Civil Law Aspects of the Mauritian Children's Bill of 2019

• Author: Goran Georgijevic
• Pages: 143-166

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

IN BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

CIVIL LAW ASPECTS OF THE MAURITIAN CHILDREN’S

BILL OF 2019 / Goran Georgijević

Goran Georgijević, PhD.;

Faculty of Law and Management,

University of Mauritius, FLM Building,

Réduit, Mauritius;

g.georgijevic@uom.ac.mu;

ORCID: 0000-0002-9734-1324

Abstract:

The Mauritian Children’s Bill of 2019 addresses many

issues pertaining to child protection, such as best interest of a child,

prohibition of discrimination of children, marriage of children, ill-

treatment of children, surrogacy and sale of children and child

prostitution. However, we may observe that the Bill regulates mainly

the criminal law aspects as well as the administrative measures

aiming at protecting children. The Bill does not contain the rules on

Civil law aspects of the issues addressed in the Bill. In this article,

we will analyse those Civil law aspects.

Submitted:

4 May 2020

Accepted:

28 June 2020

Published:

31 August 2020

Key words:

child protection; children's rights; the best interest of a

child principle; civil law; comparative view; Mauritian law; French law

Suggested citation:

Georgijević, G. (2020). Civil Law Aspects of the Mauritian Children´s

Bill of 2019. Bratislava Law Review, 4(1), 143-166.

https://doi.org/10.46282/blr.2020.4.1.178

1. INTRODUCTION

The Mauritian Children’s Bill of 2019

1

is intended, as per the Explanatory

Memorandum attached to the Bill, “to repeal the Child Protection Act and replace it with a

more appropriate, comprehensive and modern legislative framework so as to better protect

children and to give better effect to the United Nations Convention on the Rights of the

Child and the African Charter on the Rights and Welfare of the Child”.

2

The objectives of

the above mentioned Bill are numerous and various. Many of them pertain to criminal law

issues or to administrative measures for protection of children, but none of them

1

It has to be noted that according to Section 2 of the Bill, a child is defined as “a person under the age of 18”.

Section 2 is in conformity with Article 388 of the Mauritian Civil Code that defines a minor as “an individual of

each sex who is under the age of 18”.

2

According to paragraph 2 of the above mentioned Explanatory Memorandum, the Bill “makes provisions –

(a) for the better care, protection and assistance to children and their families;

(b) for the respect and the promotion of the rights and best interests of children;

(c) for the setting up of structures, services and means for promoting and monitoring the sound

physical, psychological, intellectual, emotional and social development of children;

(d) for children under the age of 12 not to be held criminally responsible for any act or omission;

(e) for child witness and child victims under the age of 14 to be, under certain conditions, competent

as witnesses without the need for them to take the oath or making solemn affirmation;

(f) for the setting up of a Children’s Court, which shall consist of a Civil Division, a Protection Division

and a Criminal Division; and

(g) for addressing the shortcomings in the Child Protection Act.”.

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G. GEORGIJEVIĆ

BRATISLAVA LAW REVIEW

Vol. 4 No 1 (2020)

concerns directly Mauritian Civil Law. In this article, we will attempt to analyse in detail

Civil law aspects of the Mauritian Children’s Bill of 2019 and its relationship with the Civil

law legislation.

The Mauritian legal system is very often described as the hybrid or the mixed one.

One part of it, more precisely the Public Law (Constitutional Law, Administrative Law,

etc.), is of Common Law inspiration. On the other hand, and for historical reasons,

Mauritian civil law has been influenced by French civil law (Agostini, 1992, p. 21; Angelo,

1970, p. 237; Bogdan, 1989, p. 28; Domingue, 2002, p. 62; Law Reform Commission, n.d.;

Valentine, 2012, p. 629; Venchard, 1982, p. 31). The French Civil Code, which came into

force in 1804, has influenced the Civil Code of the Republic of Mauritius. The original text

of the French Civil Code of 1804 was incorporated into the positive law of Mauritius. This

is due to the fact that at the early 19th century, Mauritius was a French colony, before the

English took possession of the Island. Article 8 of the Act of Surrender, signed in 1810,

provided that the People of the Island would maintain their religion, laws and customs. In

addition, the Treaty of Paris of 1814, which officially transfers the legal possession of

Mauritius to the Englishmen, does not have the effect of fundamentally overturning

French laws considered in certain respects as the personal legislation of the inhabitants

(Venchard, 1982, p. 31). Consequently, Mauritian civil law and, in particular, the Mauritian

Civil Code, was modelled on French civil law and the French Civil Code of the time.

Despite the great resemblance between Mauritian civil law and French civil law,

the former has managed to preserve an indisputable autonomy vis-à-vis the latter. In

Mauritius, the decisions of the French Court of Cassation are a persuasive and not a

binding authority on Civil law issues.

3

Thus, a Mauritian judge will quote and follow the

reasoning developed in a judgment of the French Court of Cassation only if the judge

considers it appropriate with respect to the context. On the other hand, no formal

obligation lies upon the Mauritian judge to follow the decisions of the Court of Cassation

relating the issue treated in the judgment. This rule has been, for instance, clearly

confirmed with regard to the issue of reparation for indirect damage suffered by an

unmarried partner in the event of the death of the other partner. The Supreme Court of

Mauritius refuses constantly the reparation for indirect damage, moral or material,

suffered by an unmarried partner in the event of the death of the other partner. This

position is clearly expressed in the Mauritian Supreme Court’s judgments Jugessur Mrs

Shati & ORS v. Bestel Joseph Christian Yann & Anor (26th April 2007)

4

and Naikoo v. Société

Héritiers Bhogun (Record number 14 949).

5

Three main arguments are given in order to

justify the above mentioned refusal, i.e. the immorality of the union of unmarried partners,

the absence of legal link between unmarried partners as well as the existence of some

kind of “legal fault” which consists in living together without being married. On the other

hand, since 1970 the French Court of Cassation has been acknowledging the reparation

for indirect damage suffered by an unmarried partner in the event of the death of the

other partner. According to the French Court of Cassation, the union between two

unmarried persons is not illegal and the lack of legal link between unmarried partners

3

In the judgement of the Supreme Court of Mauritius Lingel-Roy M. J. E. M. and ORS v. The State of Mauritius

and Anor 2017 SCJ 411 we can read: “It is appropriate to recall the practice that when it comes to the

interpretation of a law borrowed from French law we stand guided for its interpretation by French doctrine and

case law. One can quote in that respect the following passage from L’Etendry v The Queen [1953 MR 15]: “the

normal rule of construction laid down time and again by this court (…) is to the effect that w hen our law is

borrowed from French law we should resort for guidance as to its interpretation to French doctrine and case

law.” But, it has to be pointed out that the practice of relying on French authorities has always been for guidance

and not in application of the stare decisis principle.”(highlighted by author)

4

2007 SCJ 106.

5

1972 MR 66 1972.