Buscador de jurisprudencia

The mother and father married in 2014. They separated before the birth of their child in 2015.

The child lived with the mother and he father did not have formal visitation rights until 2016. Shortly after, the mother requested to take the child on holiday to the United States. The father did not consent and the Venezuelan court did not grant permission due to dangerous travel conditions and the risk that the other could not return.

In 2017 the parents divorced and were granted joint parental responsibility.

In March 2021 the mother told the father’s family she was taking the child on vacation in Venezuela. Instead she took the child first to Colombia and then to the United States. The mother claimed they were on holiday but repeatedly failed to return to Venezuela.

The Venezuelan Court ordered the return of the child. The father made an application for return under the 1980 Hague Convention. The mother argued that returning the child would amount to a grave risk of harm under Article 13(1)(b).

The Court refused to order the return of the child. The child was found to be settled in the United States within the meaning of Article 12(2). Though he and his mother did not have permanent legal status in the US, they did have a legal status and a pending asylum application.

Settlement of the Child - Art. 12(2)

The father did not file a Verified Petition until almost 20 months after he was informed about the wrongful removal of the child. The child had now lived at the same address and attended the same school since he arived in the US. He had learned English quickly and made friends.

Though he and his mother did not have permanent legal status in the US, they did have a legal status and a pending asylum application. Therefore, any possible removal from the US was likely years away and may never happen.

The Court expressed no judgment as to the ultimate merits of the mother’s asylum claim, but the Court stated that her application was detailed and non-frivolous.

Grave Risk - Art. 13(1)(b)

The mother’s main argument was that the economic and humanitarian upheaval in Venezuela, together with the risk of her political persecution, posed a grave risk of harm to the child. The Court did not find that the conditions in Venezuela raised sufficient humanitarian concerns to amount to a grave risk of harm within the meaning of Article 13(1)(b) and stated that the mother had not showed any evidence that she had suffered political persecution.

Objections of the Child to a Return - Art. 13(2)

The child was seven years old and the mother did not point to any evidence demonstrating his maturity or reasons for wanting to stay in the United States. Therefor the Court found that there was insufficient evidence to invoke the child’s objections exception under Article 13(2) of the Convention.