Grandfather threatened to violate a 'virgin from his own bloodline' to cure HIV if family returned home, court told
Published 27/07/2015 | 16:26
A COURT has granted an injunction stopping the deportation of the parents of two young children who fled Malawi because of an alleged threat by their grandfather to violate "a virgin from his own bloodline".
The threat came from the grandfather after a witchdoctor said this would be the way to cure his HIV infection, it was claimed.
Despite the parents' subterfuge in trying to avoid deportation so far, it would be unjust to visit the children with the consequences of the parents' wrongdoing, the Court of Appeal said.
The children are a girl of eight-and-a-half years, and a boy, who is seven and born here but not a citizen. The girl arrived her with her mother in 2008 when she was two and both children are going to school here.
Mr Justice Gerard Hogan, on behalf of the three-judge appeal court, said there is no doubt the dislocation the children would suffer if "suddenly wrenched from the only environment they have known or experienced would be significant".
It would mean a "massive dislocation, from home, friends and school with the State forcibly transporting these young children to a distant country" . One could only "imagine the distress" they would suffer, he said.
The parents had sought the injunction after they failed in their 2009 application for asylum. They then sought subsidiary protection which allows someone who does not fall within the definition of asylum seeker to seek protection on the basis of persecution if sent back to home country.
They also failed in that application in the High Court and appealed to the Court of Appeal which granted their application for injunction against deportation pending full hearing of their case.
Mr Justice Hogan said the parents had contended during their asylum application that the wife's father had consulted a local witchdoctor in Malawi about his HIV status.
The witchdoctor allegedly said that in order to be cured the grandfather would have to have sex with "a virgin from his own bloodline", the judge said. As a result, the family fled.
A Refugee Appeals Tribunal said the wife's education and profile did not fit the reasons she claimed for fleeing - fear for her own life and that of her daughter. It also did not accept the husband's claims he could not re-locate inside Malawi itself because of the pressure that would put on his wife who was pregnant with their second child.
The tribunal said there were many doubts surrounding their credibility.
Mr Justice Hogan said if one was to look at the parents' position in isolation, he would not be in favour of granting the injunction in view of their efforts to thwart the immigration process.
However, the balance of convenience lay in favour of the children remaining in the State given the implications for their schooling, friendship and family structures, he said.