C D and Another v Department of Social Development

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COVID19 Update on what the law says about child visitation

C D and Another v Department of Social Development

 

In the above judgment delivered on 14 April 2020 in the High Court, Western Cape Division, Judge Meer granted an order which enabled the First Applicant to travel from Cape Town to Bloemfontein and back, to collect the First and Second Applicants’ children from their grandparents’ home. The two children found themselves locked down in their grandparents’ home. The First and Second Applicants are divorced parents, with a divorce order which incorporates a consent paper and parenting plan with arrangements in place for the movement of the children between the Applicants.

 

The Applicants sought to dispense with Regulations 3(b)(i) and (iii) published in Government Gazette 43199 published on 2 April 2020 (“the Regulations”). The aforementioned sections of the Regulations read as follows:

 

“3. Regulation 11B of the Regulations is hereby amended by-

(a) ………….

(b) The substitution for paragraph (a) of subregulation (1) of the following paragraph:

“(a) For the period of lockdown-

(i) every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, pension or seeking emergency, life-saving or chronic medical attention.

(ii) …………….

(iii) Movement between provinces and between metropolitan and district areas is prohibited except-

(aa) for essential workers who have to travel to and from work.

(bb) for transportation of cargo from ports of entry to their intended destination, on condition that necessary precautions have been taken to sanitise and disinfect such cargo;

(cc) for the transportation of the mortal remains; and

(dd) for attendance of a funeral as provided for and on the conditions set out in subregulation (8)”

 

The aforementioned sections of the Regulations must be read with the Amended Directions issued by the Minister of Social Development on 7 April 2020 (“the Amended Directions”), which pertain to the movement children during the lockdown period. The relevant Amended Direction 1(c) reads as follows:

 

1. Paragraph 6 of the Directions is hereby amended by-

(c) the substitution in subparagraph (m) for items (i) and (ii) of the following items:

(i) Movement of children between co-holders of parental responsibilities and rights or a caregiver as defined in Section 1 (i) of the Children’s Act is prohibited, except where arrangements are in place for a child to move from one parent to another in terms of,

(aa) a court order; or

(bb) where a parental responsibilities and rights agreement or parenting plan, registered with the family advocate is in existence, provided that, 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;

(ii) the parent or caregiver transporting the child concerned must have in his possession, the court order or the agreement referred to in sub-items (aa) and (bb), respectively, or a certified copy thereof”

 

It was common cause that the grandparents fell within the definition of a ‘caregiver’ as defined in section 1 (i) of the Children’s Act. On a plain reading of the Amended Directions, it is clear that the movement of children between co-holders of parental responsibilities and rights or a caregiver is expressly prohibited, except where arrangements exist for a child to move from ‘one parent to another…’. However, the Directions do not make provision for the movement of children between parent and caregiver and vice versa.

 

Judge Meer did not opt for a plain reading of the Amended Directions, instead she reasoned that:

 

“It would seem to me that the omission in the exception to cater for movement from a caregiver, appears to be at odds with the preceding reference to movement of children “between co holders….or a caregiver”. An inclusion in the exception of movement between parent and caregiver would be an interpretation in line with Section 39 (2) of the Constitution, exhorting as it does for legislation to be interpreted to promote the spirit and purport of the Bill of Rights , in this case Section 28 (2) of the Constitution and Bill. That section states that a child’s best interests are of paramount importance in every matter concerning a child.”

 

Accordingly, Judge Meer granted the First Applicant permission to drive from Cape Town to Bloemfontein and back to collect the two children.

 

Can children travel between provinces and/or between district and metropolitan areas without a specific court order?

 

In C D and Another v Department of Social Development, part of the judgment dictated that the First Respondent must carry the order when travelling between the provinces. The order also allowed for the First Applicant to spend one night in Bloemfontein, presumably because of the length of the drive.

 

By implication we can reason that, without the existence of a specific court order authorising the movement of children between provinces and/or district and metropolitan areas, such movement is prohibited, even if there is a parental rights and responsibilities agreement or a parenting plan, registered with the family advocate. In other words, the judgment should not be looked at as a blanket concession on the freedom of movement of children between provinces and/or district and metropolitan areas. This argument is strengthened by the fact that the Regulations make it clear that:

 

“(iii) movement between provinces and between metropolitan and district areas is prohibited except—

(aa) for essential workers who have to travel to and from work;

(bb) transportation of cargo from ports of entry to their intended destination, on

condition that necessary precautions have been taken to sanitise and

disinfect such cargo;

(cc) for the transportation of the mortal remains; and

(dd) attendance of a funeral as provided for and on the conditions set out in

subregulation (8).”

 

There is no mention of the movement of children between parents and/or caregivers in the closed list of exceptions. The Regulations have not defined what constitutes a district or metropolitan area. This essentially exposes parents and/or caregivers to violating the Regulations without even knowing about it.

 

Has the government taken any guidance from C D and Another v Department of Social Development, specifically some clarity on whether children can be moved from parents to caregivers and vice versa?

 

Interestingly, the Amended Directions have since been incorporated and amended into Regulations published in Government Gazette 43232 published on 16 April 2020 (“the New Regulations”). This presented the perfect opportunity for government to provide some clarity on whether children can indeed move from parent to caregiver or vice versa. Unfortunately, the New Regulations have kept the exception created as only applying to a ‘child moving from one parent to another…’.

 

Should you require any assistance or advice on the movement of children during the lockdown, or if you require any further information, contact us on CLiebetrau@dacct.co.za

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