A 13-year-old Mexican girl who fled abuse by her mother and was granted asylum in Canada has been returned to the alleged abuser in Cancun.
Josette Rosenzweig Issasi, who had been in her paternal aunt’s care in Toronto, was seized from Central Technical School last Thursday and returned to her mother, Marlen Issasi Rodriguez, who claimed the girl was “illegally retained” in Canada.
The unusual case pits the 1996 Hague Convention – an international law that deals with wrongful removal or retention of a child – against a child’s rights to protection under the United Nations Refugee Convention.
In this case, the subject is an unaccompanied minor who ran away from the mother who has custody. The girl’s parents were divorced, the father currently a refugee in Norway, while the Toronto aunt has no legal authority over her.
“This is not a black-and-white custody case,” said the aunt, Josette Rosenzweig Espinal. “The authorities seem to forget that the girl is a protected person in Canada.”
The Canadian Council for Refugees is trying to help the aunt get the girl back and Josette’s school friends have taken up a petition.
The Immigration and Refugee Board could not comment on Josette’s case, but said a person generally cannot be returned to the country of alleged persecution once granted protected person status.
“But if it is a minor, the person with parental custody can make the decision of the return for the minor,” said board spokesperson Charles Hawkins.
The mother’s Canadian lawyer, Aaron Franks, declined to comment, while an appeal against the court order is pending.
Janet Dench of the Canadian Council for Refugees said she has seen a number of cases like Josette’s, where the courts put a parent’s custodial rights over a child’s right to protection.
“There doesn’t seem to be any thinking put into . . . the U.N. Refugee Convention when The Hague Convention is involved,” said Dench. “We could potentially be sending a child back to persecution.”
According to asylum documents obtained by the Star, Josette was escorted by her maternal grandmother to Toronto in December 2008 after she learned of the abuse.
“Sometimes, (Josette) was hit with a broom, sometimes a towel, the magic rag, shoes, or a plate. (The mother) blamed her for anything that went wrong. On many occasions, the claimant would have bruises on her body,” the refugee board said in a May decision granting Josette status.
But the mother told Ontario’s Superior Court a different story.
According to court documents, she sent Josette to see her father who was in Toronto around Christmas in 2008. She accused the paternal family of arranging the child’s asylum claim.
“The Hague Convention proceeding is not a custody/access or a child care and protection hearing, but is clearly a hearing which will determine where such issues, if they indeed arise, should be decided, here or in Mexico,” said the court, which last month ruled Josette be returned to her mother.
Francesca Fazio, Josette’s friend, said the teen was called into the school office Thursday morning during science class.
“It must’ve been around 1:45 when some of us were called to the principal’s office. The principal and an immigration officer were there. Josette was in tears and told us she had to go back to Mexico,” Fazio recalled.
Fazio said Josette texted her from Mexico that “my mom lied to authorities that my aunt kidnapped me. That’s not what happened.”
The court may refuse to order the return of the child if:
1. The child has been gone over a year and is settled in its new surroundings.
2. The person requesting the return didn’t have custody rights.
3. The person requesting the return consented to the child’s removal.
4. The return would result in the child being exposed to a “grave risk.”
5. The child objects to the return.
6. There are concerns of the requested country’s protection of human rights and fundamental freedoms.