Dear Chief Justice,
Accept our hearty congratulations for your appointment as chief justice of Mauritius. It is a historical moment for our country concerning gender representation as the first woman shouldering this onerous responsibility since the existence of our judiciary. This is no doubt an encouragement and an example for women of our country. Your accession to the highest responsibility in this field will always be an inspiration to all.
We further congratulate you for your eagerness to bring more reform concerning training of Magistrates and Judges, which has in turn motivated us to forward you this letter.
We tender our sincere apologies to you for such a long letter. This is due to the severity and complexity of problems encountered in court and impacting the life of many people. We do criticize some situations and some persons but we neither hold grudge against anybody nor any institution.
PURPOSE OF LETTER
First and foremost, our primary objective is for the best interest and welfare of the children living in a broken family. Also, access to justice is inaccessible to many of our countrymen due to heavy financial costs.
OBJECTIVES OF LETTER
The objectives of this letter are to draw your attention on various shortcomings actually happening in the family court, this is based on testimonials to our association by people who are fighting mainly cases of access to their children (in our opinion we humbly prefer the appellation “to find a solution” which would be more appropriate instead of “fighting”)
FILL-IN-THE-BLANK POLICY FOR SUBMITTING JUDGEMENTS
It is sad to say that when applying for custody and rights of visits, etc, we notice that several applicants are being submitted to a fill-in-the-blank policy concerning delivery of judgements. There are predefined templates that are being applied by court just to quickly get rid of excessive numbers of petitioners, thus saving time in processing cases to the detriment of the best interests of the child. (What is the use of going to court if predefined decisions have already been taken ? )
NO REPRESENTATIVE FOR CHILDREN IN COURT
In the event of a divorce, there are legal counsels for both parents whereas children who are the most concerned and most vulnerable are not being represented by anyone, defeating the purpose of ensuring their best interest. Although it is the judge who has been entrusted in this role, the impression that we have is that this is not generally the case.
OBSERVATION ON PSYCHOLOGISTS
It’s a fact that judges rely heavily on reports submitted by professionals such as psychologists, probation and CDU officers. We assume that their reports should reflect the truth so as to help the court take appropriate decisions for the welfare of the children.
It has been reported to us by several fathers that some psychologists are acting like ‘mediums/oracles’ rather than real professionals, where they would qualify fathers as being at fault in their reports without having met with them.
It is obvious that the reports are being laid down in such a way to please their paying clients.
Often when those “psychological reports” are challenged for their integrity, they are found to be irrelevant/untrue and done in an amateur way. There was no meeting with the father and at times there were only one or two sessions with the children etc… It is sad to see that those said professional psychologists would again and again act unprofessionally yet be allowed without impunity to continue to exercise their duty and their reports are still being receivable and considered in court.
In light of above, is the court privileging business at the cost of professionalism? There is also unfortunately no regulating body/council where aggrieved parties can report those practitioners.
PORTRAYAL OF DIVORCED & SEPARATED FATHERS AS SEX OFFENDERS
It has been observed that there is a modus operandi adopted by some attorneys who draft their submitted cases to court (copy-paste-change applicant/respondent name), in which they would go to extremes depicting all fathers as very bad and irresponsible persons. Counsels should be reminded that it is their duty to fight for truth and the wellbeing of the children and not at their detriment. Is the court encouraging such malpractice or would the court not take any sanction to discourage such unprofessional and unhealthy practice ?
There is now a new trend where mothers now even go to the extent of accusing fathers of sexually molesting their own children, only to satisfy their urge of alienation and cause harm, just to consolidate their arguments to have sole custody.
Frivolous cases are often being filled against fathers as sex offenders against their own siblings. In the meantime, fathers are denied access to the child until a case is heard which might take years. It is observed that this is a common practice and there is no strong signal nor sanctions from the court to restrain such false allegations. Is it customary that false affidavits are habitual, acceptable or even not discouraged by the court ?
Adding insults to injury, frivolous appeals are being lodged against recent good judgment only to machiavelously deprive the father from his child. This is a new trend adopted by irresponsible mothers and not discouraged by counsels.
For example, from recent press reports, it is noted that, since 2013, a desperate father has been battling in court with numerous cases to have access to his daughter with no clear judgment and no success from court and since last July, the child is no longer a minor.
MOTHERS WHO ALWAYS WIN CASES FOR CHILDREN CUSTODY AND OTHERS
It's an overwhelming fact that whatever arguments put forward in custody and taking children abroad, it's always the mothers who win their cases (as per recent and previous judgements). We are unable to classify these ‘controversial rulings’, is it a poor judgment or discrimination?
This gendered construct of the mother as a primary caregiver goes against the Convention of the right of the child and also that of the CEDAW, which both recommend shared parental responsibilities is in the best interest of the child.
We learnt through the media that the custody of a dog took precious time and resources of the family court and on top of that, the decision was wrong. We feel very saddened and concerned when we have so many cases concerning the welfare of children pending before the court. What about proper decisions for the welfare of our children ?
FAKE DOMESTIC VIOLENCE
Fake domestic violence cases are being filed to prevent access of fathers to their children. This is often being used as a subterfuge to support their divorce petition. Again, we should point out that the court is not taking sanction to discourage such false allegations.
Parental alienation is a common abuse although which has been mentioned by recent reports of the Ombudsperson for Children, it is unfortunately that it was not taken into consideration by the new Children’s Act and even the court is insensitive to such abuse. For reference, see the OCO report 2019/2020 Section 3.5.3 on lawmaking on parental alienation.
LONG DELAYS IN PROCESSING CASES AND DELIVERING JUDGMENTS
Judges are overwhelmed by the number of cases and therefore cannot dedicate enough time on the specific needs of the children, as a result of which incomplete judgments are delivered as what has been decided by counsels are most of the time unchallenged. Only parents who are financially capable will be able to apply for variation orders as the initial judgment was incomplete and most of the time being flouted. This leads to waste of time, additional costs and again adds to the backlog.
When cases are lodged, the court hearings are fixed after a very long period of time, this is highly detrimental for the wellbeing of the children (this process is so lengthy depriving the child access to one parent, mostly fathers) consequently they tend to blame their fathers who are absent as per their understanding and very often influenced by unscrupulous mothers.
There are often exchanges of affidavits which leads to additional delays before the hearing of the main case (proforma, merits, mention).
A prolonged separation from our dear and loved ones is irreversibly a slow death in our relationship.
POST-PANDEMIC BACKLOGS WORSENING SITUATIONS FOR FATHERS
The recent pandemic has brought to light that any unforeseen event causes disruption in the normal functioning of court where hearings are postponed by months. Again, the children are left helpless, such as during the 1st COVID lock down, a request was made to relevant authorities for child access, but it is regrettable that it was not given due consideration nor was there any mention in the new children's act.
There is only one family court with only 2 judges for all cases working only on weekdays for current cases. Has there been any initiative to shorten the backlog that has been accumulated during the covid lockdown? Likewise, during normal time, cases are also being postponed due to trivial reasons such as absence of counsel and uncooperative respondent who at times play hide and seek with the usher.
COSTLY INVESTMENTS IN COURT WITH NO FINAL POSITIVE COURT DECISION
Most divorce cases are by proof of faute, this is a lengthy and costly process (implying preparing and submitting bulky documents) at the expense of both parties whereas in the end judges recommend an agreement which is gladly accepted by counsel and subtly imposed upon client, sometimes without his clear understanding and future implications that may arise. To our perception this is a legal scam whereby the client has paid the counsels to fight the case, whereas this could have been a simple ‘divorce a l’amiable case’.
Very often, in certain situations the court rightly orders supervised visits which to our perception are not being carried out under optimal conditions because there is no dedicated friendly environment to abide by such orders and also that at times designated officers are sometimes reluctant to facilitate such crucial long-awaited meetings.
With your wisdom and permission, we humbly are putting forward some proposals that you may take into consideration. We would like to bring to your attention that in September 2012 we proposed that in the family court a male judge along with a female judge should be nominated . This has been successfully implemented by the then chief justice.
Specialized judges in family matters
Judges should be trained specifically for family matters and hold office until other specialized judges are ready to take office.(We believe that family cases are delicate and should be treated differently with due care and attention contrary to how criminal cases are handled)
Night Court Implementation
Innovation like night court could be implemented so as to allow parties who wish to reach a speedy agreement and help reduce the long waiting list
Track Record for professionals in court
Suggesting that the court keeps a track record of ’professionals’, especially those who have often been criticized should be banned and those who do respect the decorum and professionalism should have a special accreditation to prepare reports and to depone in court.
Mediation and Arbitration
Before applying for any divorce case, there should be a new arbitration and mediation ‘instance’ where agreements can be discussed before any formal legal proceeding is being initiated. This ‘Instance’ should provide in a very simple, transparent and unequivocal manner recommendations for the benefit of all parties and primarily that of the minor child. Without any doubt such a body if put in place will also reduce the costs incurred by all parties concerned (The government and the petitioners).
Smooth divorce settlement
Like an educated and civilized nation, the concept of sitting around a table and discussing, would be a wise decision to reduce tension and antagonism between couples and that for the betterment of our children. Divorce petitioners should not have the feeling of being considered as an accused party.
Referring to Children's Court
In new and existing cases where children are estranged from mainly fathers, those cases could be referred to the new children's court. Such a fast-tracking initiative will considerably reduce the costs incurred by the state. There will be no need for bonding sessions, psychological counseling, social inquiry and evaluation. ( According to government statistics, domestic violence costs around MUR 2 billion to the state)
Referring to New Children’s Court Act Section, Best interests' principles - (4)(2)(n), does this provision precede over section 242 and 261 of the Code Civil Mauricien concerning custody of children or shall we carry on with the same stereotype where a majority of mothers are always the winners?
Basic order to fathers pending hearing
In the event when a case is being filed before the court, there should be by default a basic order for the fathers to have access to his children at the earliest, pending the court hearing.
Delayed justice brings injustice to our innocent children who are ignorant of legal issues and thus jeopardizes their futures.
We thank you for your precious time and consideration and we look forward to a meeting for further queries.
President - SOS PAPA