• Kevin Smith

Care and Contact of minor children during the national lockdown

Contact – The importance of the parenting plan

Currently under the national lockdown the movement of children is prohibited, subject to the strict provisos set out in the consolidated regulations issued in terms of Section 27(2) of the Disaster Management Act[1]; which states as follows:

Regulation 11B (9)(a):

“ 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—

(i) a court order;

(ii) where a parental responsibilities and rights agreement or parenting plan, registered with the family advocate, is in existence, or

(iii) the co-holder of parental responsibilities and rights is in possession of a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights:

(iv) recent regulations have allowed for parents to apply at a magistrate’s court for a permit allowing movement of a minor child in the absence of the above.

Provided that in the household to which the child has to move, there is no person who is known to have come into contact, or is reasonably suspected to have come into contact with any other person known to have contracted, or is reasonably suspected to have contracted COVID-19 in the household which the child has to move to.

(b) The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the parental responsibilities and rights agreement or parenting plan or the birth certificate of the child or children, as required.”

The “movement of children” in the regulation refers to contact (previously known as access). Parents that have been through a divorce or who are currently going through one will relate to the word and the emotional roller coaster associated with it, care, responsibilities and rights. For those not familiar with the term, contact in terms of section 1(1)[2] means:

1. “Maintaining a personal relationship with the child; and

2. If the child lives with someone else –

2.1 Communication on a regular basis with the child in person including

2.1.1 Visiting the child; or

2.1.2 Being visited by the child; or

2.2 Communicating on a regular basis with the child in any other manner, including-

2.2.1 through the post; or

2.2.2 by telephone or any other form of electronic communication.”

Contact enables a parent or caregiver who does not exercise primary care over their child to see, spend time with and enjoy the company of their child. It promotes a continuing parental relationship between the child and that parent.

In Chodree v Vally [3] the court said that “Very important aspects of life, human conduct and values are ideally emphasized by both father and mother. Love and affection from both also enhance the security and stability of the child.”

It is a fundamental right of a minor child to be able to have contact with his/her parent. Too many times do parents use their innocent minor children as their weapons in war. It is now prudent, more than ever; that parties to a marital dispute exhaust all measures to reach a settlement and put a parenting plan in place. The benefit of such a prudent approach is apparent in the matter of CD, MD v Department of Social Development.[4]

The Applicants [who are divorced from each other] applied on an urgent basis for the regulations prohibiting the movement of persons between provinces during the Lockdown, to be dispensed with.

The purpose of the application was to enable the Applicants to travel from Cape Town to Bloemfontein and back, to fetch their children, aged 10 and 7, from their grandparents’ home.

The court granted the order authorising inter alia the First Applicant to travel to Bloemfontein to fetch his children and return to Cape Town with them.

The Honourable Judge Meer said at paragraph [7]:

“The Applicants are the biological parents of the children, and pursuant to a divorce order, as aforementioned, arrangements and a parenting plan are in place as envisaged in the Amended Direction, for the children to move between the Applicants.”

It would remiss not to mention the additional proviso that one party must be Covid-19 negative. This aspect will be discussed in a future article.

Article written by: Ahmed Gani, Kevin Smith, Ziyaad Moosa, Yusuf Sujee

[1] 57 of 2002 [2] Childrens Act 38 of 2005 [3] 1996 (2) SA 28 (D) [4] (5570/2020) [2020] ZAWCHC 25 (14 April 2020)

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