When families seek safety across borders, legal complexities often arise—especially when refugee claims intersect with international child abduction laws such as the Hague Convention. These cases present unique challenges for claimants.

What Is the Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction aims to secure the prompt return of children wrongfully removed or retained across international borders. Canadian courts must determine whether a child should be returned to their country of habitual residence, considering factors such as parental consent, grave risk of harm, and the child’s own views, depending on their age.

How Does This Affect Refugee Claims?

When a parent makes a refugee claim in Canada while facing a Hague application or provincial return order, several legal issues arise:

• Jurisdiction vs. Custody: Hague proceedings focus on which country’s courts should decide custody—not on who should have custody.
• Concurrent Proceedings: Refugee claims and Hague applications may run at the same time or one after another, requiring careful coordination between family and immigration lawyers to avoid conflicting positions.

Exclusion Under Article 1F(b)

Canadian refugee law excludes individuals if there are “serious reasons for considering” they committed a serious non-political crime outside Canada before seeking refuge. Allegations of child abduction under the Criminal Code—such as taking a child in violation of a custody order—can trigger exclusion arguments from the Minister. However, the law recognizes important defenses:

• Consent: If the left-behind parent consented to the child’s relocation to Canada, exclusion may not apply.
• Imminent Harm: If the parent acted to protect the child (or themselves) from imminent danger (including family violence), this can be a valid defense.

Canadian courts have clarified that a Hague Convention decision ordering that a child be returned to their habitual place of residence is just one factor in the exclusion analysis—it does not automatically mean exclusion applies. Each case requires a careful review of the facts, the seriousness of the alleged crime, and any mitigating circumstances.

Experience in Complex Cases

Mojan Farshchi at MKS Immigration Lawyers has expertise in handling complex cases at the intersection of refugee law and family law, including exclusion allegations involving Hague Convention cases and Ministerial intervention. Mojan regularly represents clients before the Immigration and Refugee Board and the Federal Court, and has presented on these topics at national conferences, including the Canadian Association of Refugee Lawyers (CARL) annual conference.