This chapter highlights two distinct perspectives – international and domestic – on the judicial application of the Convention on the Rights of the Child (the Convention). The international perspective is framed by reference to article 4 of the Convention and the maximalist approach taken by the Committee on the Rights of the Child. The domestic perspective is conceptualised by reference to the direct and indirect application of the Convention as permitted by the reception rules in monist, dualist, and hybrid legal systems. The chapter argues that the international and domestic perspectives on the judicial application of the Convention differ on account of the different institutional positions of the bodies that control them (the Committee vs the domestic courts). The maximalist international position promoted by the Committee is often unavailable to the domestic courts, although it may be a potential inspiration to them. Canvassing these distinct perspectives provides the context for a better understanding of the limitations in the domestic courts’ engagement with the Convention, detailed in the subsequent chapters.

The chapter analyses the judicial application of the Convention on the Rights of the Child (the Convention) in South Africa, which is a hybrid legal system with both monist and dualist features. The largely successful judicial application of the Convention has been facilitated by the country’s constitution, which contains a provision on children’s rights and generous provisions regarding the judicial application of international treaties. The chapter shows that courts favour the application of the Convention as an interpretation tool for the children’s rights clause in the Constitution, but they neglect other possibilities of engagement, such as self-execution or statutory interpretation. This has resulted in lost opportunities to give judicial effect to the Convention. Courts also engage in sui generis forms of application, which has diversified the means of its application. The impact of the Convention is sometimes difficult to discern because of its overlap with domestic instruments. Nonetheless, the Convention has demonstrated its value added when gaps were found in the domestic law, although most often the influence of the Convention has been subtle and diffuse.