|The Applicants are the biological parents of two minor children (“the children”) who, by virtue of their divorce, are co-holders of parental responsibilities and rights in terms of the Children’s Act 38 of 2005 (“the Children’s Act”). Due to the outbreak of Covid-19, or the Corona virus, the South African Government declared a nationwide lockdown on 26 March 2020. |
Regulation 3(b)(i) and (iii) published in Government Gazette No 43199 (“the Regulations”), by the Minister of Cooperative Governance and Traditional Affairs in terms of section 27(2) of the Disaster Management Act no 57 of 2002 (“the Act”), prohibits the movement of persons and goods between provinces and between metropolitan and district areas. The Regulations stated that “every person is confined to his or her place of residence” apart from a few exceptions, including but not limited to, the performance of an essential service, the attendance of a funeral and the collection of a social grant.
On 6 April 2020 the Applicants applied, on an urgent basis, for this rule to be dispensed with in order to enable their travel from Cape Town to Bloemfontein and back, to fetch their children from their grandparents’ home in Bloemfontein. The children had travelled to the grandparents during the school holidays, on 22 March 2020, for a short visit with the intention of returning to Cape Town before the commencement of the school term. When the lockdown commenced, the children found themselves locked down in Bloemfontein. The first Applicant claimed that his parents (the grandparents) were not fit and able to look after the children for a long period of time, owing to, inter alia, the grandmother’s bad arthritis and chronic backpain and the grandfather’s limited support in this regard.
Initially, the movement of children between co–holders of parental responsibilities during the lockdown period was strictly prohibited by the first set of Directions issued on 30 March 2020. However, the Directions were amended on 7 April 2020 by the Minister of Social Development (“the amended Directions”). The amended Directions provided that the movement of children between co-holders of parental responsibilities and rights or a caregiver is prohibited except where arrangements are in place for a child to move from one parent to another in terms of a court order or a parenting plan (registered with the family advocate) and on condition that that 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 suspected to have contracted, Covid-19.
The Regulations further state that the parent or caregiver transporting the child concerned must have in his or her possession the court order or the parenting plan (or a certified copy thereof). Since the hearing of this case, the Regulations were again amended on 16 April 2020 to include an additional exception, being that the movement of children between co-holders of parental responsibilities and rights is also permitted where the parties are in possession of a birth certificate or certified copy of a birth certificate which proves a legitimate relationship between the co-holders of parental responsibilities and rights.
In this matter, the Applicants’ divorce order included a consent paper and parenting plan registered with the Offices of the Family Advocate in terms of which arrangements were in place for the movement of children from one parent to another. The Respondent opposed the application on the basis, inter alia, that the Amended Direction dated 07 April 2020 does not create an exception to relating to movement of children from a parent to a caregiver (or vice versa).
|The court held that there was no prohibition on the movement of the children as they fell within the exception of the amended Direction, given that there was a court order with arrangements in place for their movement, as per the Applicants’ decree of divorce. Thus, an order was granted authorising the first Applicant to travel between provinces and district areas to fetch his children at his parent’s residence and return to Cape Town with them. The court provided that the children would subsequently only be allowed to travel from the first Applicant’s address to the second Applicant in the event that the second Applicant is in possession of a certificate by an independent medical practitioner indicating that she has tested negative for the Covid-19 virus. |
The court provided that it was common cause that the grandparents were caregivers, as defined in Section (1)(i) of the Children’s Act as they care for the children with the express permission of the parents. In terms of the amended Direction, movement of the children between their caregiver grandparents and parents is prohibited, except when arrangements are in place for them to move from one parent to another in terms of a court order or parenting plan. Due to the fact that there was precisely such an order, the movement of the children was thus held to fall within the ambit of the exception as contained in the Amended Direction. The argument presented by the Respondent, that the Amended Direction did not provide for movement between parent and caregiver, did not succeed.
Lastly, the court confirmed that the Amended Direction did not specify that the movement of children can only take place in terms of a pre-existing court order, as alluded to by the Respondent. A court is thus not prevented from making an order as required, presumably in circumstances of urgency, and for the movement of children to take place in accordance with arrangements put in place by such order.
|This case demonstrates that cross-provincial travel is permitted for parents transporting their children during the Covid-19 national lockdown in terms of a court order or parenting plan, as long as the requirements stipulated in the Regulations are met. Further, that a pre-existing court order is not necessary in this circumstance.|
Written by Jayna Hira and Megan Brook