LOCKDOWN: What does it mean for divorced and separated parents’ contact rights in respect of their children?

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Co-parenting during lockdown can be difficult. How do parents navigate around it when they are not living together? What are the children’s rights in such a situation? What are the dos and don’ts?

South Africa has entered completely unchartered waters in the past week. The announcement of a national lockdown, accompanied by uncertainty, apprehension and many ongoing changes, including in the law, requires ordinary people to navigate their way through the challenges in what is usually already difficult circumstances.

We have had to adapt, grow and learn at a rapid pace over the past few days, filling in the gaps behind us as we go down the road less travelled. Government, in its ongoing effort to fill these gaps and fix the cracks along the way, is constantly issuing and amending regulations which have to serve as our maps to guide us through this time.

Divorced and separated parents as well as co-holders of parental rights and responsibilities, such as guardians, were left somewhat in the dark not knowing what the lockdown means for their respective contact rights.

The good news however, is that co-holders of parental rights and responsibilities finally have clarity on what they can and cannot do during lockdown.

The Department of Social Development issued regulations on 30 March 2020, outlining both the obligations of parents and those others who may have primary residency over their children during the lockdown, as well as their duties towards the parents who do not.

The regulations aim to ensure that the spread of COVID-19 is contained whilst minimising the possibility of a child’s exposure to the virus. Regulation 6(m) of the directions specifically prohibits the movement of children between divorced and separated parents or other co-holders of parental rights and responsibilities, during the lockdown period. Children are therefore to remain in the care of the parent they were with at the start of the lockdown period, until it has ended.

These parents are, however, required to encourage and create a suitable environment for the parent who the children are not with, to have regular contact and communication with their children. A broad base of mediums, including SMS, WhatsApp, Skype, FaceTime, Zoom etc. are available for this purpose. The most effective medium that would afford optimal interaction between parent and child from both a visibility and sound quality perspective, should in our view be utilised.

The regulations have furthermore created an obligation for parents to explain COVID-19 to their children and what measures have been put in place to contain the spread thereof. Children need stability and routine. They are very much aware that things are suddenly different and can sense that all is not well in this world. We as such have to do what we can to manage their anxiety and feelings of insecurity and frustration, which they no doubt are also experiencing.

Our courts are for all practical purposes closed, and only remain open during the lockdown period to hear truly urgent matters in exceptional circumstances.  Our courts are the upper guardians of all children and will simply put a child’s health and safety first. The courts have already ruled that contact arrangements during the lockdown period are not considered urgent. No matters will as such be entertained where a child is safe and cared for.

Despite any feelings of uncertainty and apprehensiveness, parents and other holders of parental rights and responsibilities are therefore cautioned to strictly adhere to the regulations.  Attempts to find or create perceived loopholes to move the children between themselves in their own self-interest are strongly discouraged. It is only with strict adherence to the rules that parents can responsibly and lovingly assist their children to safely and healthily navigate their way to a better tomorrow.

Adams & Adams has a team specialising in Family Law that is available to assist with any queries and resolve any uncertainty that you may have.

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