Children flourishing: Evolving capacities, human dignity and the realisation of children’s rights in South Africa
ARTICLE
Children flourishing: Evolving capacities, human dignity and the realisation of children’s rights in South Africa
Authors: Bryony Elizabeth Fox & Caitlyn Lattimer
ISSN: 1996-2177
Affiliations: Postdoctoral Research Fellow, Chair in Urban Law and Sustainability Governance, Stellenbosch University; LLD Candidate, Department of Private Law, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 4, p. 800-821
https://doi.org/10.47348/SALJ/v142/i4a8
Abstract
This article examines the potential of the principle of evolving capacities, outlined in art 5 of the Convention on the Rights of the Child (‘CRC’), to enhance the realisation of children’s rights in South Africa. Although the principle is not explicitly recognised in South African law, it offers a normative framework for balancing children’s rights to protection and autonomy. The principle, which is grounded in international law and is aligned with ss 10 and 28 of the Constitution of the Republic of South Africa, 1996, can be understood in light of the constitutional values of human dignity and human flourishing. The article explores the principle’s conceptual foundations, as well as its interpretative, developmental, participatory and protective functions. It then analyses how the principle has been implicitly referenced in South African legislation, albeit that it is underdeveloped in South African jurisprudence. Finally, it proposes a constitutionally grounded approach for the principle’s greater domestic application. In doing so, the article advocates for a more context-sensitive and dignity-affirming jurisprudence for children in South Africa.
