Acquiescence – Art. 13(1)(a)
The Court noted that whilst delay was not generally sufficient to establish acquiescence, the exception still merited consideration.
Grave Risk – Art. 13(1)(b)
In the main part of its ruling the Court held that the child’s refugee status gave rise to a rebuttable presumption that her return to Mexico would expose her to a risk of persecution and, hence, to an Article 13(1)(b) risk of harm.
The trial judge had failed to undertake any form of risk assessment and had simply accepted the mother’s denial of any abuse having occurred. The Court held that where the return of a refugee child was sought, a risk assessment had to be performed regarding the existence and extent of any persisting risk of persecution to be faced by the child on return from Canada.
Grave Risk – Art. 13(1)(b)
Objections of the Child to a Return – Art. 13(2)
The trial judge was held to have erred in not having considered the views of the child. Furthermore, the Court held that the failure to seek and obtain the refugee child’s views and preferences, or to permit her representation, led to a denial of procedural fairness and an infringement of her rights under the Canadian Charter of Rights and Freedoms.
Settlement of the Child – Art. 13(2)
The Court held that the trial judge had failed to evaluate properly whether the child had become settled in her new environment. Referring to previous case law the Court noted that Article 12(2) required, in part, a highly “child-centric” factual inquiry aimed at determining the actual circumstances of the child at the time of the hearing and the likely effect of uprooting a child who had already been the victim of one international relocation.
Settlement of the Child – Art. 12(2)
Human Rights – Art. 20
Inter-relationship of the 1980 Hague Child Abduction Convention & 1951 UN Refugee Convention:
The Court noted that pursuant to the Vienna Convention on the Law of Treaties a treaty had to be interpreted in good faith in light of its context, object and purpose as well as any applicable rules of international law. Consequently, the interpretation of the 1980 Hague Child Abduction Convention, which came into force in 1983, had to take account of the 1951 Refugee Convention, as a relevant rule of international law which was in force at the time of the entry into force of the Hague Convention.
The appellant father argued that there was a conflict between the instruments. The provision of the UN Convention Relating to the Status of Refugees on which he relied was Article 33, which codified the principle of “non-refoulement”. Under this principle refugees are not to be removed, directly or indirectly, to a territory where they run a risk of being subjected to human rights violations.
The Court held that the Hague Convention contemplated respect for and fulfillment of Canada’s “non-refoulement” obligations through the exceptions in Articles 13(1)(b) and 20, both of which had to be interpreted in a manner which took account of the “non-refoulement” principle.
The Court then turned to consider the significance of a refugee determination on a Hague application. It noted that the Immigration and Refugee Board of Canada (IRB) had to be satisfied, on a balance of probabilities, that a refugee claimant faced a reasonable chance of persecution.
The Court acknowledged that IRB decisions were to be accorded a high degree of deference, but also noted that the proceedings were heard without notice to the mother and so she had had no opportunity to respond to the serious allegations that had been made.
The Court accepted that there was therefore potential for abuse of the IRB refugee determination process by an abducting parent. This was a matter to which courts had to be alert. Nevertheless, the Court held that when a child had been recognized as a Convention refugee by the IRB, a rebuttable presumption arose that there was a risk of persecution on return of the child to his or her country of habitual residence.
A risk of “persecution” in the immigration context clearly implicated the type of harm contemplated by Article 13(1)(b) of the Hague Convention.
Author of the summary: Peter McEleavy