April 21, 2020
ARE THE RIGHTS OF PARENTS “LOCKED DOWN” DURING THIS LOCKDOWN?
Various regulations and directives have been issued since our President declared the 21-day lockdown which commenced on 27 March 2020 (the “Lockdown”), in response to the COVID-19 virus. The Lockdown was extended by our President on 09 April 2020 for a further 14 days. The extension has placed pressure on many different sectors in our country, social development being one of them.
The government, around the time of the announcement of the extension, decided to amend certain regulations and directives, either to allow for a release of pressure in certain sectors or to ensure stricter enforcement in other sectors.
A question which has continuously arisen for concerned parents is whether separated parents are allowed to transport their children between the parents’ residences, in terms of the Disaster Management Act, 2002 (the “Act”), its regulations and all directives issued.
Initially the answer was a clear-cut no, as the Act prohibited the movement of people outside their residence, except for essential services, which essential services are listed in the regulations to the Act. The Act does not contain any provisions dealing with a parents contact rights and whether or not these rights remain enforceable during the Lockdown and as a result one would need to consider the purpose of the Children’s Act, 2005 which is to ensure that the best interests of the child are paramount at all times, when deciding on whether the transportation of a child between parents is permitted. Based on this interpretation, we believe that it is in the best interests of the child to ensure that they remain indoors, as a preventative measure against contracting the virus.
The answer above has now shifted with the new regulations published on 16 April 2020. The Minister has now provided that the movement of children between co-holders of parental responsibilities and rights or a caregiver is prohibited, except where arrangements are in place in terms of:
- a court order; or
- where there is an existing parental responsibilities and rights agreement or parenting plan registered with the family advocate, provided that the household which the child is to move to does not contain any person who is known to have come into contact with, or is reasonably suspected to have come into contact with a person known to or suspected to have contracted COVID-19. The person transporting the child is also required to have the court order or the agreements referred to above, or a certified copy of either, in their possession and must ensure that all the necessary forms are completed in full as failure to do so will result in the form being rejected as invalid.
Now although this brings clarity to the question of whether children may be moved between parents’ residences, there is still some ambiguity with regard to how far a child is allowed to travel to move between the respective residences. Many separated parents live in different towns or cities and may find themselves in trouble should they be found travelling between towns with their children.
In the amendment to the Regulations, dated 02 April 2020, movement between provinces, metropolitan and district areas is prohibited except for:
- essential workers travelling to and from work;
- transportation of cargo from ports of entry to their intended destination;
- transportation of mortal remains; and
- attendance of a funeral.
Based on the regulations, it does not appear as though transportation of children between metropolitans and or provinces has been considered in the latest regulations. If you are in the unfortunate position where your child would need to travel between metropolitans or provinces, we would first advise that you seek clarity from your nearest police department as to whether any further documentation may be required in the circumstances.