J.M. v B.M.

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 458
• Court: High Court
• Docket Number: Record No: [2015/18HLC]
• Date: 29 July 2016

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

AND

IN THE MATTER OF S. (A MINOR)

BETWEEN:

J.M.

APPLICANT

AND

B.M.

RESPONDENT

[2016] IEHC 458

Record No: [2015/18HLC]

THE HIGH COURT

Asylum, Immigration & Nationality – Art. 12 of the Hague Convention on the Civil Aspects of the International Child Abduction 1980 – Wrongful removal – Order of return – Breach of right to custody and access – Grave risk – Medical condition of the child – Intolerable situation

Facts: Following the removal of the child from the jurisdiction of the Bolivian Republic of Venezuela by the respondent/mother, the applicant had filed an application seeking order for the return of the child to the said jurisdiction in accordance with art. 12 of the Hague Convention. The applicant contended that the removal of the child was wrongful as the said child was habitually a resident in the Bolivian Republic of Venezuela and that the applicant was exercising his custody rights over the said child at the time of removal. The respondent accepted that the child was a habitual resident of the Bolivian Republic of Venezuela and that the applicant had the right of access and custody of the child, but argued that the child was exposed to grave risk in the light of situation that was prevalent in Venezuela.

Ms. Justice Bronagh O'Hanlon refused to make an order for the return of the child to the jurisdiction of the Bolivian Republic of Venezuela. The Court held that there was sufficient evidence of grave risk to refuse an order for the return of the child. The Court held that a case for wrongful removal was made out as both the parties accepted that the child was a habitual resident of the Bolivian Republic of Venezuela. The Court held that the applicant had the right of custody in relation to the child as the father, although the contact was limited. The Court, however, held that an order for the return of the child could not be made taking into consideration the situation that prevailed in the place of habitual residence of the child and the medical condition of the child. The Court held that the child, who suffered from serious medical condition, would face intolerable situation on her return as the access of medical treatment and food were in deplorable condition in the Bolivian Republic of Venezuela. The Court held that the applicant failed to reassure the Court that the risk posed to the child in terms of insufficiency of food and other amenities would be mitigated, which would cause the Court to exercise its discretion under art. 13 of the Hague Convention to refuse the return of the child.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 29th day of July, 2016.

1 This case concerns an application for the return of a child, S., born on 5th February, 2009 to the jurisdiction of the Bolivian Republic of Venezuela pursuant to Article 12 of the Hague Convention on the Civil Aspects of Child Abduction 1980. The application is set out in the special summons issued 22nd July, 2015.

2 The applicant father and respondent mother are not married to one another, nor have they ever been. The child, S., was born in the Bolivian Republic of Venezuela. The applicant and respondent resided together after the child's birth, however, they separated when she was three months old. The parties were unable to agree an access schedule and the applicant brought an application to the appropriate authority in the Bolivian Republic of Venezuela on 28th January, 2011 to regularise his visitation rights, however, no order was finalised nor was any agreement reached in relation to access.

3 On 31st July, 2015, this Court ordered that Dr. Anne Byrne-Lynch, Clinical Psychologist, do interview and assess the child the subject matter of these proceedings pursuant to Article 13 of the Hague Convention. Dr. Byrne-Lynch supplied this Court with a report dated 30th September, 2015. The child was six years old at the time of the assessment and is reported as being bright and articulate. Dr. Byrne-Lynch reported that the child has a clear preference for living in Ireland but would not have a strong objection to living wherever her mother was. The child appeared not to have any knowledge of the applicant.

4 It is the case of the applicant that the respondent removed the child from the jurisdiction of the Bolivian Republic of Venezuela on or about 1st November, 2013 without his consent. The applicant's case is that he had rights of custody under the law of the Bolivian Republic of Venezuela and that he was exercising those rights of custody. He stated that he was fully involved in the care of the child in her early days. He admits he has not had access with the child since January, 2011 as a consequence of the respondent avoiding and obstructing him. It is further averred that the child's place of habitual residence is and has always been the Bolivian Republic of Venezuela. The applicant stated that he sought the assistance of the authorities as soon as was possible when he discovered that the respondent was in Ireland with the child. He further stated that he believes there were delays caused within the administration office for the purposes of forwarding his application.

5 The respondent avers in her affidavit dated 3rd September, 2015 that the child the subject matter of these proceedings is habitually resident in Ireland. She sought asylum in Ireland in March, 2014 on the grounds of being afraid for her life. She further avers that there is civil disobedience and armed confrontations in Venezuela and that it is difficult to get food. On 19th September, 2014 her application for asylum was refused by the Officer of the Refugee Applications Commissioner. She has appealed and is awaiting a hearing before the Refugee Appeals Tribunal. She currently resides with her child in a direct provision centre. The respondent avers that the applicant provided virtually no practical support in relation to the child and he had very limited contact with the child.

6 The respondent further avers that the child was diagnosed with a condition that the respondent herself has, called Von Willebrand Disease and she is receiving treatment here but that such treatment would not be available to her in Venezuela. The respondent stated that the child was enrolled in school in Ireland on 6th May, 2014.

Summary of legal submissions on behalf of the applicant

7 Counsel for the applicant set out that the child is habitually resident in the Bolivian Republic of Venezuela and that the wrongful removal of the child occurred on or about 4th November, 2013. It was also stated that the retention of the child in Ireland since 4th November, 2013 was wrongful as it was in breach of the applicant's rights of access and custody. It was asserted that the applicant has automatic rights of custody and access by virtue of being a parent of the child....