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CO–HOLDERS OF PARENTAL RESPONSIBILITIES AND RIGHTS AND COVID-19 – BLC Attorneys | Port Elizabeth

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CO–HOLDERS OF PARENTAL RESPONSIBILITIES AND RIGHTS AND COVID-19

Amidst the announcement and implementation of the national lockdown, a great deal of concern and fear amongst many people arose.

However, fears and concerns for co–parents / co–holders of parental responsibilities and rights were amplified when initial Regulations to the Disaster Management Act, 57 of 2002 (“the Regulations”), regulated that children were prohibited from moving between co-parents and would therefore have to remain with the parent with whom the child was with when the lockdown period started commenced. The other parent would therefore have to rely solely on communicating, e.g., via telephone call, WhatsApp, Skype, etc.

On 30 March 2020, much relief was brought when the Regulations were amended in terms of Government Notice No. 430 of 30 March 2020, which allowed for children to move between co–holders and/or an appointed caregiver.

The amended Regulations provided that children will now be allowed to move between co – holders, provided that arrangements are in place for a child to move from one parent to another in terms of; a court order, parental responsibilities and rights agreement or parenting plan registered with a Family Advocate.

Furthermore, a child will only be allowed to move to a household provided 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.

When transporting the child, the parent or caregiver transporting the child concerned must have in his or her possession the court order or the agreement referred to above, alternatively, a certified copy thereof.

Although one would find difficulty in determining whether anyone has come in contact with a person who has contracted COVID-19, parents are always recommended to act in the best interests of the child and to exercise extra care during this time.

Although the Regulations brought a lot of relief, the following question remained outstanding: what would happen to those parents who are not in possession of a court order or parenting plan? Does this mean that the child would not be transported to the other parent during the lock down period due to a lack of documentation?

On 16 April 2020, further amendments were made to the Regulations and the following paragraph was added:

  1. The co-holder of parental responsibilities and rights in possession of a birth certificate or certified copy of the birth certificate of the child or children to prove a legitimate relationship between the co–holders of parental responsibilities and rights.

This means that the parent or caregiver transporting the child concerned must have in his or her possession the court order or the parental responsibilities and rights agreement or parenting plan or birth certificate of the child or children, as required.

Despite the numerous amendments that were made, on 8 April 2020, an urgent application in the Western Cape High Court was brought against the Department of Social Development by a divorced couple whose children were with their grandparents in Bloemfontein since the lockdown period started.

In this particular application, the parents requested the court to grant one of the parents an opportunity to travel to Bloemfontein to fetch the children. The Department of Social Development defended the matter on the basis that this does not create an exception relating to movement of children from a parent to a caregiver or vice versa.

Judge Meer granted the father permission to fetch the children on the basis that the requirements in terms of the Regulations, mentioned above, were complied with as there was an existing parenting plan registered with a Family Advocate.

The amended Regulations and the Judgment handed down by Judge Meer have brought great relief and satisfaction to many co-parents, especially as we embark on the next phase of the lock down period with many fears and uncertainty relating to the future of the virus and the future of our children.

Author: Shiraiz Potgieter

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