/ 12 April 2020

Some children can now travel between parents — subject to conditions

A Million Children Can’t Attend Creche

Divorced and separated parents, as well as co-holders of parental rights and responsibilities such as guardians, have been rolled another dice in the exercise of their contact rights during the lockdown period.

The regulations became the subject of amendment in the late hours of April 7. The best interests of children remain paramount and justify a reasonable and well-considered change of course when necessary.

What does the department of social development’s newly issued regulations provide regarding the obligations of parents and all co-holders of parental rights who may or may not have primary residency over these children during the lockdown?

Regulation 6(m) previously prohibited the movement of children households during lockdown. These regulations now state the movement of children between parents or other co-holders of parental rights and responsibilities remains prohibited, but for the following two exceptions:

  • Where there is a court order regulating such contact; or
  • Where a parental rights and responsibilities agreement or parenting plan (as registered with the family advocate) regulates contact arrangements.

 Those transporting the children are required to have the court order or agreement in their possession, or a certified copy thereof.

The complicating factor with these provisions is that they are subject to the condition that no person known or reasonably suspected to have had contact with someone known or suspected to have contracted Covid-19 in the household to which the child is travelling. But the rule should equally apply to the household from which the child is travelling. 

The regulations are open to different interpretations. The word “reasonable” in the amended regulation creates some uncertainty. This is a subjective judgment that parents are expected to exercise. It has the possibility to expose the regulations to different interpretations and resultant abuse. This could carry dire consequences for any of the parties involved.

The parent, in whose care the child is at the time, could have a subjective and unreasonable suspicion that a member of the household to which the child is travelling has come into contact with someone known to have or is suspected to have contracted Covid-19. We can only hope and trust that parents will do what is in the best interest of their child and not use this loophole to create obstacles for their child by exercising their contact rights with the other parent.

In instances where a child cannot be moved, parents are required to encourage regular communication with their child. A broad base of mediums, including SMS, WhatsApp, Skype, FaceTime, Zoom and other platforms can be used for this purpose. 

The best interests of the child are always paramount, and any decision should always be made with this in mind, including decisions regarding contact. Parents should place their child’s health, safety and best interests first and not further their own interests at the expense of their child’s interests. Open communication between parents discussing these issues are encouraged where feasible.

Many parents have said these new provisions discriminate against the rights of those children whose parents have not yet been able to either get a court order or to enter into a parenting agreement registered with the Office of the Family Advocate. We appeal to the department of social development to urgently consider this issue and to amend the regulations appropriately to safeguard these children’s rights.

Our courts are only available during this lockdown to hear truly urgent matters. The courts have already ruled that contact arrangements during the lockdown period are not considered urgent. As long as a child is safe and cared for, be it at one household or that of another parent or caregiver, it is unlikely that the matter will be entertained by our courts.

It is with strict adherence to the rules that parents can best help their children to safely and healthily navigate their way to a better tomorrow.

Courtney Sarah Elson is part of a team specialising in family law