Jordan v Jordan (Mauritius 1999) [1999] SCJ ___ 20 International Abduction [MAURITIUS 1999] =========================================================== CHAMBERS IN THE SUPREME COURT OF MAURITIUS In the Matter of: Marie Martine Jordan, Applicant vs Michael Rex Jordan, Respondent In the Presence of: The Passport and Imigratioin Officer, Co-Respondent And in the matter of: Marie Martine Jordan, Applicant vs Michael Rex Jordan, Respondent JUDGMENT 001 The applicant is a Mauritian national. On 10.03.1993, she married the respondent, an American national. They have two children aged 21 months and 7 months respectively. They have lived in America from the 4th September, 1998. On 06.09.98 they came to Mauritius on holidays. The respondent left for the United States of America as scheduled on 29.09.98, the applicant and the children were to leave on 04.11.98. The applicant then changed her departure date to 04.12.98. She had since then, in view of the matrimonial problem, decided to stay in Mauritius. The respondent was very upset when she informed him of her decision to and he came to Mauritius on 17.01.99. 002 Fearing that the respondent would take the children back to the U.S.A., on 22.01.99, she applied for and obtained an interim order in the nature of an injunction restraining and prohibiting the respondent from taking the children namely Raie Roxane Jordan and Rachel Dominique Jordan out of Mauritius without applicant's express written authorisation. 003 The respondent and the co-respondent were ordered to show cause why the interim order should not be enlarged or discharged or otherwise dealt with after hearing the parties. 004 The application is resisted and respondent's attorney moved for an early hearing as the respondent was due to leave Mauritius on 15.02.99. The hearing was fixed to 11.02.99. 005 On 03.02.99, on another ex parte application, the applicant obtained the immediate care and control of the children and the case was fixed to 11.02.99 to show cause why the applicant should not be entrusted with the provisional custody of the children. 006 In his affidavit the respondent averred that (1) at no time he ever agreed or consented to any change in the departure date of 03.12.98, so that to all intents and purposes the children were due to return to their habitual place of residence, which is the U.S.A.; (2) he verily believed that the self-confessed acts and doings of the applicant are tantamount to child abduction and he has entered to that effect an application under the Hague Convention on the Civil Aspects of International Child Abduction in the United States of America; (3) he has entered a custody application before the Family Court, Eleventh Judicial Circuit, State of South Carolina,County of Edgefiled, United States of America; (4) he verily believes that the Judge in Chambers has no jurisdiction in the about matter inasmuch as: 007 (a) The children are American Citizens traveling under passports issued by the United States of America and no order can be made by a Mauritian Court in respect of the same; 008 (b) The present application is being made to the Judge in Chambers, in its original jurisdiction, and the Judge in Chambers has no power or authority to make such order under section 71 of the Courts Act; 009 (c) Custody proceedings having started in the United States of America, the place of the legal domicile and name of residence of the children, the proper forum for such proceedings, a Mauritian Court cannot exercise its jurisdiction to decide custody in view of pending international "lits pendance"; 010 (d) The children must legally and lawfully be returned to their legal domicile and place of residence before any order can be made on the merits of the matter, as any Court order would be in direct breach and violation of the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, signed by Mauritius and which I am advised, is binding on effective in Mauritius; 011 (e) The order prayed for would, in the circumstances, be tantamount to a Mauritian Court condoning child abduction contrary to international covenants regarding the same, and to put at naught any order made by foreign authorities to have the children returned to their country of legal domicile and place of residence. 012 In support of the objections Learned Counsel for the respondent has referred to the Hague Convention and the Vienna Convention. Learned Counsel has also referred o a number of cases where (1) the expression "habitual residence" as used article 3 of the Hague Convention and (2) the word abduction, have been interpreted. 013 The first ground is simply untenable as by virtue of section 23 of the constitution the children are also citizens of Mauritius. 014 The second ground is also devoid of merit. In addition to the jurisdiction conferred under S. 71 of the Courts Act on the Judge sitting in Chambers, he also has jurisdiction in such matters as "juge des referes". 015 The third ground must also fail inasmuch as the Court in the U.S.A. was seized on the 04.02.1999. whereas the interim order and the immediate care and control were made on 22.01.99 and 03.02.99 respectively. 016 The ground on which the fourth and fifth objections are based was considered in the case of Pierce v Pierce [1998] SCJ 397. The Learned Judge in Chambers had this to say: Though Mauritius has acceded to that convention, the provisions of the whole or part of that convention have not been implemented in our national laws, unlike, for example, the Convention Abolishing the Requirements of Legalisation Foreign Public Documents Act which gave the force of law in Mauritius of the Convention on that matter signed at the Hague on 5 October 1961 and published in GN 14 of l966. Consequently, without having to enquire initially whether the child has been "abducted" or "wrongfully" removed under the terms of the Convention on the Civil Aspects Of International Child Abduction, suffice it to say that that convention is not part of our law and that this court is not bound to give effect to its provisions. 017 I fully agree with the Learned Judge. The objections accordingly fail. 018 In matters like the present case, the interest of the child is the paramount consideration and it should prevail over any other consideration. In the case of Ungar v Burton [1977] M.R. 156 at p. 161, the Court had this to say: "The principle by which this Court will be guided in matters of "kidnapping" is simple and is consistent with both the respect and regard which the comity of nations requires that courts within whose jurisdiction the kidnaped infant has been brought should have for any decree made in the matter by the foreign court concerned, and with the necessity to ascertain if the interest of the infants, which is the paramount consideration, does not demand that such decree be disregarded. The court within whose jurisdiction the child is cannot obviously hold itself bound by the foreign order and must form its own independent opinion of the merits of the case but it will not decide against that order unless it is satisfied that to do otherwise would seriously harm the infant." 019 In the Ulf Bjork v. Usha Gyaneswari [1991] SCJ 199, the Court applying the same principle stated "though 'kidnapping' is admittedly not to be encouraged, we would not subscribe to the proposition that it must necessarily be sanctioned at the cost of grave prejudice to the better interests of the child." 020 In the present case, the respondent rested content with the question of jurisdiction only. He did not deem it fit to aver what arrangements he would make to look after the children, who are only babies, if the Court were to uphold his objections and allow him to take the children back to the United States of America. 021 I talked to both parties in Chambers. The respondent confessed that he was used to drinking but stated that he has stopped. As for the applicant, she is determined to stay in Mauritius and is not prepared to go back to the United States of America where life has been and would be very difficult with two young children without any help from her husband. 022 Taking into consideration (1) the tender age of the children; (2) that they have been in Mauritius since September 1998; (3) that the mother is not prepared to go back to America as she would not be able to manage with the two babies and(4) that the respondent has failed to satisfy me that he would take steps to look after the welfare of the children, I am of the view that it is in the best interest of the said children that the provisional custody be entrusted to the applicant and I so order. 023 The interim order issued in the present matter on22.01.99 is consequently made interlocutory. 17 February, 1999 /s/ R. N. Narayen, Judge. ============================= Comment by Wm. M. Hilton 20 Apr 2000 See also: Pierce v Pierce (Mauritius 1998) [1998] SCJ 397 26 International Abduction [MAURITIUS 1998] The Supreme Court of Mauritius, for a second time, finds that, as a matter of law, The Convention does not apply since it has not been implemented as a matter of local law. Before this case was heard, the United States, in its REPORT ON COMPLIANCE WITH THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, made the following comment concerning this problem: MAURITIUS: Mauritius deposited a declaration of accession to the Convention on March 23, 1993 and the United States accepted the accession on July 16, 1993. However, in an October 1998 decision by the Mauritian Supreme Court involving an application under the Convention filed by a U.S. parent, the court stated that the Convention "is not part of our law and that this court is not bound to give effect to its provisions." The U.S. Central Authority requested assistance from the Hague Permanent Bureau and sent a letter to the Attorney General's office in Mauritius stating that, since the government of Mauritius deposited its letter of accession to the Convention with the Hague Permanent Bureau and the U.S. government accepted the accession of Mauritius, the Convention is in force between the two countries. The letter requested that the Central Authority of Mauritius take all appropriate steps to ensure the proper operation of the Convention. Subsequently, the Department delivered a diplomatic note to the Mauritian Ministry of Foreign Affairs and International Trade, reiterating the points made by the U.S. Central Authority and requesting the Ministry to respond. The Attorney General of Mauritius recently met with the U.S. Ambassador and indicated that the State Law Office had originally briefed the court with incorrect information and has made subsequent "interventions" to advise the court that the Convention is in force for Mauritius. Whether or not the "subsequent interventions" have been made is not known as of the date of this comment. Turning next to the merits of the case, the Mauritian Supreme Court (as it did in Pierce) held that, while kidnapping is not to be encouraged, the best interests of the child, from the prospect of the Mauritian Supreme Court, outweigh the harm done by the kidnapping and that the Mauritian Courts must form an independent opinion of the merits of the case. This is in keeping with the United Kingdom case of McKee v McKee [1951] AC 352, [1951] All ER 942, PC which held that while "great weight" must be given to the foreign order, it cannot be enforced absent a hearing to determine if this would be in the in the best interests of the child. The Mauritian Supreme Court then found that, because of the tender age of the child, the child should remain with the mother and denied the father's request that the child be returned to South Carolina. The court also seemed to give significant weight to the statement of the mother that she would not return to South Carolina, because of the tender years of the children. This is of course contra to the cases under The Conventiion where it is common ground that a party cannot create a basis for non-return of the child. When The Convention has been put into effect in Mauritius, it is to be hoped that the Mauritian Supreme Court would, in future cases, follow the reasoning of Prof. Elisa Perez-Vera in the "Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426." In particular Paragraph 34 of the Perez-Vera Report is mentioned and specifically the following language of that paragraph: "The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."