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Breaking News: Parents now allowed to exchange Children between them, but there is a catch...

Original Instruction (as Gazetted on 2020/03/30): The Department of Justice mandated that Children NOT be moved between Parents during the COVID-19 lockdown. Section 6(m) of Gazette 43182 states that: 1. the movement of Children between co-holders of Parental responsibilities is prohibited 2. Children must remain with the Parent with whom the Children were when the lockdown period began 3. that Parents must communicate with their Children, explaining that it is a temporary solution 4. Contact is encouraged via electronic communication (i.e. Skype, WhatsApp & telephone calls) Updated Instruction (as Gazetted on 2020/04/07): Section 6 of Gazette 43213 has been amended to specifically allow Parents to exchange their Children between them, provided that a Parenting Plan accompanies the Children. Below is an extract from the original text (linked above): "(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" (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 to move, there is no person who is known to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19; (ii) the parent or caregiver transporting the child concerned must have in his or her possession, the court order of the agreement referred to in sub-items (aa) and (bb), respectively, or a certified copy thereof." The Challenge & Opportunity for Mediators: While the Courts are NOT currently hearing new cases (in respect of Parenting Plans), the conditions of the lockdown have, in many cases, led to an escalation in tensions between Parents. We recommend that Mediators:

  • Make use of the opportunity to settle disputes between Parents while the lockdown is in place

  • Do NOT meet the Parties in person, rather make use of video calling (remember that cases CANNOT be mediated via email!)

  • Commit the settlements to an electronic document and share this with both Parties

  • File the Parenting Plans with the Courts & Office of the Family Advocate once the lockdown is over

The expectation is that, once the lockdown is over, the Courts will be flooded with applications - both contested and uncontested. Where a settlement was reached by consensus, we typically experience that these cases receive preference over litigated matters.


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