Article by Nicki Slabbert
There is no question that spread of the COVID-19 virus has far reaching health and economic effects, and that these effects has been investigated, discussed and debated by government and citizens alike. We are living in unprecedented times, that are governed by extraordinary measures and South Africans, much like their international counterparts, wait patiently as we learn of the latest regulations, strategies and mechanisms that will be implemented to fight the spread of the disease.
That being said, and given the urgency with which government implemented its various regulations, certain issues appeared to have been overlooked and require further clarity. One such issue was that of co-parenting during the lockdown period.
Initially, it appeared as though the issue of co-parenting was entirely absent from the regulations and as a result there has been much debate and conflicting opinions amongst attorneys as to whether children would be able to move between parents’ homes during the lockdown period. What was, however, made clear was that Maintenance, Children and Domestic Violence courts would be operational, where necessary.
Information has trickled in over the last few days and it would appear that despite the initial confusion, the official stance, which is in line with the concept of physical distancing and preventing the spread of the virus, is that it is in the best interest of children that they not be moved between their parents’ homes.
Speaking to the media in Pretoria, on 28 March 2020, Lindiwe Zulu, Minister of Social Development, had this to say: –
“The child shall remain in the custody of the parent who the child was with when the lockdown was effected. The parent who is not with the child during the lockdown, in order to maintain a personal relationship with the child can make regular communication with the child in other manners, including telephonic and other. Many people have been calling me directly, to say can’t we even exchange the child perhaps at a pharmacy or something of that sort.”
“The bottom-line is you need to protect your children. This is a period of 21 days and we have indicated that it is 21 days where a lot needs to be done in terms of tolerance, and patience. We are making a call to everyone that it is for your own good. If we are in the same difficulty after 21 days, these regulations and notices, we do have the space to look at them and see whether they are helpful or not.”
Click here to watch the media briefing.
This has been an evolving topic, and as expected, there were many calls for government to reconsider its position. As a result, Lindiwe Zulu, Minister of Social Development, issued an amendment to paragraph 6(m) of the regulations pertaining to co-parenting during the Covid-19 crisis on 7 April 2020, as follows: –
(i) 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), during the lockdown period, is prohibited except where arrangements are in place for a child to move from one parent to another, in terms of:
(aa) a court order; or
(bb) where a parental responsibilities and rights 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.
(ii) The parent or caregiver transporting the child concerned must have in his or her possession, the court order, or the agreement referred to in sub-items (aa) and (bb), respectively, or a certified copy thereof.
Find the amendment here: GNR-455-of-2020-7-Apr-2020
The minister has urged that parents be respectful of one another during this time, and practice flexibility, tolerance, and understanding during this emotional time.
Although protecting our children from contracting the virus has taken precedence over certain parents’ rights to physical contact, it does not mean that other parental rights and responsibilities have been set aside, and parents should at all times act in the best interest of their children. Any parents found to have abused the intended purpose of the lockdown, may face future litigation as a result of their behaviour.
Parties are encouraged to allow increased access via phone calls, video calls and messenger, provided that such access is within their means, and parents who are prevented from having physical contact with their children should have the opportunity to make up that time after the lockdown period.