Covid-19: Why court allowed father to travel between provinces to bring children home

Two children, who were “stuck” with their grandparents in Bloemfontein since the lockdown kicked in, are to be reunited with their parents this week. This follows a court battle between a divorced parent and the Department of Social Development to allow the children to be transported between provinces and returned to their home in Cape Town.

The children, aged seven and ten, were in the Free State visiting their grandparents when the lockdown regulations were implemented on 26 March.

Initially, it was a criminal offence for anyone to travel between provinces during the lockdown. Movement between provinces was only allowed to attend a funeral, transport the remains of a deceased person, transport imported items or for an “essential service” employee to travel to and from work.

Social Development published a directive on 30 March, prohibiting the movement of children between households of parents or legal guardians with joint parental responsibilities such as divorced parents. But Social Development Minister Lindiwe Zulu soon bowed to pressure and on 7 April exempted, in certain circumstances, children travelling between the homes of separated and divorced parents.

The amended directive, however, did not specify whether the children could be moved from their grandparents. If either parent attempted to travel to Bloemfontein, to bring their children back to Cape Town, that parent could be arrested and face a possible six month sentence or fine if found guilty of breaking the lockdown regulations.

The parents then brought an urgent application to the Western Cape High Court on 8 April, asking that one of them be allowed to travel to Bloemfontein and bring the children back home to Cape Town. The department opposed the case.

On 8 April Judge Shenaz Meer granted the father permission to travel between provinces. She also awarded the parents costs. On 14 April, she gave reasons for her ruling.

In court documents, the grandparents said both children would be placed at risk if they became sick with coronavirus. They also explained their difficulties in properly caring for both young children for the whole lockdown because of their old age. The two children also told the family advocate in a video conference that they wanted to go back to their parents in Cape Town.

The department opposed the case on two narrow grounds.

First, its lawyers argued that the application should not be granted because the parents only took steps to bring their children home on 6 April. The parents should have taken steps to bring them back to Cape Town before the lockdown came into effect on 26 March, it argued.

Second, the department said that the amended directive only allows for the movement of children from “parent to parent” but agreed that the grandparents were “caregivers” in terms of the Children’s Act. The department’s lawyers argued that the parents could not rely on the amended directive to allow one of them to travel to Bloemfontein to bring their children back to Cape Town.

Judge Meer said that the parents complied with all three requirements needed for the children to be moved.

First, there was an arrangement that regulates the movement of the children between the home of each parent. This was because a court order had been granted regulating the applicants parental rights and responsibilities over the children when they got divorced.

Second, there was no evidence that either parent has coronavirus or could reasonably be expected to have come into contact with a person with coronavirus. However, Judge Meer did order that the children would only be allowed to travel between the home of the mother and the father once they had returned to Cape Town and once the mother received a medical certificate certifying that she does not have coronavirus.

Third, the court said that when the father travelled to Bloemfontein to fetch the children, he must have a copy on him at all times of the court order allowing him to travel between provinces. The court also said that he must comply with all regulations regarding travel that have been issued by the Minister of Transport.

The court also considered whether the amended directive allowed for the movement of children between two caregivers and not only between two parents. The Department argued that this would not be allowed as the amended directive requires that a pre-existing court order must be in place to allow for the movement of children during the lockdown.

Judge Meer said it was not clear why the amended directive did not allow for the movement of children between two “caregivers”. She said that the directive should be interpreted in a way that would best promote the constitutional right of children to have their best interests considered paramount in matters which affect them.

On this basis, she held that the amended directive does allow for the movement of children between two caregivers and not only between two parents. Where there is no pre-existing court order regulating the movement of children between two caregivers, a caregiver could apply to the court on an urgent basis for an order allowing for the movement of children during the lockdown.

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