New directive issued permitting travel between co-parents
We are past the halfway point of lockdown. I doubt anyone would say it is flying by. For most, the lack of exercise, the absence of social contact, and the sheer monotony of staring at the same four walls every day is making the time drag. For single parents stuck at home with no respite, it’s bound to be an even more testing time. But it may also be difficult for the children who are deprived of the right to see their other parent or caregiver. And the prohibition against moving a child between parental homes may go against the principle of “the best interests of the child”.
7 April – instructions regarding child contact visits
When the initial directives regarding lockdown came out, there was some ambiguity as to the transport of children between the homes of co-parents. We originally wrote on 24 March that there was no specific mention of child contact with a parent in a different location. The situation was vague and we urged parents to proceed with caution.
On 30 March, the Minister of Social Development issued new directives (GG 43182, NO. R.430 – the R430 SD directives) which explicitly stated: “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 the 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.”
Yesterday, Minister of Social Development, Lindiwe Zulu, signed an updated directive, (GG 43213, NO. R.455) reversing that prohibition. It is now permitted, as long as certain conditions are in place:
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 2005 (Act No. 38 of 2005) is prohibited, except where arrangements are in place for a parent to move from one parent to another, in terms of:
- (aa) a court order; or
- (bb) where a parental responsibilities and right agreement or parenting plan, registered with the family advocate, is in existence.
- Provided that, in the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19.
The parent or caregiver transporting the child concerned must have in his or her possession the court order or the agreement referred to [above]…or a certified copy thereof.
Lockdown child contact visits – in plain English
What this means is that, so long as a court order or parenting plan is in place, it is permitted to transport your child to the home of the other parent, and vice versa. However, if you do not have a formal arrangement, then unfortunately you are not covered by this directive. This might be because you and the other parent of your child were never married, or your divorce was amicable and you did not require a parenting plan. We’ve written before about the usefulness of a parenting plan even when it is not mandated by the courts. We could not have foreseen the current circumstances, but this directive is an (admittedly extraordinary) example of why it is always wise to have a plan in place.
If you filed your parenting plan away with your divorce papers, now is the time to dig it out. You must carry it with you when travelling with your child to the home of the other parent. Given that it is permitted to go to the shops for essential items, and if you are a single parent you must of course take your child with you, it’s hard to know how the police will determine your destination and enforce this condition. But our advice is to comply with the directive and follow the laws of the land.
We are pleased to see the relaxation of a harsh legal position, which seemed to completely ignore the emotional needs of the child and was so out of line with other countries in similar circumstances. It was challenged by senior counsel and family law expert Janet McCurdie, who is also an advocate and admitted member of the Cape Bar. In a cogently argued comment paper, McCurdie said that for some children, and some parents, the enforced separation – or enforced confinement with one parent – could in fact be detrimental to their well-being and even harmful. The Children’s Act, not to mention the Constitution, puts the interests of the child first. But it may not be in the child’s interests to be with a particular parent or without a particular parent for the period of the lockdown. She also made the point that, in following the directive, parents could be in contempt of court if they fail to adhere to the terms of a court order.
Lastly, she questioned the authority of the Minister of Social Development to “issue regulations or directives regarding the exercise by parents of their rights in terms of a parenting plans / court orders… Similarly, the Minister of Social Development is not authorised in terms of any Regulation issued in terms of the [Children’s] Act, to issue directives pertaining to the exercise by parents of their rights of care and contact to their children.”
Time to update that parenting plan?
Right now the priority is getting through the lockdown, looking after our children, families and neighbours, and staying well. However, if you have dusted off your parenting plan and realised that it no longer reflects your current situation, this might be a good time to think about reviewing and updating it. Should another emergency occur, you want to be sure your legal position is watertight. And in the course of normal life, a parenting plan can help you and your co-parent navigate the issues that arise in raising children with minimal conflict and antagonism, thus ensuring the best interests of the child always come first, and your own mental health doesn’t suffer in the process.
Contact Divorce Attorney Cape Town for help
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