“We recognize that there is no express duty under the Hague Convention to refuse to return a child on the basis of risk of persecution. The authority afforded under arts. 13(b) and 20 is discretionary in nature. However, as in the refugee extradition context, a child refugee has a prima facie entitlement to protection against refoulement.
Accordingly, in our view, a determination of refugee status must be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of harm when determining whether to grant an order of return in respect of a refugee child. And, as Némethalso holds, at para. 106, there should be no burden on the child who has refugee status to persuade the application judge that “the conditions which led to the conferral of refugee protection have not changed”.
Nothing in the available Canadian authorities undercuts this conclusion. While several cases have confirmed, correctly, that neither Convention refugee status nor a claim for such status displaces Canada’s obligations under the Hague Convention, none holds that Canada’s non-refoulement obligations are irreconcilable with its obligations under the Hague Convention: see Kubera v. Kubera,2008 BCSC 1340 (CanLII), [2008] B.C.J. No. 1893, 60 R.F.L. (6th) 360 (S.C.), at paras. 63-64, affd on other grounds 2010 BCCA 118 (CanLII), [2010] B.C.J. No. 383, 3 B.C.L.R. (5th) 121 (C.A.); Toiber v. Toiber, 2006 CanLII 9407 (ON CA), [2006] O.J. No. 1191, 208 O.A.C. 391 (C.A.), at paras. 11 and 12; Kovacs, at paras. 106, 109-14; Martinez v. Martinez-Jarquin, [1990] O.J. No. 1385 (Prov. Ct.), at pp. 5-6 (QL).
The need to consider a risk of persecution prior to returning a childunder theHagueConvention is also supported in the English jurisprudence. In S (Children)(Abduction: Asylum Appeal) (Re),[2002] EWCA Civ. 843, [2002] 1 W.L.R. 2548 (C.A.), Laws L.J. commented, at para. 25:
Having regard to the rule as to the paramountcy of the child’s interests arising under s. 1 of the Children Act 1989, I would respectfully suppose that 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. We adopt and endorse this observation.”