Social Development Minister Lindiwe Zulu has amended regulations that prohibit the movement of children between custodial parents during the country's 21-day lockdown, which is aimed at curbing the spread of Covid-19.
Parents who share custody are now allowed to continue with their court-ordered custody plans and move their children between homes.
"Taking into consideration the impact on the child and the other parent who was not able to have any physical contact with their child, and the uncertainty of when they would, this is a welcome relief," says Felicity Guest, founder of Child Maintenance Difficulties South Africa (CMDSA).
The new directive
In terms of the new regulations, the 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 during the lockdown period, except where:
- arrangements are in place for a child to move from one parent to another in terms of a court order; or
- a parental responsibilities and rights agreement or parenting plan, registered with the family advocate, is in existence.
Only under certain conditions
However, moving children will only be allowed if "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 who transports the child must have in his or her possession the court order or the later agreement, or a certified copy thereof.
Unusual and unprecedented
Guest tells Parent24 that these are unusual and unprecedented times, so it is not surprising that there has been another amendment to the co-parenting regulations under The Disaster Management Act.
She adds that the regulations have not been without controversy and that many legal professionals have spent hours discussing, debating and arguing the merits of the interpretation and intention of The Disaster Management Act, merits of the interpretation and intention of The Disaster Management Act, who had authority, the independence of the judiciary and the Constitution.
"At the heart of the matter appears to be Section 28 (2) of the Constitution and Section 9 of the Children's Act that 'A child’s best interests are of paramount importance in every matter concerning the child', and whether the Minister of Social Development was authorised to issue directives regarding children in the care of their parents."
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Refusal to comply
If a parent refuses to the allow contact with the child and the above requirements are met, then the parent should approach the police for assistance.
A copy of the court-ordered agreement or parenting plan and a copy of the new regulations must be presented to the police.
The other option would be to approach the Children's Court for enforcement of the court-ordered parenting plan.
This is no one's 'fault'
Attorney Ayesha Abdul Karim says the directives are in line with international norms for co-parenting during the Covid-19 outbreak, but cautions parents to act within the best interests of the child.
Having a mediator or attorney involved would help the parties understand this is no one's "fault" as these are regulations and directives issued by the government in a time of extreme uncertainty.
If there is a parent who requires the minor children to be returned to her/him in terms of court order, she suggests that this is done in an amicable manner.
However, if the matter cannot be resolved amicably, the aggrieved party should approach the courts for relief.
Guest says this outcome appears to be the outcome of a collective effort by the legal fraternity who engaged with the Department of Justice, and that for now, there is a sense of relief from parents and clarity on the protocol for co-parenting.
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