On 7 April 2020, the Minister of Social Development issued new Directions which allows the movement of children between co-holders or parental responsibilities and rights during the lockdown period where arrangements are in place for a child to move from one parent to another in terms of either a Court Order or where a parental responsibilities and rights Agreement or Parenting Plan, registered with the Family Advocate, is in existence.

These new Directions were published in Government Gazette No. 43213, Government Notice No. 455182 and amend the Directions published in Government Notice No. 430 published in Government Gazette No. 53182 of 30 March 2020 in terms of which the movement of minor children between the co-holders or parental responsibilities and rights was prohibited during the lockdown.

The view is widely held that the Directions issued by the Minister of Social Development in respect of the movement of children between co-holders of parental responsibilities and rights are ultra vires, meaning that the Minister of Social Development is not authorised to issue Directives regarding children in the care of their parents. This is because the powers conferred on the Minister of Social Development are specific and limited to measures to be taken regarding COVID-19 in Department of Social Development Facilities, and the homes of parents are not, in the normal course “Department of Social Development Facilities”.

The new Directions issued by the Minister of Social Development, ought to have been issued under Regulation 11B of the Regulations gazetted by the Department of Co- Operative Governance and Traditional Affairs which provides inter alia that for the period of lockdown “every person is confined to his / 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”.

In terms of the new Directions, there are two important provisos to the movement of children between co-holders of parental responsibilities and rights during the lockdown period, namely that:

1. in the household to which the child is to move, there must not be a 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; and
2. the parent transporting the child concerned must have in his / her possession, the original Court Order or the original Agreement or Parenting Plan, or a certified copy thereof.

Furthermore, the parental responsibilities and rights Agreement or Parenting Plan must have been registered with the Office of the Family Advocate to qualify under the new Direction.

This brief memorandum is intended to provide clarity in regard to which Directions are currently applicable in regard to the movement of children between co-holders of parental responsibilities and rights for the purposes of exercising contact with the child and does not constitute legal advice.

By: Adam Mitchell (Attorney) – adam@thomsonwilks.co.za

‍