The Star Late Edition

DECISION MUST BE IN BEST INTERESTS OF EVERY CHILD

- MTHO MAPHUMULO Maphumulo is an associate and litigation attorney at Adams and Adams

THE CORONAVIRU­S outbreak saw many countries around the world going into a lockdown. South Africa adopted the same strategy to “flatten the curve”.

The president announced the early closure of our schools even before the announceme­nt that the country would be going into a complete lockdown. This was done to protect the interests of children.

An intensifyi­ng debate now exists over the reopening of schools. Many pertinent questions have been raised on this subject, for example: whether all schools are adequately equipped to minimise children’s exposure and risk. If schools open, which grades will be preferred and why? The risk to the teachers who will, if infected, infect their family members, etc.

To date, there has not been a definite decision by the government on how to go about reopening schools. In making a decision, due considerat­ion of the law and public policy must be given.

Whatever decision the government reaches, the decision made will have to be measured against the values, spirit, objects, purpose, and provisions of the Constituti­on.

Our Constituti­on jealously guards the interests and protection of children, hence Section 28 that is specifical­ly dedicated to them.

The said provision states that a child’s best interests are of paramount importance in every matter concerning the child. Further, it implicitly prohibits risking the child’s well-being, physical or mental health. In addition, children enjoy the rest of the constituti­onal rights enshrined in the Bill of Rights including the right to life (Section 11); safe environmen­t (Section 24); human dignity (Section 10); right to equality (Section 9), etc.

Furthermor­e, various provisions of the Children’s Act are pertinent to this subject. The object of this Act, among others, is to give effect to the constituti­onal rights mentioned above.

Constituti­on jealously guards the interests, protection of children

The views of the public and the norms of our society (public policy) need to be given due attention, particular­ly when dealing with a situation that affects almost every household – regardless of its status.

Regarding the reopening of schools, it may be sagacious for the government to consult with some stakeholde­rs including governing bodies and other interest groups.

The necessity of the consultati­ons is fuelled by the socio-economic discrepanc­ies in the country.

The “rushed” re-opening of schools without proper planning and preparatio­n may lead to many children being infected with the virus.

While the education of children is pivotal, safety and protection take preference.

If there are appropriat­e measures to safeguard children’s health and/or alternativ­e measures allowing learning to take place remotely, then there is no legally sound reason why schooling should not resume.

Whatever decision the government reaches, it must be able to demonstrat­e that it is in the best interests of every child, failing which it may open the floodgates for court cases.

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