Article by Durban Divorce Attorney - Fawzia Khan
Whilst these are trying times for all of us, it is especially so for a divorced parent unable to spend time with their minor children. However the ultimate and overarching consideration the courts will consider is what is in the best interests of the child. Under these unprecedented times, the need to protect the life of the child will thus trump a parent’s right to exercise contact over that child.
The Lockdown Regulations following the outbreak of Covid-19, are contained in The Disaster Management Act 2002. On 16 April 2020, the Government Gazette published certain amendments to the regulations and gave some leeway on the movement of children during the national lockdown.
In terms of the latest amendment, the movement of children between households remains prohibited, unless you have a court order allowing for the movement of the children, or if there’s a parental responsibilities and rights agreement or parenting plan which is registered with the family advocate, in existence, or you are in possession of a birth certificate of the child to prove a legitimate relationship between the co-holders of the parental responsibilities and rights.
The person who is tasked with transporting the child between households is required to a copy of the court order or parenting plan endorsed by the Family Advocate in his / her possession or the child’s birth certificate or a certified copy. The regulations state that the household to which the child is moving to, must be safe in that there must not be any person in that household who has contact with another person with Covid-19.
Those parents with whom the children are living with during the lockdown are encouraged to allow the other parent to have regular daily electronic contact with the children, such as What’s App video calls, Skype contact etc or even normal telephonic contact.
A parent who wilfully deprives the other parent of such contact could regret it later especially if the aggrieved parent opts to litigate once the lockdown restrictions are lifted. In that case, it’s likely that the deprived parent could be viewed with greater sympathy by the presiding judge.
PS: Following the announcement made by the various ministers at the COGTA ministerial briefing session on 29 April, it’s anticipated that as South Africa goes into Level 4 of the lockdown rules as from 1 May 2020, children of divorced parents will be allowed to move households between the parents. These rules should be set out more fully in the Government Gazette.
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