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Joburg mother who tested positive for Covid-19 in legal battle for custody of her son

A Johannesburg mother is fighting the legal battle of her life after her two-year-old son was taken from her because she tested positive for Covid-19.

A Johannesburg mother is fighting the legal battle of her life after her two-year-old son was taken from her because she tested positive for Covid-19.

Published Jun 5, 2021


Johannesburg – A Johannesburg mother is fighting the legal battle of her life after her two-year-old son was taken from her because she tested positive for Covid-19.

The Booysens Magistrate’s Court upheld an application by the father of the child for temporary custody of the toddler. The mother said what’s even more baffling is that she has a protection order against her former partner which was granted in April.

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As of Friday, the parents will share custody and the child will spend one week with each one.

Advocate William Booth warned this ruling could set a very dangerous precedent. He added that many parents have tested positive for Covid-19 but no children were removed from their care.

The mother, a psychologist, told TheSaturday Star she has been the sole provider and the primary caregiver of her son and the ruling by the Booysens Magistrate’s Court has turned both their lives upside down.

“I have not seen my child in three weeks. I don’t know if he’s safe. I don’t know anything,” said the distraught mother.

The woman tested positive for Covid-19 three weeks ago. She has since had another test and is now in the clear.

“I was at court on Monday and showed the magistrate my negative test results but he did not even take that into account. My son needs to be with me. How could this happen?” she said.

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According to the original court order: “Respondent not to have any contact with the child until the next court date as the Respondent has tested positive for the Covid 19 virus.”

According to Crawford’s lawyer, William Makau, there is no basis in law that could justify the decision of the Booysens Magistrate’s Court.

His sentiments are shared by Booth, who said: “It is most unusual that an order like this is granted only because the mother is Covid positive and for no other reason, particularly if she had custody. If the court granted such an odd order then she must appeal/ review on an urgent basis to the high court where I am sure she will succeed.”

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Booth added that if a court is to make such drastic inroads into the rights of any parent, a full investigation by a social worker or medical person has to be undertaken. Children are only removed from their parents if it’s found that they have been abused or neglected. The mother said there has been no investigation by a social worker or a medical person.

The woman said she ended an abusive relationship with the father of the child in 2019 and approached the family court for assistance in relation to the protection and safety of her son.

“This has been an ongoing matter since 2019 up until now. The father has had supervised visitation rights, and in the absence of any expert opinions or investigations done proving the father’s fitness to care for the child alone, the supervision was unilaterally removed by the family court in March 2021,” she said.

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The mother said the only contact she has been granted were two video calls a week.

“The court did not consider that my child was already exposed to the virus by being in my presence, had never been granted a sleepover at the father’s house, and he was wrongfully taken from me without even his comfort toys, comfort blankets and bottles. There was no verification of where he would be staying or the condition of the environment he would be in,” she added.

The Department of Social Development (DSD) said it cannot comment on processes that are in court and If there is an aggrieved party as a result of the amended interim order, there is a provision in the criminal justice system for appeal.

DSD spokesperson Lumka Oliphant said on the basis that the child was removed from the mother’s care because she tested positive for the coronavirus: “Courts make decisions that are in the best interest of the child as stated by the court in the order furnished. The court allowed for contact of the child by the mother until the court date of May 31 for the family advocate’s report. The court has given them joint custody after the May 31 date which is an indication of fairness and making decisions that are in the best interest of the child.”

Spokesperson for the Department of Justice Crispin Phiri when asked whether there is basis in law to remove a child if a parent tests positive for Covid-19 said: “The department does not comment on cases of individuals who are before the courts.”

Meanwhile, the mother said this is the longest period of time that she has been separated from her son.

“I can only imagine how confused and distressed my little boy is and how damaging this must be for his wellbeing. I will never give up on my son and will continue fighting until justice is served and my boy is returned back to my care.

“My attorneys, Radasi Sekgatja Incorporated Attorneys and I are continuing our fight; may justice be served,” she concluded.

The Saturday Star was unable to reach the father of the child for comment. The matter will be heard again on June 24.

The Saturday Star