Felicity Guest is the founder of Child Maintenance Difficulties South Africa (CMDSA), and through the organisation assists primary caregivers by empowering them to know their rights regarding child maintenance laws, and when seeking financial support through the South African Maintenance Courts.
Under the current lockdown directives, no child is allowed to be moved between parental homes, and must instead stay at the home of the primary caregiver, or the caregiver who can offer the best circumstances during the lockdown, for the duration.
Section 28.2 of the Constitution states that a Child’s best interests are of paramount importance in every matter concerning the child.
Are there exceptions?
On the 31 March 2020 the Chief Family Advocate, Petunia Seabi, stated on radio that all parents are duty bound to protect the health and welfare of their children.
No parent should want to go against the regulations to enforce their rights to contact; it will have criminal and financial implications.
So what procedure should parents follow should they be in the situation where a child needs to be moved for their own safety?
I asked Ayesha Abdul Karim, an attorney and vice chairperson of Child Maintenance Difficulties in South Africa (CMDSA), who specialises in family law.
She explained that "The Directives have taken into account the importance of the care and contact of children during this lockdown period. One can bring an urgent application to a competent court or the Family Court can be approached to have that child moved if it is in the best interest of the child."
"The Family Court is open specifically for matters where the child needs to be moved urgently, for particular circumstances that would necessitate the movement of the child for its own safety in light of The Disaster Management Act regulations."
Adv Muhammad Abduroaf advises that should there be an emergency and you have no alternative but to break the law for the safety and wellbeing of the child, and had you not broken the law, the child’s health and life would have been severely placed in danger and immediate threat, then the safety, health and life of the child, should be weighed against the spreading of the Covid-19 virus to other and the minor child concerned.
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There had been several high court applications in the first two days of shutdown, one by a father trying to enforce the parenting plan during shutdown and the other, the father was ordered to return the children to the primary caregiver by end of the day.
These two rulings made it clear that the movement of children was strictly prohibited under the Disaster Act regulations, unless there is an emergency.
Earlier this week the South African Police arrested a father who had forcibly removed the child from the primary residence and while further details of this case are unknown, it is clear that the Disaster Management Act will be enforced.
Contain the spread
Parents are urged to adhere to the lockdown regulations which are in the best interest of containing the spread of the Covid-19 virus and protecting their children.
Many parents seem to have put their differences aside and found ways of maintaining regular contact between parent and child; increasing video calls where possible or phoning more regularly.
Many have come to mutual agreements that the child/children will live with the non-primary caregiver during lockdown for various reasons.
The most common reason appears to be that the non-primary parent has more space, the primary parent is a health worker or works in the essential services or that the primary parent’s new partner works in the health services and could be a possible risk.
The need to move
There are many possible reasons why children might have to be moved during lockdown; the child could fall ill, the parent with whom the child is currently staying could fall ill, the child might be being abused or neglected, the parent with whom the child is staying might be being abused and it has become a risk for the child, and so on.
It needs to be emphasised that, the Best Interest of the Child is of Paramount Importance, this has been made very clear by the Department of Social Development.
This is a really challenging time for most parents, particularly the parent who has no physical contact with their child.
I urge you to please have empathy and understanding and try and accommodate reasonable requests when things return to normal, such as giving extra time to the parent who does not have physical contact with the child for this extended period.
This is an opportune time for parents to show their children how to manage and navigate a crisis and a valuable skill that will serve them while navigating life post Covid-19.
If you need help:
South African Police Services – anonymous tip-offs and crime stop: 0860010111
National Crisis line – Family Violence, Child Protection and Sexual Offenses Unit: 0800150150
GBVF related services complaints: 0800333177
Gender-based Violence command centre: 0800428428 or *120*7867#
Child line: 0800055555
Suicide Crises Line: 0800567567 or 0800456 789
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