Facts: Mauritian mother, married to French citizen, removes their son, aged 18 months, from France without father’s consent and returns with the child to live in Mauritius. Father and the French authorities initiated proceedings in Mauritius for the return of the child to France. The Supreme Court refused to order the return of the child holding that the latter is now well settled in Mauritius with his mother. Father has lodged an appeal that has been heard. Judgment of Appeal Court reserved.
Law: Convention on the Civil Aspects of International Child Abduction Act, hereinafter referred to as the Convention.
PLEASE FIND BELOW ARGUMENTS & SUBMISSIONS OF COUNSEL ON BEHALF OF THE MOTHER BEFORE THE COURT OF CIVIL APPEAL OF THE SUPREME COURT OF MAURITIUS
SUPREME COURT OF MAURITIUS
In the matter of:
The Permanent Secretary, Ministry of Gender Equality, Child Development and Family Welfare, APPELLANT v/s Mrs. FL, RESPONDENT
A.1. In the present matter the Respondent is resisting the appeal against the decision of the Learned Judge of the Family Division refusing to order the return to France by a date to be fixed by the Court, AT, the minor son of Respondent and Appelant, YT, a French national represented by the Appellant in proceedings brought under the Convention on the Civil Aspects of International Child Abduction Act, hereinafter referred to as the Convention.
A.2. Respondent conceded that she had wrongfully removed her son from France, his habitual place of residence. Accordingly, the Learned Judge granted Appellant’s prayer for a declaration to that effect.
A.3. She raised the defence under Article 13 (b) of the Convention that returning her son to France would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The Learned Judge found that there was insufficient evidence to support such a defence.
A.4. Respondent also raised the defence under the second paragraph of Article 12 of the Convention that her son was now well settled in his new environment and that it would be in his best interests not to be returned to France. The Learned Judge determined that it had been demonstrated to his satisfaction that the child was in fact now settled in Mauritius and declined to exercise his discretion under Article 18 of the Convention to order the return of the child to France.
B. The Facts.
B.1. Counsel for Appellant has summarised the facts of the case in her extensive Skeleton Arguments dated 26 January 2021. A chronology of events has also be en annexed thereto. The summary of facts and the chronology are not disputed. However, two contextual events have inadvertently been omitted:
(i) On 28 October 2014, YT, the child’s father, was convicted by a French for assault upon Respondent causing incapacity for more than 8 days and sentenced to 2 month’s imprisonment “avec sursis”
(ii) On 7 April 2015 he was again convicted for a similar offence causing incapacity for less than 8 days and sentenced to 6 months/ imprisonment “avec sursis”
C. The Law
C.1. Article 12 of the Convention provides as follows:
“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.”
D. Grounds of Appeal 1, 2 and 3
Ground of Appeal No. 1:
The Learned Judge erred in law in failing to consider the meaning of the word “now” in article 12 of the Convention.
Ground of Appeal No. 2:
The Learned Judge erred in law when he concluded that the minor was settled in Mauritius.
Ground of Appeal No. 3:
The Learned Judge erred in law when he considered the issue of settlement of the minor as at the date of judgment.
D.1. Respondent relies on the provisions of Article 12 quoted above. The present appeal hinges on the issues whether, on the agreed facts of the case, the Learned Judge was wrong in law to have found that it has been demonstrated that the child was settled in his new environment, and having found that he was in fact settled, exercised his discretion to refuse the order requiring Respondent to return the child to France.
The child arrived in Mauritius in October 2015 and, ever since, he has been taken care of by his mother and her family. In her affidavit at paragraph 7 q) dated 30 May 2017 (at page 44), when AT was 3 years old, she stated at:
“My children live a very secure and harmonious life and blossom within the extended family; my parents are very caring of each of their 10 grandchildren aged, 4, 6, 7, 9, 12.13 and 1; my three siblings and spouses have good relationships and AT being the youngest, is very affectionately pampered by all; AT is also very close to the two children of my best friends who are 3 and 5 and we often bring them at the swimming pool and at cocotown in Shoprite; on week-ends he loves playing football with his friends and cousins.”
D.2. The child was admitted to Hampstead Junior School in January 2017 (page 65) and has been doing very well there as can be confirmed by his teacher’s report dated 10 April 2017 (page 68). Therein, we can read: “Aydan is a very independent child and shows confidence, enthusiasm and a rage of physical competencies. It is a pleasure to have AT in my class.”
D.3. Judgement in the present matter was delivered on 29 November 2019 whereas unchallenged evidence of his settlement in his new environment goes back to 2017. Yet, Appellant erroneously argues in its Grounds of Appeal 1, 2 and 3 that the Learned Judge allegedly and wrongly used the “date of judgment” to determine whether the child was settled or not. The argument is factually inaccurate. The Respondent and the Learned Judge were quite alert to the reality that settlement in a new environment is a process and not an event that happens on a given date as Appellant believes. Basing himself on the available and unrebutted evidence quoted above, the Learned Judge wrote:
“Further, I am satisfied that the child has blended well in his new environment during the early period of his stay in the country prior to the present application being made.” (page 351). (my emphasis).
It cannot be said therefore that the Learned Judge was not in line with the approach adopted in Re N (Minors) (Abduction) Family Law Reports/1991 as far as the definition of “now” is concerned.
D.4. The Learned Judge also referred to the child’s physical environment that has not changed since he arrived in Mauritius. He lives in the same comfortable rented house and attends the same school. There is no evidence on record that suggests there was any change for the worse after “the early period”. Quite the contrary. The Social Enquiry Report (page 320) dated 17 September 2019 mentions that the child is in good health and was still attending Hampstead Junior School. The Report confirmed that “his developmental needs were being properly met and were of prime concern to Respondent….. During the interview and home visit, Minor gave the impression to be an energetic and jovial third. His level of cognitive, mental and physical abilities matched his age. Minor enjoyed swimming at Serge Alfred Swimming Pool and playing with toys he had.”
D.4. It is clear therefore that the Learned Judge took into account both the physical and the emotional constituents of what settlement entails. Counsel for Applicant. It was also quite proper for the Judge, when assessing the quality of life being enjoyed by the child since his arrival in Mauritius, to refer to the sorry circumstances that prevailed in his life before coming to Mauritius. To do so does not mean that he allegedly “gave undue consideration to the family’s situation in France” as argued by Counsel for Applicant. The contrast simply emphasises that the child, since his arrival in, Mauritius has continuously been living happily in the new environment where he has settled.
D.5. Similarly, the Social Enquiry Report provided information to the Judge not only about the circumstances obtaining at the time the Report was written, but also about the conditions in which the child has been living since his arrival in Mauritius. Counsel for Applicant is therefore wrong when she argues that the Learned Judge should not have relied on the Report.
It is therefore submitted that the Learned Judge had the same approach that is to be found in Re N (Minors) (Abduction) Family Law Reports/1991 where it was held that “The term ‘new environment’ must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother.”
D.6. It is reiterated that settlement is a process. It would be absurd to claim that what was observable at the time the report was made and at the time judgment was delivered did not exist beforehand. For example, the child was not assessed as jovial because he was seen to be so on the date he met the Probation Officer. His joviality has to be understood as a structural part of his personality that has been developing over time in a given environment and not as a momentary occurrence. His joviality is one of the manifestations that he is well settled in the environment where is living.
D.7. In light of the above, it will be submitted that the grounds of appeal 1, 2 and 3 have no merit and cannot succeed and that the Learned Judge was right in law when he determined that it had been demonstrated that the child is now settled in his new environment.
E. Grounds of Appeal 4 and 5
Ground of Appeal 4
The Learned Judge failed to carry out the balancing exercise referred to by him at the
last paragraph of page 5 of the judgment and simply made a finding of the settlement
of the child.
Under Ground of Appeal 5
The Learned Judge failed to address his mind to the policy considerations under the Convention which must be weighed against the interest of the child and also failed to consider the evidence relevant thereto.
E.1. It is convenient to deal with Grounds of Appeal 4 and 5 together. At the very beginning of his judgment, the Learned Judge, at paragraph 3 (page 368) reviews and discusses the policy objectives of the Convention. He stated: “The Convention seeks to protect children from the harmful effects of abduction and retention and bring about their prompt return.” He also noted:
“the general rule of return, however has exceptions” and observed that “the Court determining an application for return under the Convention, has to bear in mind the interests of the child, which are described in the preamble to the Convention as being of paramount importance.”
There should therefore be no doubt that the Learned Judge was perfectly aware and alert to the requirement to balance the policy objective of return on the one hand and the protection of the paramount interests of the child on the other hand. Thereafter, he discusses the principles involved in the balancing exercise and refers to the cases of Re M (FC) and another (FC) (Children (FC 2007 UKHL, Cannon v Cannon (pages 370 – 372).
E.2. The Learned Judge considered quite rightly (page 372) that paragraph 47 (and not paragraphs 43 and 44, as arbitrarily decreed by my Learned Friend) summed up the essential conclusion of the balancing exercise:
“In settlement cases, it must be borne in mind that the major objective of the Convention could not be achieved, these are no longer “; hot-pursuit” cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So, the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, includes the child’s objections as well as her integration in her new community.”
E.3. The Learned Judge, with these principles in mind, referred to the relevant facts of the present case, concluded that it would not be reasonable to order the return of the child.
It is therefore humbly submitted that Grounds 4 and 5 have no merit and cannot succeed.
F. Ground of Appeal 6
The Learned Judge failed to consider the periods of delay and reasons for delay which he should have done in the context of deciding whether to exercise his discretion in the light of article 12 paragraph 2 of the Convention, the more so that he wrongly considered the material date to be the date of judgment.
F.1. Ground 6 is based on the issue of delay not being canvassed by the Learned Judge. The time taken by the father and the Applicant to file a complaint was not a live issue in the present matter. The Respondent certainly did not make it a major issue. It is a fact that the application was made after one year and though the explanation given by the father is far from being plausible, Article 12 provides that a return can be ordered even after the delay of one year. The Learned Judge was concerned whether there was reliable evidence to support the defence of settlement and not whether the father and the Applicant were guilty of culpable delay.
It is therefore humbly submitted that Ground 6 has no merit whatsoever and should fail.
G. Under Ground of Appeal No. 7
The Learned Judge erred in law when he failed to consider the lack of justification for the mother not to return to France with the minor in the context of deciding whether to exercise his discretion in the light of article 12 paragraph 2 of the Convention.
G.1. Ground 7purports to claim that Respondent had an obligation to explain why she did not contemplate resettling in France when confronted with Applicant’s demand for the return of the child and/or the Learned Judge has a duty to seek such explanations from the Respondent. No provision of the Convention imposes such an obligation on the Respondent and the Learned Judge when the latter is considering the defence of settlement raised by Respondent or when carrying out the balancing exercise discussed above.
G. 2. On the other hand, the Applicant is required, when filling the form that launches proceedings under the Convention, to provide information in respect of arrangements made for the return of the child. In the present case, Applicant simply ignored paragraph 8 of the form that calls for such information. Furthermore, there is no mention of any arrangements made or to be made for the return of the child whether alone or with Respondent in the affidavits filed by the Applicant.
E.7. It is also noteworthy that Counsel for Applicant seems to be unaware that Respondent is the mother of 2 minor children. She has a daughter from a previous relationship whose father resides in Mauritius. The defence of settlement raised by Respondent does not require her to explain why she should not return to France to litigate for the custody of the child. It is also irrelevant that she is still married to the father of the child and, as such, entitled to migrate to France.
It is therefore humbly submitted that Ground 7 has no merit whatsoever and cannot succeed.
F. Ground of Appeal 8:
The Learned Judge erred in law when he referred to the case of Permanent Secretary, Ministry of Gender Equality, Child Development and Family Welfare v/s Mrs T Motah as being in line with the approach of the House of Lords since no balancing exercise was carried out by the Learned Judge in relation to exercising the discretion to return the minor child under article 12 paragraph 2 of the Convention.
F.1. In the case of Motah, Respondent raised the defence of settlement and the Learned Judge refused to order the return of the child. The child had not seen the father for 3 years and the latter did not care whether the mother could come to or settle in the UK, the habitual residence of the child before she was removed to Mauritius. The Learned Judge found that the child “is doing very well in her studies and has “well-settled in her present environment”.
F.2. In Motah, the Learned Judge found it “striking” that “the father who could have come to Mauritius to see or visit the child, if he was really concerned about and cared for her welfare and well-being, chose not to do so.” She found his explanation that “he was prevented from being in touch with her to be “immaterial”.
F.3. In the present case, Counsel for Applicant keeps attempting to explain that the father totally ignored the child ever since his arrival in Mauritius because, allegedly, he was prevented to do so by an Ordonnance de Protection whilst conveniently forgetting that the said Ordonnance was delivered on 4 June 2015 and lapsed on 18 April 2017 (page 69). The said Ordonnance never prevented him to talk to the child over the phone or to respond to the numerous photos of the child that were transmitted to him. In Motah, the Learned Judge found that the father had become a “stranger” to the child. So did the Learned judge in the present matter.
F. 4. Reference was made in her judgment by the Leaned Judge in Motah to paragraph 51 of the unanimous decision of the House of Lords in the case of Re D that was quoted in full. The said paragraph discussed the difficulty of reconciling the objective of the Convention in some cases and the interests of a particular child in a given situation. The Learned Judge was fully aware that a balance had to found without jeopardising the interests of the child that are defined as “paramount” in the preamble of the Convention.
F.5. In light of the above is difficult to understand Applicant’s Counsel contention that the Learned Judge in the present matter “erred in law” when he referred to the case of Motah “as being line with the approach of the House of Lords”.
F.6. Ground 8 is based on the erroneous assumption that the Learned Judge did not carry out the balancing exercise when exercising his discretion not to order the return of the child. This issue has already been dealt with above and it has been argued and submitted that the Learned Judge did carry out the balancing exercise even though it remains to be definitively resolved whether it is in fact required under a proper interpretation of the second part of Article 12 to carry out an extensive balancing exercise.
G. Ground of Appeal 9.
The Learned Judge erred in law when he failed to give due consideration to all the reasons given by the Court in carrying out the balancing exercise in the case of Permanent Secretary, Ministry of Gender Equality, Child Development and Family Welfare v/s M L Coirault, where the Court declined to order the return of the children concerned under article 13(b) of the Convention.
G.1. The case of Coirault was decided under Article 13(b) and the Learned Judge, even though she found that the removal of the child was wrongful and in breach of the father ‘s custody rights, refused to order the return of the child because she held that the child would face an intolerable situation in France after having spent “more than three quarters of her life” in Mauritius where she was well settled. Just as he she did in Motah, she stated she was applying the approach taken by the House of Lords in the case of Re D mentioned above.
G.2. In the present matter, the Learned Judge referred to the case of Coirault and noted that it followed the approach taken by the House of Lords. Counsel for Applicant seems to complain that since no reference was made to Re M (FC) in Motah and Coirault, it was therefore an error in law for the Learned Judge in the present matter to refer to these 2 cases since the principles involved in the balancing exercise were allegedly not considered.
G.3. It is argued that these two cases are relevant inasmuch as they demonstrate that the Court would not order the return of the child if it is satisfied that the best interests of the child would be at risk in certain circumstances not withstanding the objectives of the Convention to ensure the “swift return” of the child.
It is humbly submitted that Ground 8 has no merit whatsoever and should therefore fail.
H. Grounds of Appeal 10.
The Learned Judge erred in law when he wrongly equated returning the child to France as returning the child to the father.
H.1. At no point in the judgment is there any indication that the Learned Judge was under the misapprehension that ordering the return of a child wrongfully removed from its habitual place of residence meant that returning the child to the parent who resides in the country of origin.
H.2. In the present case, ever since the application was made by the father for the return of the child, no arrangements had been made in respect of an eventual return of the child save and except that the child would be staying with the father. There has been no mention in the affidavits filed by Applicant whether Respondent, who has another minor child, would accompany the child in the event that the Court orders the return of the child.
H.3. Indeed, it is clear from the evidence adduced by the Applicant, that the father had made preparations for the child to live him and attend a school next to the father’s residence. Applicant has even informed the Court that his working hours are such that he would have no problem to look after the child personally.
H.4. No alternative arrangements involving the mother and her daughter have been contemplated by Applicant. It would be up to the mother to initiate proceedings for the custody of the child once she arrives in France. No decision has been taken by the Central Authority in France in respect of the address of the residence of the child in the event that an order for his return is issued.
H.5. It is not therefore a matter of the Learned Judge being ignorant of the provisions of the Convention that require the return to the country of the child’s habitual residence before the wrongful removal and not to one of the parents. In the present case, in the absence of any practical arrangements for the residence of the child, an eventual return of the child to France may well mean that the child would de facto be accommodated at his father’s place.
It is therefore submitted that the Learned Judge did not err in law and this ground of appeal has no merit and should therefore fail.
I. Ground of Appeal 11
The Learned Judge erred in law when he concluded that a change of set up may have a negative impact on the cognitive education and intellectual development of the minor child, in the absence of any evidence to that effect.
I.1. There was ample evidence before the Learned Judge that the child was well settled in his new environment ever since he was a 20 months toddler and that his overall development at pre-primary school has been progressing in an excellent manner in the context of living with his mother and his extended family. It is therefore reasonable to apprehend that sudden and dramatic changes to his environment may well impact negatively. It is impossible to have “evidence” about events that have not yet happened. It is certainly not illogical nor an error in law for the Learned judge to have such an apprehension.
Ground 11 has therefore no merit and should not succeed.
J. Ground of Appeal 12
The Learned Judge erred in law when he concluded, in relation to the minor child, that “it will be in his best interest that he is looked after by the respondent” as in so doing, the Learned Judge considered the merits of the custody rights over the minor in breach of article 16 of the Convention.
J.1. Counsel for Applicant mistakenly (and surprisingly) equates or confuses having custody rights over the child with looking after the child. When a child is looked after by a grandparent, the latter is automatically entitled to claim custody rights. Custody is a legal concept that confers rights and responsibilities. Looking after a child does not automatically entitle the carer to custody rights.
J.2. In the present case, the Applicant and the Respondent are still married and both are entitled to exercise their parental authority that remains intact till divorce and custody proceedings are initiated anew and concluded. The child has been living with his mother who has been taking care of him in the absence of his father who lives in France and who has not displayed any interest for his son’s welfare since his arrival in Mauritius under the belated and absurd pretext that a Court in France prevented him to do so.
J.3. The Convention imposes a duty upon the Learned Judge to protect the best interests of the child. In accordance with Article 12 he was satisfied that it has been demonstrated that the child had settled in his new environment and that it would be in his best interests that his mother should continue to look after him as she has been doing ever since his birth. The Learned Judge pronounced himself on what is best for the child and not whether Respondent was entitled to have the custody of the child.
It is submitted that Ground 12 has no merit and should therefore fail.
K. Ground of Appeal 13
The Learned Judge erred in law when he failed to indicate the “circumstances of the present case”, that he had relied on, in order to decline to make the order for the return of the minor child.
K.1. In the first part of his judgment the Learned Judge set out the policy objectives of the Convention and the principles that have emerged in respect of the interpretation of Articles relevant to the present matter. He surveyed the pertinent jurisprudence and, thereafter, he related the significant facts of the case as found in the affidavits filed with their annexures. He considered Applicant’s complaint in the light of the evidence adduced and found that the child had been wrongfully removed. He also considered Respondent’s allegation under Article 13 (b) and, after analysing the evidence, concluded it was insufficient to support the defence raised thereunder.
K.2. When considering the defence under the second paragraph of Article 12, he referred in detail to the unrebutted evidence adduced in respect of the child’s developmental progress since his arrival in a new environment.
K.3. “The circumstances of the present case” can hardly be understood to be an empty meaningless formula. These words refer obviously to the significant facts and events that have occurred and that are relevant in one way or another to the issues that have to be determined. “The circumstances of the case” cover above all most of what is found in the chronology attached to the skeleton arguments of Counsel for the Applicant.
K.4. One important circumstance is that the child is well settled in his new environment as indicated by the evidence on record. Security, stability and affection afforded to the child are also circumstances that are found in the present case. Another important circumstance is fact that the father has become a stranger to his child. There is a number of other circumstances that are mentioned and commented upon by the Learned Judge.
K.5. Whilst it is at times true that “peg – words” are used to conceal the absence of analysis, it is certainly also true that, in the present judgment, we can follow the reasoning of the Learned Judge and discern the ratio decidendi that explains his conclusions.
K.6. Hence, the criticism levelled against the Learned Judge is worse than hollow and should be discarded.
It is submitted that Ground 13 is devoid of any merit whatsoever and should therefore fail.
Jean Claude Bibi
Of Counsel to the Respondent.