Opinionista Paula Gabriel 8 April 2020

When is childcare an essential service and when not?

There is a gap in the lockdown disaster regulations when it comes to the provision of childcare to the children of essential services workers. And it poses a legal conundrum.

May I exercise on the common property? May I buy razor blades and computer ink? These are some of the many uncertainties during this time. But there is another question I have been asking, because there appears to be a lacuna in the regulations published in terms of Section 27(2) of the Disaster Management Act of 2002 in that they fail to provide a mechanism for permits to be issued to people who perform essential childcare services.

Everybody knows that the regulations provide for essential workers – I use the obvious example of a nurse – to continue working during the lockdown. We also know that the regulations provide that all schools and creches are closed, and we know that the regulations have confined us all to our homes, except where we are engaged in an essential service.

So here’s the question: who is looking after the nurse’s children? Because they can’t send them to school, or creche, or aftercare, and the children’s grandparents are not allowed to travel to them. The nurses could send their child to live with their aunts or uncles for the 21 days of lockdown, but since the nurse is not allowed to, he or she won’t be able to see their child for three weeks, which for most young children would be relatively traumatic.

While South Africans are resourceful, and while in practice I’m sure the nurse has made a plan, it seems to me that parents have been regulated into a corner.

For the period of lockdown, every person is confined to his or her place of residence, unless strictly for the purposes of performing an essential service. A list of essential services is provided in Annexure B to the regulations, and item 10 of this annexure provides for “care services provided to children”. But my excitement when I read that was short-lived.

First, it is unclear whether care services provided to children qualifies as an essential service only in circumstances where both parents provide an essential service (such as where both parents are doctors or nurses)  and are in need of additional childcare. Or whether childcare is an essential service only in respect of a child with special needs, for example.

But item 10 of Annexure B reads: “Care services and social relief of distress provided to older persons, mentally ill, persons with disabilities, the sick, and children”.  

Item 10 does not read …and children whose parents are engaged in essential services. Nor does it read …and children with special needs.

It would thus appear, absent any qualification in the regulations, that anybody looking after any child performs an essential service. If this is the case, then the nurse in our example can ask his or her parent to travel to the nurse’s home to look after their child. All that needs to be done is to get the grandparent a permit. Easier said than done.

Regulation 11(B)(3) provides that: “Persons performing essential services as determined in subregulation (2), must be duly designated in writing by the head of an institution, on a form that corresponds substantially with Form 1 in Annexure C.”

But Regulation 11(B)(2) provides that “[t]he head of an institution must determine essential services to be performed by his or her institution, and must determine the essential staff who will perform those services…”

It would appear that the head of an institution must determine and issue permits to members of staff to perform services on behalf of the institution. Someone from the hospital or the nursing agency would issue a permit to our nurse to travel to work, but it does not appear that the same person would be authorised to issue a permit to the nurse’s parent to look after the nurse’s child, since childcare in these circumstances is not a service provided by the hospital or nursing agency, but by a third party.

This leaves the question: who is authorised to issue permits to the people who perform essential childcare services as contemplated in Regulation 11A(B)10? The institutions that provide childcare – schools and creches – are all closed.

What is more, an institution is defined in the Regulations as  “an institution…”, which is not very helpful.

The majority of childcare outside of schools and creches is provided either by family members, or nannies who are employed privately by the families they work for. Even where a family secures the services of a nanny through an agency, the contract of employment will ordinarily be between the family and the nanny, and not between the family and the organisation. There is thus no obvious institution, as contemplated in the regulations, which can issue permits to providers of essential childcare services.

It appears to me that while the regulations list childcare as an essential service, there is no obvious mechanism for permits to be issued to providers of childcare to leave their homes in order to perform essential childcare services. This in turn leads to the conclusion that the regulations, in substance at least, do not regard childcare as an essential service, which would be unfortunate, given that Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. DM

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