MAURITIUS Law and Practice Contributed by: Narghis Bundhun, Marylou Subramanien and E’jaaz Bundhun-Puddoo, The Chambers of Narghis Bundhun SC
2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? The case law pertaining to relocation has developed the concept of “legitimate motive”, where the onus is on the parent wishing to relocate to demonstrate that they have a good reason to relocate with the child and have made adequate arrangements in the child’s interests. Please refer to 2.3.1 Factors Determining an Application for Relocation . 2.3.7 Grounds for Opposition to Relocation The law does not provide clear grounds for objec - tion to the relocation. The main – and an oft-raised – ground of objection is that the relocation is not in the child’s best interests due to a drastic change in the schooling system or language, cultural differences or the fact that the stay-behind parent will have their custodial rights curtailed. In any event, each ground of objection will depend on the facts and circumstances of the case. 2.3.8 Costs of an Application for Relocation The costs of bringing an application for relocation vary greatly depending on the attorney and barrister whose services have been retained. They can range from anything between MUR150,000 and MUR500,000 (GBP3,000–10,000) for both legal advisers. It is noteworthy that court fees in such applications are nominal. 2.3.9 Time Taken by an Application for Relocation No precise timescale can be given since the time taken for an application will depend on the diligence of the legal advisers in having the case in shape and on the court’s agenda. There are no rules or guide - lines provided for judgment to be delivered within a set timeframe. 2.3.10 Primary Caregivers Versus Left-Behind Parents Each case turns on its own merits. As stated in 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? , the court will be more inclined to allow a parent to relocate abroad with the child if a “legiti - mate motive” is established. Even if the parent apply - ing to relocate has already been granted custody of the child, the court will nonetheless balance the rights
have applied the same principle in applications for relocation. Following a 1999 amendment, Article 388-1 of the Mauritian Civil Code provides that the judge could hear and take into account the wishes of a child in any matters concerning them provided that they could form a view ( capable de discernement ). Sections 4 and 5 of the Children’s Act of 2020 now make it mandatory for a court to take the child’s views into account, without setting out a minimum age. In the reported cases, no mention is made of the impact that the age/maturity of the child may have had on the decision-making process of the trial judge. 2.3.4 Importance of Keeping Children Together Keeping the children together is of paramount impor - tance to the trial court. This practice results from the application of Article 371-5 of the Mauritian Civil Code, which stipulates that a child should not be separated from their siblings unless it is impossible to avoid or their personal interest so requires. This rule has sys - tematically been applied by the Supreme Court in determining custody-related matters. It is noteworthy that there is no pronouncement by the Supreme Court in an application for relocation on this specific issue, but it can safely be assumed that the trial court will be guided by the same principle. 2.3.5 Loss of Contact The Supreme Court in Mauritius has, since 1974, sys - tematically and consistently taken the view that the relationship and contact with the “stay-behind par - ent” should not be severed altogether. Over the years, this concept of maintaining contact has evolved. Ini - tially, the court imposed a mandatory annual return to Mauritius for the child at the cost and expense of the parent seeking to relocate. Nowadays, in addition to this obligation of annual return, the court imposes a regular virtual contact requirement using modern telecommunications devices, as well as requirements concerning communication of the address abroad, school reports and health reports. Please refer to 2.3.1 Factors Determining an Application for Relocation .
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