GN & Anor v ML & Anor (XP 115/2019) [2020] SCSC 458 (26 February 2020)

SUPREME COURT OF SEYCHELLES Reportable [2020] sese XPl15/2D19 I ~ 9 J 1st Applicant 2nd Applicant In the exparte matter of: 1. G 2. M N N (Both Absent/represent by Mrs Alexia Amesbury) In the matter of: 1. M and L 2. ATTORNEY GENERAL (IN ITS CAPACITY AS MINISTERE PUBLIQUE) Neutral Citation: Before: Summary: Heard: Delivered: B. Adeline, Master Appointed for adoption 161hJanuary 2020, and 30lh January 2020 27 February 2020 RULING Joint application by a married couple jointly adopt a child named adopted is not residing in S therefore, this Court is barred from making the adoption order being sought for because of the lack of jurisdiction. The application is therefore dismissed. The child to be e Children Act, and o RULING B. ADELINE, MASTER [1] TIllS is a ruling on a point of law arising in the course of the proceedings pertaining to a joint application for an adoption order in favour of one and jointly, both of Bresco, Milano Italy. [2] By their joint application, the married couple sought to adopt the child of the latter named [3] After a few protracted mentions of the case to await for the Social Services Enquiry Report in accordance with Section 42 (1) read with 42 (2) of the Children Act, in the proceedings of the 11th January 2020, the representative of the Director of Social Services, one Mrs 1. Mousbe reported, vivavoce, that the Director of Social Services cannot produce the Social Services Enquiry Report as mandated under the provisions of the Children Act, because the prospective adopters and the child to be adopted are residing in a foreign country, Italy. [4] At that point, the Court alerted itself of section 34(2) of the Children Act that reads; "An adoption order shall not be made unless the child is residing in Seychelles". [5] Both, the representative of the Director of Social Services, and the representative of the Attorney General in its capacity as Ministere Publique, submitted and concurred, that it would be as waste of time and resources, albeit through great difficulties, to spend time and effort to prepare and have the Social Services Enquiry Report available, only for the Court not to grant the order on a point of law because the child to be adopted is not residing in Seychelles, having been in Italy for the past two years now. [6] In her answer, made vivavoce, learned counsel for the Applicants, Mrs A. Amesbury, made two contentious points, namely; I. The Court can exercise its discretion to do justice to the case when justice requires, and 11. Because we are a party to the international convention of the rights of the child, such statutory provision should be interpreted as required by Article 48 under Part V of the constitution. [7] This constitutional provision in this country's constitution, applies to the interpretation of Chapter III of Part 1- IV of the constitution. [8] It is worth noted, that international treaties and conventions, if not domesticated and made part of our domestic law, do not form part of OUI law. Although, as and when it becomes necessary, we have to give judicial notice of them in recognition of our international obligations, those international treaties and conventions do not override any statutory provision in our statute books. [9] For those reasons, therefore, this point of law which has become a matter of concern in this adoption proceedings has to be upheld, in that, given that the child to be adopted is not residing in Seychelles, this Court is barred from making the adoption order being sought for because of the lack of jurisdiction. [10] In the circumstances, and for the reasons stated at paragraph [9] above, this joint adoption application is therefore dismissed. Signed, dated and delivered at Ile du Port on 27 February 2020 aster