COVID-19: MOVEMENT OF CHILDREN DURING LEVEL 4 NATIONAL LOCKDOWN

Since the announcement of the national lockdown on 23 March 2020 due to the COVID-19 pandemic, the public was bombarded with new Regulations – in some instances on a daily basis. This led to great uncertainty, especially regarding the movement of children between parents or co-holders of parental responsibilities and rights (“co-holders”). The movement of children between parents or co-holders was only allowed in terms of any Regulations from 30 March 2020 and seemingly only after a flurry of urgent applications to the High Courts by concerned parents.

Despite allowing for the movement of children between parents or co-holders in the Regulations published on 30 March 2020, it soon became apparent that such movement did not provide for movement across provincial boundaries. This again led to unnecessary uncertainty and concerned parents or co-holders being sent from pillar to post as some police stations provided traveling permits for the crossing of provincial borders, whilst others refused.

It seems as if more clarity has finally been provided with the promulgation of the Level 4 Regulations published on 29 April 2020. In terms of these Regulations:

• the movement of children between parents or co-holders (or caregivers) in the same metropolitan area or district municipality is allowed subject to the parent, co-holder or caregiver being in possession of a:

• court order; or
• parental responsibilities and rights agreement or parenting plan, registered with the Family Advocate; or
• permit issued by a Magistrate which corresponds with Form 3 of Annexure A of the Regulations if the aforementioned documentation is not available.

When approaching a Magistrate with an application to issue a permit, the Magistrate must be provided with the following documentation:

• a birth certificate or certified copy of a birth certificate of a child to prove a legitimate relationship between co-holders and the child;
• written reasons why the movement of the child is necessary.

The movement of children between parents, co-holders, or caregivers between different metropolitan areas or district municipalities or provinces, however, is only allowed subject to the parent, co-holder, or caregiver having a permit issued by a Magistrate. This permit too must correspond with Form 3 of Annexure A of the Regulations.

Children who were not at their primary residence before the lockdown period was implemented and who could not travel between provinces, metropolitan areas and district areas during lockdown, will be permitted on a once-off basis to return to their primary caregiver if the co-holder or caregiver has a permit issued by a Magistrate which corresponds with Form 3 of Annexure A of the Regulations.

When approaching a Magistrate with an application to issue a permit for a child to move between different provinces or to return to the primary caregiver, the Magistrate must be provided with the following documentation:

• a court order; or
• a parental responsibilities and rights agreement or parenting plan registered with the Family Advocate; or
• a birth certificate or certificate of the child to prove a legitimate relationship between the child and a co-holder; and
• written reasons why the movement of the child is necessary.

It is to be noted that the household to which the child is moving must be free of COVID-19.

From a reading of the Regulations applicable to the movement of children across provincial boundaries, it is clear that a Magistrate can also grant a permit in the absence of a court order, parental responsibilities and rights agreement or parenting plan. In such an instance, the parent, co-holder, or caregiver will have to ensure proper compliance with the fourth requirement, i.e. reasons why the movement of a child is necessary. Although it is not expressly recorded in the Regulations, the reasons provided will have to pass muster when tested against the best interests of the child standard provided for in Section 9, read with Section 7 of the Children’s Act. A parent who might be required to return to work in Level 4 and cannot look after the child, especially whilst the child may not yet be able to return to school, may be considered as a good reason for the child to be in the care of the other parent who might be better equipped to care for the child during Level 4.

Contact our offices should you require assistance with your application to obtain a permit to move your child in Level 4 of the national lockdown.

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