Last updated on Jul 7th, 2020 at 02:00 pm
On Saturday, 29 March 2020, Minister Zulu, in a press conference, directed that visiting children must stay with the parent at time of lockdown.
She stated that the co-parent can make regular telephonic contact. This arguably contradicts the regulation that parenting plans must be attended to. Considering the health and safety reasons for the lockdown, the directive makes sense. However, it just shows how we can’t get a unified answer from law makers and government. Regulations should trump directives.
You and your child’s other parent live apart. Will your child be able to see you both?
If you are co-parenting with an estranged partner or ex-spouse, the first thought in your mind, on hearing the President’s announcement about lockdown, was probably: “What does this mean for access/contact rights?” It was certainly one of the first questions we had as family lawyers.
The interests of the child
The Children’s Act ensures that the interests of the child come first. This overarching principle means that, even where legislation does not specify conditions, all actions must be in the interests of the child.
However, as we discussed in Human Rights in a Time of Pandemic, some rights have to be subverted to ensure more important rights, i.e. the right to freedom of movement is not as important as the right to life, if curtailing movement preserves life.
Ultimately, the interests of the child are served by having healthy parents and a functioning society, including normal schooling, and by ensuring good health for the child.
If restricting the transfer of a child from one home to another facilitates these outcomes, then it could be argued it is in the best interests of the child. In normal circumstances, being deprived of contact with a parent would not be in the best interests of the child.
But these are not normal circumstances. Our leaders have difficult decisions to make.
SD Law spoke to a Family Advocate’s office on 25 March 2020
Our impression was that the Chief Family Advocate does not want to make a decision either way. He is leaving it to parents to decide.
He did, however, say that child visitation should be allowed, taking all recommended precautionary health measures in the transport of the children, and not contravening the law of the land, or authorities, like the police and army. The situation is as clear as mud.
If you choose to travel with a child, I would recommend you keep an ID, a birth certificate, and any court order/parenting plan with you.
The regulations could be interpreted either way. It could be argued that contact with a parent is an essential service. The regulations do not specify. Other countries under lockdown do permit travel between parents, but that cannot be relied upon as a precedent. Other countries also permit certain activities that our government has expressly forbidden. You must decide.
Please proceed carefully and at your own risk. Remember that the best interests of the child are paramount in all circumstances affecting them.
There is not always a hierarchy of constitutional rights, especially in a state of National Disaster, but it is vital to protect a child’s right to life, and balance that against their right to see the other parent, in a fair, equitable, and safe manner.
Government gazettes as at 27 March 2020
1. Arrangements where a child is to move from one parent to another in terms of a parenting plan must be attended to (s 8(2) of 43167 26-3 COGTA).
2. Private’s vehicles shall not carry more than 60% of the licensed capacity, and that all direction in respect of hygienic conditions and the limitation of exposure of persons to COVID-19, are adhered to.
3. Access to courts are restricted to persons with a material interest in a case in urgent and essential matters. All criminal trials set down during the lockdown period are to be postponed. All civil cases will not be enrolled in court during the lockdown unless urgent and essential. The sheriff will not serve process unless urgent and essential.
4. Only the following family law services will be dealt with:
1. Orders of court failing due to required to be made during the period of lockdown in the following matters:
1.1. foster care
1.3. removal of children in need of care and protection
1.4. placement of children in child and youth care centres
1.5. international child abduction cases
1. Maintenance matters:
1.1. First time applications
1.2. Applications in respect of enforcement of maintenance orders.
2. Protection orders
2.1. Applications for interim domestic violence protection orders
2.2. Applications for interim protection against harassment
Contact Divorce Attorney Cape Town for help
We are living in unique times. The situation is changing day by day, and no one is entirely sure what to do for the best. We have tried to explain the new “rules” as we understand them. If you have any questions regarding your co-parenting arrangement, now or at any time, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email email@example.com.
SD Law Attorneys aka Simon Dippenaar & Associates Inc., is a law firm based in Cape Town, of specialised divorce lawyers and family attorneys, best known for their high EQ win-win resolutions to divorce. SD Law will represent your best legal interests with uncompromising dignity.