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Bulletin | Covid-19

Co-parenting: Regulations permitting the movement of children between co-holders of parental rights and caregivers are further extended for the second phase of South Africa’s Lockdown

Fasken
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South Africa is currently in the  second phase of the COVID-19 Lockdown. The President has indicated relaxing the Lockdown to Level 4 from 1 May 2020. The Minister of Cooperative Government and Traditional Affairs Dr Nkosazana Dlamini Zuma (“the Minister”), amended the Directions issued in terms of Regulation 10(8) under section 27(2) of the Disaster Management Act 57 of 2020,  on 7 April 2020 and 16 April 2020.

 

In terms of the Directions issued on 16 April 2020 (“the Directions”), the 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 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 - 

 

a court order; 

where a parental rights and responsibilities agreement or parenting plan registered with the family advocate, is in existence; or

the co-holder of parental rights and responsibilities is in possession of a birth certificate or certified copy of a birth certificate of the child/children to prove a legitimate relationship between the co-holders of parental rights and responsibilities. 

 

 

Provided that in the household to which the child has to move:

 

there is no person, who is known to have come into contact or reasonably suspected to have come into contact with a person known to have contracted or reasonably suspected to have contracted, COVID-19.

 

 

 

In addition, the parent/caregiver transporting the child must have in his or her possession, the court order, the relevant agreement, or the birth certificate of the child/children.  

 

The Directions published on 16 April 2020 differ from the Directions published on 7 April 2020, in that co-holders and/ caregivers that do not have a court order or registered agreement can still exercise their contact rights, provided that they are in possession of a birth certificate or certified copy of a birth certificate of the child/children. 

 

In the recent case of C D and Another v Department of Social Development, the Western Cape High Court further clarified that the Directions published by the Minister are wide enough to provide for movement of children between provinces provided that a co-holder/caregiver is in possession of a court order.

 

Facts of C D and Another v Department of Social Development:

 

On 6 April 2020, divorced parents approached the court on an urgent basis requesting that the Regulations published by the Minister that prohibit the movement of persons between provinces during the lockdown, be dispensed with in respect of co-holders of parental rights who wish to fetch their children from a caregiver in a different province. 

The application was brought by the father of the children. The father, a divorcee, required to travel from Cape Town to Bloemfontein and back, to fetch his minor children from their grandparent’s home after the lockdown because of the grandparent’s frail health and inability to care for the children for an extended period of time. The Department of Social Development (“the Department”) prohibited the movement of the father to Bloemfontein and back on the basis that the Directions issued did not permit movement between provinces unless a court order was obtained. 

 

 

Judge Meer’s Findings:

 

There was an existing court order regulating the contact and care of the children. This court order, in terms of the Directions, permitted the father to travel to Bloemfontein to fetch his children.

There was no evidence that either parent has coronavirus or could reasonably be expected to have come into contact with a person with coronavirus. 

There was no need for the parents to have brought this court application and the Department should have permitted the travel. Therefore, the Judge ordered the Department to pay the legal cost of the application. 

In the event that a co-holder of parental rights and a caregiver are not in possession of a court order, they can apply to court on an urgent basis for an order.

 

Fasken runs a Pro Bono Helpdesk in Partnership with NISAA Institute for Women’s Development and Pro Bono.Org.

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