COVID-19 has had an unprecedented effect on the entire world. In our own country, we are under a lockdown and wait everyday with bated breath to hear whether there will be further extensions. This has had a sad impact on many South Africans; and parents and children have not been spared either. The movement of children between parents or caregivers during lockdown has been a very contentious issue and one that has given parents some sleepless nights. Under the current Directives, children are permitted to move from one parent to the other if there is a court order or a parenting plan that has been registered with the Family Advocate.

On 14 April 2020, the Western Cape High Court dealt with an application that was brought on an urgent basis by parents who wanted to fetch their children who were visiting their grandparents in Bloemfontein. Interestingly, this was about fetching children from their grandparents during the lockdown, and not really about the movement of the children between their parents. 

The parents applied for Regulations 3 (b)(i) and (iii), which prohibits the movement of persons between provinces during the lockdown, to be dispensed with. This was to enable the parents to travel from Cape Town to Bloemfontein and back, to fetch their children from their grandparents’ home. This application was turned down by the department.

The children had travelled to Bloemfontein to visit their grandparents. As a result of the lockdown that came into effect on 26 March 2020, the children found themselves locked down with their grandparents in Bloemfontein.

The parents’ final divorce order incorporated a parenting plan that made provision for the children to move between the parents. This movement is also regulated by issued Directives which permit the movement of children in certain circumstances.

In addition to the existing court order, the court also considered factors such as the age of the grandparents, their ability to look after the children for long periods and the best interest of the children. It found that the task of caring for the children was proving to be unsustainable and that the children’s well-being and physical health was being placed at risk.

The court found that based on the circumstances of this specific case, there was no prohibition on the movement of the children as there was a court order with arrangements in place for their movement and granted an order authorising the father to travel to Bloemfontein to fetch the children and return to Cape Town with them.

To read up on the case, visit www.saflii.org/za/cases/ZAWCHC/2020/25.html

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