Nearly one year after it was passed by parliament, the government has agreed to make arrangements for the proclamation of the Children’s Act 2020 on 14 December 2021, together with the Children’s Court Act 2020 and the Child Sex Offender Register Act 2020. This triad of laws is intended to better give effect to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The aim is to bring down the number of reported child abuse cases in Mauritius, currently at a staggering 5,000 to 6,000 cases per year.

While the public and parliamentary debates were so far primarily centred on aspects such as the ages for criminal responsibility and marriage, other important provisions merit scrutiny. Notably, the new legislation is premised on the overarching principle of "the best interests of the child" and elevates the status of the child from a subject of the law to the recipient of rights, such as the right to privacy, the right of participation and the right not to be discriminated against. The Children’s Act 2020 criminalises child abuse by creating an array of offences in respect of children, including abandonment, corporal punishment, child pornography, child grooming and, notably, bullying, including online harassment.

The Children’s Act 2020 also provides for the complete abolition of child marriage and consequently the concept of "émancipation par mariage", thereby repealing existing provisions of the Mauritian Civil Code providing for exceptional circumstances in which children above the age of 16 were permitted to marry. It is now also illegal for children to live in "concubinage". Further, the age of criminal responsibility for children has been set to 14 years old, despite a lobby by certain members of parliament for this to be raised to 16 years old. The office of the Director of Public Prosecutions has also been given the prerogative to have a juvenile offender enrolled into a diversion programme rather than being prosecuted.

Certain welcome additions to the new laws include provisions regarding (i) the mandatory reporting of children who are suspected to be in danger by persons performing professional or official duties, (ii) the promotion of psychological assessments of children where there are serious behavioural concerns, and (iii) the possibility for fathers to be granted the custody of children under 5 years old. While there is no explicit reference to the principle of joint custody in the Children’s Act 2020, it does provide that more than one person may hold parental responsibilities and rights in respect of a child, including the right of custody of the child.

Another salient feature of these new acts is the creation of new institutions, the most important being the Children’s Court, which will consist of two divisions, namely the Protection Division and the Criminal Division, empowered to grant Care and Protection Orders and prosecute offences under the Children’s Act 2020. One may legitimately raise the issue of the added strain upon the existing staff of the Intermediate Court through the creation of the Children’s Court.

The Children’s Act 2020 also creates the Child Services Coordinating Panel. While discussions were held by the Ministry of Gender Equality and Family Welfare with its officers in October 2021, there has so far been no announcement on the composition of this panel, which "will act as a one-stop shop to facilitate the implementation of all decisions taken in respect of cases involving children on a fast track basis"¹. This has sparked a debate over the risk of overlap between its functions and those of the Ombudsperson for Children, such that one may reasonably foresee legislative amendments to the Ombudsperson for Children Act in the near future to contend with the role of the Panel.

The Act also provides for the setting up of a Child Mentoring Scheme for children between 8 and 16 years old and a Child Mentoring Committee for the administration of the Scheme, although one has not yet had sight of a code of ethics to regulate the Child Mentors, other than the one found in the now obsolete Child Protection Act 1994.

The Children’s Court Act 2020 also provides for the appointment of a Guardian Ad Litem, who would safeguard the rights of a child victim, offender or witness. Nonetheless, one is left in the dark in relation to the credentials of a Guardian Ad Litem.

Notable omissions from the Children’s Act 2020 include the Child Development Unit and the National Children’s Council, two pre-existing institutions which operate under the aegis of the Ministry of Gender Equality and Family Welfare and perform important functions in respect of the protection of children’s rights. The hope is that regulations will closely follow the proclamation, to ensure proper management of not only the existing institutions, but also the new institutions or newly-conferred powers on existing institutions, such as the police force. Given the police force’s increased responsibilities under the Children’s Act 2020 and the newly established Children’s Court, it is also important to ensure that appropriate training is provided to their members in furtherance of the objectives of the new legislation – an issue that has already been tabled during the parliamentary debates for the Children’s Act 2020.

Despite the relatively progressive nature of the new legislation, some important societal issues remain unaddressed, such as offences relating to drug use or supply by children. Additionally, the laws regarding the adoption of children also need to be aligned with the new legislative framework, as undertaken by the Minister for Gender Equality and Family Welfare during parliamentary debates. Further, as rightly identified by various NGO workers, the framework for the coaching or mentoring of children who leave places of safety upon turning 18 years old is virtually non-existent. These young adults are often left to fend for themselves in society, despite having spent all their childhood away from their family, resulting in them occasionally turning to a life of crime or poverty.

While the spirit of the new legislation heralds a more secure future for the youth in Mauritius, it remains to be seen how these new provisions will be applied and how the new institutions will perform in practice. In order to truly give effect to the best interests of children, one must avoid an overly technical application of the new legislative framework.

1. Hansard debate, 24 November 2020, page 128. ↩