LOCKDOWN: What does it mean for divorced and separated parents’ contact rights in respect of their children?

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

Just as we thought we had received the good news that co-holders of parental rights and responsibilities finally had clarity on what they can and cannot do during lockdown, the original regulations became the subject of amendment in the late hours of 7 April 2020.

You cannot escape experiencing a sense of frustration at the regulators for not fully considering the yo-yo effect and impact their indecisiveness has on the emotions and sense of security of both children and their parents. We trust that important role players, such as the Office of the Family Advocate and leading child psychologists, have been consulted in culminating what is hopefully, now, the latest adjustment in these unsettling times.

That said, the better alternative is, of course, to correct errors in approach or judgment in what are very difficult and unchartered waters, as opposed to simply sticking to your guns and riding the tide, with no regard to the consequences. 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 between divorced and separated parents or other co-holders of parental rights and responsibilities, during lockdown in absolute terms.

hese regulations have subsequently been relaxed substantially and 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 an existing 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.

The regulations furthermore place an obligation on those transporting the children to have the necessary court order or agreement in their possession, or a certified copy thereof.

The complicating factor with these seemingly clear provisions, is that they are subject to the condition that there is no person who is known to either have come into contact with, or is reasonably suspected to have come into contact with someone known to have, or suspected to have contracted COVID-19, in the household to which the child is travelling. The rule, however, should equally apply to the household from which the child will be travelling. The inhabitants of the members of the receiving household are also deserving of protection; bearing in mind that this should, in any way, not dilute Government’s drive to “flatten the curve”.

The regulations are open to different interpretations. The word “reasonable” included in the amended regulation creates some uncertainty. This is a subjective judgement 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 unjustifiably have a most 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. Any decision to refuse contact with the parent with whom the child is not with at any given time, will have to be reasonable and related to the possible exposure of the child to COVID-19, which should be prevented. The purpose of the regulations are, after all, to ensure that the spread of COVID-19 is contained whilst minimising the possibility of a child’s exposure to the virus.

In instances where a child cannot be moved, parents are reminded that they are still required and encouraged to create a suitable environment for the parent who the child is not with at any given time, to have regular contact and communication with their child. A broad base of mediums, including SMS, WhatsApp, Skype, FaceTime, Zoom and other platforms are available for this purpose. The most effective medium that would afford optimal interaction between parent and child from both a visibility and sound quality perspective, should in our view rather be utilised.

It should lastly be remembered that 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.

Concern has rightly been expressed by many parents that these new provisions discriminate against the rights of those children whose parents have not as yet been able to either obtain a court order or to enter into a parenting agreement registered with the Office of the Family Advocate. Such children are equally entitled to exercise physical contact with both their parents and should not be constrained from doing so merely because a process over which they have no control has either not been instituted and/or completed. We can only appeal to The Department of Social Development to urgently consider this issue and to, yet again, amend the regulations appropriately to safeguard these children’s rights.

Our courts remain, for all practical purposes closed, and are only available during this lockdown period to hear truly urgent matters, in exceptional circumstances. 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. The facts and circumstances of each case may differ from matter-to-matter, and, as previously indicated, the law is not a “one size fits all” solution.

It is uncertain at this stage whether the status quo of the regulations will remain until the end of the lockdown, or whether they will be amended once again. It is still with strict adherence to the rules that parents can responsibly and lovingly assist their children to safely and healthily navigate their way to a better tomorrow. A time like this also calls for a complete mindshift to ensure understanding and patience, which will enable us as a country to overcome the challenges we are currently faced with and navigate through this unprecedented time.

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.

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