File image: ANA
The children, aged seven and 10, were visiting their grandparents when the national lockdown took effect and, as a result, got stuck there.
Their father, along with his ex-wife and the mother of his children, last week approached the court with an urgent application, saying his parents, aged 72 and 68, were simply not able to look after the children for long periods of time and that his mother suffered from arthritis.
In his founding affidavit, he explained he and his ex-wife knew about the looming travel ban but had not realised how strictly it would be enforced.
In handing down judgment, Judge Yasmine Meer pointed to a video conference between the family advocate and the grandparents and said this revealed the children’s grandmother was “physically exhausted” and that her ailments were deteriorating.
“The lockdown has prevented [their] grandmother’s daily house help from coming in and [she] has to attend to everything for the household and children…
“She is normally accustomed to taking care of the children for shorter intervals and cannot cope in the current circumstances. This is going to impact negatively on her care for the children,” Meer said.
“They are quite active and she cannot manage them.
“The grandfather provides limited support. The children are going through different emotions and get heartbroken for not being with their parents.”
Late last month, Social Development Minister Lindiwe Zulu published directions prohibiting the movement of children during the lockdown. But a day after the case in question was launched, the minister published an amendment where an exception was made for children who lived between two parents and were the subject of court orders or formalised parenting agreements.
By the time this case came before Meer, the amended directions had taken effect.
The department opposed the application and argued the amendment did not create an exception for the movement of children between parents and caregivers such as grandparents, but Meer found that in this instance, it did.
“In terms of the amended direction, movement of the children between their caregiver grandparents and parents is prohibited except where arrangements are in place for them to move from one parent to another in terms of a court order or parenting plan.
“There is currently precisely such an order … in terms of which arrangements are in place for the movement of the children from one parent to another,” she said.
“The [department’s] opposition … cannot in the circumstances of this case succeed”.
She said the wellbeing and physical health of the children in question were at risk and that it would be in their best interest to grant the order.
She also slapped the department with costs, saying: “Relevant to the question of costs, also, is the [department’s] curious refusal to enter into a settlement agreement, notwithstanding the concession that the circumstances of this case fell within the ambit of the exception…
“The question of a settlement was raised on more than one occasion during telephone conferences.”
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