Article 4: Best Interests of the Child 1. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration. 2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, and opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law. 38. In 2010, two major statutes were passed: the Constitution Amendment Act and the Child Care, Protection and Justice Act. The statutes heralded a new era in child protection for the former amended section 23 of the Constitution to recognize at constitutional level, the principle of the best interests of the child. In the Child Care, Protection and Justice Act, the principle was given legislative effect. 39. In the language of the Constitution in section 23, ‘the best interests and welfare of children shall be the primary consideration in all decisions affecting [children]’. 40. The Child Care, Protection and Justice Act has given instances, by way of example, when the principle may be invoked in favour of children. One example is when a Child Justice Court considers making an order of custody or access to a child. 41. The principle has already found its place in Malawian jurisprudence when the famous case of adoption of Chifundo James went as far as the Supreme Court of Appeal. On 3rd April, 2009, the High Court rejected an application for the adoption of the infant CJ. In declining the application, the court had recourse to Article 3 (1) of the CRC and Article 4 of the ACRWC and qualified the principle on the understanding that inter-country adoption is a remedy of last resort. 42. When the matter went to the appellate court, the Supreme Court read the principle differently. In their judgment, pronounced on 12th June, 2009, the Justices of Appeal allowed the Petitioner’s appeal and granted the adoption order. While both judgments pre-date the 2010 amendments, a bone of contention also arose as to whether the principle was applicable in Malawi since it did not have constitutional or legislative effect. The Supreme Court found that as a signatory to the CRC and ACRWC, the principle had local application and stated as follows: 12 | P a g e