Analysing the adequacy of domestic and international legal frameworks for the protection of children’s rights: A South African perspective

Analysing the adequacy of domestic and international legal frameworks for the protection of children’s rights: A South African perspective

Bulelani Thukuse & Paul S. Masumbe

Issue: Vol. 7 No.6 2026 Article 6 pp. 1487 –1506
DOI: https://doi.org/10.38159/ehass.2026766 Published online 14th July 2026

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ABSTRACT

The purpose of this article was to examine how well South Africa’s domestic and international legal frameworks protect children’s rights, especially in custody disputes where abuse is alleged. This study analysed the adequacy of domestic and international legal frameworks for the protection of children’s rights in South Africa, with a particular focus on custody disputes involving allegations of child abuse. A qualitative, desktop-based research methodology is adopted, drawing on legislation, case law, policy documents, and existing academic literature. The study addresses the following legal questions: (i) How effective is the domestic legal framework that governs child abuse in custody disputes? (ii) How do courts interpret and apply child protection laws in custody proceedings? The study examined the degree to which the “best interests of the child” principle is applied to determine custody outcomes involving primary caregivers. In addition, it assesses how international legal instruments influence South Africa’s child protection regime. The findings indicate that while the legal framework, including the Children’s Act 38 of 2005, provides a strong rights-based foundation, inconsistencies in judicial interpretation and implementation weaken its effectiveness. It recommends stronger judicial training, improved enforcement mechanisms, and better integration of international standards into domestic law. The study concludes that despite a progressive legal framework, challenges in enforcement, judicial consistency, and procedural delays continue to undermine child protection in custody disputes. This study will contribute to the advancement of South African child protection jurisprudence.

Keywords: Child Rights, Custody Disputes, Abuse, Children’s Act, Best Interests of the Child, South Africa, International Obligations.

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ABOUT AUTHOR(S)

Bulelani Thukuse (LLB) (LLM) is a Junior Lecturer in the School of Law, Faculty of Law, Humanities & Social Sciences, iYunivesithi Walter Sisulu, South Africa. He also serves as a reviewer for Turf-Law Journal, South African Journal of Agricultural Extension (SAJAE), and African Journal of Nursing, Social Work and Traditional Healing Systems (AJONSOTHS). His research interests cut across International Criminal Law, Human Rights Law, and Labour Law, particularly issues relating to minimum wages as well as selected aspects of Private and Public Law.

Professor Paul S. Masumbe (LLD) is Associate Professor & Head of the School of Law, Walter Sisulu University. He is an external examiner for master’s and doctoral degrees in law at various universities and a journal reviewer. His research interests include International Criminal Law, Human Rights Law, Labour Law with emphasis on dismissal, and selected areas of Private Law.

TO CITE ARTICLE

Thukuse, Bulelani, and Paul S. Masumbe. “Analysing the Adequacy of Domestic and International Legal Frameworks for the Protection of Children’s Rights: A South African Perspective,” E-Journal of Humanities, Arts and Social Sciences 7, no.6 (2026): 1487 –1506. https://doi.org/10.38159/ehass.2026766