The sexual orientation of a parent as factor for consideration in the granting of care

Abstract

Section 28(2) of the South African Constitution determines that every child has the right to have their best interests considered of paramount importance in all matters concerning them. Section 9 further provides that every person is considered equal before the law and has the right to equal protection and benefit of the law. Several grounds are listed relating to the unfair discrimination of persons, including their sexual orientation. The concept of care is incorporated in the Children's Act, and it entails a comprehensive description of parents' daily life regarding their children and the powers and duties expected to ensure the general protection, well–being and best interests of the child. The study aims to research the legal position when the sexual orientation of a parent is a considering factor in the granting of care, and the extent of which courts can give consideration to that factor. I commence by examining relevant national legislation relating to the concept of care and the best interests of the child standard in the Children's Act to establish how the sexual orientation of a parent is interpreted by courts in the granting of care. I then proceed to examine relevant international and regional documents to determine the relevant rights relating to the interests of children in the granting of care to a parent in divorce proceedings. I then proceed to analyse landmark cases to establish ways in which the approach of the courts regarding homosexuality have changed since the beginning of the new political dispensation in 1994. Finally a conclusion will be reached on the nature and scope of the consideration of a parent's sexual orientation in the granting of care in the South African context.