The High Court has refused a father’s application to return his daughter to Venezuela under the Hague Convention on child abduction, finding that her medical needs and possible difficulty accessing basic necessities posed a grave risk.
In a judgment delivered on 29 July 2016, Ms Justice Bronagh O’Hanlon held that the child, identified as S., should not be expected to tolerate a situation where she might be unable to obtain appropriate medical treatment or have limited access to food. The court noted that the applicant had given no adequate undertakings to reassure it that the risk would be reduced.
The father applied for the child’s return under Article 12 of the Convention. The mother brought S. to Ireland in November 2013. Both parties accepted that the child had been habitually resident in Venezuela and that her father had custody rights under Venezuelan law. They disagreed over whether he had been exercising those rights before the child’s removal.
The father said he had been involved in the child’s early care and had sought access through Venezuelan authorities and courts. The mother said he had provided little practical support and had limited contact with the child. The court found that, although contact had been limited, it was enough to amount to the exercise of custody rights, taking account of his contact with S. and applications for access. It concluded that a prima facie case for wrongful removal had been made out.
The mother argued that returning S. would expose her to a grave risk of harm or an intolerable situation. She said the child had Von Willebrand Disease and was receiving treatment in Ireland that would not be available in Venezuela. At the hearing on 18 July 2016, evidence was heard about the conditions the child might face. The judge said the uncontroverted evidence was that people had to queue for food for six hours and that many travelled abroad to buy it. The evidence also showed it would be difficult for the child to access appropriate treatment.
The court said the child abduction proceedings had to be decided regardless of the status of the mother’s asylum appeal, and that the judgment was not intended to influence that appeal. The judgment records the child’s preference for living in Ireland, while noting she would not strongly object to living wherever her mother was.
The court refused to make an order returning S. to Venezuela. It did not decide the asylum appeal or make findings on the child’s longer-term custody arrangements.