Osgoode Hall Law Journal

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Women who escape domestic violence with their children are being denied refugee status in Canada on the grounds that, by fleeing with their children, they have committed the crime of child abduction. Article 1(F)(b) of the 1951 Refugee Convention, which has been imported into Canadian law, specifies that individuals who have committed serious, non-political crimes are excluded from the protections associated with being a legal refugee. Consequently, women who travel to Canada with their children risk the denial of their refugee claims solely because they chose not to abandon their children in an abusive or potentially dangerous situation. In this article, I examine publicly available Federal Court and Immigration and Refugee Board decisions from 2000–2017 where the 1(F)(b) exclusion was raised on the basis of the crime of child abduction. More specifically, I focus my analysis on cases where the 1(F)(b) exclusion was raised as an issue in women’s refugee claims based on domestic violence. Domestic violence is the form of gender-related persecution most frequently cited as the basis for a refugee claim and presents special significance in the context of allegations of child abduction. Of additional concern for women in this situation is the interaction between their claims and applications for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction. Ultimately, I conclude there are serious fairness and justice concerns around how decision makers have applied guidelines for women refugee claimants, conducted credibility assessments, and addressed interplay between Hague Convention applications and refugee claims in these cases.

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