Child Relocation 2023 Comparisons

In Mauritius, parental responsibility is known as l’autorité parentale and is defined in Article 371-2 of the Mauritian Civil Code. This concept entails a duty to protect the child’s safety, health and morality and, in order to fulfil this duty, the parent is empowered with a right of custody (garde), supervision (surveillance), and a duty to educate the child. The holder of l’autorité parentale is also vested with the powers to manage the child’s property.

Parental responsibility devolves in principle on biological parents whether married or not. In exceptional circumstances (for instance child abandonment, death of both parents etc), the court can decide to entrust parental responsibility to a third party, who may or may not be related to the child.

Parental responsibility stems from a legally established lien de filiation (parental link) between the child and the mother. This is achieved at the time of registration of the child’s birth when the mother makes a voluntary declaration acknowledging the child as being hers. In the absence of such voluntarily acknowledgment at birth, the mother or the child may subsequently initiate proceedings before the Supreme Court with a view to have the parental link established (une action en recherche de maternité/une action en réclamation d’état).

It is of note that in practice in the majority of cases mothers acknowledge their children, making such judicial proceedings a rare occurrence.

Parental responsibility stems from a legally established lien de filiation (legal parentage) between the child and the father.

In the event that the child is born out of wedlock, the father needs to voluntarily acknowledge the child at the time of registration of birth. In the absence of a voluntary acknowledgement, the mother acting on the child’s behalf or the child may initiate proceedings before the Supreme Court with the view to establish the legal parentage between the child and the father (action en recherche de paternité/action en réclamation d’état).

As regards a child born within marriage, by operation of the law (Article 312 of the Mauritian Civil Code), the mother’s husband is presumed to be the child’s father.

In Mauritius, the only legally recognised situation where non-genetic parents can acquire parental responsibility is through an adoption. Indeed, the adopter automatically exercises parental responsibility as regards the child following the adoption order (see 1.7 Adoption).

For the time being, there is a legal vacuum in Mauritius as regards same-sex couples and the status of children born through surrogacy. Hence, it is difficult to state the requirements that need to be met by parents in this situation to establish parental responsibility.

However, pursuant to Article 371-4 of the Mauritian Civil Code, the Supreme Court can order that a third party, whether related or not to the child, be entrusted with the latter’s custody, if it is in the latter’s best interest. The court will determine the extent of the parental responsibility that this person will exercise over the child. This provision of the law can be interpreted to apply to the partner of a parent who has the custody of a child (ie, the step-parent who would not be biologically related to the child).

The laws in Mauritius distinguish between legitimate and natural children. Children who are born within marriage are legitimate children. The mother’s husband is presumed to be the father of the child as provided by Article 312 of the Mauritian Civil Code. For as long as the parents do not separate or divorce, both parents have joint parental responsibility.

The situation differs when it comes to a natural child. The parents shall exercise joint parental responsibility, only if they live within the same household as the child and both parents have acknowledged the child. Otherwise, parental responsibility will be exercised solely by the parent with whom the child resides.

Same-sex relationships have no legal recognition in Mauritian law. In this instance the issue of parental responsibility as regards the parents of the same sex does not arise. There are currently no reported cases on this issue. Please refer to 1.4 Requirements for Non-genetic Parents for additional information.

Three types of adoption exist in Mauritian Law: an adoption simple, an adoption plénière, and a légitimation par adoption (Articles 343 to 370-5 of the Mauritian Civil Code). The distinction between the three types of adoption relate to the adoptee, the adopter and the consequences of each type of adoption. 

Adoption Simple

In an adoption simple any person can be adopted irrespective of their legal parentage (legitimate, natural or abandoned). A married couple or a single person, whether married, divorced or widowed, can apply to adopt. The adoptee’s family name may be changed, but not their first name. The major consequence for the child is that they maintain a family relationship with the biological family and acquire another legal relationship within the adoptive family. For instance, the adoptee has inheritance rights in both his biological and adoptive family. An adoption simple can be revoked at the instance of the adoptee, the adopter, the biological parents and/or any interested party.

Adoption Plénière

In the case of an adoption plénière any child can be adopted irrespective of their legal parentage (legitimate, natural or abandoned). Only married couples (and this only concerns legally recognised heterosexual marriages) can have recourse to this type of adoption. In terms of consequences for the adoptee, they sever all legal relationships with their biological family and are fully integrated into the adoptive family to the extent that their first name, as well as family name, can be changed by the adopting parents. An adoption plénière cannot be revoked.

Légitimation par adoption

A légitimation par adoption only applies when the spouse of a person adopts the child of that spouse. The consequences are that the adoptee is fully assimilated to a child born from the marriage who can acquire the husband’s family name and is deemed to be a legitimate child of the marriage. This type of adoption is irrevocable.

In all the three above cases, if the adopters are non-citizens (international adoptions), they must first apply to the National Adoption Council who will ascertain whether in the circumstances it would be in the interests of the child to allow the application to proceed to the court, whether it is a bona fide application free of child trafficking issues and whether the application complies with the Hague Convention on International Child Adoption.

In all of the above instances the adopter/adopters will have parental responsibility as from the time that the court makes the formal adoption order.

A parent who wishes to relocate abroad with a child must, in the first instance, seek and obtain the written consent of the other parent or that of any person who has custody of that child. This process has resulted from decades-long practice and is now substantive law embodied in Section 16 of the Children’s Act 2020.

In the absence of such consent, the parent who wishes to relocate must apply to the Supreme Court to obtain an authorisation for the child to leave Mauritius and relocate.

Despite the fact that the Republic of Mauritius is an archipelago comprising of mainland Mauritius, and several 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 question would instead tend to be debated when the parents are divorcing or seeking the 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, from general provisions of the Mauritian Civil Code granting the custody and the “parental responsibility” of the child to a person, or the 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.

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 the fact to the local police station. Additionally, the 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 serve to 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 which is a signatory 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 to obtain the return of the child forthwith to Mauritius.

Mauritius became a signatory of the Hague Convention in 1993, but it only became enforceable law in Mauritius when the convention was domesticated in 2000 (The Convention on The Civil Aspects of International Child Abduction Act 2000).

If a child is taken to Mauritius, the wronged parent would 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 of this, and in application of the obligations under the Hague Convention, that 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 Convention cases for each year, and 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 provided 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 otherwise place them in an intolerable situation. However, it is difficult to say from the reported cases that there is a clear trend either way of 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 state clearly what is the procedure to return the child. However, in application of the Children Act 2020 and the Mauritian Civil Code, the principles that the Mauritius court would take into account to order the return a child to another jurisdiction are always to examine whether it is in the best interests of the child to do so. Another principle would be whether the person indeed has custody or custodial rights over the child, that can result either from an agreement between the parents or as a result of a court order.

If the child was taken from a Hague Convention signatory, the costs are nil for the wronged parent in light of the legal aid assistance obligations which 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 Mauritius 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 when the parties, their respective experts (psychologists or medical professional) or teachers are 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 time that judgment is delivered by the court.

A return order is stayed in case of an appeal. Thus, the delay for the return of the child is extended, and this may take another year for a final decision.

It is of note that a further appeal can lie to the Judicial Committee of the Privy Council. There is only one reported case where such an application was made, but leave to appeal was refused. The matter was not pursued further.

This question is not applicable to Mauritius since it is a signatory to the Hague Convention.