Buscador de jurisprudencia

On occasion an abducting parent will apply in the State of refuge for political asylum or refugee status.  Where this has occurred, the State of the child's habitual residence has not normally been a Contracting State to the 1980 Hague Convention.  Nevertheless the court seised of the non-Convention return must decide how to weigh general child abduction policy considerations against the actual (or possible) award of refugee status or asylum.

Canada
The Matter of the Children's Law Reform Act: Between S. Del Carmen Miranda de Martinez v. G. Martinez-Jarquin (18 July 1990), transcript, Ontario Court; Provincial Division (Canada) [INCADAT cite: HC/E/CA 368].

A Salvadorian abducting parent and children were awarded refugee status by the Canadian Immigration Board.  In subsequent abduction proceedings the Ontario Court; Provincial Division held that the findings of the Board should be given significant weight but added that the issue it had to decide was different. It ruled that any perceived conflict between the refugee and child abduction issues should be resolved in favour of the policy enunciated by Ontario and embodied in the Hague Convention.  Return ordered.

Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT cite: HC/E/CA 760].

Hungarian mother and child of Roma origin applied for refugee status on arrival in Canada.  The Ontario Superior Court of Justice ruled that an order for the return of a child could be made while a refugee claim on behalf of the child was pending. The Hague Convention required that applications for return be dealt with expeditiously. Convention applications could usually be completed within a few months. Refugee claims took a year or more. A refugee claim could not be allowed to defeat the aims of the Convention.

Canada (Citizenship and Immigration) v. Garcia, 2007 FCA 75, [2008] 1 F.C.R. 322 [INCADAT cite: HC/E/CA 727].

The Federal Court of Appeal decided that the non-return order of the Quebec Court of Appeal in respect of one of the children did not "directly contravene" the deportation order that had been made. Rather the latter ruling simply dismissed the father's application for return of the child - it did not include a specific order as to the child's place of residence. Moreover the finding of the Quebec Court of Appeal in the Hague Convention proceeding that the child had settled into his new environment was not sufficient to justify a stay of the deportation order under the IRPA, s. 50(a).

2008 QCSC 4762, Superior Court of Québec (District of Montreal), No: 500-04-048266-085 [INCADAT cite: HC/E/CA 925].  

The mother's application for refugee status did not affect the application of the Hague Convention because the child in this case was an American citizen and had a right to live in the USA.

United Kingdom - England & Wales
Re S. (Children) (Abduction: Asylum Appeal) [2002] EWCA Civ 843, [2002] 1 WLR 2548 [INCADAT cite: HC/E/UKe 590].

A mother applied for asylum after taking her sons from India ostensibly for a two month vacation. She argued that section 15 of the Immigration and Asylum Act 1999, which gave domestic effect in the United Kingdom to Article 33 of the United Nations Convention Relating to the Status of Refugees of 1951 (hereinafter UN Refugees Convention), prohibited the return of the boys to India. The provision provides:

'(1) During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.

(2) Subsection (1) does not prevent-(a) directions for his removal being given during that period; (b) a deportation order being made against him during that period.'

The Court of Appeal accepted the father's argument that section 15 only bound the executive branch and as such did not create an exception to the obligations arising under Article 12 of the Hague Convention nor was it intended to circumscribe the duty and discretion of a judge exercising the wardship jurisdiction of the High Court.

The Court acknowledged that there was a potential question as to the extent to which a family court faced with an abduction case should be obliged to take account or comply with Article 33 of the UN Refugees Convention as a freestanding instrument. It did not give a definite answer but stated it was likely a family judge would at the least pay very careful attention to any credible suggestion that a child might be persecuted if he were returned to his country of origin or habitual residence before making any order that such a return should be effected. Nevertheless on the facts of the case the return order was upheld.

Re H. (Child Abduction: Mother's Asylum) [2003] EWHC 1820, [2003] 2 FLR 1105 [INCADAT cite: HC/E/UKe 587].

The mother had already been granted refugee status when the father's non-Convention return application was heard. The High Court had to consider Article 33 of UN Refugees Convention.

Neither party sought to argue that the grant of refugee status was determinative, one way or the other, of the return application; rather the father argued that it should be given little weight, the mother substantial weight. In the balancing exercise of the factors for and against the return of the child the trial judge ultimately decided that a return order should be made.

Re F. (Children)(Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 854, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982].

Return ordered as after 3 years of failed asylum applications evidence was produced that the abducting mother would almost inevitably be deported.  Consequently it was in the best interests of the children that they be ordered to return to their former State of habitual residence rather than being removed to the mother's State of nationality.

EM. (Lebanon) v. Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198 [INCADAT cite: HC/E/UKe 994].

Solely an immigration case. Mother failed in her application for asylum, but she eventually succeeded in arguing that a return would lead to a violation of her and the child's right to family life under Article 8 of the European Convention on Human Rights (ECHR). However, it must be noted that on the facts the child's only ‘family life' was with the mother, the father having had no contact with the child since the day of his birth. A majority of the panel (4:1) held that the discriminatory nature of Lebanese family law, which would have led to the automatic transfer of care for the child being passed from mother to father, upon the child reaching his 7th birthday, would not have led to a breach of Convention rights