MAURITIUS Law and Practice Contributed by: Narghis Bundhun, Marylou Subramanien and E’jaaz Bundhun-Puddoo, The Chambers of Narghis Bundhun SC
2. Relocation 2.1 Whose Consent Is Required for Relocation?
• whether the parent who intends to relocate has made adequate and satisfactory arrangements as regards the child’s schooling and education; • the child’s accommodation; • the parent’s financial means; and • the relevant permit for both parent and child to live and stay in the country. In all cases, the court will take into consideration the arrangements proposed for the child to main - tain meaningful contact with the stay-behind parent. In the event that the court finds that the proposed arrangements are not satisfactory, it will set the rel - evant parameters. 2.3.2 Wishes and Feelings of the Child Section 5 of the Children’s Act 2020 provides that “every child who is of such age, maturity and stage of development as to be able to participate in any matter concerning the child shall have the right to participate in the matter and any views expressed by the child shall be given due consideration”. As at the date of writing, there is no reported case on the application of this section. Prior to 2020, in applying Article 388-1 of the Mauritian Civil Code, it was discretionary for the judge to hear a child. This was usually done through an informal meet - ing between the child and the judge hearing the case. In a landmark 2019 case decided by the Mauritius Court of Civil Appeal, it was stated that there is an obligation for the trial court to keep a proper record of such hearing. In a number of reported cases, it is merely mentioned that the child was heard in the course of the proceed - ings, but no indication is given as to whether the feel - ings and wishes of the child were the determining factor to allow the relocation or not – nor does the trial judge give an indication as to the weight given to
A parent who wishes to relocate abroad with a child must, in the first instance, seek and obtain the written consent of the other parent or any other person who has custody of that child. This process has resulted from decades-long practice and is now substantive law embodied in Section 16 of the Children’s Act 2020. 2.2 Relocation Without Full Consent In the absence of such consent, the parent who wish - es to relocate must apply to the Supreme Court to obtain an authorisation for the child to leave Mauritius and relocate. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation As set out in the landmark case of Muller v Masson [1974] MR 268, the paramount consideration for the court in such an application is the child’s best inter - ests. In determining whether the relocation is in the child’s best interests, the court will ascertain whether: • it is in the interest of the child to remain with the parent who has been granted custody whatever the circumstances, or whether other arrangements could be made for a transfer of custody; • the parent who has custody has a legitimate motive for desiring to live away from the country; and • any particular benefit that the child would derive from continuing to be with that parent would not be outweighed by the prejudice that might ensue to the child. This principle is now entrenched in a settled line of precedents and has, since 2020, been codified through Section 4 of the Children’s Act. Subsequent Supreme Court decisions have added various factors to be considered in determining appli - cation for relocation, namely:
wishes expressed by the child. 2.3.3 Age/Maturity of the Child
In the context of determining a custody issue, the tra - ditional view set out in Article 264 of the Mauritian Civil Code is that the court could hear a child if it was felt that it was necessary to solicit their view. The courts
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