MAURITIUS Law and Practice Contributed by: Narghis Bundhun, Marylou Subramanien and E’jaaz Bundhun-Puddoo, The Chambers of Narghis Bundhun SC
vided in the Hague Convention – especially the fact that the child is now settled in their new environment, or that there is a grave risk that the child’s return would expose them to physical or psychological harm or oth - erwise place them in an intolerable situation. However, it is difficult to say from the reported cases that there is a clear trend either way with respect to ordering the return of the child, or that the court is sympathetic to the defences provided by the Convention. The court is fair, and upon examination of the defences raised, it can still decide to order the return of the child. There are no reported cases where the Mauritius court orders the return of a child to a country that is not a signatory to the Hague Convention. It is thus difficult to clearly define the procedure to return the child. However, in application of the Children Act 2020 and the Mauritian Civil Code, the issue that the Mauritius court would take into account to order the return of a child to another jurisdiction is always whether it is in the best interests of the child to do so. Another issue is whether the person indeed has custody or custodial rights over the child, which can result either from an agreement between the parents or a court order. If the child was taken from a Hague Convention signa - tory, the costs are nil for the wronged parent in light of the legal aid assistance obligations that exist between the Central Authorities. The wronged parent may still choose to hire lawyers (an attorney and a barrister) in independent practice to assist them once the application is before the Mau - ritius court.
The procedure relating to a request for a return under the Hague Convention could be pleaded on paper by way of affidavits. However, there is a growing trend towards the parties, experts (psychologists or medi - cal professional) or teachers being called to give oral evidence before the court in order to establish one or several defences provided by the Convention. This tends to lengthen the procedure. On average, there is approximately a year between the moment the application for return is made and the delivery of the judgment by the court. A return order is stayed in case of an appeal. Thus, the delay in the return of the child is extended, and it may take another year for a final decision. It is of note that a further appeal can be made to the Judicial Committee of the Privy Council. There is only one reported case where such an application was made, in which leave to appeal was refused. The mat - ter was not pursued further. 3.4 Non-Hague Convention Countries This question is not applicable to Mauritius since it is a signatory to the Hague Convention.
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