Abstract

Keywords

Co-parenting; lockdown; Covid-19; lockdown; child welfare and freedom of movement; best interests of the child.

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1 Introduction

Similar to the efforts in other states, in South Africa, to curb the widespread effect of the Covid-19 virus, a national blockade was initiated, and travel bans and restrictions were imposed to "flatten the curve" to attempt to prevent devastation on a scale similar to that found in Italy and Spain. 1

 Dr Annie Singh. LLB, LLM, PhD, Senior Lecturer in Law, University of KwaZulu-Natal, South Africa. Email: singhat@ukzn.ac.za. ORCiD: https://orcid.org/0000-0002-2662-3893. A special word of thanks is extended to Dr Simbarashe Tembo for his comments and input in the completion of the article.

 Dr Norah Hashim Msuya. LLB, LLM, PhD, Postdoctoral Researcher in Law (Note: completed posthumously). ORCiD: https://orcid.org/0000-0002-4117-8003.

1 Mkhize "South Africa − The COVID-19 Pandemic" 80.

In this paper, the authors are critical about South Africa's statutory response to the Covid-19 disaster, with a particular interest in its aptitude to facilitate parenting, care and protection of children in the mid of stringent lockdown circumstances. It aims to assess how the regulations implemented during the lockdown period affected the overall welfare and psychological state of children, considering the unique circumstances and challenges faced by co-parents during this time. Understanding the impact of these regulations on children's wellbeing is crucial for informing policy decisions, interventions, and support services that aim to promote the healthy development and mental health of children in similar situations.

The article examines how Covid-19 impacted the rights of children and constrained children's protection, thereby exposing them to abuse and neglect in times of emergency. Further, the article evaluates the impact of the lockdown regulations on the wellbeing of children. The methodology employed in this study encompasses the analysis of data from relevant literary sources and the interpretation of the Constitution, along with relevant legislation, directives, and regulations. Qualitative data analysis was

conducted in an inductive thematic manner, which involved identifying and categorising emerging themes and key issues derived from the data. To accomplish this, a structural content analysis technique was employed. This approach entails organising the data into predetermined categories to identify patterns in the presentation and reporting of information. The first part of the article provides a brief overview of the current legal framework which protects the rights of the child in South Africa. In the second section, the lockdown rules and regulations on the movement of children are analysed. An overview of the children's rights related to parenting is preferred. This is followed by a critical examination of the effects of lockdown regulations and the impact thereof on children. The paper culminates in the concluding remarks on the suggested way forward for the feasible realisation of the wellbeing of children, should such a re-occurrence arise in the country.

2 Legal framework which protects the rights of the child in South Africa

The legal framework protecting the rights of the child in South Africa is comprehensive and grounded in both international human rights instruments and domestic legislation. The Constitution of South Africa 6

6 Constitution of the Republic of South Africa, 1996 (the Constitution).

These rights are free of internal limitations in terms of progressive realisation. Socio-economic rights applicable to everyone have internal limitations because the Constitution requires that the state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of these rights. No such limitation applies to the socio-economic rights of children. In addition, the Constitution makes provision for children's right to be protected from abuse, neglect and degradation. 7

7 Section 28(1)(d) of the Constitution.

development. 8

8 Section 28(1)(e) of the Constitution.

The Children's Act 38 of 2005 is a significant piece of legislation that provides a comprehensive framework for the protection and promotion of children's rights in South Africa. This Act establishes the rights and responsibilities of parents, guardians, and caregivers, and it outlines measures to prevent child abuse and neglect. 10

10 See ch 3 of the Children's Act 38 of 2005 (the Children's Act).

Other specific legislation aims to protect children from various forms of sexual offences, exploitation, and trafficking and ensure their safety and wellbeing, including the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sections 15 and 16 of this Act criminalises sexual penetration and sexual violation involving children aged between 12 and 16 years, irrespective of consent. 19

19 See exceptions applicable in terms of ss 15(2)(a) and 16(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

a sexual act with a child. 21

21 Section 18 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

In the realm of criminal justice, the Child Justice Act 75 of 2008 specifically addresses the treatment of children in conflict with the law. This legislation recognises the vulnerability and unique needs of children in the justice system, emphasising diversion programs, restorative justice principles, and the rehabilitation and reintegration of child offenders. The Act aims to ensure that children in conflict with the law are treated in a manner that is age-appropriate and takes into account their best interests. Another relevant law is the Social Assistance Amendment Act 5 of 2010, which gives effect to social security grants that directly benefit children. 22

22 Section 7 of the Social Assistance Amendment Act 5 of 2010.

South Africa has also ratified several international conventions and treaties pertaining to children's rights. Notably, it is a signatory to the United Nations Convention on the Rights of the Child (1989), which sets out a comprehensive framework for the protection of children's rights. The country has also ratified the African Charter on the Rights and Welfare of the Child, reinforcing its commitment to regional child rights standards. The Constitution under section 39 requires the interpretation of rights to consider international law. As prescribed in international law, the state has various layers of obligations. In terms of section 7(2) of the Constitution, the state has a duty to respect, protect, promote and fulfil all the rights in the Bill of Rights. Section 7 of the Constitution highlights the additional obligation to "promote" the rights enshrined in the Constitution. This duty goes beyond the recognition and protection of rights and emphasises the active role of the government and society in actively promoting and advancing these rights. In addition to these key legislative instruments, South Africa has established specialised institutions and bodies to promote and protect children's rights. This includes the Office of the Children's Ombudsman and the South African Human Rights Commission, which monitor the implementation of child rights and address violations.

3 Covid-19 lookdown regulations on the movement of children

The State of Disaster was declared with limits on the range of public get-togethers, non-citizens entrance to South Africa, and the school closure

from 18 March 2020 for an indefinite period, in accordance with the Disaster Management Act 57 of 2002. This was 10 days after the first Covid-19 case was reported in the country on 5 March 2020. 23

23 Kruger et al "South Africa: Legal Response to Covid-19" 4.

The Disaster Management Act gave the Minister of Cooperative Governance and Traditional Affairs (COGTA) the mandate to impose particular limitations on citizens' entitlements. This legislation provided for the forming of a National Disaster Management Centre led by the Minister of COGTA, with the duty to provide suggestions on draft law aimed at dealing with the state of disaster. The Minister of COGTA, the National Disaster Management Centre and the cabinet ministers were the main role players in the organisation and management of the Covid-19 disaster. 25

25 Kruger et al "South Africa: Legal Response to Covid-19" 6.

The initial three-week national lockdown, which started on 26 March 2020 was extended for another two weeks up to 30 April 2020. 27

27 Kruger et al "South Africa: Legal Response to Covid-19" 7.

was Level 5 was interchanged with Level 4. 30

30 Van den Heever 2020 https://www.dailymaverick.co.za/article/2020-04-20-toward-a-risk-based-strategy-for-managing-the-covid-19-epidemic-a-modelling-analysis.

When the initial directives regarding lockdown were introduced, there needed to be more clarity as to the transport of children between the homes of co-parents. There was no specific mention of child contact with a parent in a different location. 33

33 Nanima 2020 ESR Review 10.

Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This was to ensure that the child is not exposed to any possible infection whilst moving from the primary caregiver premises to the other; (ii) The child must remain in the custody of the parent with whom the child was with, when lockdown period started. 35

35 Section 6(m) of GN R430 in GG 43182 of 30 March 2020 (Directions Issued in terms of Regulation 10(5) of the Regulations Made under Section 27(2) of the Disaster Management Act, 2002: Measures to Prevent and Combat the Spread of Covid-19).

On 16 April 2020, the Minister then signed an updated directive, reversing the initial prohibition as long as certain conditions were met. The law states that:

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 [38 of 2005] is prohibited, except where arrangements are in place for a parent to move from one parent to another, in terms of: (aa) a court order; or (bb) where parental responsibilities and right 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 or is reasonably suspected to have come into contact with, a person known to 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 [above] … or a certified copy thereof. 36

36 GN R455 in GG 43213 of 7 April 2020 (Amendment to the Directions Issued in terms of Regulation 10(8) of the Regulations Made under Section 27(2) of the Act: Measures to Prevent and Combat the Spread of Covid-19).

The Directions published on 16 April 2020 vary from the Directions published on 7 April 2020, 37

37 GN R455 in GG 43213 of 7 April 2020 (Amendment to the Directions Issued in terms of Regulation 10(8) of the Regulations Made under Section 27(2) of the Act: Measures to Prevent and Combat the Spread of Covid-19).

In the matter of CD v Department of Social Development, 38

38 CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020) (CD v Department of Social Development).

This regulation received extensive criticism because it did not permit the children to move amongst guardians with joint parental responsibilities who had no court order or a parenting plan. 43

43 Sloth-Nielsen 2020 https://www.ibanet.org/article/69DAFCB7-9478-4890-90F4-79848E9CADBA 1.

between the co-holders of parental responsibilities and rights. 44

44 GN R465 in GG 43232 of 16 Aril 2020 (Amendment of Regulations Issued in terms of Section 27(2)).

The further regulations, which were released on 29 April 2020, stipulated 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. 46

46 Regulation 17 of GN R480 in GG 43258 of 29 April 2020 (Regulations Issued in terms of Section 27(2) of the Disaster Management Act, 2002).

Interprovincial intermunicipal travel would be permitted with a document give out by a court. Nevertheless, the home that the child is going to move to had to be Covid-19 free, and written explanations had to be provided to back the request for a permit. 47

47 GN R480 in GG 43258 of 29 April 2020 (Regulations Issued in terms of Section 27(2) of the Disaster Management Act, 2002).

4 The impact of lockdown co-parenting regulations on children

The regulations basically provided that, as long as a court order or parenting plan was in place, one was permitted to transport one's child to the home of the other parent and vice versa. However, initially, if one did not have a formal arrangement, then, unfortunately, one could not seek the protection of this directive. This was mainly where parents of a child were never married, or they had an amicable divorce, and hence they did not require a parenting plan. Parents who did not care much about the usefulness of a parenting plan, even when it was not mandated by the courts, were left with no remedy in the circumstances. Many stated that they could not have

foreseen the current circumstances and considered the lockdown directive to be an admittedly extraordinary example of why it is always wise to have a plan in place. 48

48 Sloth-Nielsen 2020 https://www.ibanet.org/article/69DAFCB7-9478-4890-90F4-79848E9CADBA 1.

The regulation was also challenged by senior counsel and family law expert Janet McCurdie. The following statement is reflective of her stance. "Pleased to see the relaxation of a harsh legal position, which seemed to completely ignore the emotional needs of the child and was so out of line with other countries in similar circumstances." 52

52 Dippenaar 2020 https://www.sdlaw.co.za/blog/stop-press-child-contact-visits-now-allowed-during-lockdown/ 3.

5 Concluding remarks

In conclusion, this article sought to evaluate the impact of lockdown regulations on the wellbeing and psychological state of children, with a

particular focus on the circumstances and challenges faced by co-parents. The debate surrounding the one size fits all approach of lockdown regulations has highlighted significant concerns about its appropriateness, particularly in relation to the best interests of children. While the intent behind implementing uniform measures was to curb the spread of the virus and protect public health, it is argued that a more nuanced and case-specific analysis should have been employed. One of the main contentions is that children's interests are diverse and multifaceted, and a blanket approach fails to account for the unique circumstances and needs of each child. The impact of lockdown measures on children's physical and mental wellbeing, educational attainment, social development, and overall quality of life varies greatly across individuals. Factors such as age, socioeconomic background, living conditions, access to technology, and support systems play crucial roles in shaping a child's experience during the pandemic. 54

54 Bukola, Bhana and Petersen 2020 Journal of Child & Adolescent Mental Health 48.

By adopting a case-by-case analysis, authorities would have been better equipped to tailor interventions that appropriately balanced the risks of the virus with the specific needs of children. This approach would have involved evaluating factors such as the child's living environment, vulnerability to the virus, ability to adhere to safety guidelines, access to educational resources, and mental health support. Such assessments would have enabled a more targeted and effective response, ensuring that children receive the necessary protection and support while minimising unnecessary disruptions to their lives. Moreover, a case-specific approach could have accounted for the evolving nature of the pandemic and the varying levels of transmission and impact across different regions. Localised decision-making, based on up-to-date data and expert analysis, would have allowed for more precise measures that reflect the specific risks and challenges faced by children in different areas. This localised approach could have prevented undue hardship for children residing in areas with low infection rates or limited resources, where stringent lockdown measures may have been unnecessary or disproportionate. While the implementation of lockdown measures during the pandemic was an extraordinary response to an unprecedented crisis, it is crucial to learn from this experience and refine future approaches. Recognising the importance of prioritising the best interests of children, policymakers and authorities should consider adopting a more individualised and context-specific approach when faced with similar challenges in the future. By doing so, we can better protect the wellbeing and development of children while effectively addressing public health concerns.

The findings emphasise the crucial role of co-parents in mitigating the challenges faced by children during lockdown periods. Providing emotional

support, stability, and a nurturing environment are essential components for promoting children's wellbeing. Guardians and caregivers need to remain attentive to children's needs, ensuring they have access to education, healthcare, and a safe space to express their emotions. The involvement of community structures and the government is vital in addressing the unique circumstances and challenges faced by children. Collaborative efforts among local organisations, schools, and community leaders can establish support systems tailored to meet children's specific needs, thereby ensuring they receive the necessary resources for their mental health and emotional wellbeing. It is crucial for the government to allocate resources and develop policies that prioritise children's wellbeing. This includes investing in education, healthcare, and social services tailored specifically for children. The government can also establish helplines and support networks to provide assistance and guidance to both children and their caregivers during pandemics. By prioritising children's welfare and incorporating their unique circumstances into decision-making processes, societies can provide the necessary support to ensure their wellbeing during challenging times.

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List of Abbreviations