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.
The government gazette that was released (23 March 2020) does not mention child care and contact specifically. Therefore the legal position at the time was unclear and in a state of flux. 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.
As of 25 March 2020 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.
Update 16 April 2020
Minister Zulu implies that moving children between parents will be possible as long as the parents can produce a birth certificate.
Update 7 April 2020
On Tuesday, 7 April 2020, Minister Zulu signed new directives allowing the exchange of children between parents in terms of a court order or registered parenting plan, on condition that there was no exposure to COVID-19. Click here for the new laws: gazette.
Update 30 March 2020
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.
Update 28 March 2020
On the 26/27 March 2020 new regulations were released, specifically relating to child care:
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).
However, on the 28 March 2020, the Minister of Social Development, in a press conference, recognising the regulations, gave the following directive**:-
“The child shall remain in custody of the parent with whom the child was with when the lockdown was effected.
“The parent who was not with the child during the lockdown, in order to remain a personal relationship with the child, may communicate on a regular basis with the child.”
**A directive is an official policy document, which guides government departments on how to apply law; whether it is lawful or not, remains to be tested. For more about the legal status of directives click here.
Update 26/27 March 2020
Here’s a summary:-
- 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).
- 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.
- access to courts are restricted to person’s 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.
- Only the following family law services will be dealt with:
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 need more advice or representation negotiating shared child contact under these extraordinary circumstances, please email Elly at email@example.com, and we will set up a paid telephonic consultation urgently. For any other matters concerning divorce or parenting, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email firstname.lastname@example.org. Either Simon or one of our specialised divorce lawyers will contact you back.
We will continue to update this article as and when new information comes to light.
- Child care and contact after divorce
- Human rights in a time of pandemic
- Wise words from Bill Gates
- Who will care for your child after divorce?
- Stop Press! Child contact visits now allowed during lockdown
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.