Many parents, divorced or unmarried, share the care of their children and/or are entitled to agreed periods of contact with them. They are co-holders of parental responsibilities and rights.
The COVID-19 pandemic has resulted in our schools being closed and our nation being in lockdown until midnight on 16 April 2020. How does this affect the movement of children between parents’ homes?
Dr Dlamini-Zuma, on 25 March 2020 under the Disaster Management Act, issued Regulations. In terms of Regulation 11B(1)(a) of the final lockdown Regulations, the movement of persons and goods are restricted. Every person is confined to his or her place of residence, unless strictly for the purposes of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, lifesaving or chronic medical attention. The movement of persons between provinces and between metropolitan and district areas is prohibited.
On 30 March 2020, in Government Gazette No 11072, the Minister of Social Development, Ms Lindiwe Zulu issued Directions in terms of the Regulations in order to prevent and combat the spread of COVID-19. These directions came into operation that day. Paragraph 6(m) issues directions aimed at avoiding the spread of COVID-19 between persons who are co-holders of parental responsibilities and rights, by exercising the necessary care during the lockdown period.
The bottom line is that children must stay where they are. Movement between children and the co-holders of parental responsibilities and rights is prohibited. The child must remain with the parent the child was with when the lockdown period commenced.
(i) Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This is to ensure that the child is not exposed to any possible infection whilst moving from primary caregiver premises to the other;
(ii) The child must remain in the custody of the parent with whom the child was with, when lockdown period started;
(iii) The parent who is not with the child during the lockdown period may, in order to maintain a personal relationship with the child, communicate on a regular basis with the child in any other manner, including telephone or any other form of electronic communication which may also include Skype, WhatsApp or video call;
(iv) Co-holders of parental responsibilities and rights must communicate with their child or children including communicating what COVID-19 is and the temporary precautionary measures that are applied to contain the spread of COVID-19.
Update - On 7 April 2020 the Regulations previously published were amended and now the movement of children between parents during lockdown is allowed where arrangements are in place for a child to move from one parent to another i) in terms of a court order or ii) where a parental responsibilities and rights agreement or parenting plan, registered with the family advocate, is in existence.
A further condition is that in the home that the child is moving to there is no one that has contracted COVID-19, or reasonably suspected to have contracted the disease, known to have come into contact with someone with COVID-19, or reasonably have suspected to have come into contact with someone with COVID-19.
If the child is being moved during lockdown, the parent transporting the child must have in his or her possession, the relevant court order or agreement, or a certified copy thereof.
Update - On 16 April 2020, Dr Dlamini-Zuma, under the disaster Management Act, made further Regulations.
In terms thereof, Regulation 11B was amended to add a new sub-paragraph (9)(a) which deals with the movement of children during the lockdown period and which is set out hereunder. The regulations now not only allow the movement of children between parents with a court order or parenting plan but also with a birth certificate.
"(9)(a) Movement of children between co-holders of parental responsibilities and rights or a caregiver as defined in section 1(1) of the Children's Act, 200 (Act No. 38 of 2005), during the lockdown period, is prohibited, except where arrangements are in place for a child to move from one parent to another in terms of-
(i) a court order;
(ii) where a parental responsibilities and rights agreement or parenting plan, registered with the family advocate is in existence; or
(iii) the co-holder of parental responsibilities and rights is in possession of a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights:
Provided that in the household to which the child has to move, there is no person who is known to have contact, or is reasonably suspected to have come into contact with any other person known to have contracted or reasonably suspected to have contracted COVID-19 in the household which the child has to move to.
(b) The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the parental responsibilities and rights agreement or parenting plan or the birth certificate of the child or children, as required.
Regulation 11B, however, remains unchanged with regard to travel across provincial boundaries.
In the Western Cape High Court, on 14 April 2020, judgment was delivered in an urgent application where the Court dealt with the issue of movement of children between holders of parental responsibilities and rights during lockdown. The children were with their grandparents (who could not adequately care for them during lockdown) in Bloemfontein and their parents in Cape Town. The Court granted an Order allowing the father to travel to Bloemfontein to collect the children (the full judgment can be found on SAFLII)
For more information or professional assistance on this, contact Judy Theron at firstname.lastname@example.org
This article is not intended to provide legal advice; it is for general information purposes only and to provide a general understanding of the law. It is advisable that advice relating to the specific circumstances of your matter be sought from an attorney before acting upon the content of this article. This article is written at a particular point in time and accordingly may not always reflect the most current legal developments, legislation and/or judgments which may be applicable from time to time. The author and/or Rushmere Noach Incorporated are not responsible for any errors or omissions in the content.