History of the law of exercising contact and care rights of parents during the lockdown in South Africa – The rollercoaster ride for parents and lawyers

The national lockdown not only affected our movement by keeping us in our homes. It also affected our relationships with people important and dearest in our lives. Here we refer to family, friends and colleagues to mention a few. Before the lockdown commenced in South Africa, parents were exercising contact with their children as they always have in the past. Friends and family gatherings were not seen as a privilege but as part of daily life, and an inherent right. However, when the lockdown commenced, things drastically changed. And without warning.

The following are a few of the actual consequences of the lockdown when it comes to family relations:

• Spouses or partners who would only see each other for part of the day, now see each other virtually the entire day;
• Schools are closed, and parents can only care for children at their homes;
• Children were not allowed to move between parents as they were used to at the start of the lockdown;
• Visits to close friends and your relatives are prohibited. Therefore, adult children may not have seen their parents since the lockdown commenced.
• Siblings, cousins and spouses living in different provinces would not have seen each other for weeks.

The commencement of the National Lockdown in South Africa

The date 27 March 2020, is of great significance to all South Africans. It is the day were all South African’s were placed under lockdown. This was something no South African was prepared for. The call was imminent. The life we lived before that day, would not be lived for quite some time to come. Now let us look at the regulations dealing with the movement of children during the lockdown.

First Regulations regarding the movement of children during the lockdown

Regulations were then issued concerning the movement of children. In terms of the Regulations at the time, minor children were to remain in the care of the parent who had the child at the time. Have a look at an article written by Adv. Muhammad Abduroaf on this issue:

“The child must remain in the custody of the parent with whom the child was with when the lockdown period started” – Directive 6(m)(ii) in terms of the Regulations [30 March 2020]

This caused huge challenges for many parents. It meant that a parent who never cared for a child for longer than a day would now have to care for the child for the entire lockdown period. This also caused a huge stir. Not only for parents but also for the legal profession, especially for a lawyer who specialises in family law.

Second set of Regulations regarding the movement of children during the lockdown

The Regulations then changed, allowing movement as long as you have a registered parenting plan, or a parental rights and responsibilities agreement, both registered with the Office of the Family Advocate, or an Order of Court. This was also problematic as parents who did not have the latter documents could not have contact with their minor children. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled:

New lockdown regulations regarding the movement of children – Certain Parents may move children during the National Lockdown period

No equality and dignity for parents without Court Order and Registered Plans and Agreements

Third set of Regulations regarding the movement of children during the lockdown

Then the regulations were again changed. It further allowed for the movement of children of parents who do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court. They may move from one home to another to collect and return their minor child with one requirement. They must have in their possession the birth certificate of the child, or a certified copy thereof. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled: Latest Regulations: No Court order, registered agreement or parenting plan is required for the movement of children during the lockdown – 16 April 2020.

Fourth set of Regulations regarding the movement of children during the lockdown

Then came the recent regulations which have been issued after the extended lockdown in May 2020. In essence, parents may move with their child if they have a registered parenting plan, or a parental rights and responsibilities agreement or an Order of the Court. Another requirement was that the home the child is to move to is free from COVID-19. You will note that the birth certificate requirement for the parents who do not have the latter documents no longer applies.

If parents do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court, they may collect and drop-off the child only after they obtained a Magistrate’s Permit. A parent who has rights of contact needs to approach the magistrate in the area where he or she lives to obtain a permit to move the child. Have a look at these two posts on the topic.

The Magistrate’s Permit – 3 steps to obtain your permit to collect your child during lockdown

The Magistrate’s Permit – New regulations on Movement of children during the Lockdown

It should be noted that the permit does not give you rights of care and contact. It only allows you to move the child. So, if the police stop you, you can show them the permit. If you and the other parent have disputes regarding contact, you cannot use the permit as a way of enforcing contact. That must be resolved at a court of law. Therefore, if you visit the child to collect him with a permit, and the other parent refuses you contact, you still need to approach the relevant court.

Fifth set of Regulations regarding the movement of children during the lockdown

On Thursday 28 May 2020, the Minister issued regulations which took effect on 1 June 2020. This was when level 3 of the lockdown was implemented in South Africa. The regulations regarding the movement of children remained largely the same, except for the inter-provincial movement of children and student in relation to attending their places of learning. In short, the head of the school, or institution of higher learning must issue a certificate for the purposes of travelling between provinces. The regulations can be downloaded here.

Future regulations regarding the movement of children during the lockdown

As can be seen from the aforesaid, the government has thus far issued 5 (five) sets of regulations regarding the movement of children between parents. Depending on how the fight of the COVID-19 pandemic unfolds, it may call for changes to the regulations on the movement of children.

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