COVID19: Update on what the law says about child visitation

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COVID19 Update on what the law says about child visitation

Prior to the Minister of Justice and Correctional Services directive, which was issued late on the evening of the 26th March 2020, there was little clarity on the legal position regarding parents’ rights to care and contact of their children during the lockdown as pronounced by our President.

Many parents were left in state of confusion as to how they were to exercise their rights and comply with their co-parenting arrangements (made an order of court) without contravening the regulations gazetted on the 25th March 2020. The regulation does not expressly prevent children moving between the respective parents, but it does restrict the movement of every person, confining them to their place of residence unless under reasonable circumstances as set out therein.

On the 25th March 2020, The Minister of Social Development, Lindiwe Zulu, issued a statement to the effect which, inter alia, suspends the contact and visitation rights of parents over the course of the lockdown. The Minister has requested that children remain with the primary custodian parent and should only be moved under exceptional circumstances. Unfortunately, these exceptional circumstances were not defined. Despite Minister Zulu’s statement, which in my opinion was not absolute, the legal position remained unclear.

Parents have been flooding Legal Practitioners and Government officials with queries on the abovementioned issue which placed immense pressure on the latter to provide clarity thereon.

Late last night, The Minister of Justice and Correctional Services, Ronald Lamola, issued a directive regulating the ‘arrangements where a child is to move from parent to another in terms of a parenting plan must be attended to’. However many Legal Academics and Advocates are of the opinion that this does exempt divorced or separated parents from the lockdown restrictions, imposed by The Minister for Cooperative Governance and Traditional Affairs (COGTA) under the Disaster Management Act, in order to honour their co-parenting arrangements.

Thus, as it stands, the legal position remains unclear. To caution against contravening the law, it is suggested that parents communicate with one another in terms of reasonable virtual contact arrangements. As previously suggested, parents can utilize the common modes of communication such as WhatsApp video calling, Skype, Facetime etc. to communicate with their children during the lockdown period.

It is statutory law that the children’s best interest is of paramount importance and therefore their wellbeing should be at the forefront while this situation prevails as a way of ensuring that the virus does not spread unnecessarily.

Should parents feel more comfortable having a written arrangement regulating their rights and responsibilities for the 21 day lockdown, our offices are more than happy to assist.

We maintain that this is a developing story and that the Minister may at any time release a directive in this regard and the situation could change.

We will keep you updated!


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