Last Thursday night’s announcement by President Cyril Ramaphosa will temporarily resolve a dispute that troubles many parents. But it will undoubtedly rear its head again

The President announced that, in view of rising community transmission of COVID-19, and after consultation with parents, school governing bodies, principals, educators, independent schools, civil society organisations and the Council of Education Ministers, schools would re-close. They had opened for grades 7 and 12 on 8 June and grades R, 6 and 11 on 6 July.

Decisions like this are never easy and risks must be balanced against risks

There are many good arguments for getting children back to school. Education is vital to overcoming poverty. The World Bank estimates that five months of school closures will have the effect of reducing lifetime earnings for affected children by $10 trillion (R164 trillion). But the WHO, which naturally has global health as its top priority, has called for the educational needs of the child to be weighed against the continued march of COVID-19. Who is right? Both are.

Home schooling is not the answer

It’s an unprecedented, impossible situation. Home schooling does not work for all children, and there is evidence that poor children, who are less likely to have access to Wi-Fi or devices and whose parents are less educated themselves (and therefore less able to assist with homework and lessons), fall further behind their better-off peers.

Furthermore, if children can’t go to school, parents (usually mothers) can’t go to work. Just as our economy is starting to open up again, and workers who have been deprived of an income start to be able to put food on the table again, it may feel to some like a setback.

From WHO to home

If policymakers are grappling with this dilemma, it’s not hard to see how it can split families. Schools are to take a four-week break, and the 2020 academic year has been extended into 2021. However, Grade 12 learners will only pause for a week, and Grade 7 learners for two weeks.

Furthermore, four weeks from now, we are unlikely to have reached the peak of the COVID-19 surge. So divorced parents who share custody but can’t agree on the rights and wrongs of sending children back to school will probably still be in dispute come 24 August, when schools resume.

What are the rights of parents in this situation?

Both biological parents inherently enjoy full parental rights and responsibilities in respect of their minor child(ren).

Section 30 of the Children’s Act 38 of 2005 states that, where more than one person is the holder of the same parental rights and responsibilities, one may act without the consent of the other when exercising such rights and responsibilities. However, section 31 of the Act goes on to state that, before a person holding parental rights and responsibilities takes any decision that may have an adverse effect on the child’s education and/or wellbeing, due consideration must be given to any views and wishes expressed by the co-holder of parental rights and responsibilities.

The Act also requires due consideration to be given to any views and wishes expressed by the child, if they are of an age to do so.

The interests of the child

As always with issues of child care, contact and wellbeing, the deciding factor will be: what is in the best interests of the minor child? But, as the arguments above show, the answer to this question is not straightforward.

The Economist presents some relevant data. COVID-19 poses a low risk to children. Studies have shown that under-18s are 30-50% less likely to catch the disease. Children under 10 are a thousand times less likely to die than those aged 70-79.

Furthermore, contrary to initial fears, the evidence suggests they are not especially likely to infect others. In Sweden, where nurseries and primary schools never closed, staff were no more likely to catch the virus than people in other jobs.

It is hard to argue that keeping children out of school is in the child’s best interests. The concerns of educators with regard to their personal safety are justifiable; but they have more to fear from each other than from the children, and that is not an issue for the Children’s Act.

Mediation

However, despite reassuring statistics regarding children and COVID-19, it is  understandable that some parents are still reluctant to send their children to school. The household may be inter-generational and they may be worried about exposing an elderly relative to the child who daily mixes with other people. The child may suffer from asthma or other health conditions. There are many reasons why parents may have differing views on the advisability of sending a child back to school.

If they cannot reach agreement themselves, it is always recommended that such disputes be referred to mediation first, before resorting to litigation.

In most cases, mediation reduces the damaging impact of high-conflict co-parenting issues on the minor child. Litigation tends to increase conflict and reduce harmony between co-holders of parental rights and responsibilities and should be avoided if possible.

How to find a mediator

There are many commercial mediation services available. Your family lawyer can also assist. They will either mediate for you directly or refer you to a local mediation service. For more information about mediation, parental rights and responsibilities, or co-parenting, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

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