“I am a divorced father of two minor children. The parenting plan concluded between myself and my ex-wife stipulates that my children primarily reside with her and visit me on alternating weekends. What do the lockdown directions say about my children visiting me in accordance with our parenting plan? Can my children still visit me? Or do they have to stay with their mother for the duration of the lockdown period?”
On 23 March 2020, President Cyril Ramaphosa announced a nationwide 21-day lockdown, which was extended by a further two weeks on 9 April 2020.
On 30 March 2020, Social Services Minister Lindiwe Zulu issued Directions in terms of Regulation 10(5) of the Regulations made under Section 27(2) of the Disaster Management Act 57 of 2002: Measures to Prevent and Combat the Spread of COVID-19.
The Directions, as they relate to the movement of children between co-parents, read as follows:
(i) Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This is to ensure that the child is not exposed to any possible infection whilst moving from primary caregiver premises to the other;
(ii) The child must remain in the custody of the parent with whom the child was with, when the lockdown period started;
(iii) The parent who is not with the child during the lockdown period may, in order to maintain a personal relationship with the child, communicate on a regular basis with the child in any other manner, including telephone or any other form of electronic communication which may also include Skype, WhatsApp or video call;
(iv) Co-holders of parental responsibilities and rights must communicate with their child or children including communicating what COVID-19 is and the temporary precautionary measures that are applied to contain the spread of COVID-19.”
In essence, the Directions prohibited the moving of a child between parents with joint parental rights and responsibilities and held that a child had to stay with the parent with whom the child was living when the lockdown commenced.
This caused an uproar amongst parents, and Zulu admitted that she was inundated with calls from parents with joint parental rights and responsibilities on where their children should stay during the lockdown period.
Fortunately, on 7 April 2020, Zulu issued an Amendment to the Directions Issued in terms of Regulation 10(8) of the Regulations made under Section 27(2) of the Disaster Management Act 57 of 2002: Measures to Prevent and Combat the Spread of COVID-19.
The Amended Directions now read 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 expected 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.”
To summarise, the Amended Directions now permit a child to be moved between parents with joint parental rights and responsibilities; but, only if
said parents have an existing parenting plan in place which is registered with the family advocate. The Directions further require that a parent must have on his or her person the parenting plan, or a certified copy thereof when transporting the child to the other parent. Naturally, the Directions also require that the utmost care and caution is taken when moving a child between parents to ensure that the child remains safe and healthy.