MAURITIUS – JORDAN – 1999 (Return Denied) The mother decides not to return to the United States with the two children. The father applies under the Convention for their return. The Supreme Court of Mauritius took in to consideration the “tender age of the children” and the fact that the mother was not prepared to go back to America. Comment by WM. Hilton: “The Supreme Court of Mauritius, for a second time, finds that, as a matter of law, The Convention does not apply since it has not been implemented as a matter of local law. The court also seemed to give significant weight to the statement of the mother that she would not return to South Carolina, because of the tender years of the children. This is of course contra to the cases under The Convention where it is common ground that a party cannot create a basis for non-return of the child.
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Jordan v Jordan (Mauritius 1999)[1999] SCJ ___
20 International Abduction [MAURITIUS 1999]
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CHAMBERS
IN THE SUPREME COURT OF MAURITIUS
In the Matter of:
Marie Martine Jordan, Applicant
vs
Michael Rex Jordan, Respondent
In the Presence of:
The Passport and Imigratioin Officer, Co-Respondent
And in the matter of:
Marie Martine Jordan, Applicant
vs
Michael Rex Jordan, Respondent
JUDGMENT
001 The applicant is a Mauritian national. On
10.03.1993, she married the respondent, an American
national. They have two children aged 21 months and 7
months respectively. They have lived in America from the
4th September, 1998. On 06.09.98 they came to Mauritius on
holidays. The respondent left for the United States of
America as scheduled on 29.09.98, the applicant and the
children were to leave on 04.11.98. The applicant then
changed her departure date to 04.12.98. She had since
then, in view of the matrimonial problem, decided to stay in
Mauritius. The respondent was very upset when she informed
him of her decision to and he came to Mauritius on
17.01.99.
002 Fearing that the respondent would take the children
back to the U.S.A., on 22.01.99, she applied for and
obtained an interim order in the nature of an injunction
restraining and prohibiting the respondent from taking the
children namely Raie Roxane Jordan and Rachel Dominique
Jordan out of Mauritius without applicant’s express written
authorisation.
003 The respondent and the co-respondent were ordered to
show cause why the interim order should not be enlarged or
discharged or otherwise dealt with after hearing the
parties.
004 The application is resisted and respondent’s attorney
moved for an early hearing as the respondent was due to
leave Mauritius on 15.02.99. The hearing was fixed to
11.02.99.
005 On 03.02.99, on another ex parte application, the
applicant obtained the immediate care and control of the
children and the case was fixed to 11.02.99 to show cause
why the applicant should not be entrusted with the
provisional custody of the children.
006 In his affidavit the respondent averred that (1) at
no time he ever agreed or consented to any change in the
departure date of 03.12.98, so that to all intents and
purposes the children were due to return to their habitual
place of residence, which is the U.S.A.; (2) he verily
believed that the self-confessed acts and doings of the
applicant are tantamount to child abduction and he has
entered to that effect an application under the Hague
Convention on the Civil Aspects of International Child
Abduction in the United States of America; (3) he has
entered a custody application before the Family Court,
Eleventh Judicial Circuit, State of South Carolina,County of
Edgefiled, United States of America; (4) he verily believes
that the Judge in Chambers has no jurisdiction in the about
matter inasmuch as:
007 (a) The children are American Citizens traveling
under passports issued by the United States of America and
no order can be made by a Mauritian Court in respect of the
same;
008 (b) The present application is being made to the
Judge in Chambers, in its original jurisdiction, and the
Judge in Chambers has no power or authority to make such
order under section 71 of the Courts Act;
009 (c) Custody proceedings having started in the United
States of America, the place of the legal domicile and name
of residence of the children, the proper forum for such
proceedings, a Mauritian Court cannot exercise its
jurisdiction to decide custody in view of pending
international “lits pendance”;
010 (d) The children must legally and lawfully be
returned to their legal domicile and place of residence
before any order can be made on the merits of the matter, as
any Court order would be in direct breach and violation of
the provisions of the Hague Convention on the Civil Aspects
of International Child Abduction, signed by Mauritius and
which I am advised, is binding on effective in Mauritius;
011 (e) The order prayed for would, in the
circumstances, be tantamount to a Mauritian Court condoning
child abduction contrary to international covenants
regarding the same, and to put at naught any order made by
foreign authorities to have the children returned to their
country of legal domicile and place of residence.
012 In support of the objections Learned Counsel for the
respondent has referred to the Hague Convention and the
Vienna Convention. Learned Counsel has also referred o a
number of cases where (1) the expression “habitual
residence” as used article 3 of the Hague Convention and (2)
the word abduction, have been interpreted.
013 The first ground is simply untenable as by virtue of
section 23 of the constitution the children are also
citizens of Mauritius.
014 The second ground is also devoid of merit. In
addition to the jurisdiction conferred under S. 71 of the
Courts Act on the Judge sitting in Chambers, he also has
jurisdiction in such matters as “juge des referes”.
015 The third ground must also fail inasmuch as the Court
in the U.S.A. was seized on the 04.02.1999. whereas the
interim order and the immediate care and control were made
on 22.01.99 and 03.02.99 respectively.
016 The ground on which the fourth and fifth objections
are based was considered in the case of Pierce v Pierce
[1998] SCJ 397. The Learned Judge in Chambers had this to
say:
Though Mauritius has acceded to that
convention, the provisions of the whole or part
of that convention have not been implemented in
our national laws, unlike, for example, the
Convention Abolishing the Requirements of
Legalisation Foreign Public Documents Act which
gave the force of law in Mauritius of the
Convention on that matter signed at the Hague
on 5 October 1961 and published in GN 14 of
l966. Consequently, without having to enquire
initially whether the child has been “abducted”
or “wrongfully” removed under the terms of the
Convention on the Civil Aspects Of
International Child Abduction, suffice it to
say that that convention is not part of our law
and that this court is not bound to give effect
to its provisions.
017 I fully agree with the Learned Judge. The objections
accordingly fail.
018 In matters like the present case, the interest of the
child is the paramount consideration and it should prevail
over any other consideration. In the case of Ungar v Burton
[1977] M.R. 156 at p. 161, the Court had this to say:
“The principle by which this Court will be
guided in matters of “kidnapping” is simple and
is consistent with both the respect and regard
which the comity of nations requires that
courts within whose jurisdiction the kidnaped
infant has been brought should have for any
decree made in the matter by the foreign court
concerned, and with the necessity to ascertain
if the interest of the infants, which is the
paramount consideration, does not demand that
such decree be disregarded. The court within
whose jurisdiction the child is cannot
obviously hold itself bound by the foreign
order and must form its own independent opinion
of the merits of the case but it will not
decide against that order unless it is
satisfied that to do otherwise would seriously
harm the infant.”
019 In the Ulf Bjork v. Usha Gyaneswari [1991] SCJ 199,
the Court applying the same principle stated “though
‘kidnapping’ is admittedly not to be encouraged, we would
not subscribe to the proposition that it must necessarily be
sanctioned at the cost of grave prejudice to the better
interests of the child.”
020 In the present case, the respondent rested content
with the question of jurisdiction only. He did not deem it
fit to aver what arrangements he would make to look after
the children, who are only babies, if the Court were to
uphold his objections and allow him to take the children
back to the United States of America.
021 I talked to both parties in Chambers. The respondent
confessed that he was used to drinking but stated that he
has stopped. As for the applicant, she is determined to
stay in Mauritius and is not prepared to go back to the
United States of America where life has been and would be
very difficult with two young children without any help from
her husband.
022 Taking into consideration (1) the tender age of the
children; (2) that they have been in Mauritius since
September 1998; (3) that the mother is not prepared to go
back to America as she would not be able to manage with the
two babies and(4) that the respondent has failed to satisfy
me that he would take steps to look after the welfare of the
children, I am of the view that it is in the best interest
of the said children that the provisional custody be
entrusted to the applicant and I so order.
023 The interim order issued in the present matter
on22.01.99 is consequently made interlocutory.
17 February, 1999 /s/ R. N. Narayen, Judge.
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Comment by Wm. M. Hilton
20 Apr 2000
See also:
Pierce v Pierce (Mauritius 1998)
[1998] SCJ 397
26 International Abduction [MAURITIUS 1998]
The Supreme Court of Mauritius, for a second time, finds
that, as a matter of law, The Convention does not apply
since it has not been implemented as a matter of local law.
Before this case was heard, the United States, in its REPORT
ON COMPLIANCE WITH THE HAGUE CONVENTION ON THE CIVIL ASPECTS
OF INTERNATIONAL CHILD ABDUCTION, made the following comment
concerning this problem:
MAURITIUS: Mauritius deposited a declaration of
accession to the Convention on March 23, 1993
and the United States accepted the accession on
July 16, 1993. However, in an October 1998
decision by the Mauritian Supreme Court
involving an application under the Convention
filed by a U.S. parent, the court stated that
the Convention “is not part of our law and that
this court is not bound to give effect to its
provisions.” The U.S. Central Authority
requested assistance from the Hague Permanent
Bureau and sent a letter to the Attorney
General’s office in Mauritius stating that,
since the government of Mauritius deposited its
letter of accession to the Convention with the
Hague Permanent Bureau and the U.S. government
accepted the accession of Mauritius, the
Convention is in force between the two
countries. The letter requested that the
Central Authority of Mauritius take all
appropriate steps to ensure the proper
operation of the Convention. Subsequently, the
Department delivered a diplomatic note to the
Mauritian Ministry of Foreign Affairs and
International Trade, reiterating the points
made by the U.S. Central Authority and
requesting the Ministry to respond. The
Attorney General of Mauritius recently met with
the U.S. Ambassador and indicated that the
State Law Office had originally briefed the
court with incorrect information and has made
subsequent “interventions” to advise the court
that the Convention is in force for Mauritius.
Whether or not the “subsequent interventions” have been made
is not known as of the date of this comment.
Turning next to the merits of the case, the Mauritian
Supreme Court (as it did in Pierce) held that, while
kidnapping is not to be encouraged, the best interests of
the child, from the prospect of the Mauritian Supreme Court,
outweigh the harm done by the kidnapping and that the
Mauritian Courts must form an independent opinion of the
merits of the case.
This is in keeping with the United Kingdom case of McKee v
McKee [1951] AC 352, [1951] All ER 942, PC which held that
while “great weight” must be given to the foreign order, it
cannot be enforced absent a hearing to determine if this
would be in the in the best interests of the child.
The Mauritian Supreme Court then found that, because of the
tender age of the child, the child should remain with the
mother and denied the father’s request that the child be
returned to South Carolina.
The court also seemed to give significant weight to the
statement of the mother that she would not return to South
Carolina, because of the tender years of the children.
This is of course contra to the cases under The Conventiion
where it is common ground that a party cannot create a basis
for non-return of the child.
When The Convention has been put into effect in Mauritius,
it is to be hoped that the Mauritian Supreme Court would, in
future cases, follow the reasoning of Prof. Elisa Perez-Vera
in the “Explanatory Report by E. Perez-Vera, Hague
Conference on Private International Law, Actes et documents
de la Quatorzieme session, vol. Ill, 1980, p. 426.”
In particular Paragraph 34 of the Perez-Vera Report is
mentioned and specifically the following language of that
paragraph:
“The practical application of this principle
requires that the signatory States be convinced
that they belong, despite their differences, to
the same legal community within which the
authorities of each State acknowledge that the
authorities of one of them – those of the
child’s habitual residence – are in principle
best placed to decide upon questions of custody
and access. As a result, a systematic
invocation of the said exceptions, substituting
the forum chosen by the abductor for that of
the child’s residence, would lead to the
collapse of the whole structure of the
Convention by depriving it of the spirit of
mutual confidence which is its inspiration.”