Updated: May 27
Saying that Covid-19 has changed our lives and daily routine as we knew it may be the understatement of the year. But how has it affected parents who do not live in the same household with their children?
Access and visitation rights are conferred on parents by means of decrees pendente lite and, eventually, by judgements or by public contracts. These are deemed to be the law regulating the couple vis-a-vis their children. Visitation rights confer upon a parent the right (but not the obligation) to spend time with that child on specific days and times during the week, and include details as to pick-up and drop-off. But are such access rights Covid-19 proof?
Suddenly children have stopped going to school, and have more time on their hands. Extra-curricular activities are simply a thing of the past. Playdates and simple fun at the playground are forbidden, and the only socialising that can take place with their friends is through social media platforms and novel ways of electronic communication.
But does Covid-19 prevent parents from exercising their rights of access and visitation? Or is Covid-19 the perfect excuse for those parents who want to deprive their ex partner of the child out of spite. The answer to those questions is an emphatic no.
Covid-19 should not prevent any parent from enjoying time with his / her child, and it certainly is no excuse to deprive the child of his / her childhood by being robbed of quality time with a loving parent. Parents who are deprived of access are entitled at law to seek redress through the competent authorities. A parent who prevents access or visitation might actually be exposing him / herself to both civil and criminal liability, with serious consequences that include incarceration.
But is there no exception to this? Is the law so rigid that it leaves no margin for discretion in the current global health crisis? The law is supreme and is to be applied across the board. However, Legal Notice 111 of 2020 requires vulnerable persons to 'stay at home' and thus children or parents who are deemed to be vulnerable as per the same said Legal Notice are to abide by the 'Protection of Vulnerable Persons Order' and miss out on physical access time. It is only in these circumstances that access and visitation rights are deemed to be legally and validly denied and this is both in conformity with the Legal Notice mentioned, and in line with the general guiding principle of the child's best interest, because exposing a 'vulnerable child' and imposing on that child the obligation to leave his / her residence to meet anyone else who does not live in the same household would be deemed a risk not worth taking.
A parent who can prove to the competent court that the child is a 'vulnerable person' in terms of the Legal Notice should be able to convince the court that there was just and sufficient cause for the denial of physical access. But does this mean that communication between the child and the non-custodial or non-resident parent is given the red light? In today's connected world, it is simply unacceptable that parents are shut out of their children's daily lives on days when access is not or cannot, for whatever reason, be exercised. One may be inclined to argue that most decrees, judgements and contracts do not cater for video-conferencing or any form of communication on days when access is not or cannot be exercised, and that may be the case (although it is highly likely that our judges will take a different approach post Covid-19 so as to cater for this present lacuna). But does the fact that the decree, judgment or contract is silent on the matter mean that the custodial / resident parent can deprive the other parent of at least one phone or video call a day? Have parents become so shallow that they won't allow their children to communicate with the other parent simply on the premise that the court has not specifically provided for it? Rather than having to make recourse to the court to provide for alternative means of contact, common sense should prevail.
Covid-19 was and still is an eye-opener for many law practitioners to ensure that no child is unjustly denied of time with a loving parent. But as society continues to face the daily challenges introduced by the pandemic, let us at least learn and realise that children are not pawns. Children are not weapons to be used against the ex-partner or spouse and that the greatest legacy we can leave our children is enough happiness to fill their hearts and more love than they can spend in a lifetime. That is how we can truly serve the child's best interests.
Dr Abigail Critien
Family Law - Employment Law - Civil Law
This commentary should not be regarded as legal advice. If you are facing legal issues affecting your family, kindly contact us so we can assist you.