On 23 March 2020, the President of the Republic of South Africa declared a National 21-day lockdown as a measure to curb and contain the rapid spread of the COVID-19 virus.
The National lockdown raised questions on the exercising of parental rights by parties that co-parent through parental rights agreements and court orders.
The National lockdown limits the rights of co-parents in the following ways:
- Parents with visitation/shared custody rights will not be allowed to exercise their rights during the lockdown period; and
- The children may not be moved between co-holders of parental rights and should remain in the custody of the parent whom the child was with when the lockdown was effected.
The limitations are implemented to ensure that the child is not exposed to any possible infection whilst moving from one parent to another.
While social distancing is an important objective to prevent the spread of the COVID -19 virus, it does not detract from the parental rights of a parent to remain in contact with their children through the use of technology.
Parents need to be reasonable during this lockdown period and amicably arrange alternative access to a co-parent via video calls, telephone calls and text messages (whichever is most practical) to the extent that it is in the best interest of their child/children.
The National lockdown inhibits parents from completely adhering to their co-parenting and custody agreements. However; parents are cautioned against unreasonably denying contact by intentionally frustrating a co-parent from exercising contact through the use of technology. Should they have access to technology and be in a financial position to afford it.
In the existence of a court order or a parental rights agreement, decisions of a parent to intentionally and maliciously inhibit the ability of a co-parent to get into contact with their children during the lockdown period can be used in any future litigation and can result in a criminal offence.
The question raised by parents regarding, a situation where a parent (A) who had primary custody of the child at the time when the regulations were imposed tests positive for COVID 19 and is placed in isolation. Does this give the parent(B) (the other parent) an automatic right to take care of the child or does this leave the child under the care of the State?
Although no court cases have been reported to address the above, this bulletin proposes that a court would have to consider the specific facts of each case to determine what would be in the best interests of the child at the time.
A court would take, amongst others, the following factors into consideration, before making a decision to remove a child:
- The nature of the personal relationship between the child and the specific parent;
- The capacity of the specific parent;
- The likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from a parent;
- The need for the child to remain in the care of a specific parent, family or extended family; and
- The child’s age, maturity, development, gender and background.
Each case will have to be dealt with on a case by case basis and the facts will always dictate what the courts will deem “in the best interests of the child”.
Should the National lockdown period be extended, the Minister indicated that the regulations published may be reconsidered.
This note has been written by Pro Bono Associate, Andricia Hinckemann; and supervised by Pro Bono Department Head, Sushila Dhever. The Fasken Pro bono team runs pro bono Family Law Help Desks for vulnerable children and Survivors of Gender Based Violence in partnership with Nisaa Institute for Women’s Development, FAMSA and Pro Bono.Org.
 On 25 March 2020, the Minister of Co-operative Governance and Traditional Affairs issued regulations defining the restriction on the movement of persons in terms of Section 11(B)(1)(a)(i) for the period of the lockdown as:
(i) Every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving or chronic medical attention.
 Section 35(1) of the Children’s Act stipulates that:
Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities agreement that has taken effect, refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.