Pierce v Pierce (Mauritius 1998) [1998] SCJ 397 26 International Abduction [MAURITIUS 1998] =========================================================== RECORD NO 63743 IN THE SUPREME COURT OF MAURITIUS In the Matter of: Harsha Pierce, Applicant v. J. Justin Pierce, Respondent JUDGMENT 001 The applicant is a citizen of Mauritius. In 1996 she married the respondent, an American national, in the State of Pennsylvania in the United States. They have a one-year old daughter. 002 The applicant came back to Mauritius with her daughter in February of this year. She avers that she was being ill-treated by the respondent who is of violent disposition. With the consent of the respondent, the applicant came to Mauritius to sort out matters. Following further dispute with the respondent over the phone she decided not to return to Pennsylvania and started the present proceedings to obtain the custody of her daughter. 003 The respondent is resisting the motion through his legal adviser. Respondent has made a custody complaint before the Court of Common Pleas of Monroe County in Pennsylvania and has applied under the Hague Convention on Child Abduction to have the child returned to the United States of America so that the custody case may be heard on the merits before the Court of Pennsylvania. 004 The respondent is therefore praying the Court to refrain from making any decision regarding custody in the present case and to declare that the proper forum to hear and determine the custody of the minor child is the Court of Pennsylvania. The Court is being asked also to enforce and execute any order made under the Hague Convention on Child Abduction. 005 In the first place, the objection taken on behalf of the application regarding the initiation of proceedings by the respondent's attorney is misconceived. It has been clearly shown that the attorney at law has a mandat ad litem to initiate the proceedings. vide Credit Moderne v Athion (1996) SCJ 174. 006 Evidence was adduced to show that Mauritius has adhered to the Hague Convention on Child Abduction which proposes the speedy return of a child who has been removed to or retained in a country which is not its habitual place of residence. 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. 007 Obviously, "abduction", or "kidnapping" for that matter, is in no way to be encouraged. However, as was said in the case of Ulf Bjork v. Usha Gyaneswari [1991] SCJ 199, "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." In the case of Ungar v. Burton [1977] MR 156 at p. 161 the Court said the following: "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." 008 The stand taken on behalf of the respondent was that, apart from the point taken regarding the enforceability of the Convention, there was no defence raised to the application made by the applicant for the custody of the child. 009 In the circumstances of the case, I am satisfied that it is In the interest of the child who is of such a tender age to be with her mother. I accordingly grant to the applicant custody of her minor child Sneba Juri Pierce born on 18th September 1997. 22 October 1998 /s/ (Illegible) ============================= Comment by Wm. M. Hilton 20 Apr 2000 See also: Jordan v Jordan (Mauritius 1999) [1999] SCJ ___ 20 International Abduction [MAURITIUS 1999] The Supreme Court of Mauritius finds that, as a matter of law, The Convention does not apply since it has not been implemented as a matter of local law. Subsequent to this case 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 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 Pennsylvania. 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."