DECISION MUST BE IN BEST INTERESTS OF EVERY CHILD
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.