa and Australia

Abstract

The 'best interests of the child' is a principle that guides much decision-making about children's futures, albeit a principle without explicit conceptualisation for practice. In addressing competing rights of parents, children and school administrators, or even competing demands among those claiming parental interests, to make educational decisions and determine children's best interests, the three countries in this paper afford an overlapping kaleidoscope of legal perspectives. All three countries discussed in this paper have written constitutions, but only the Constitution of the United States of America has been interpreted to contain an implicit right of parents to make education decisions for their children. While the Constitution of South Africa, like that of the United States, contains a Bill of Rights, it protects the rights of children without mentioning parents. Australia, which has no Bill of Rights in its Constitution, protects children under statute and common law. Both South Africa and Australia are signatories of the United Nations Convention on the Rights of the Child (CRC) which influences their interpretation of best interest of the child. The United States, one of only two countries in the world (the other being Somalia) that is not a signatory, must balance the rights of children with parents' constitutional right to direct the education of their children. South Africa's Constitution, unlike that of Australia and the United States, expressly provides that the best interest of the child is the governing principle in addressing all matters involving the child. This paper explores the ways these three countries recognise the best interests of the child but differ in implementation of that concept, examining along the way the different legal issues and contestations that emerge, with particular emphasis on educational matters. The import of the United States and South African approaches for Australia are also examined.