MINISTRY OF GENDER EQUALITY, CHILD DEVELOPMENT
& FAMILY WELFARE (PS) v RABOUDE 2012 SCJ 77
The applicant is moving for an order under
Article 12 of The Hague Convention on the Civil Aspects of International Child
Abduction (‘the Convention’) as follows –
(a) declaring that minor child Corina Oceane
Raboude has been wrongfully retained in Mauritius; and
(b) ordering the return of the said minor child
to Switzerland.
The Convention has the force of law in Mauritius
by virtue of the Convention on the Civil Aspects of International Child
Abduction Act [Act 19 of 2000] (“the Act”) and, pursuant to section 4 of the
Act, the applicant is the Central Authority designated to discharge the duties
which are imposed by the Convention upon such authorities.
The respondent has admitted that he has flouted
the Swiss Court’s order by retaining the minor child in Mauritius. He contends
that he and the child’s mother contracted civil marriage on 24th
October 2005 and they lived happily until June 2009, when he came to know from
Tatjana Hochstrasser, the mother’s elder daughter from a previous marriage,
that she (the mother) was professionally engaged in prostitution. He has
averred that it is confirmed that the mother is a prostitute by profession and
he is afraid to return the child as there is a high risk that the child will
end up as her mother. He, accordingly, fears that – (i) there is a real,
imminent and grave risk that the return of the child to Switzerland would
expose her to physical, emotional or psychological harm and would place the
child in an intolerable situation, and (ii) there is a real likelihood that
through the mother’s acts and doings the safety, morality or health of the
child will be at risk.
Article 12 of the Convention provides –
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the commencement of the
proceedings before the judicial or administrative authority of the Contracting
State where the child is, a period of less than one year has elapsed from the
date of the wrongful removal or retention, the authority concerned shall order
the return of the child forthwith.
The judicial or administrative authority, even
where the proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the return of
the child, unless it is demonstrated that the child is now settled in its new
environment.”
In the present case, proceedings for the child’s
return having been initiated well within one year of the child’s alleged
wrongful retention in Mauritius, it is not open to the respondent to
demonstrate that the child is now settled in her new environment. However,
before making an order for the child’s return, the Court must first be
satisfied that the removal or retention of the child was wrongful within the
meaning of Article 3 of the Convention which provides as follows –
“The removal or the retention of a child is to
be considered wrongful where –
(a) it is in breach of rights of custody
attributed to a person,……………, either jointly or alone, under the law of the State in which the
child was habitually resident immediately before the removal or
retention; and
(b) at the time of removal or retention those rights
were actually exercised either jointly or alone, or would have been so
exercised but for the removal or retention.”
From the undisputed facts, the Court is
satisfied that the respondent has wrongfully, in breach of the mother’s rights
of custody over the minor child, retained her in Mauritius after the 26 July
2011. Under Article 12, there is a basic obligation to return the child
forthwith to the country of her habitual residence. However, the Convention
recognises some limited and precise circumstances when it will not be in the
child’s interests to do so. In the present case, the respondent is relying on
the exceptions to returning the child under Articles 13 (b) and 20 of the
Convention which provide as follows –
Article 13
“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the requested State is not
bound to order the return of the child if the person, institution or other body
which opposes its return establishes that –
(a)………………………………; or
(b) there is a grave risk that his or her return
would expose the child to physical or psychological harm or otherwise place the
child in an intolerable situation.”
Article 20
“The return of the child under the provisions of
Article 12 may be refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of human rights
and fundamental freedoms.”
Before considering those exceptions, I wish to
emphasise that the present application concerns the return of the child to
Switzerland under the Convention and it is not a custody case. Under Article 19
“a decision under this convention concerning the return of the child shall
not be taken to be a determination on the merits of any custody case”, and
by virtue of Article 16, “the judicial or administrative authorities
of the Contracting State to which the child has been removed or in which
it has been retained shall not decide on the merits of rights of custody until
it has been determined that the child is not to be returned under this
Convention or unless an application under the Convention is not lodged
within a reasonable time following receipt of the notice.”
I shall, therefore, refrain from considering
matters which should normally be taken into account when determining rights of
custody.
With regard to the exception in Article 13(b),
the onus is on the respondent to establish on a balance of probabilities that
there is a grave risk that the child’s return would expose her to substantial
physical or psychological harm or otherwise place her in an intolerable
situation. In the present case, the respondent is heavily relying on the fact
that the mother is a prostitute in support of his contention that the safety,
morality and health of the child will be at stake if she were to be returned to
the mother.
By virtue of Article 13, when considering the
circumstances against the child’s return, this Court is bound to take into
account “the information relating to the social background of the child provided
by the Central Authority or other competent authority of the child’s habitual
residence”. To start with, the annexed Swiss Courts’ judgments show that
the Swiss Courts have already thoroughly dealt with all the hotly contested
issues raised by the parents in the custody case before the mother was finally
entrusted by the Federal Court, the Highest Court in Switzerland, with the
custody of the child.
The Swiss Courts were in presence of a detailed
Social Enquiry Report (Rapport d’évaluation sociale), which is annexed
to respondent’s affidavit dated 13 December 2011, wherein the ‘situation
professionnelle et économique’ of both parents and their ‘capacités
parentales’ have been clearly set out. Under the heading “La
situation professionnelle et économique’ at paragraph 2.1.2 of the
said Report, one can read the following –
“Madame exerce le métier de prostituée dans
un salon proche de la gare Cornavin qu’elle gère avec une collègue. Elle sépare
parfaitement sa vie professionelle de sa vie privée. Selon elle, sa discretion
est telle que personne n’est au courant de son activité. Dans sa vie privée,
tous pensent qu’elle est esthéticienne, sauf Monsieur et Tatjana qui était au
courant de son activité professionnelle depuis longtemps. Elle n’a pas
l’intention d’arrêter son métier; elle gagne bien sa vie et peut faire ses
propres horaires. Actuellement, elle a adapté ses horaires aux besoins de
l’enfant.’(Emphasis added).
In the same Report, under the heading ‘Les
capacités parentales’, at paragraph 2.1.5, one can further read the
following: “Madame a fait de son mieux avec sa première fille qu’elle a eu
trop jeune. Aujourd’hui, vingt ans sont passés, elle pense avoir
beaucoup changé et avoir évolué. Elle ne fera pas les mêmes erreurs avec
Corina. Elle a la motivation, l’envie et les capacités de s’occuper au
mieux de l’enfant……”. In the said Report, it has also been observed that
the mother was able to “modeler ses horaires pour être plus disponible et
offrir une prise en charge adéquate à l’enfant ”.
Taking into account the above, I am not
convinced by the arguments offered by respondent’s Counsel that, because the
mother is by profession a prostitute, there is a grave risk that her return to
Switzerland would expose her to physical or psychological harm or otherwise
place her in an intolerable situation.
I am also not convinced with the submissions of
respondent’s Counsel that, owing to the fact that prostitution is legal in
Switzerland, the return of the child would be manifestly incompatible with the
fundamental principles of the law relating to the family and children in the
State addressed. I also fail to see how the child’s return cannot be permitted
by the fundamental principles of the requested State relating to the protection
of human rights and fundamental freedoms simply because the mother of the child
is a prostitute and prostitution is legal in the country of habitual residence
of the minor.
As cited by Professor Perez-Vera when discussing
articles 13 and 20 in her explanatory report of April 1981, at paragraph 113:
"In general, it is appropriate to emphasise that the exceptions in
these two articles do not apply automatically, in that they do not invariably
result in the child's retention; nevertheless, the very nature of these
exceptions gives judges a discretion – and does not impose upon them a
duty - to refuse to return a child in certain circumstances."
Finally, I find it worth quoting what Baroness
Hale of Richmond said In In re M (FC) and another (FC) (Children) (FC)
[2007] UKHL 55 at paragraphs 42-44 –
42. there are general policy considerations
which may be weighed against the interests of the child in the individual case.
43. in cases where a discretion arises from the
terms of the Convention itself, it seems to me that the discretion is at large.
The court is entitled to take into account the various aspects of the
Convention policy, alongside the circumstances which gave the court a
discretion in the first place and the wider considerations of the child's
rights and welfare.
44. The underlying purpose is to protect the
interests of children by securing the swift return of those who have been
wrongfully removed or retained.
I have also taken into account the nature and
seriousness of the child’s wrongful removal, including the deception deployed
by the father in bringing about that wrongful removal soon after the Swiss
Federal Court rejected his appeal of the custody case and entrusted the child’s
custody to the mother. In the exercise of my discretion, I find that the exceptional
circumstances against the child’s return to Switzerland under articles 13(b)
and 20 of the Convention have not been established by the respondent.
In the circumstances, I declare that minor child
Corina Oceane Raboude has been wrongfully retained in Mauritius by the
respondent and I order her return to Switzerland forthwith.
GUNNESH v THE REGISTRAR OF CIVIL STATUS 2012 SCJ
115
In a plaint with
summons dated 22 March 2010, the plaintiff is praying for a judgment declaring
and decreeing that he is the natural son of Charles Raoul Gourdin and Claire
Gunesh also known as Claire Gunnesh also known as Soomeetra Gunesh It is the
case for the plaintiff that from the intimate relations and connections of
Charles Raoul Gourdin and Claire Gunesh, also known as Claire Gunnesh, also
known as Soomeetra Gunesh, he was born on 13 July 1934. The said Charles Raoul
Gourdin passed away on 20 September 1959 whereas his mother, Claire Gunnesh
died on 21 September 1992.
It is not clear from
the averments and the two prayers in the plaint with summons whether the
plaintiff is relying under article 321 of the Civil Code which is an action “en
réclamation d’état” or under article 340 of the Civil Code which is one
“en recherche de paternité” or under both articles of the Civil
Code.
If his action is based
under article 340 of the Civil Code, then as has rightly been stated by the
Ministére Public, it is time-barred because in a case of “recherche de
paternité”, the plaintiff is bound by the limitation period of two years
following his coming of age. Article 340 stipulates that “Si l’action n’a
pas été intentée pendant la minorité de l’enfant, celui-ci pourra l’intenter
pendant les deux années qui suivront sa majorité”. I read from note 265
of Encyclopédie Civil Dalloz Verbo ‘Filiation Naturelle’ the
following:
“Le délai imparti à
l’enfant majeur ne comporte aucune possibilité de prorogation (Cass 1re civ. 7
dec. 1982, Bull. Civil 1, no. 352) analogue à celle qui est prévu pour l’exercise
de l’action par la mère pendant la minorité. L’expiration du délai de deux ans
à compter de la majorité rend donc toute demarche en recherché de paternité
irrécevable”.
The above time-limit
of two years which applies to an action brought by a child under article 340
was confirmed in a decision of the Cour de Cassation, 12 janvier 1978,
Bulletin Civil, 1978 No. 23 and cited with approval in the case of S.B
Raman v A.M.A.L Macky & Ors. [2008 SCJ 279].
“Il résulte de l’article 340-4 du Code
Civil que la disposition conforme à son 3ème alinéa et limitant aux deux
années qui suivent sa majorité le droit pour l’enfant d’intenter l’action en
recherché de paternité est générale et absolue”. (Emphasis is
underlined).
In one of the prayers,
the plaintiff has asked for a judgment declaring and decreeing that he is the
natural son of Charles Raoul Gourdin, which according to me, is an action “en
recherche de paternité” and which pursuant to article 340 is
time-barred.
To succeed in an
action “en réclamation d’état” under article 321, the plaintiff needs to
satisfy certain specific criteria.
“La possession
d’état s’établit par une réunion suffisante de faits qui indiquent le rapport
de filiation et de parenté entre un individu et la famille à laquelle il prétend
appartenir”.
These “réunion
suffisante des faits” which plaintiff should have averred in his plaint are
as follows:
“Que l’individu a
toujours porté le nom du père auquel il prétend appartenir;
Que le père l’a traité
comme son enfant, et a pourvu, en cette qualité, à son éducation, à son
entretient et à son établissement;
Qu’il a été reconnu
constamment pour tel dans la société;
Qu’il a été reconnu
pour tel par la famille”.
Not all of these “faits”
have been specifically averred in the plaint with summons so as to come under
the purview of article 321, although, I need to point out that the plaintiff in
adducing evidence in Court is not under an obligation to prove all the
enumerated facts. This is clearly expressed in Dalloz Code Civil Annoté, verbo
“Preuves de la filiation des enfants légitimes” at note 2 under
article 321:
“Jugé en ce sens,
que la loi n’exige pas le concours de tous les faits énumérés dans l’article
321, et qu’elle n’exclut pas ceux qui ne sont pas mentionnés dans cet article”.
It is worth also
pointing out that though the plaintiff has at paragraph 2 of his plaint with summons
averred that the said Charles Raoul Gourdin has acknowledged him as his natural
son and a note in red ink appeared on his birth certificate which was issued to
him when he was a child, he has failed to produce such birth certificate with
that red ink annotation.
THE PERMANENT SECRETARY, MINISTRY OF GENDER
EQUALITY CHILD DEVELOPMENT & FAMILY WELFARE v MOTAH 2012 SCJ 132
Under Article 12 of
the Convention, once it is shown that a child has been wrongfully removed
or retained and proceedings for the child’s return have been commenced within
one year of the illegal retention, there is a basic obligation to return the
child forthwith to the country of her habitual residence. But, as in the
present case, if the application has been made more than one year after the
said retention, the “judicial or administrative authority shall also order the return
of the child, unless it is demonstrated that the child is now settled in its
new environment.”
Before making an order
for the child’s return under Article 12, the Court must first be satisfied that
the removal or retention of the child was wrongful within the meaning of
Article 3 of the Convention, which provides that “the removal or the retention
of a child is to be considered wrongful where:
(a) it is in
breach of rights of custody attributed to a person, either jointly or alone,
under the law of the State in which the child was habitually resident immediately
before the removal or retention; and
(b) at the time of
removal or retention those rights were actually exercised either jointly or
alone, or would have been so exercised but for the removal or retention.”
As emphasised in the
case of The Permanent Secretary, Ministry of Gender Equality, Child
Development & Family Welfare v. Jean Clifford Raboude [2012 SCJ 77], a
distinction should be made between an application under the Convention and
a custody case. It is clear from Articles 16 and 19 that “the judicial
or administrative authorities of the Contracting State shall not
decide on the merits of rights of custody until it has been determined that
the child is not to be returned under this Convention or unless an
application under the Convention is not lodged within a reasonable time
following receipt of the notice” and that “a decision under this
convention concerning the return of the child shall not be taken to be a
determination on the merits of any custody case”.
When minor Gaurangee
Shubhangee Motah was brought to Mauritius, she was about four and a half years
old and she is now seven and a half. For the past three years, she has neither
seen the father nor been in contact with him at all. The father has explained
that he was prevented from being in touch with her, but this is immaterial.
What is striking though is that the father, who could have come to Mauritius to
see or visit his child, if he was really concerned about and cared for her
welfare and well-being, chose not to do so. In the meantime, the child has
grown up in the midst of her mother and brother Parikshit Jhamna and the
evidence on record establishes that she is stable, attending Petit Verger
Government School, is doing very well in her studies and has well-settled in
her present environment. In the circumstances, I am satisfied that it would not
be reasonable to order her return.
On this issue alone,
the application should fail.
It is my view that the
child, being of such tender and vulnerable age, would be exposed to a grave
risk of psychological harm and would be placed “in a situation which this
particular child in these particular circumstances should not be expected to
tolerate” if she were to be separated from her mother, who has been the sole
parent around her for the past three years, and were to be returned to a
completely new environment to a father, whom she has neither seen nor been in
touch with during those years. It would, therefore, not be in the child’s best interests
and welfare to return her to the UK.
MINISTRY OF GENDER EQUALITY, CHILD DEVELOPMENT
& FAMILY WELFARE (PS) v SOOMOODRA 2012 SCJ 197
The applicant, which
is the Central Authority designated under Article 6 of the Hague Convention on the
Civil Aspects of International Child Abduction (“the Convention”), is moving, on behalf of its
English counterpart, for an order under section 6 of the Convention on the
Civil Aspects of
International Child Abduction Act and Article 12 of the Convention as follows –
(a) declaring that
minor child Dakshashil Soomoodra has been wrongfully retained in
Mauritius; and
(b) ordering the
return of the said minor child to the United Kingdom (UK).
Under Article 12 of
the Convention, once it is shown that a child has been wrongfully removed or retained
and proceedings for the child’s return have been commenced within one year of the illegal
removal or retention, which is the case here, there is a basic obligation to return the child
forthwith to the country of his habitual residence. However, when an
application is made more than one
year after the said retention, the “judicial or administrative authority shall also order the return
of the child, unless it is demonstrated that the child is now settled in its
new
environment.” In the
present case, the application for the child’s return having been made well within one year of the
child’s unlawful retention, the respondent cannot invoke the Article 12 defence.
The respondent’s case,
therefore, rests solely on the defence under Article 13(b) of the Convention, namely
that there is a grave risk that the child’s return would expose him to physical or
psychological harm or otherwise place him in an intolerable situation.
Article 13 of the
Convention provides that “the judicial or administrative authority may also refuse to order
the return of the child if it finds that the child objects to being returned
and has attained an age
and degree of maturity at which it is appropriate to take account of its views” and “in
considering the circumstances referred to in this article, the judicial or administrative
authority shall take into account the information relating to the social
background of the child provided
by the Central Authority or other competent authority of the child’s habitual
residence”
With regard to the
Article 13(b) defence raised by the respondent, the onus is on him to establish on a balance
of probabilities that there is a risk that the child’s return would expose him to physical or
psychological harm or otherwise place him in an intolerable situation. The physical or psychological
harm contemplated by article 13 (b) ‘is harm to a degree that also amounts to an
intolerable situation’ and ‘the risk has to
be more than an ordinary risk, or something greater than would normally be expected on
taking a child away from one parent and passing him to another’ and ‘not only must the
risk be a weighty one, but …it must be one of substantial, and not trivial, psychological
harm’
- vide Permanent Secretary, Ministry of Women’s Rights, Child Development
& Family Welfare v Thantanee [ 2006 SCJ 226]
What would constitute
an intolerable situation has also been explained by Baroness Hale of Richmond at
paragraph 52 in Re D (a child) [2006] UKHL 51 as follows:-
“…….
"Intolerable" is a strong word, but when applied to a child must mean
"a situation which this particular
child in these particular circumstances should not be expected to
tolerate". It is, as article
13(b) makes clear, the return to the requesting state, rather than the enforced removal from the
requested state, which must have this effect. …….”
Again, in In re
E (children) (Abduction: Custody Appeal) [2011] UKSC 27, Baroness Hale of Richmond had
this to say at paragraph 34 - 34. ……, the words
"physical or psychological harm" are not qualified. However, they do
gain colour from the
alternative "or otherwise" placed "in an intolerable
situation" (emphasis supplied). As was said
in Re D, at para 52, "'Intolerable' is a strong word, but when applied to
a child must mean 'a
situation which this particular child in these particular circumstances should not be expected to
tolerate' ". Those words were carefully considered and can be applied
just as sensibly to
physical or psychological harm as to any other situation. Every child has to
put up with a certain amount
of rough and tumble, discomfort and distress. It is part of growing up. But there are some things
which it is not reasonable to expect a child to tolerate. Among these, of course, are physical
or psychological abuse or neglect of the child herself. Among these also, we now understand, can
be exposure to the harmful effects of seeing and hearing the physical or psychological abuse
of her own parent…..” (Emphasis added)
After having carefully
considered the affidavit evidence on record and in the light of the above authorities, I
find that the respondent has failed to establish that there is a grave risk
that this particular child
would suffer substantial physical or psychological harm or be placed in an intolerable situation
if he were to be returned to the UK to live with his mother and his stepfather.
In the circumstances,
I declare that minor child, born on 16 May 2002, is being
wrongfully retained by the respondent in Mauritius and I order his return to
the UK forthwith.
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