MOVEMENT OF CHILDREN BETWEEN CO-HOLDERS OF PARENTAL RESPONSIBILITIES AND RIGHTS, OR A CAREGIVER

By Lezanne Taylor - Senior Attorney at Johanette Rheeder Inc.

INTRODUCTION

On 15 March 2020 and in terms of Government Gazette No. 43096, Dr Nkosazana Dlamini Zuma, the Minister of Cooperative Governance and Traditional Affairs, in regard to her designation under Section 3[1] of the Disaster Management Act, 2002 (Act No. 57 of 2002) ( "the Act ") and in terms of Section 27(1)[2] of the Act, declared a national state of disaster whereby life as we all knew it changed in an instance.

Most aspects of life became uncertain, also in relation to parents who by virtue of either a court order, a parental responsibilities and rights agreement or a registered parenting plan, are the co-holders of parental responsibilities and rights as defined in Section 1(1) of the Children’s Act, 2005 (Act No. 38 of 2005).

The declaration of a state of emergency did not only leave citizens confused and unsure, but more- over left parents of shared parental responsibilities and rights with an array of questions and for the time-being, no answers.  

AMENDMENTS TO PARARAPH 6 OF THE DIRECTIONS PUBLISHED IN GOVERNMENT NOTICE NO. 430 OF 30 MARCH 2020

Soonest but not soon enough for the sake of concerned and unsure parents, the law makers stepped in and brought about some relief in relation to the uncertainty parents were facing. On 7 April 2020 and by virtue of a publication in the Government Gazette, GN No. 43213, Ms Lindiwe Zulu, MP, the Minister of Social Development in terms of regulation 10(8) of the Regulations made in terms of Section 27(2) of the Disaster Management Act, 2002 (Act No. 57 of 2020) published and amendment as follow, which amendment in terms of law has force and effect from 7 April 2020:

“…Amendment of paragraph 6 of the Directions published in Government Notice No. 430 of 30 March 2020…”

1.    (b) the substitution for the heading to subparagraph (m) of the following heading:

“(m) Directions to contain the spread of COVID-19 in exercising the care and contact by persons who are co-holders of parental responsibilities and rights or a caregiver during the lockdown period”

(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(1) of the Children’s Act, 2005 (Act No. 38 of 2005), during the lockdown period, 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 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 know not have contracted, or reasonably suspected to have contracted COVID-19;

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

EXPRESS, ALTERNATIVELY TACIT, FURTHER ALTERNATIVELY IMPLIED INTERPRETATION OF THE AMENDMENTS

From the amendment stipulated in paragraph 6 Government Notice No. 430 of 30 March 2020, it is clear that the intend of the lawmakers were to clarify and bring about defined parameters within which parents can operate for the duration of the lockdown. 

However certain aspects in relation to interpretation of the current amendments remains unresolved. The purpose of this article is thus to address certain of these aspects.

A lot is said in law in relation to the lawmakers intend. Thus, it can be argued that the intend of this amendment is not to bring about further uncertainty or complications but to assist parties in utilising the law in execution of their rights.

Firstly, and foremost, it is important for the purpose of perspective within this article, to pause for a moment and define the concepts of “Co-Holders of Parental Responsibilities and Rights”, as well as that of a “Caregiver”[3].  All participants mentioned within the definition of the Children’s Act, through the directive issued in the Government Gazette, derived the right to move minor children/a minor child within the stipulations mentioned in the Gazette.  

The stipulations are clearly envisaged in the conditions set out in the directive. The conditions read as follow, that (1) the household to which the child is 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 know not have contracted, or reasonably suspected to have contracted COVID-19; and that (2) the parent or caregiver transporting the child concerned must have in his or her possession, the court order or the agreement referred to in sub-items (aa) and (bb), respectively, or a certified copy thereof’.

Secondly and by virtue of now knowing which parties qualifies under this section, one can look at the circumstances under which the respective parties are allowed to effect their parental responsibilities and rights. These circumstances are mentioned in the directive as (1) where there is a Court Order. This would be for instance in circumstances where the parents of the referred child/ren has divorced, and the contact in respect of the said child/ren are governed as part and partial of the decree of divorce or in conjunction with a settlement agreement (which settlement would on the order be marked with a letter and referred to as being incorporated in the decree of divorce). (2) If there is a Parental Responsibility and Rights Agreement, or Parenting Plan registered with the family advocate. Parental rights and responsibilities agreements or parenting plans registered with the Family Advocate have the same legal effect as an order of court.

It is clear from the above that the lawmaker only had the intend of including care and contact stipulated in relation to a court order, a parental responsibility and rights agreement or parenting plan which is registered with a family advocate, by virtue of the wording of this section, it will exclude an inter parte -agreement which was not made an order of court, or any agreement which is not a parental rights and responsibility agreement or parenting plan. In regard to aforementioned it is clear that it has to be registered with the family advocate and that proof thereof is needed.

The question in relation to above now posed is, what if the parent wanting to execute their rights in regard to the amendments to move a child/ren to another home in the period of lock down, does not have a court order, or only has a copy of the court order,  or a copy which is not certified.

As previously mentioned, we submit that the intend of the lawmaker in issuing this amended directive, was not to create further complications. It is however clear that should the party wanting to execute his/her right not be in possession of this order, it seems the direction is clear that that party will then not be able to transfer the child/ren.

However, the same declination would not be applicable in relation to a court order which was for instance mailed by an attorney to his client after the divorce was finalised, or when one party to the divorce has mailed the order to another. This being the case where a party wishing to rely on a court order, only has an e-mail copy.

In such instances the Electronic Communications Act, Act No. 36 of 2005 (“ECTA”), holds that that there can be no distinction between paper and electronic documents. The ECTA goes further to state, that as long as the electronic copy can later be produced in physical format, it is legally permitted[4]. It is submitted that Section 15 of the mentioned ECTA is important and applicable in relation to the current situation at hand.

15. Admissibility and evidential weight of data messages

(1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence-—

(a) on the mere grounds that it is constituted by a data message; or

(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

(2) Information in the form of a data message must be given due evidential weight.

(3) In assessing the evidential weight of a data message, regard must be had to-—

(a) the reliability of the manner in which the data message was generated, stored or communicated.

(b) the reliability of the manner in which the integrity of the data message was maintained.

(c) the manner in which its originator was identified; and

(d) any other relevant factor.

(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

From the above it can be argued that a party wishing to present an electronic copy of a court order, will be afforded a prima facie- believe that the document is what it purports to be unless, the contrary can be proven.

The directive however goes even further to place another requirement on parents by stating that the order in possession of said parent has to be either original or a certified copy.

In amplification of the ECTA, it can further be argued that seeing an electronic copy is permissible in relation to evidentiary value, and seeing the Disaster Management Act, makes exceptions to normal operations, and restricts the current movement of all citizens, that a copy of the said order will in absence of any other option available, be argued sufficient and acceptable unless it is proven that the document is not what it purports to be.

In these trying times, with all the uncertainty going around, especially in regard to parents fear of arrest should there not be complete compliance with the directions, it is submitted that parents may utilise this time to work together in moving minor child/ren. It may be suggested that the parent receiving the minor child/ren assist the travelling parent in substantiating that parents seemingly non-compliance with the lockdown in writing a letter and confirming receipt of the minor child/ren in relation to the court order and further ending the letter with a name, surname and phone number to confirm this aspect accordingly for in case and in instances it should become necessary.

In conclusion, parents should adhere to the stipulations of the settlement; parental responsibility & rights and parenting plan agreements unless they wish to be held accountable in terms of Section 35 of the Children’s Act[5],.

’13 April 2020

L Taylor

Johanette Rheeder Inc.

[1] Administration of Act 3. This Act is administered by a Cabinet member designated by the President.

[2] Section 27. (1) In the event of a national disaster, the Minister may. by notice in the Gazette 35 declare a national state of disaster if-- (a) existing legislation and contingency arrangements do not adequately provide (b) other special circumstances warrant the declaration of a national state of disaster.

[3] Section 1(1) of the Children’s Act, 2005 (Act No. 38 of 2005) defines a Co-holder of parental responsibilities and rights: “A person, or persons upon whom the rights set out in section 18 of the Children’s Act, 2005 is conferred. This is either in regard to a court order, a parental responsibility and rights agreement or parenting plan registered with the family advocate”; Care giver: “Any person other than a parent or guardian, who factually cares for a child and includes—(a) a foster parent? (b) a person who cares for a child with the implied or express consent of a parent or guardian of the child?(c) a person who cares for a child whilst the child is in temporary safe care?(d) the person at the head of a child and youth care centre where a child has been placed?(e) the person at the head of a shelter? (f) a child and youth care worker who cares for a child who is without appropriate family care in the community? and (g) the child at the head of a child headed household?

[4] Legal recognition of data messages 11. (1) information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message. (2) Information is not without legal force and effect merely on the grounds that it is not contained in the data message purporting to give rise to such legal force and effect but is merely referred to in such data message. (3) Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if such information is-—(a) referred to in a way in which a reasonable person would have noticed the reference thereto and incorporation thereof; and (b) accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as such information is reasonably capable of being reduced to electronic form by the party incorporating it. Original 14. (1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if—-(a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and (b) that information is capable of being displayed or produced to the person to whom it is to be presented. (2) For the purposes of subsection 1(a), the integrity must be assessed (a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display; (b) in the light of the purpose for which the information was generated; and (c) having regard to all other relevant circumstances.

[5] Section 35 - Refusal of access or refusal to exercise parental responsibilities and Rights(1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22 (4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.