J.M. -v- B.M. [2016] IEHC 458 (29 July 2016)

J.M. -v- B.M. [2016] IEHC 458 (29 July 2016)

The court found that the applicant had rights of custody and was exercising them at the time of removal, making the removal prima facie wrongful. However, the grave risk defence was established due to the child's serious medical condition and the lack of access to adequate medical treatment and basic necessities in Venezuela. The absence of undertakings from the applicant to mitigate these risks led the court to refuse the order for return.

Citation
[2016] IEHC 458
Parties
Applicant: J. M.; Respondent: B. M.
Jurisdiction
Ireland
Judgment Date
29 July 2016
Procedural Posture
Child Abduction Application Under Hague Convention / High Court Judgment on Application for Return of Child
Outcome
Application for return of child refused
Legal Topics
International Child Abduction, Hague Convention, Custody Rights, Habitual Residence, Grave Risk Defence
Family Law International Law International Child Abduction Hague Convention Custody Rights Habitual Residence Grave Risk Defence

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Parties

J. M.

Applicant

B. M.

Respondent

Procedural Posture

Child Abduction Application Under Hague Convention / High Court Judgment on Application for Return of Child

Legal Issues

  1. 1 Whether the removal and retention of the child was wrongful under Article 3 of the Hague Convention
  2. 2 Whether the applicant was exercising rights of custody at the time of removal
  3. 3 Whether the grave risk defence under Article 13(b) of the Hague Convention is established

Ratio Decidendi

The court found that the applicant had rights of custody and was exercising them at the time of removal, making the removal prima facie wrongful. However, the grave risk defence was established due to the child's serious medical condition and the lack of access to adequate medical treatment and basic necessities in Venezuela. The absence of undertakings from the applicant to mitigate these risks led the court to refuse the order for return.

Court Disposition

Application for return of child refused

Orders

  • Refusal to order return of the child to Venezuela