MD v BL (MA 315/206 arising in CA 26/2016) [2016] SCSC 1062 (27 December 2016);

 

Govinden J

[1]               This is an Application for Stay of Execution of the Ruling of the Family Tribunal in Case No. 141/2016 of the 19th day of October 2016 (hereinafter referred to as the “Tribunal’s Ruling”), pending the determination of an Appeal filed by Ms. M. D. (hereinafter referred to as the “Applicant”), before the Supreme Court in CA 26 of 2016 (hereinafter referred to as the “Appeal”), of which Appeal has been fixed for filing of written submissions (in view of its nature and urgency), on the 27th day of December 2016 namely, the date of this very Ruling, upon request of the Respondent’s Counsel on the 19th day of December 2016.

[2]               The Respondent is resisting the Application for stay.

[3]      This Application originates from the Tribunal’s Ruling wherein the Applicant under Section 78 (1) (a) of the Children Act, 1982 (as amended) and (hereinafter referred to as the “Act”) prayed the Family Tribunal, to exercise its statutory Jurisdiction to hear and determine an application for custody filed by the Applicant with regards to her twin minors namely, M.L.D. and R. L. D. (hereinafter referred to as the “minors”).

[4]      In brief and for the sole purpose of this Ruling, by way of submissions, the then Counsel for the Applicant Learned Counsel Mr. F. Bonte submitted on the former’s behalf in support of the application before the Family Tribunal in a gist, that, the Appellant and the minors are Seychellois and they are subject to the Jurisdiction of the Family Tribunal in line with the provisions of Section 78 of the Act (supra); that the Applicant went to France for study purposes and is domiciled in Seychelles and she has previously worked in the Ministry of Foreign Affairs; that the Applicant came back to Seychelles after her studies and at least at that point she had custody of the minors; that ‘by virtue of the Judgment dated the 15th day of January 2016 of the Tribunal de Grande Instance de Nanterre’ (which copy of Judgment was attached to the application) and (which contents remain uncontested), the Applicant was allowed to leave the Jurisdiction with the minors and that the Family Tribunal has all the power to hear and determine the custody application of the Applicant vis-à-vis the minors as filed. It was further submitted that the provisions of the Hague Convention was only applicable when there is a custody Order and that in the latter respect, the Hague Convention is irrelevant.

[5]      Ms. A. Benoiton Learned Counsel for the Respondent submitted on her part in raising a preliminary objection to the application before the Family Tribunal in a gist, that, the Family Tribunal did not have the Jurisdiction to hear and determine the said application as the minors were habitual residents of France and therefore subject to the Jurisdiction of the French Courts. It was further submitted in support of the point of law as raised, that the Applicant had breached the Hague Convention on the Civil Aspect of International Child Abduction (hereinafter referred to as the “Hague Convention”) by removing the minors from France where they had been residing since birth.

[6]      I further note at this stage of the proceedings, that the Family Tribunal invited both Learned Counsels to file submissions in support of the above-mentioned arguments and attached thereto were copies of the above-mentioned ‘Judgment of the Tribunal de Grande Instance de Nanterre’ and relevant provisions of Article 3 as read with Articles 2, 4, 5, 13, 20 and more particularly 35 of the Hague Convention .

(Emphasis mine).

[7]      On the 19th day of December 2016, the Tribunal’s Ruling 'the gist of the Ruling’, (which is subject to the Appeal as above-referred), was to the effect that:

“Custody jurisdiction law essentially makes sure that a person cannot move children to another state in order to get favourable custody order in the new state’s court or tribunal or to evade an existing or access order in place”.

[8]      The Family Tribunal made reference to its own Judgment in the matter of (Gonthier and Carbognin Case No. 322 of 2011) wherein it was quoted that:

“In that case it was held that where there is already a custody or access order in place and one wants the order to be varied, that person needs to go to court of the state that originally issued or granted the order unless neither parent resides in that state anymore.”

          (Emphasis is mine).

[9]      Reliance on the Judgment of the Supreme Court in the case of (Pragassen v/s Pragassen Civil Appeal No. 20 of 2015) (hereinafter referred to as the “Supreme Court Judgment”), was also relied upon by the Family Tribunal and I note that this is also the case for the Respondent contesting this Application for stay of execution.

[10]    The Family Tribunal further ruled in favour of the argument of the Respondent that the Hague Convention had been breached namely its Articles 3 and 5 thereof relying on the Supreme Court Judgment (supra) with regards to the “legality and enforceability” of the Hague Convention in Seychelles by virtue of “Seychelles being a contracting State to the Hague Convention”’, thus dismissing the application for custody before the Family Tribunal for want of Jurisdiction and ordering the return of the minors to France on the basis of the latter State “being their country of residence”.

          (Emphasis is mine).

[11]    Before this Court, in support of this Application, I have seriously considered the contents of the Affidavit evidence of the Applicant of the 20th day of October 2016 which in effect repeats both factual and legal arguments in a summary form as raised before the Family Tribunal and I note more particularly the averments at paragraph 9 thereof to the effect that, “I want the Judgment of the Family Tribunal to be stayed because if it is executed before the disposal of the appeal it would render the appeal a nugatory” and at paragraph 12 thereof, “that as mother of the two above-mentioned children, I would suffer a great injustice and lose my two children if the Judgment is executed before the disposal of the appeal as they will be returned to France”.

          (Emphasis is mine)

[12]    I further seriously consider the averments of the Affidavit evidence of the Respondent of the 6th day of December 2016, more particularly at its paragraphs 3, 4, 5, 6 and 7 and do consider same in line with the Judgment of the “Tribunal de Grande Instance de Nanterre’ more particularly “Sur la demande relative a l’interdiction de sortie du territoire francais” and I quote “En l’espece, les parents s’accordent pour demander la main levée de l’interdiction de sortie du territoire des enfants. Il convient des lors d’ordonner cette main levée” and further with regards to, “La résidence des enfants: En l’espece, conformément a l’accord des parties, a la situation actuelle des enfants et en considération de leur intérêt, la résidence habituelle de Melodie et Raphael est fixée au domicile de la mère”.

          (Emphasis is mine)

[13]    I further note with respect, the ratio decidendi of the Supreme Court Judgment on the issue of “legality and enforceability” of the provisions of the Hague Convention in Seychelles by virtue of its accession thereto and the reliance of the Family  Tribunal and the Respondent made on the said Judgment for the purpose of this application and would reserve this Court’s decision on the former issues at the stage of the Judgment on the merits of the Appeal proper which is ‘pendente lite’ and ‘premature to pronounce upon at this stage.’

[14]    I reiterate as at [paragraph 13] above, at this stage of the proceedings to consider a stay application, it would be ‘too premature’ if the Court was to venture to analyse the grounds of Appeal as per the Memorandum of Appeal as filed and or give a prelude of the outcome of the Appeal and or analyse evidence before the Family Tribunal, for this is the subject matter of an Appeal which is pending before this same Court and hence suffice to say at this stage that the relevant considerations in such an application for stay of proceedings as stated in the case of (Becker v/s Earl’s Court (1911) 56) is that,“ the question whether or not to grant a stay is entirely in the discretion of the Court.” and which relevant consideration has been amply considered in our local case laws of inter alia, vide: (Macdonald Pool v/s Despilly William CS. No. 244 of 1993), (La Serenissima Limited v Francesco Boldrini & Ors. (Cs. No. 471 of 1999), (Falcons Enterprise v/s David Essack & Ors. C.S. No. 139 of 2000).

[15]    Thus, bearing in mind the well settled guidelines in the above-cited local and Foreign Authorities on the subject matter, I hold that it is incumbent on the Applicant to disclose in its Affidavit the grounds relied upon in support of the application for stay of execution and objections of the Respondents in the same light. The said requirement finds emphasis in the case of (Akins v. G.W. Ry (1886) 2 T. LR 400), where the Court held thus: “As a general rule the only ground for stay of execution is an affidavit showing that if the damages and costs were paid there is no reasonable possibility of getting them back in the appeal succeeds.”Albeit the facts being different in this matter, the principle remains the same.

[16]    The Courts in England, have also accepted that, “the court will not grant a stay unless there are good reasons for doing so”.

[17]    I further stand guided by the decision in the of the Sri Lankan case of (Sokkalal Ram Sait v/s Kumaravel Nadar and Others (13 C.L. W 52)), that “the usual course is to stay proceedings … only when the proceedings would cause irreparable injury to the appellant and that mere inconveniences and annoyance is not enough to induce the Court to take away from the successful party the benefit of its decree.”

[18]    It is thus my humble opinion that in Seychelles and in other cited Jurisdictions, ‘irreparable loss and where special circumstances of the case so require should be paramount considerations to be taken into account by the Court in such applications for stay let alone chances of success on appeal or otherwise.’

[19]    Now, having set out the position of the law in regards to same and similar applications, I find that the impugned Tribunal’s Ruling specifically as to “lack of Jurisdiction” ought to be seriously considered in line with the provisions of Article 25 (1) and (2) of the Constitution with regards to the ‘freedom of movement’ of Seychellois citizens as read with the ‘socio-economic right to protection of families by virtue of Article 32 of the Constitution within the strict interpretation of the provisions of Articles 48 “Consistency with international obligations of Seychelles” and Article 64 of the Constitution with reference to “Execution of Treaties” with strict adherence to the principles of Monism and Dualism in International law and same in line with the Rulings of the Supreme Court in the matter of a letter Rogatory Issue by United States District Court, Eastern District of New York Civil Side No. 96 of 2003 with respect to “enforceability of international treaties and conventions with reliance on (Dicey and Morris on “Conflict of Laws” (11th Edition) at page 8) and also the very crucial determination of the very ‘controversial issue of Residence’ as raised by both parties on Appeal and same to be considered again in terms of the definition in the above-mentioned Authority on the subject in line with the provisions of Articles 102 (1) and (2) of our very own Civil Code. Latter on the basis of the Judgment in the case of (Air Seychelles Limited Rep. by Mrs M. Perreau versus Richard Grice Civil Side No. 254 of 1993.)

          (Emphasis is mine)

[20]    Now, having carefully noted the averments in the Affidavit of both the Applicant and Respondent as highlighted above [paragraphs 11 and 12] above, with special emphasis on the principles as laid down in the Authorities as cited with respect to enforceability of the Hague Convention by virtue of Article 35 thereof and also the “legal obligation of State parties” as enshrined in Article 13 of the Hague Convention as read with Article 48 of the Constitution and the strong likelihood of the Appeal being rendered a nugatory should this Application be refused noting more particularly the age of the minors and their physical and or psychological wellbeing, and again I reiterate (without prejudice and or prejudging the main issues on appeal more particularly the Tribunal’s Ruling), (let alone the chances of success on appeal or otherwise), this Court finds weighing the balance of prejudice and the special circumstances of this case,that the stay of execution of the Ruling of the Family Tribunal should be granted in view of the specific circumstances of this case and interests of the children and to avoid irreparable prejudice being caused to their physical and psychological well-being.

[21]    I further take notice that the Applicant in this Jurisdiction has a Constitutional protection to the right to her family. This protection to form a family is extended even to the Respondent. As a result of these considerations and questions on the rights of each parties that also impact the best interest of the minors before me, I am obviously conscious at this stage that such right cannot be prejudiced without this Court being afforded an opportunity to look into the merits of the Appeal before this very Court.

[22]    Hence, it follows, in the interests of justice and for reasons as enunciated above, this Application succeeds and the Court hereby rules that the Family Tribunal’s Ruling of the 19th day of October 2016 of Case No. 141 of 2016, is hereby stayed, pending the final determination of the Appeal against it in CA 26 of 2016 before the Supreme Court. It follows that the status quo prior to the Tribunal’s Ruling vis-à-vis the minors remains unchanged.

[23]    All the above said, the present Application is hereby allowed accordingly and the Department of Social Services, the Police and Immigration Authority are to be informed accordingly. A copy of this Ruling is to be served on all the afore-mentioned Authorities with immediate effect.

 

 

Signed, dated and delivered at Ile du Port on 27th day of December, 2016.

 

 

S. Govinden 

Judge of the Supreme Court