There have been numerous speculations in relation to the contact between minor children and their non-custodial parents or other holders of parental rights and responsibilities during the lockdown period.
When our President announced on 23 March 2020 that the Country would be entering into a 3 (three) week lockdown period, many questions arose. Parents were unsure how their contact rights would be influenced during this period. On 25 March 2020 the Department of Social Development tried to provide clarity in this regard with the following statement:
We request that children remain with the primary custody holder and should only be moved in exceptional circumstances (no children should be moved for the duration of the lockdown).
Subsequently, the Department of Social Development published Regulations on 30 March 2020 which confirmed the legal position. It was clear from the aforesaid Regulations, specifically referring to Regulation 6(m), that minor children should remain with the parent with whom they were when the lockdown commenced and may not be moved during the lockdown period from one parent to the other. Parents were also encouraged to ensure that all communication channels with the other parent remained open and that minor children be allowed to communicate freely with the other parent.
The aforesaid Regulations led to more uncertainty between parents due to the fact that specifically when minor children are of a very young age, telephonic contact is not as beneficial as physical contact. Parents were distraught in light of the fact that they might have been fighting for reasonable contact to their minor children, only for the lockdown to intervene. However, all decisions that might have an impact on minor children should be made in the best interests of the minor children. Therefore, the Department of Social Development was of the opinion that the aforesaid arrangement would protect and promote the best interests of all minor children. It is of paramount importance that all measures be taken to ensure that no minor child is exposed to COVID 19 as far as is practicably possible.
The Department of Social Development has, however, reviewed their earlier decision and an amended Regulation was published on 7 April 2020 wherein the following changes were made:
- Movement of minor children from one parent to another during the lockdown period is prohibited, except where arrangements are in place in terms of:
- A Court Order;
- A Parental Responsibilities and Rights Agreement or Parenting Plan, registered with the Family Advocate;
- The above is subject to the condition that the household to which the minor child/ren will be moved is not occupied by any persons who have come into contact with or is reasonably suspected to have come into contact with COVID 19.
- The parent transporting the minor child/ren must have the original or a certified copy of the agreement or Court order in his/her possession when transporting the minor children to the other parent.
The position is now clear: If you are in possession of a Court Order and/or a registered Parental Responsibilities and Rights Agreement or Parenting Plan, registered with the Family Advocate, you are entitled to exercise your contact rights according to the Court Order and/or Agreement. It is of utmost importance that you remember to have the original or a certified copy of the agreement or Court Order in your possession when transporting the minor children. It is also fundamental to remember that the children’s best interests are to be taken into consideration at all times.
Should you have any queries in relation to the exercise of your contact rights, you are welcome to send an e-mail to Natasha Truyens at email@example.com, or to Isabel Pretorius at firstname.lastname@example.org. Natasha and Isabel are attorneys at Barnard Incorporated Attorneys.