Updated: 16 April 2020

New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

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

South Africa is in a state of a national lockdown. Our borders are closed, the economy is standing still or barely moving. There are troops on the ground and police on high alert. The doors of businesses are closed and people are to remain at home. All these measures are in place to limit the spread of COVID-19 or the Coronavirus. This is an important and necessary measure implemented by the State to flatten the curve. The South Africa, we are living in today is far different than the one we lived in 10 days ago. Not many people saw it coming.
“Continue paying your child support or child maintenance.”

Co-parenting during the National Lockdown Period

Before the commencement of the National Lockdown period, there was uncertainty about how the National Lockdown would affect co-parenting. And rightfully so. Parents had to consider the possibility of no movement of children during the national lockdown period. Not only for their safety and risking infection but for their children as well. What would then happen? Did it mean that the child would have to remain with one parent during the entire lockdown period? Or may they move the children around? This issue was resolved by the government and we wish to bring it to your attention.

What does the regulation or law say?

In summary, and in layman terms, children are not to be moved between parents during the lockdown period. Have a look at the recent regulations. The regulations in place brought about serious challenges for all. Firstly, what if the parent who is not the primary caregiver, and not capable of caring for the children for extended periods had the children during the start of the lockdown? This parent-only knows how to care for the children for a few days at a time – not at all for 21 days. What if the conditions at his or her home are not the same as the primary home of the children? For example, in the primary home, the children have their room to share, and a bigger place to play, etc. All their clothes are there, also their schoolwork and extramural equipment. This is not the case at the home they are at during the lockdown period. Stepsiblings may also be living with them. The example above is a mellow one, but there are far more serious real examples out there. What if the child is prone to fall ill, and everything he or she needs is at the primary home? The list goes on.

Parents abusing the lockdown situation

Then there is the issue of abusing the National lockdown situation. If a parent refused to return the minor child before the lockdown, then that situation would remain. The primary caregiver would then have to wait 21 days before he or she can physically see the minor child. This is the sad reality of the situation. Should you wish to approach the court for urgent relief, you would have to have very strong and compelling reasons why the child should be removed despite the regulations in place.

What to do 8 days later?

Now that we passed the first week of lockdown, many parents never saw their children for the entire period. Many of those parents may prefer that there be a change in caring arrangements where the other parent can now care for the children for another week. Or a parent may want to only see the children for a few hours. Unless the government changes the regulations, that would not be possible.

What advice do we have for parents during the remainder lockdown period?

Parents should work together to ensure that the child’s best interests are upheld during the lockdown period. Telephone calls, WhatsApp messages, and video calls, to mention a few should constantly be used, if possible, between parents and children. We also remind parents to continue paying child maintenance and child support during this lockdown period.

Final advice during the lockdown period

Our final advice to all parents is to remain patient during these challenging times. The entire country is in lockdown and many other nations as well. Everyone is, therefore, going through challenges. Businesses are suffering, and people do not know if they would have an income after the lockdown period. If all goes well, and there is no reason to doubt that it would, at the end of the 21-days of lockdown, things would better. We, therefore, should all respect the government’s decision. Should the situation change during the lockdown period, Our Lawyer (Pty) Ltd would update its website accordingly. If you require legal advice, our online appointment portal is still running. All appointments are done telephonically or via video. We make use of WhatsApp Video, FaceTime, Zoom, and Skype. Stay home and stay safe.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020) We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws  
Posted on by Telelaw

Updated: 16 April 2020

New regulations have been issued on 16 April 2020. Click on the link below:

The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

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

South Africa is in a state of a national lockdown. Our borders are closed, the economy is standing still or barely moving. There are troops on the ground and police on high alert. The doors of businesses are closed and people are to remain at home. All these measures are in place to limit the spread of COVID-19 or the Coronavirus. This is an important and necessary measure implemented by the State to flatten the curve. The South Africa, we are living in today is far different than the one we lived in 10 days ago. Not many people saw it coming.

“Continue paying your child support or child maintenance.”

Co-parenting during the National Lockdown Period

Before the commencement of the National Lockdown period, there was uncertainty about how the National Lockdown would affect co-parenting. And rightfully so. Parents had to consider the possibility of no movement of children during the national lockdown period. Not only for their safety and risking infection but for their children as well. What would then happen? Did it mean that the child would have to remain with one parent during the entire lockdown period? Or may they move the children around? This issue was resolved by the government and we wish to bring it to your attention.

What does the regulation or law say?

In summary, and in layman terms, children are not to be moved between parents during the lockdown period. Have a look at the recent regulations.

The regulations in place brought about serious challenges for all. Firstly, what if the parent who is not the primary caregiver, and not capable of caring for the children for extended periods had the children during the start of the lockdown? This parent-only knows how to care for the children for a few days at a time – not at all for 21 days. What if the conditions at his or her home are not the same as the primary home of the children? For example, in the primary home, the children have their room to share, and a bigger place to play, etc. All their clothes are there, also their schoolwork and extramural equipment. This is not the case at the home they are at during the lockdown period. Stepsiblings may also be living with them. The example above is a mellow one, but there are far more serious real examples out there. What if the child is prone to fall ill, and everything he or she needs is at the primary home? The list goes on.

Parents abusing the lockdown situation

Then there is the issue of abusing the National lockdown situation. If a parent refused to return the minor child before the lockdown, then that situation would remain. The primary caregiver would then have to wait 21 days before he or she can physically see the minor child. This is the sad reality of the situation. Should you wish to approach the court for urgent relief, you would have to have very strong and compelling reasons why the child should be removed despite the regulations in place.

What to do 8 days later?

Now that we passed the first week of lockdown, many parents never saw their children for the entire period. Many of those parents may prefer that there be a change in caring arrangements where the other parent can now care for the children for another week. Or a parent may want to only see the children for a few hours. Unless the government changes the regulations, that would not be possible.

What advice do we have for parents during the remainder lockdown period?

Parents should work together to ensure that the child’s best interests are upheld during the lockdown period. Telephone calls, WhatsApp messages, and video calls, to mention a few should constantly be used, if possible, between parents and children.

We also remind parents to continue paying child maintenance and child support during this lockdown period.

Final advice during the lockdown period

Our final advice to all parents is to remain patient during these challenging times. The entire country is in lockdown and many other nations as well. Everyone is, therefore, going through challenges. Businesses are suffering, and people do not know if they would have an income after the lockdown period. If all goes well, and there is no reason to doubt that it would, at the end of the 21-days of lockdown, things would better. We, therefore, should all respect the government’s decision.

Should the situation change during the lockdown period, Our Lawyer (Pty) Ltd would update its website accordingly. If you require legal advice, our online appointment portal is still running. All appointments are done telephonically or via video. We make use of WhatsApp Video, FaceTime, Zoom, and Skype. Stay home and stay safe.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

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I am an unmarried mother. I want to take my child with me on a holiday overseas, but the biological father of my child does not want to give consent and co-operate. What are my, and our child’s rights for a passport and to visit the United Kingdom?

South Africa is one of the most beautiful countries in the world. We have mountains, seas, forests, lakes, and dams. It is the ideal holiday destination, and a countless number of people flock to our shores every year. But now and again, South Africans want to leave our borders and go on holiday to another country. For this, one usually only requires an air ticket, passport, and a visa. And of course, some money. Now the process of traveling overseas would be simple if you are an adult going on your own, or with another adult.

What if a single parent wants to travel overseas with a minor child?

But what if you want to travel overseas with your minor child? When we say minor child, we refer to a child under the age of 18 years old. Under normal circumstances, both parents would co-operate in applying for a visa and a passport for the minor child. But what if this is not the case? What if one parent does not want to consent to the minor child going overseas with the other parent? Let us explore the issues and laws involved.

The parenting scenario – unmarried parents and the child

Let’s say a couple had a child together and they are now separated. They were never married. The father was actively involved in the child’s life since the child’s birth. He paid child maintenance regularly and visited the child often. However, when the child was three (3) years old, he had challenges in obtaining regular contact with the minor child.

Father approaches the Children’s Court

The father then approaches the children’s court and he was awarded reasonable contact. This entailed him having the minor child every second weekend and a half of the school holidays. Telephone and special days’ contact were also incorporated in the Court Order.

The mother approaches the maintenance court

The mother then took the father to the maintenance court, as according to her, the amount he was currently paying was not enough. The matter was then resolved and it was ordered that the father pays for all the minor child’s school fees and medical costs. He also had to make a cash contribution which increased each year by 10%.

Father approaches the domestic violence court

The mother was not happy with the child maintenance amount that was ordered by the Court. The father remarried and his wife was expecting a child. He then approached the maintenance court for a reduction in child maintenance. At the time, the mother also inherited a large sum of money. Arguments arose regarding maintenance, and the mother approached the Domestic Violence court for a Protection Order. The parties, however, managed to resolve the issue. The maintenance order was ultimately reduced and the mother never proceeded with the Domestic Violence Court matter.

Things go well after the parties were tired of litigating against each other

The parties were now tired of litigating against each other. Contact and maintenance payments went well for years. Whenever the mother required consent for something where a co-guardian had to consent for, the father would provide it. For example, the application and enrolment for the minor child into a primary school. The relationship between the parent and the father went well for many years as well.

The Mother wishes to take the minor child with her to the United Kingdom

The child is now 10 years old, and the mother wants to take him with her on a holiday to the United Kingdom to visit the child’s maternal grandparents. This would take place during the mother’s half of the school holidays as per the Children’s Court Order. The last time either the mother or the child saw the maternal grandparent was 5 years ago. This was when the grandparents visited South Africa.

The father refuses to give his consent for the minor child to travel

The mother can afford to pay for both the minor child and her air ticket to the United Kingdom. Accommodation is also not an issue as they will be staying at the maternal grandparents. There are two problems. The child does not have a passport and the father does not want to consent to the minor child going with the mother on holiday overseas. His reason for refusing is because he believes the child is too young to travel overseas. Now let us unpack the parental rights of unmarried parents. Is he allowed to do that?

Parental rights and responsibilities of unmarried parents?

Before we can advise on the scenario above, we first need to unpack the law. The first issue is, that of what are parental responsibilities and rights of parents? Thereafter, we must outline what the parental responsibilities and rights of unmarried mothers and fathers are. As can be seen from the scenario above, the two issues are those of an application for a passport, and for the child to go overseas. Section 18 of the Children’s Act deal with Parental responsibilities and rights. It states the following: 18 Parental responsibilities and rights (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c).  From the above, it is clear, if a parent has parental responsibilities and rights, he or she must consent for the application for a passport, and the minor child to travel overseas.

What are the Parental responsibilities and rights of unmarried mothers?

Now let us unpack the law regarding parental responsibilities and rights of unmarried mothers as per our scenario above. This is where section 19 of the Children’s Act comes into play. It states:

19 Parental responsibilities and rights of mothers

(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. It is clear from the above, that irrespective of whether a child’s mother gave birth in wedlock, or out, she has full parental responsibilities and rights over the minor child. Does the biological father have the same rights?

What are the Parental responsibilities and rights of unmarried fathers?

This is the question of law the father in our scenario wants to know. What are his parental responsibilities and rights as he was not married to the mother? This is where section 20 of the Children’s Act comes into operation. It states the following:

21 Parental responsibilities and rights of unmarried fathers

(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child- (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother-
  • consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
  • (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
  • (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. Looking at our scenario and the law above, it is clear that this father has full parental responsibilities and rights in respect of the minor child. This is so as he actively took part in the child’s life since his birth. He also paid maintenance since his son’s birth.

What are the rights of the father in this scenario?

From the facts and law outlined above, it is clear that the mother requires the father’s consent to apply for the minor child’s passport and for him to travel with her overseas. The father, therefore, has the right to refuse consent. However, what can the mother do if she believes it is in the child’s best interest to travel with her overseas? This we deal with next.

What can the mother do if the father refuses to give consent?

Section 18(5) of the Children’s Act quoted above states: Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c). This means that the Court may be approached for the necessary consent. If the court feels that it would be in the minor child’s best interest to obtain a passport and to travel overseas, the court would so order it. Read this article written by us dealing with the latter court application. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws          
Posted on by Telelaw