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Two Cape Town parents, who are divorced, obtained legal permission in court to travel in the father’s Land Rover to search for their young children in a different province, to relieve their struggling grandparents.
The story involves older grandparents, who go out of their way to care for their grandchildren, while both suffer medical difficulties, and two children, ages 8 and 10, who have been desperate to return home.
The parents, identified in court documents only by initials, challenged the regulated ban on “movement between provinces and between metropolitan and district areas.”
According to revised government regulations published April 7, the movement of children between divorced parents is allowed, if the parents can demonstrate that they share responsibilities in their divorce settlements. But that was not the problem in this case.
This case depended on the court’s interpretation of whether children can be legally transferred between “caregivers”, such as grandparents, and parents. The National Department of Social Development argued that this movement was prohibited.
But the Superior Court of the Western Cape disagreed.
Judge Yasmin Meer ruled that such a move was necessary and is in line with the Constitution and the Bill of Rights, which requires that “the best interest is of utmost importance in all matters related to a child.”
The ruling was made on April 14 and court documents explained the saga: “The children had traveled to Bloemfontein on March 22, 2020 during the school holidays for a short visit and were expected to return to Cape Town before beginning of the school term on March 31, 2020.
“The confinement intervened at midnight on March 26, 2020 and the children found themselves locked up with their grandparents in Bloemfontein. The applicants are divorced.”
Children’s health and well-being are at risk
Judge Meer wrote that the father, in an affidavit, explained that his own father and mother are 72 and 68 respectively, and that they can only care for the couple’s children for “short periods.”
The father added that the grandmother suffers from arthritis and that having children close to her makes things difficult.
Meer’s trial says: “The situation has become exhausting for the overall personal well-being of their parents and affects their ability to adequately care for children and themselves.
“If the grandparents get sick from Covid-19, they will not be able to care for the children. The situation will worsen if the lockdown continues. He also expresses his concern that the grandparents will not be able to supervise the task.”
Children’s needs
“The first applicant (the father) is a doctor and claims that the health and well-being of children is at risk. He points out that he is equipped to meet the needs of children.”
“Finally, he explains that even though the applicants learned of the ban on traveling under lock and key, they were under the impression that they would be allowed to travel to Bloemfontein to bring the children and did not know to what extent it would be strictly prohibited. Enforced.”
Meer continued, “A memo from the Family Advocate of April 7, 2020, supporting the removal of the children, notes that there is no mention of whether the grandparents are using the Covid-19 precautionary measures, and states that the children require ongoing management to ensure they meet Covid-19’s precautionary requirements related to good hygiene, regular sanitation, and social distancing. In addition to the memorandum, on April 8, 2020, the Ombudsman conducted an interview on video conference at the Defendant’s request.
“A report compiled by a specialist also urged that the children be returned to Cape Town. From the interview with the grandmother, the report indicated that the grandmother has chronic arthritis and back pain conditions that require a schedule 3 prescription. “
“The blockade has prevented daily help from Grandma’s house from entering and Grandma has to take care of everything for the home and children. She is currently physically exhausted and her ailments are deteriorating as a result. She is usually used to caring for children at shorter intervals and cannot cope with the current circumstances, which will have a negative impact on their childcare.
“They are quite active and she cannot handle them. The grandfather provides limited support. The children are going through different emotions and are heartbroken at not being with their parents.”
“An interview with the grandfather confirmed his wife’s exhaustion status as recorded in the report. It helps play with the children.”
‘Evidence not contested’
Interviews with the children revealed their desire to return home, the trial continued. The specialist’s report could not confirm whether children are at risk in terms of hygiene or if their hygiene levels are optimal as needed.
“The uncontested evidence makes it clear that the task of caring for children by grandparents is already showing that it is not sustainable and this will only continue and exacerbate for a longer period. Children’s well-being and physical health in these Turbulent times are being put at risk
“The best interests of the children would undoubtedly be served if permission were granted for them to be taken from Bloemfontein to Cape Town.”
Therefore, Judge Meer issued the order to allow the applicant to travel to Bloemfontein and search for his children, and then return to Cape Town with them under strict conditions.
“The first applicant is authorized and directed to search for children in[…], Heuwelsig, Bloemfontein, and travel with them to the Western Cape, to the residence of the First Applicant;
“The first applicant is allowed to sleep one night after traveling to Bloemfontein at the paternal grandparents’ home at the above address, after which the first applicant and children must return to the address of the first applicant;
“The first applicant will travel to Bloemfontein in the first applicant and the first applicant and children ‘s 7-seater Land Rover Discovery vehicle must return to Cape Town in that vehicle;
“This order eliminates any additional need for travel permission (s).”
The defendant, the National Department of Social Development, was ordered to pay the couple’s legal costs. Comments have been requested from the department and will be added once received.
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