Family law under the threat of Covid-19

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Julia Sloth-Nielsen

Senior Professor in Family Law

University of the Western Cape

Rachel Sloth-Nielsen

Candidate attorney,

Miller du Toit Cloete Inc, Cape Town

Introduction

On 15 March 2020, the President of South Africa announced that its people would be subjected to a nationwide lockdown from 26 March. Although the disease was not yet widespread and detection levels of Covid-19 within the country were low, a National State of Disaster was declared, ushering in one of the hardest lockdown regimes in the world. Lockdown measures included a ban on the sale of cigarettes, and the sale or transportation of all alcohol. The movement of people was severely restricted, including initially a ban on outdoor exercise and travel between districts, municipalities and across provincial borders. At the time of writing, eight weeks on, only marginal concessions have been made to relax these restrictions.

Family law matters in general have been deeply affected by the National State of Disaster, not to mention the overall burden experienced by women and children in particular. As UNICEF recently stated in a technical note on Covid-19:

‘Children are not the face of this pandemic. But they risk being among its biggest victims. While they have thankfully been largely spared from the direct health effects of COVID-19 – at least to date – the crisis is having a profound effect on their wellbeing. All children, of all ages, and in all countries, are being affected, in particular by the socio-economic impacts and, in some cases, by mitigation measures that may inadvertently do more harm than good. This is a universal crisis and, for some children, the impact will be lifelong.’^[1]

Parenting arrangements

The initial lockdown saw care and contact arrangements between parents severely compromised due to the limitations placed on freedom of movement. In addition, the initial lockdown occurred during school holidays, a time when different contact provisions commonly apply as between parents. Moreover, the fact that schools subsequently closed completely (and remain closed) has given rise to many inter-parental disputes.

Movement of persons was only permitted in essential cases, leading to children being ‘stuck’ with one co-holder or even a person with no parental responsibilities and rights. A court order has to be obtained for permission for a child to travel, on proof that this was urgent and essential.

In order to illustrate the type of scenario which would be deemed urgent and essential, a case heard by the Western Cape High Court on 8 April is briefly discussed below.

Two children were stranded with their grandparents in Bloemfontein, in the centre of the country. Their parents brought an application for leave to travel to Bloemfontein and collect the children. The children were visiting their grandparents when ‘the lockdown intervened’ and ‘the children found themselves locked down with their grandparents’. The court allowed the father to drive to Bloemfontein and collect the children for, inter alia, the following reasons:

• the advanced age and precarious health of the grandparents had made caring for the children increasingly strenuous;

• should the grandparents fall ill with Covid-19, they would have been be unable to care for the children;

• the report by the family advocate made clear it would be in the best interest of the children to return to Cape Town.

Co-holders of parental responsibilities rights have been permitted to move their child from one parent to another since 7 April 2020, provided arrangements are in place in terms of a court order or parenting plan. This loosening, however, received criticism as it failed to allow for children to move between co-holders who had no court order or parenting plan in place. As a result of the further amendment of the Regulations dated 16 April, children could then be moved between co-holders of parental responsibilities and rights during the lockdown period. In addition, a third option provided for was for a co-holder of parental responsibilities and rights to produce a birth certificate or certified copy of a birth certificate of the child to prove a legitimate relationship between the co-holders of parental responsibilities and rights. This was presumably to address the situation where parents were still in the divorce process, or had separated amicably and not yet seen the need for a formal agreement or plan.

The amended regulations of 16 April were unclear on inter-district and inter-provincial movement of children. Taken at face value, inter-district and even inter-provincial movement of children was no different to driving a child down the road to their other parent. However, while inter-provincial travel was seemingly not contemplated, some more localised travel was potentially allowed, although likely to need support by court-issued permit.

In subsequent regulations issued on 29 April, it was specified that movement of children in the same metropolitan area or district municipality would be allowed subject to the co- holders of parental responsibilities and rights or a caregiver being in possession of: (a) a court order; or (b) a parental responsibilities and rights agreement or parenting plan, registered with the family advocate; or a permit issued by a magistrate if the documentation in paragraphs (a) and (b) is not available. Movement between different municipalities or provinces would be allowed with a permit issued by a magistrate. However, the household to which the child was to be moved had to be Covid-19 free, and written reasons had to be furnished to support the application for a permit.

Parenting conflicts

Telephone inquires early on in the crisis revealed that family advocates’ offices were only dealing with emergency cases referred from court. This has eased in the weeks since.

Lawyers and mediators report escalating inter-parental conflict around children, especially as the Regulations require that the children may only be moved to a Covid-19-free household. This has created fear on the part of primary caregiver parents. As one professional stated: ‘

‘We do a lot of case management just to get the temperature down because parents are scared the child may get the virus at the other house.’ Home schooling provides another environment for strife, where facilities and support for children’s education differs at the different abodes.

Mediation has had to take place via various online platforms, in attempts to resolve conflicts.

Domestic violence

With women and children confined to their homes during the hard lockdown, there have been soaring reports of desperate calls to helplines from women seeking refuge from domestic violence. Reportedly, more than 120,000 calls were received in the first three weeks of lockdown alone, more than double the usual number.^[2] Domestic violence was even taken up by the President in his State of the Nation address on 13 April, during which he branded it ‘despicable’. A statement on 18 May reported that calls were up from 1,500 to 5,000 per week.^[3]

Adoption and intercountry adoption

Intercountry adoptions were explicitly addressed in Regulations issued by the Minister of Social Development on 9 May,^[4] and were to be halted immediately. No exceptions were made for where matching might already have occurred with the intended adoptive parents, or for adoptive processes that were all but finalised. However, as intercountry adoption necessarily entails movement across borders, finalising the transfer of children would be impossible anyway due to border closures.

No information about domestic adoption has been made available, but one agency reported that domestic adoptions have also stalled. This is in the context of a huge increase in abandoned babies due to the grinding poverty that is taking root.^[5] Although the initial regulations specify that adoption is among the civil matters that may proceed, this seems to refer only to cases where papers are already before court.

Children in alternative care

Regulations were published on 29 April and again on 9 May by the Minister for Social Development. They clearly envisage an orderly release process for children in child and youth care facilities, be they there by reason of abuse and neglect or as children in conflict with the law.

In one province, it was reported that, after seven weeks of lockdown, 27 children have been discharged in terms of the Children’s Act 38 of 2005 and 16 children in terms of the Child Justice Act 75 of 2008.

The 9 May Regulations provide as follows:

‘Release from facilities

‘4A (a) Every person who is to be released from a facility must be screened before being released.

‘(b) A person released from a facility must be released to a household that is free of COVID -19.

(c) A social worker must be satisfied with regard to the state of readiness of the place to accommodate a person with a disability who is to be released.’

Children may therefore be released and discharged from the facilities on the recommendation of a social worker; and the family reunification and integration programme may be allowed also on a social worker’s recommendation.

Evidently children in all child and youth care centres get weekly access to telephone contact with their parents. Where therapeutically needed, the social worker will also increase these contacts. Visits to the centres are at the time of writing not permitted, due to the high risk of Covid-19 transmission.

Access to courts

Access to courts has been curtailed thus far, and even where parties are permitted to seek relief from a court, different courts seem to have adopted differing approaches to what they will deal with and what documentation or substantiation is required. This is partly due to the different practice directives issued by the different heads of each provincial division of the High Court, and in part due to interpretative differences by the heads of the lower Magistrates’ courts. However, access to court has been permitted for ‘urgent and essential’ matters or those which, if not heard during lockdown, would ‘lead to substantial injustice’.^[6] In the initial stages of lockdown, only matters involving foster care, adoption, removal of children in need of care and protection, placement of children in care centres and Hague Convention cases were to be heard.^[7]

Although no new matters could be brought to court, the Chief Justice issued directives to the effect that access to courts must be enabled to function for all matters involving children.^[8]  The Office of the Family Advocate has consequently been accepting all matters referred by courts and conducting virtual consultations with affected parties.

As the lockdown has gradually eased, cases have started being heard virtually. Unopposed applications already on the court roll are being heard by video conferencing calls if possible. Opposed matters have been postponed unless a settlement has been reached, in which case the matter may be placed before a judge for the issuing of a consent order.^[9]

All criminal trials have been postponed until the end of lockdown, including involving children accused of offending. There are regulations requiring their release to be facilitated if this is possible and they are in detention.

Conclusion

South Africa has been slowly but inexorably moving towards mediation as compulsory in all family law matters. The South African Law Reform Commission has been tasked with an investigation in this regard, and has already produced a Discussion Paper containing a draft bill on Family Dispute Resolution;^[10] countrywide consultations are at an advanced stage. It seems that Covid-19 should serve as a spur to expedite the adoption of alternative forms of dispute resolution as soon as possible, as access to courts is going to remain restricted in the short to medium term future not least because courts and court personnel been have hard hit by infections. Moreover, children and their families are going to have to embrace new forms of technological engagement, as social distancing becomes the ‘new normal’.

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