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.

Let’s talk Constitutionally – What about the parents whom the Minister of Social Development excluded from moving their children during the South African National Lockdown – Is this new law fair? Does it not discriminate between children and parents?

Written by Advocate Muhammad Abduroaf It is day 15 of the National Lockdown in South Africa. Our President last night announced that the lockdown would extend for a further two weeks. Lockdown, for now, would extend until the end of April 2020. What does this mean for parents who want to have contact with their children during the lockdown period? Can they collect or visit their children during the extended lockdown period? Let us unpack the legal situation.

Moving of children during the National Lockdown Period

When the lockdown was announced, there was uncertainty as to whether parents may move children during this period. We are referring to parents and children living in separate homes. After the lockdown commenced, a directive was then issued stating that children may not be moved between homes. This brought certainty to the issue, however, had far-reaching consequences. The directive said that the child should remain with the parent he or she is at, at the start of the lockdown period.

The current regulations on the movement of children between parents

On Tuesday 07 April 2020, the Minister of Social Development, Ms Lindiwe Zulu, MP, made changes to the regulations regarding the movement of children during the lockdown period. It is now possible for certain children to be moved between parents during the lockdown period. The regulations apply to the following parents only:
  1. There are arrangements in place for the children to move for one parent to another in terms of a court order; or
  2. A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
  3. In the household to which the child is to move, 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;
  4. The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the latter agreement, or a certified copy thereof.

Are these new regulations potentially unconstitutional?

Any law that discriminates against a class of people unjustifiably is unconstitutional. The class of people this new regulation discriminates against are one or more of the following parents:
  • Parents who are not divorced, but separated;
  • Never enforced their parental responsibilities and rights by obtaining a court order;
  • Parents who do not have any co-parenting issues;
  • Unmarried parents who did not see the need to approach the Court for a Court Order;
  • Parents who did not see the need to register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
  • Parents who could not afford to obtain a court order or register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
  • So on.

Infringement of the right to equality of the aforementioned parents and children

Section 9 of our Constitution (Act 108 of 1996) states the following: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Parents and minor children are not being treated equally. Only parents and children who are part of court orders and a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate are taken care of by the Minister. Not the rest of the South African population. This infringement of constitutional rights cannot be justified. Let us unpack it.

Infringement of the right to human dignity

Concerning human dignity, section 10 of our Consitution states, “Everyone has inherent dignity and the right to have their dignity respected and protected.” I am sure, that all parents who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate feel that their dignity has been violated. This is so as the government now allows another parent who has the latter documents to move their children. There is further no logical justification to preference some parents over others. Or to put it differently some children over others.

What can parents do who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate?

It seems that the only recourse for parents who do not have a court order or a parenting plan or responsibilities and rights agreement registered with the Office of the Family Advocate has two options:
  • Approach the court urgently for a court order;
  • Approach the office of the family advocate to register a parenting plan or responsibilities and rights agreement.
Whether or not the court would be of adequate assistance during the lockdown and entertain your application, depends on many factors. However, in our view, if there is sufficient urgency, and as we are dealing with the best interests of children, the application would properly be dealt with. Concerning approaching the office of the family advocate to register a parenting plan or responsibilities and rights agreement; this could come with its challenges. But not necessarily so for all cases. Contacting their offices beforehand would be advised. Written by Advocate Muhammad Abduroaf (LL.B LL.M) – Advocate of the High Court of South Africa Advocate Muhammad Abduroaf is a member of the Legal Practice Council of South Africa     No equality and dignity for parents without Court Order and Registered Plans and Agreements 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.

Let’s talk Constitutionally – What about the parents whom the Minister of Social Development excluded from moving their children during the South African National Lockdown – Is this new law fair? Does it not discriminate between children and parents?

Written by Advocate Muhammad Abduroaf

It is day 15 of the National Lockdown in South Africa. Our President last night announced that the lockdown would extend for a further two weeks. Lockdown, for now, would extend until the end of April 2020. What does this mean for parents who want to have contact with their children during the lockdown period? Can they collect or visit their children during the extended lockdown period? Let us unpack the legal situation.

Moving of children during the National Lockdown Period

When the lockdown was announced, there was uncertainty as to whether parents may move children during this period. We are referring to parents and children living in separate homes. After the lockdown commenced, a directive was then issued stating that children may not be moved between homes. This brought certainty to the issue, however, had far-reaching consequences. The directive said that the child should remain with the parent he or she is at, at the start of the lockdown period.

The current regulations on the movement of children between parents

On Tuesday 07 April 2020, the Minister of Social Development, Ms Lindiwe Zulu, MP, made changes to the regulations regarding the movement of children during the lockdown period. It is now possible for certain children to be moved between parents during the lockdown period.

The regulations apply to the following parents only:

  1. There are arrangements in place for the children to move for one parent to another in terms of a court order; or
  2. A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
  3. In the household to which the child is to move, 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;
  4. The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the latter agreement, or a certified copy thereof.

Are these new regulations potentially unconstitutional?

Any law that discriminates against a class of people unjustifiably is unconstitutional. The class of people this new regulation discriminates against are one or more of the following parents:

  • Parents who are not divorced, but separated;
  • Never enforced their parental responsibilities and rights by obtaining a court order;
  • Parents who do not have any co-parenting issues;
  • Unmarried parents who did not see the need to approach the Court for a Court Order;
  • Parents who did not see the need to register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
  • Parents who could not afford to obtain a court order or register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
  • So on.

Infringement of the right to equality of the aforementioned parents and children

Section 9 of our Constitution (Act 108 of 1996) states the following:

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Parents and minor children are not being treated equally. Only parents and children who are part of court orders and a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate are taken care of by the Minister. Not the rest of the South African population. This infringement of constitutional rights cannot be justified. Let us unpack it.

Infringement of the right to human dignity

Concerning human dignity, section 10 of our Consitution states, “Everyone has inherent dignity and the right to have their dignity respected and protected.”

I am sure, that all parents who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate feel that their dignity has been violated. This is so as the government now allows another parent who has the latter documents to move their children. There is further no logical justification to preference some parents over others. Or to put it differently some children over others.

What can parents do who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate?

It seems that the only recourse for parents who do not have a court order or a parenting plan or responsibilities and rights agreement registered with the Office of the Family Advocate has two options:

  • Approach the court urgently for a court order;
  • Approach the office of the family advocate to register a parenting plan or responsibilities and rights agreement.

Whether or not the court would be of adequate assistance during the lockdown and entertain your application, depends on many factors. However, in our view, if there is sufficient urgency, and as we are dealing with the best interests of children, the application would properly be dealt with.

Concerning approaching the office of the family advocate to register a parenting plan or responsibilities and rights agreement; this could come with its challenges. But not necessarily so for all cases. Contacting their offices beforehand would be advised.

Written by Advocate Muhammad Abduroaf (LL.B LL.M) – Advocate of the High Court of South Africa

Advocate Muhammad Abduroaf is a member of the Legal Practice Council of South Africa

 

 

No equality and dignity for parents without

Court Order and Registered Plans and Agreements

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

 

 

 

 

Related Post

Gay and Lesbian (Same-sex) Divorces in South Africa – How does it work?

advice-child-maintenance-child-custody-divorceAs with any marriage, relationship or romantic partnership, there is no guarantee that it will last until death do you part. For a marriage, a divorce is what is needed if the marriage has irretrievably broken down. Much has been written on the issue of divorces in relation to heterosexual marriages where the Marriage Act find application. The same applies to customary marriages. What about same-sex, or gay and lesbian couples who are married and want to get divorced? Does the law cater for such marriages? And how are they different from heterosexual divorces. Before we deal with the dissolution aspect of a same-sex marriage, let us first deal with the validity and legality of the same-sex marriage itself.

What are same-sex marriages?

This sounds like a simple question. However, without presuming too much, let us unpack the law. Here we will look at the Civil Union Act 17 of 2006. It is this Act of Parliament that made same-sex marriages legal in South Africa.

Civil Union Act, 17 of 2006

According to the Civil Union Act, a “civil union” means the voluntary union of two persons who are both 18 years of age or older which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others“. Furthermore, according to the Act, a “civil union partner” means a spouse in a marriage or a partner in a civil partnership. as the case may be, concluded in terms of this Act“. From the aforementioned, it is clear that there are two types of civil unions, the one is a marriage, and the other is a civil partnership. Now let us have a look at what the legal requirements are for a gay or lesbian couple to enter into a same-sex marriage as provided for in the Civil Union Act.

Requirements for solemnisation and registration of a civil union

The requirements for the solemnisation and registration of a civil union are as follows as provided for in the Act: “8. (1) A person may only be a spouse or partner in one marriage or civil partnership. ( 2 ) A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act. (3) A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union. (4) A prospective civil union partner who has previously been married under the Marriage Act or Customary Marriages Act or registered as a spouse in a marriage or a partner in a civil partnership under this Act, must present a certified copy of the divorce order, or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous marriage or civil union has been terminated. ( 5 ) The marriage officer may not proceed with the solemnisation and registration of the civil union unless in possession of the relevant documentation referred to in subsection ( 4 ). ( 6 ) A civil union may only be registered by prospective civil union partners who would apart from the fact that they are of the same sex, not be prohibited by law from as the case may be, at any given time,  concluding a marriage under the Marriage Act or Customary Marriages Act.” The aforementioned clauses basically say you should not be married, and there should be no legal reason why you cannot get married.

Now let us move on to the issue of divorces when it comes to gay and lesbian marriages

Should a gay or lesbian couple married in terms of the Civil Union Act wish to get divorced, the procedure is the same as would be in a marriage solemnised in terms of the Marriage Act. The legal documents, however, would be slightly different. For example, in the case of a gay marriage, where it comes to the type of civil marriage, and children, the following clauses would be inserted in the Particulars of Claim:
  1. The parties entered into a marriage or a civil partnership; and
  2. There are no children of the marriage, either through adoption or surrogacy;
Otherwise, the procedure would be exactly the same, save for in a gay marriage, only the word he would be used to describe the spouse and the word she, for a lesbian couple.

Contact us to assist you with your same-sex divorce

advice-child-maintenance-child-custody-divorceIf your same-sex marriage has irretrievably broken down, and you wish to get divorced, feel free to contact our offices for assistance. Based on our experience with same-sex divorces, additional knowledge on the law may be required when it comes to preparing the legal documents.
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Senior family law expert giving the best simple advice on International Relocation of minor children – Adv. Muhammad Abduroaf

International Relocation matters concerning minor children is one category of our law that requires more attention than other categories of family law. If you intend to relocate overseas with your minor child or do not want your minor child to relocate with the other parent, this article is for you. Advocate Muhammad Abduroaf is a senior family law expert with over twenty years of experience in Family law. He runs a Law Firm styled Advocate Muhammad Abduroaf in Cape Town. He is a Trust Account Advocate. What this means, he takes on work from members of the public directly. Other advocates need to be instructed by an attorney to act in your case.

When does the relocation of minor children disputes arise?

The starting point is that parents and their children live in South Africa. A parent, usually the primary caregiver, wants to relocate with the minor child to another country. For this example, we will assume both parents are co-holders of parental responsibilities and rights of guardianship over the specific minor child. For the minor child to leave the Republic of South Africa and relocate with the other parent overseas, the guardianship consent of the parent remaining in South Africa would be required. This is a requirement as provided for in section 18 of the Children’s Act. A dispute arises if the parent remaining in South Africa does not consent to the relocation of the minor child to a different country. This is so as, without a court order stating otherwise, the minor child would not be allowed to relocate overseas.

When should a parent approach the Court in an international relocation matter involving a minor child?

In principle, anyone can approach a court for any matter. However, not everyone would be successful in their case. Therefore, before you approach the Court for consent for the minor child to relocate with you to a different country, you must make sure you have a strong case. On the other hand, if you are a parent whose consent is required and do not want to provide it, you must ensure you have a reason for refusing it. If, however, you do have a strong case, as we would explain further below, for the relocation, then in that case, you should approach the Court.

The best interests of the child’s principle

Both the South African Constitution and the Children’s Act clearly state that a child’s best interests are the most critical factor when it comes to it. In other words, not the best interests of the parents, but the best interests of the child. However, there are cases where upholding the interests of a parent would be in the minor child’s best interests. For example, a much better job offer. In relocation matters, if the parents cannot agree on the relocation of the minor child, then the Court would intervene and only direct that the relocation is authorised if it is of the view that it would be in the minor child’s best interests.

What do I present to the Court regarding international relocation matters?

According to Advocate Muhammad Abduroaf, the reason why people relocate is vast. For most, it is for work or a better life; for others, it is related to going back home or living with a spouse or a loved one. However, that is the reason why the parents want to relocate. Whatever the reason, you need to demonstrate that the minor child would not be in a worse position after the relocation. Therefore, you would have to demonstrate that there would be adequate housing, food, education, medical services and so on after the relocation. In other words, the minor child would not be neglected and would have a good life with his or her primary caregiver.

What can I do if I do not want the relocation to take place?

It is scarce where the non-primary caregiver wants to relocate with the minor child. However, given the correct facts and circumstances, it is possible. In this example, the primary caregiver wants to relocate with the minor child, and the parent remaining behind does not want to consent. That parent must show that it would not be in the minor child’s best interests to relocate. The parent may even go as far as to show that they can care well enough for the minor child in South Africa and that the de facto primary caregiver is welcome to relocate without the minor child.

When do I approach the Court?

As already alluded to above, if the parents cannot come to an agreement regarding the relocation of the minor child to a different country, then in that case, the Court should be approached. It is best to make use of an experienced family lawyer (attorney or Trust Account Advocate). Both parents would provide information in the form of affidavits to the Court as to reasons for the relocation and/or the refusal thereof. In many cases, the Court would appoint the Office of the Family to get involved and do an investigation as to what is in the minor child’s best interests. The Court would then make a ruling on the relocation of the minor child to a foreign country.      

Posted on by Telelaw

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