Contact Rights to Children Broadened “Children Can Hope to See Parents”

9 April 2020 saw the extension of lockdown regulations by The Department of Cooperative Governance and Traditional Affairs for a further two weeks until 30 April 2020.

When lockdown was initially imposed children were required to remain solely with one parent holding parental responsibilities and rights and to not travel between other co-holding responsible persons. These parental responsibilities and rights can extend to others, like guardians and caregivers if appointed as such by the Court. Children were to remain at home in one place as regulated by the Department of Social Development.

A first amendment to the rules of lockdown then permitted children to have contact between respective persons holding these caregiving roles, provided that a Court Order or a Parenting Plan/Agreement was in place, registered with the Office of the Family Advocate. The proviso at the same time being to ensure that all pre-existing COVID-19 rules applying to quarantine are imperatively met.

16 April 2020 saw an updated release by the Department of Cooperative Governance and Traditional Affairs henceforth providing for a further circumstance in which children are permitted to travel between those who are responsible for them.

Regulation 11B(9) provides as follows:

“(9)(a) Movement of children between co-holders of parental responsibilities and rights or a caregiver as defined in Section 1(1) of the Children’s Act, 2005 (Act No 38 of 2005), during the lockdown period, is prohibited, except where arrangements are in place for a child to move from one parent to another, in terms of-

  • a court order;
  • where a parental responsibilities and rights agreement or parenting plan, registered with the Family Advocate, is in existence; or
  • the co-holder of parental responsibilities and rights is in possession of a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights” .

In light of this new amendment, even parents who do not have a Court Order or Parenting Plan/Agreement in place will now be able to have contact with their children. However, in order to do so, they must be in possession of the child’s unabridged Birth Certificate, or a certified copy thereof, when transporting the child to prove the obvious legitimate parental relationship. Parents will henceforth require either a Court Order or Parenting Plan/Agreement (registered with the Family Advocate) or the child’s unabridged Birth Certificate.  One of these documents must be on their person during such transportation.

This regulation is still subject to the essential condition that there is no person who is known to have come into contact, or is reasonably suspected to have come into contact with any other person known to have contracted, or is “reasonably suspected” to have contracted COVID-19 in the household to or from which the child would be travelling.

While concerns regarding the previous regulations discriminating against the rights of those not in possession of a Court Order or a registered document with the Office of the Family Advocate seem to have been addressed, and seemingly all children may now exercise physical contact with both their parents, many questions remain unanswered.

The main concern remains that the words “reasonably suspected”, when referring to contact that may or may not affect a child, are of course subjective.  Some opportunistic individuals may interpret these to unjustifiably and unreasonably prevent or restrict contact between a child and parent.

In terms of Section 35 of the Children’s Act 38 of 2005, the preventing or refusing contact between one co-holder of parental rights and responsibilities and another constitutes an offence. Any decision to refuse contact would need to be reasonable and related to the possible exposure of the child to COVID-19. Failing this, parents would face the law for plainly not acting in the child’s best interests or for contravening the regulations and/or Children’s Act, be it now or once the lockdown has ended.

The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, has remarked that lockdown cannot end abruptly and would need to be phased out. Regulations are expected to thus remain in force even post-lockdown. Further amendments are thus to be expected.

People may rightly be feeling uncertain and frustrated but there is comfort in the fact that Government is continuously working to ensure that children’s best interests are catered for and remain paramount in decision making.

Both the rights to health and a healthy environment, as well as the right to contact and family relationships are entrenched in the Constitution and Children’s Act and justify equal protection.

Parents, guardians and caregivers must play their part in ensuring that children remain safe, healthy and happy during this unprecedented time.  The best interests of children must take priority and it must further be ensured their support structure is sound and that healthy relationships are maintained with both parents or any other individual with co-holding rights and even their siblings.

Adams & Adams has a team specialising in Family Law that is available to assist with any queries and resolve any uncertainty that you may have. The team can be contacted at Courtney.Elson@adams.africa or Shani.VanNiekerk@adams.africa.

Courtney Elson
Associate| Attorney
Shani van Niekerk
Senior Associate | Attorney