MAURITIUS – PIERCE – 1998 (Return Denied) (See comments by W. Hilton, 20 Apr. 2000) PIERCE v PIERCE. “The Supreme Court of Mauritius finds that, as a matter of law, The Convention does not apply since it has not been implemented as a matter of local law. When The Convention was put into effect in Mauritius, it was hoped that the Mauritian Supreme Court would, in future cases, follow the reasoning of Prof. Elisa Perez-Vera in the “Explanatory Report which states;”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.”
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Pierce v Pierce (Mauritius 1998)[1998] SCJ 397
26 International Abduction [MAURITIUS 1998]
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RECORD NO 63743
IN THE SUPREME COURT OF MAURITIUS
In the Matter of:
Harsha Pierce, Applicant
v.
J. Justin Pierce, Respondent
JUDGMENT
001 The applicant is a citizen of Mauritius. In 1996 she
married the respondent, an American national, in the State
of Pennsylvania in the United States. They have a one-year
old daughter.
002 The applicant came back to Mauritius with her
daughter in February of this year. She avers that she was
being ill-treated by the respondent who is of violent
disposition. With the consent of the respondent, the
applicant came to Mauritius to sort out matters. Following
further dispute with the respondent over the phone she
decided not to return to Pennsylvania and started the
present proceedings to obtain the custody of her daughter.
003 The respondent is resisting the motion through his
legal adviser. Respondent has made a custody complaint
before the Court of Common Pleas of Monroe County in
Pennsylvania and has applied under the Hague Convention on
Child Abduction to have the child returned to the United
States of America so that the custody case may be heard on
the merits before the Court of Pennsylvania.
004 The respondent is therefore praying the Court to
refrain from making any decision regarding custody in the
present case and to declare that the proper forum to hear
and determine the custody of the minor child is the Court of
Pennsylvania. The Court is being asked also to enforce and
execute any order made under the Hague Convention on Child
Abduction.
005 In the first place, the objection taken on behalf of
the application regarding the initiation of proceedings by
the respondent’s attorney is misconceived. It has been
clearly shown that the attorney at law has a mandat ad litem
to initiate the proceedings. vide Credit Moderne v Athion
(1996) SCJ 174.
006 Evidence was adduced to show that Mauritius has
adhered to the Hague Convention on Child Abduction which
proposes the speedy return of a child who has been removed
to or retained in a country which is not its habitual place
of residence. 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.
007 Obviously, “abduction”, or “kidnapping” for that
matter, is in no way to be encouraged. However, as was said
in the case of Ulf Bjork v. Usha Gyaneswari [1991] SCJ 199,
“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.” In the case of Ungar v.
Burton [1977] MR 156 at p. 161 the Court said the following:
“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.”
008 The stand taken on behalf of the respondent was that,
apart from the point taken regarding the enforceability of
the Convention, there was no defence raised to the
application made by the applicant for the custody of the
child.
009 In the circumstances of the case, I am satisfied that
it is In the interest of the child who is of such a tender
age to be with her mother. I accordingly grant to the
applicant custody of her minor child Sneba Juri Pierce born
on 18th September 1997.
22 October 1998 /s/ (Illegible)
=============================
Comment by Wm. M. Hilton
20 Apr 2000
See also:
Jordan v Jordan (Mauritius 1999)
[1999] SCJ ___
20 International Abduction [MAURITIUS 1999]
The Supreme Court of Mauritius finds that, as a matter of
law, The Convention does not apply since it has not been
implemented as a matter of local law.
Subsequent to this case 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 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 Pennsylvania.
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.”