MAURITIUS Law and Practice Contributed by: Narghis Bundhun, Marylou Subramanien and E’jaaz Bundhun-Puddoo, The Chambers of Narghis Bundhun SC
The Chambers of Narghis Bundhun SC 605 Chancery House Lislet Geoffroy Street Port-Louis 11328 Mauritius Tel: +230 211 1251; +230 211 8789 Fax: +230 210 8155
Email: admin@nbundhunchambers.com Web: www.Nbundhunchambers.com
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In Mauritius, parental responsibility is known as l’autorité parentale and is defined in Article 371-2 of the Mauritian Civil Code. This concept entails a duty to protect the child’s safety, health and morality and, in order to fulfil this duty, the parent is empowered with a right of custody ( garde ) and supervision (surveillance), and a duty to educate the child. The holder of l’autorité parentale is also vested with the powers to manage the child’s property. Parental responsibility devolves in principle on bio - logical parents, whether married or not. In exceptional circumstances (child abandonment, death of both parents, etc), the court can decide to entrust parental responsibility to a third party, who may or may not be related to the child. 1.2 Requirements for Birth Mothers Parental responsibility stems from a legally established lien de filiation (parental link) between the child and the mother. This is achieved at the time of registration of the child’s birth when the mother makes a voluntary declaration acknowledging the child as being hers. In the absence of such voluntarily acknowledgment at birth, the mother or the child may subsequently initiate proceedings before the Supreme Court with a view to have the parental link established ( une action en recherche de maternité/une action en réclamation d’état ).
It is of note that, in practice, mothers acknowledge their children in the majority of cases, making such judicial proceedings a rare occurrence. 1.3 Requirements for Fathers In the event that the child is born out of wedlock, the father needs to voluntarily acknowledge the child at the time of registration of birth. In the absence of a voluntary acknowledgement, the mother acting on the child’s behalf, or the child, may initiate proceed - ings before the Supreme Court with a view to estab - lish the parental link between the child and the father ( action en recherche de paternité/action en réclama- tion d’état ). As regards a child born within marriage, by operation of the law (Article 312 of the Mauritian Civil Code), the mother’s husband is presumed to be the child’s father. 1.4 Requirements for Non-Genetic Parents Under Mauritian law, the only legally recognised situ - ation where non-genetic parents can acquire paren - tal responsibility is through an adoption. Indeed, the adopter automatically exercises parental responsibil - ity as regards the child following the adoption order (see 1.7 Adoption ). For the time being, there is a legal vacuum in Mauritius as regards same-sex couples and the status of chil - dren born through surrogacy. Hence, it is difficult to state the requirements that need to be met by parents in this situation to establish parental responsibility.
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