by Simone Soodyall
17th Apr 2020


“Our children are our greatest treasure.” – Nelson Mandela, 1997

In the eyes of our Constitution, the Children’s Act 38 of 2005 and our Courts, a child’s best interests are of paramount importance in every matter involving a child. A child is defined as “a natural person who is under the age of 18 years”. A child has several rights including the basic rights to health care, nutrition, shelter and social services. The law also recognises a child’s right to family or parental care.

The lockdown implemented by the South African Government on 27 March 2020 placed many parents or care givers with co-holding parental rights and responsibilities in a difficult situation.

Initially, the lockdown Directives prohibited the movement of children for the purpose of exercising parental care during the lockdown period. However, on 16 April 2020, the Government amended their Regulations to allow for the movement of children between co-holders of parental responsibilities and rights during the lockdown period.

Amended Regulation 11B (9) (a) states that movement of children between co-holders of parental responsibilities and rights are prohibited unless arrangements are in place for a child to move from one parent to another.

The Amended Regulation provides for three forms of “arrangements”:

1.         A formal Court Order, or

2.         A Family Advocate registered parenting plan or parental agreement, or

3.         By the possession of the child’s birth certificate.

The co-holder must be in possession of one of the documents or a certified copy thereof.

Further, the Amended Regulation provides that such movement shall be on condition that the household to which the child will be moved contains no person who is either infected with/ reasonably suspected to be infected with COVID-19 or has come into contact with/ reasonably suspected to have come into contact with a person who has COVID-19.

The remaining portion of the Directive issued by the Government on 30 April 2020 should be read in conjunction with the Amended Regulation. That is, co-holders of parental responsibilities and rights are encouraged to maintain a personal relationship with their child by communicating via electronic means during the lockdown in an effort to curb the child’s exposure COVID-19. Parents are also encouraged to discuss COVID-19 and the lockdown with their children.

It is clear from the Directives and Regulations surrounding the movement of children that any movement of children from their present household must be under very strict circumstances and only when there is already a pre-existing arrangement, be it formal or informal, between the parents. Without any prior “arrangements”, the parent cannot merely produce the child’s birth certificate and move the child accordingly. The consent of the other parent is required for both parents to reach an informal “arrangement”.

In a situation where the child is not at their primary residence at the commencement of the lockdown, it would be permissible under this Amended Regulation to have the child moved to their primary residence as contained in the prior arrangements.

The provisio contained in the Amended Regulation is difficult to impose. Practically, unless one is tested, one cannot be confirmed to have contracted COVID-19. Although medical experts have listed several symptoms such as fever, coughing etc, most indications of COVID-19 take almost 14 days to manifest which leaves a person a-symptomatic in the interim. The child is therefore vulnerable to being exposed to COVID-19 despite the co-holder parent being unaware of having contracted the said virus himself/herself.

Whilst arrangements may be in place, parents are urged to always consider the best interest of the child. They are therefore still encouraged, where possible, to limit the movement of their child and to instead utilise all electronic means available to maintain the parental relationship in the interim.

Simoné Courtney Soodyall (LLB)

Litigation Attorney at CNG ATTORNEYS

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