HC/E/PA 1581
PANAMA
Juzgado Segundo de Niñez y Adolescencia del Primer Circuito Judicial de Panamá
First Instance
Delia Cedeño Palacios
VENEZUELA
PANAMA
10 September 2014
Upheld on appeal
Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters
Return ordered
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Wrongful retention of a 7-year-old boy - Venezuelan – unmarried parents – Venezuelan father - Venezuelan mother – The rights of custody were jointly exercised – The child lived in Venezuela until November 2012 – The return request was filed before the Panamenian courts in November 2014 – Return ordered – Main Issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was in Venezuela – Removal was wrongful because the travel authorisation used by the mother was false – It was not proved that the father abused the child; the refugee status request was not an impediment against return – Measures were adopted for the child’s safe return to his habitual residence.
The case concerns a 7-year-old boy, born in July 2008 in the Bolivarian Republic of Venezuela. His parents, both Venezuelan, were not married. They split soon after the child’s birth and agreed that they would share custody. They also agreed that they child would live with the mother and set a visitation schedule for the father.
In 2012, the mother married a Venezuelan citizen, who had political asylum in the United States. In June that same year, the mother told the father that she wanted to go on holiday to the United States with the child and the father issued her an authorisation before a notary in order for them to get the necessary visa. A month later, the mother told the father that her intention was to move to the United States with the child. Thus, the father revoked the authorisation.
In December 2012, the father lost direct contact with the child, and submitted a request before the Venezuelan courts to establish his whereabouts. It was found that the child and mother had left the country to the Republic of Panama in November 2012.
The father requested the child’s return before the Venezuelan Central Authority. In March 2014, court proceedings were initiated before the Panamenian courts.
Return ordered. The grave risk exception was dismissed because it was not established that the child had suffered physical or psychological abuse by the father or that he would be at risk upon return to Venezuela.
In order to find that the habitual residence of the child was in Venezuela, the judge took into account that the child had been born in Valencia, Venezuela, and that it was enrolled in school there. The enrolment document, signed by both parents, showed the address where the child lived within that city. In addition, the statement of both parents in the sense that the child lived with his mother at the maternal grandmother’s house in Valencia, Venezuela, was also taken into account.
Lastly, it was noted that the mother had resorted to court in Venezuela multiple times to resolve different issues relating to the child, for example, to request court approval to get a visa for the child.
The court considered necessary to determine whether the case involved a wrongful removal or retention because the parents’ version of events differed in this regard. The mother alleged that the father had issued an authorisation for the child to travel with her to Panama, whilst the father claimed he had not signed any authorisation to this effect.
The father even filed a criminal complaint against the mother in Venezuela for the use of a falsified public document. The criminal investigation concluded that the signature on the document was not the father’s. Thus, the judge concluded that the mother did not have the father’s authorisation at the time of travelling with the child to Panama and, consequently, it found that the removal was wrongful.
The mother alleged that she and the child were verbally, emotionally and physically abused by the father and thus they decided to run away from Venezuela and ask for refugee status in Panama. Moreover, she argued that the return to Venezuela would expose the child to emotional, mental and physical risk because of the situation the country was facing, which was widely known.
The court considered that the criminal complaint against the father on stalking, harassment, and psychological violence, made by the mother and the maternal grandmother had been dismissed by the Venezuelan authorities after the relevant investigation. In addition, it was noted that there was no evidence on the record of criminal investigations against the requesting father for crimes against the physical or psychological integrity of his child. The outcome of the court-supervised virtual meetings between father and child was also considered, as there was a good relation and interaction between them, as well as adequate communication and mutual affection.
With relation to the refugee status request made by the mother in Panama, it was noted that it had been denied by the National Commission on Refugee Protection in October 2013 and that a motion for reconsideration was pending. The court considered that the refugee status request was not an impediment against the return of the child to the State of his habitual residence, as there was no evidence on record showing that the child would be exposed to danger upon return to Venezuela.
In order to provide for the safe return of the child, the court ordered the following: 1- that the child be accompanied by the mother or an alternative relative, and that he should then appear before the relevant court in the country of habitual residence; 2- that the mother surrender the travel ticket with the flight data and, if applicable, data on the accompanying relative to the courthouse within 5 days upon the court decision being final and binding; 3- that the child be taken to the Panamenian court every week until his exit from the country and return to the country of habitual residence; and 4- in case the mother did not comply with such measures, that the child be returned to his country of habitual residence accompanied by a government official from the Panamenian Central Authority.
The mother appealed. In March 2015, the Court of appeals confirmed the decision and ordered the child’s immeadiate return to Venezuela.
Author: Valentina Molina Speranza (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari Wirz).