MAURITIUS Law and Practice Contributed by: Narghis Bundhun, Marylou Subramanien and E’jaaz Bundhun-Puddoo, The Chambers of Narghis Bundhun SC
of both parents before determining whether the child ought to be allowed to relocate. There are limited reported cases where relocation has been refused by the court. 2.4 Relocation Within a Jurisdiction Despite the fact that the Republic of Mauritius is an archipelago comprising mainland Mauritius and sev - eral smaller islands, this is a non-issue. As the law stands, there is no requirement for an application for relocation within the Republic of Mauritius; this ques - tion would instead tend to be debated when the par - ents are divorcing or seeking exclusive custody of the child. It is then that the court will determine the child’s place of residence within the country. In Mauritius, it is illegal to take a child outside the jurisdiction without the consent of the parents or any person who has been entrusted with the custody of the child. This has been the constant state of affairs according to the general provisions of the Mauritian Civil Code granting custody and the “parental respon - sibility” of the child to a person, as well as subsequent legislation such as the Child Protection Act 1994, the Convention on the Civil Aspects of International Child Abduction Act 2000 and the more recent Children Act 2020. It is a criminal offence to abduct a child. 3. Child Abduction 3.1 Legality 3.2 Steps Taken to Return Abducted Children If a child has been removed from Mauritius without the consent of the parents or any other person who has custodial rights (as per the provisions of the Children Act 2020), the steps to ensure the return of the child would depend on the country where the child was taken. If the child was taken to a country that is not party to the Hague Convention, it would be advisable that the parent/person who has custody reports that fact to the local police station. Additionally, illegal removal can be reported to the Child Development Unit (a unit created under the Ministry of Gender Equality and Family Welfare for the protection of the children). In the
circumstance that the wronged parent does not have a formal court order, it will be advisable for the parent to obtain an immediate care and control order or a custody order. Having those orders will make it easier to demonstrate that the child was under the custody of the wronged parent. Having a formal court order will support a process initiated in the country where the child would have been taken, thus facilitating the return of the child to Mauritius. If the child was taken to a country that is a signa - tory to the Hague Convention, the faster route is for the wronged parent to report the wrongful removal to the Central Authority in Mauritius, who will in turn notify the Central Authority of the country to which the child has been taken. It would then be for the Central Authorities to co-operate and arrange the return of the child to Mauritius forthwith. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Mauritius became a signatory of the Hague Conven - tion in 1993, but it only became enforceable law in Mauritius when the Convention was domesticated in 2000 (The Convention on The Civil Aspects of Inter - national Child Abduction Act 2000). If a child is taken to Mauritius, the wronged parent will usually report to the Central Authority where the child was habitually resident. This Central Authority will then contact the Mauritian Central Authority. As a result, and in accordance with the obligations under the Hague Convention, the foreign Central Authority will be entitled to free legal advice and representation in court by the state law counsel. However, the wronged parent is not personally entitled to free legal advice and/or representation before the Mauritius court. They may retain the services of legal advisers in independent practice. The Mauritian Central Authority has not published any official data regarding the number of Hague Conven - tion cases in each year or the outcome of each case. In the reported cases before the Mauritius jurisdiction, it can be seen that it is mostly the parent who brought the child to Mauritius who will use the defences pro -
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