Child Abduction - Abduction & The Hague Convention

Question :

Why are there , relatively speaking, quite a number of child abductions to and from Israel every year ?

Answer:

Researchers say that where a couple come from different religious, racial or cultural backgrounds, the more prevalent child abduction is. As Israel is a country that has attracted many people, as immigrants and visitors, from all over the world, it follows that child abduction and international child custody cases will be quite common.

Question :

How does the Hague Convention help against international child abduction ?

Answer:

The idea behind the 1980 Hague Convention on Civil Aspects of Child Abduction is that any dispute over custody or visitation rights concerning a minor should be settled legally , in the country in which the child normally lives. In each signatory country there is a central authority which processes applications and co-operates in helping to trace children and bring legal actions for their return before the court in the Convention country to which they have allegedly been abducted. As a rule ,abducted children are returned to the country of habitual residence unless one of the Hague Convention defences is proved which is extremely difficult. Israel is a signatory to the Hague Convention.

Question:

Until what age are minors covered by the Hague Convention on Child Abduction?

Answer:

Up until the age of 16. 

Question:

Does the Hague Convention apply to a case of child abduction if one of the countries is a fully fledged contracting state but the other is in the process of joining ?

Answer:

Whether the Hague Convention governs legal proceedings for child abduction between two particular states depends on whether it was in force between them at the time the alleged abduction took place.

A state wishing to ‘join’ must comply with the procedure set out in the 1980 Hague Convention of the Civil Aspects of Child Abduction. States wishing to join a convention after it is already in force may join by accession. This accession must be expressly approved by existing convention states. A situation may arise, therefore, when a particular newcomer has acceded to the convention (for example, as Russia did, in 2011), but it may not be fully effective as it may only be in force regarding certain states . Israel has not yet approved Russia's accession, so the Hague Convention is not in force regarding child abductions between Israel and Russia. The convention is only in force regarding a particular state three months after the latter has expressly recognised the newcomer’s accession.
The most recent Hague newcomers,whose accession has been accepted by Israel, so that the Hague Convention is in force between them and Israel, are Morocco, Andorra,Gabon and Singapore.

Question:

Is the Hague Convention regarding child abduction in force between Israel and Western Europe ?

Answer:

The main European countries where the 1980 Hague Convention on the Civil Aspects of Child Abduction is in force in relation to Israel are :

Andorra, Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, Sweden, Switzerland and the United Kingdom.

Question:

Regarding which of the former U.S.S.R and Eastern Bloc countries is the 1980 Hague Convention on the Civil Aspects of Child Abduction in force in relation to Israel ?

Answer:

Among the former U.S.S.R. and Eastern bloc countries which are governed by the convention regarding child abduction between them and Israel are :

Albania (from 1/9/07); Bulgaria (from 1/1/04) ;Estonia (from 1/4/02); Georgia (from 1/12/97); Slovenia ( from 1/1/96); Slovakia ( from 1/2/01); Moldova ( from 1/9/98); Turkmenistan ( from 1.6.98); Uzbekistan ( from 1/10/99); Poland (from 1/9/93); Romania ( from 1/9/93); The Czech Republic (from 1/3/98); Former Yugoslav Republic of Macedonia (from 1/12/91); Hungary ( from 1/2/92); Belarus ( from 1/6/98); Bosnia and Herzegovina ( from 1/12/91);Croatia ( from 1/12/91) ; Yugoslavia (from 1/12/91) , Latvia (from 1/8/02) , Lithuania (from 1/11/03) and the Ukraine (from 1/2/07).

The Russian Federation only acceded to the Hague Convention on the Civil Aspects of Child Abduction in 2011, but Israel has not accepted its accession, so it is not in force between the two states.

Question:

Are child abductions between Israel and North America covered by the Hague Convention ?

Answer:

Yes. Israel, United States and Canada are all bound by the 1980 Hague Convention on the Civil Aspects of Child Abduction. Thus legal action can be taken under the convention for the return of a child under 16 that has been abducted to/from Israel and either the United States or Canada .

Question:

Does the Hague Convention cover child abductions between Israel and countries in South and Central America ?

Answer:

It covers many but not all. Among the main South and Central American countries where legal proceedings are bound by the Hague Convention relating to abductions between them and Israel are :

Argentina (from 1991) , Brazil (from 1/4/2000) , Chile ( from 1/1/96), Colombia (from 1/6/96), Equador ( from 1.6.92), El Salvador (from 1/4/02), Honduras ( from 1/1/96), Mexico ( from 1.2.92) , Nicaragua ( from 1/4/02) Panama ( from 1/1/96), Paraguay (from 1.10.98) , Peru ( from 1/8/02), Uruguay ( from 1/4/2000) , and Venezuela (from 1/1/97).

Although Guatemala has acceded to the 1980 Hague Convention on the Civil Aspects of International Child Abduction , its accession has not been accepted by Israel so that it is not in force between them. Abduction involving Bolivia is not covered at all by the convention.

Question:

Between which African countries and Israel is the Hague Convention regarding child abduction in force ?

Answer:

The main states on the African continent where the 1980 Hague Convention on the Civil Aspects of Child Abduction are in force in relation to Israel are South Africa and Zimbabwe. Following Israeli's acceptance of Gabon's recent accession , the Hague Convention is also now in force regard acts of child abduction between Israel and Gabon, as of 1.9.2011.

Question:

Are child abductions between Israel and Asia/Far East covered by the Hague Convention ?

Answer:

In general no, but yes in so far as they relate to abductions between Israel and the following states: Australia ,New Zealand, Sri Lanka , Thailand,and from, 1.9.2011, also Singapore . Thus legal action can be taken under the Hague Convention on the Civil Aspects of Child Abduction for the return of a child under 16 that has been abducted to/from Israel and  Australia ,New Zealand,Sri Lanka  Thailand or Singapore.

Question:

Which Court Deals With Child Abduction Cases in Israel ?

 Answer:

The Family Courts Act of 1995 empowered the family courts to deal with child abduction under the Hague Convention at the first instance. If the whereabouts of the alleged abductee is known the application is made to the family court serving that area. If it is unknown, the Tel Aviv Family Court will hear the case.

Question:

My wife was awarded custody of our son in America. I live there, too, and have visitation rights. My wife has taken our son to Israel against my will and shows no signs of returning. Can I bring an action to get my son returned to the States or am I prevented from this because I don’t have custody ?

Answer:

You can bring a Hague Convention Case for the return of your son even though your wife has custody. The convention protects visitation rights too, so that the non-custodial parent has legal standing to bring an action under the convention.

Question:

How quickly is a hearing arranged in Israel for the return of a child abducted to it from a Hague Convention country ?

Answer:

Under the Israeli 1984 Civil Procedure Rules the initial hearing at the family court in Israel on this matter will be set no later than 15 days from date of service of the application.

Question:

My wife failed to return to Israel from a trip to the U.S.A. with the children. She was supposed to return three months ago but keeps making excuses about needing time with her family. I told her that I want her and our young children home and threatened to take legal action if she didn’t return in a week. She begged to stay on a little longer. She is still in the U.S.A. Is there a time – limit on bringing legal action ? I want to be patient but do not want to jeopardize getting the children back.

Answer:

Yes, there is a clear time limit. Israel and the United States are signatories to the Hague Convention on Civil Aspects of Child Abduction. Under this, a parent whose child has been wrongfully removed or wrongfully retained from the country they normally live in can bring an action within a year from the time of abduction. One of the defences available is that the children are resettled in their new environment so the sooner the action is brought the better.

Question:

Does a parent whose child has been allegedly abducted to Israel have to attend the Hague Convention court hearings held there requesting his return ?

Answer:

No, it is not strictly necessary from a legal point of view, unless the court orders the left-behind parent to come. The Israeli Civil Procedure Rules of 1984 state that the family court will hold a full hearing on the matter if the parent bringing the action does not attend. However, Israeli courts usually request attendance.

Question:

Can the court in Israel order the return of a child abducted from a Hague Convention Country if the abducting parent does not appear at the hearing ?

Answer:

Yes, the Civil Proceedure Regulations of 1984 allow the family court hearing a Hague Convention Case to make an ex-parte decision (without the respondent or alleged abductor) being present. There is no appeal on such an ex-parte decision.

Question:

How soon will a family court in Israel hearing a Hague Convention case make its judgment ?

Answer:

The target time is 6 weeks from the time of filing in court. Special regulations oblige a family court in Israel hearing a Hague plea to give a reasoned judgment within 6 weeks of the file being opened.

Question:

How quickly are appeals in Hague Convention case dealt with in Israel ?

Answer:

Appeals (on both temporary decisions and final judgments) are supposed to be filed within a week. A decision on an appeal against a temporary decision is supposed to be made within a week of it being filed, and within 30 days regarding a judgment.

Courts in Israel often take longer to hear cases in practice – though special procedures for gaining extensions must be adhered to.

Question:

Which courts in Israel hear appeals in Hague Convention?

Answer:

A final decision or judgment on a Hague case made by the Family Court is appealable before the District Court. The Supreme Court hears appeals on District Court judgments.

Question:

What defences to child abduction are recognized under the Hague Convention ?

Answer:

The main defences are as follows and are found under article 13.They are that there is a grave risk or fear that the child’s return would expose him/her to physical or psychological harm or put him/her in an otherwise impossible situation or that the other parent had consented or later acquiesced in the removal or retention.

Article 13 also states that the court may refuse to order the child to be returned if it finds it objects to this and has reached an age and degree of maturity at which it is appropriate to take account of its views.

In addition, alleged abductors often dispute that the country the child was removed from was the one of habitual residence or that the parent who brought the action consented or later acquiesced to the removal/retention of the child.

Furthermore, under article 12, if over a year has elapsed since the alleged abduction and the start of legal proceedings, the court hearing the case has discretion not to order a return order, if it considers that the minor has settled into the new environment.

Question:

Does a teenager have a say in whether they should be returned to the country from where they were “abducted” ?

Answer:

Yes, Section 13 of the Hague Convention on the Civil Aspects of International Child Abduction states that a court may refuse to order the return of a child if it finds that the child objects to this and has attained an age and degree of maturity at which it is appropriate to take account of its views. The convention deals with minors up to the age of 16 so the views of a teenager aged between 13-16 would normally be taken into account.

Question:

If a parent facing child abduction proceedings manages to prove to the court that the other parent was violent to their children, will this be enough to prevent the minors being sent back to the country of habitual residence ?

Answer:

Not necessarily, as the threshold laid down in the Article 13(b) or "grave risk" defence under the 1980 Hague Convention on the Civil Aspects of Child Abduction is extremely high, and even when crossed, the court still has discretion as to whether to order the minors back.

These points were made clear by the Court of Appeal in the U.K. in the Re H case in March 2003 when it accepted an appeal by a father against an order made by the High Court of Justice in London ordering the minors back to Belgium. The original ruling had held that the father had dominated the family and had exercised control by the use of violence and threats. It also found that the children had been in an intolerable situation prior to their removal and that return would expose them to a grave risk that crossed the threshold . It further held that the Belgium authorities had done little to protect the children who were at risk of extreme violent behaviour . Overturning the decision, the appeal court held that no orders had been made against the father in Belgium, and he had not breached any court orders. Furthermore, it held, the court had been unentitled to make the findings about violence on the basis of contested and untested allegations and its conclusions about the indifference of the Belgium Authorities.

Question:

In what circumstances will an Israeli court accept the defence put up by a parent who has abducted his/her child to Israel that returning him/her would put the child at risk of grave physical harm ?

Answer:

Only in extreme circumstances will a court dealing with a Hague Convention application for the return of a child not order the abductee to be returned to the country where he/she normally lives. One of the available defences available is that being returned home would expose the child to physical harm. Once abduction is proved and the risk of severe physical harm is proved, the court has discretion whether or not to order the child’s return. It is not bound to order the child’s return, which is the general rule with Hague Convention cases.

The degree of risk required was shown in a case before the Tel Aviv Family Court which was appealed before the Tel Aviv District Court in July 2000. Clear and convincing evidence must be brought to support the abducting parent’s claims, it held. There must be a grave risk of severe harm of a substantial nature and each case should be considered on its individual merits.

In this particular case the Tel Aviv Family Court had appointed a clinical psychiatrist to report on the risks involved in returning the 10 year old boy to the States, as requested by the applicant, his father - compared to the risks of him remaining with his mother.

The report and other evidence showed that the child felt alienated from his father, an American and self-professed atheist, and over-identified with his mother, a Jew of Yemenite origin who had dual Israel and American citizenship. He felt himself an Israeli Jew and did not relate to his American identity. His mother had abducted him when he revealed his plans to commit suicide after an American court ruling. The court had rejected his mother’s application for permission to move to Israel with him and transferred custody, which had been joint, solely to his father. The child had a long history of depression and psychological treatment and had worked out detailed suicide plans which he threatened to carry out unless permission was given for him to live with his mother in Israel.

When the father’s application was rejected he appealed. The district court rejected the appeal, saying it had no choice as the evidence showed there was a real risk of the abductee committing suicide if returned to the States. It was highly critical the mother’s negative role and brainwashing of the child, but this did not change the reality of the risk.

Question:

If a baby is born abroad, and not in Israel, where his/her parents live, what implications does that have in terms of the minor's country of habitual residence if Hague Convention abduction proceedings are brought ?

Answer:

The fact that a baby is born abroad does not mean that he/she cannot be declared habitually resident in Israel, where the parents were living.

This point emerges from the 2001 UK case of B v.H. The court had to decide whether it had jurisdiction regarding child proceedings brought by the mother in England concerning British minors who were physically present in Bangladesh . This depended on whether the minors had lost habitual residence in the UK. The mother, a Bangladeshi national with indefinite leave to remain in the United Kingdom, had agreed to her four children being in Bangladesh for an anticipated four week stay. All the children and the father had British passports. The youngest child had been conceived in the UK but born in Bangladesh. On the point of habitual residence, the court held that

the fact that the baby daughter had been born abroad did not prevent her from having habitual residence in the UK, and her habitual residence was determined by the position of the parents with parental responsibility and control.

Question:

If parents move quickly from one country where they have been living to another, and one of them returns 'home' with their child , what factors will influence the court in deciding which of the two countries is that of habitual residence for the purposes of Hague Convention proceedings to return the minor to the 'new' country ?

Answer:

Where parents move from one country to another much of the Hague Convention proceedings for the return of an allegedly abducted minor will centre on which of the two countries is, indeed, that of habitual residence for the minor/s. Habitual residence can be lost in a day if there is a settled intention of taking up long term residence elsewhere and not returning, according to UK Hague decisions. However, where one parent alone changes his place of habitual residence , and two parents have joint parental responsibility for minors, the parent acquiring new habitual residence for himself cannot do this unilaterally for the children , and claim that they have a new country of habitual residence.

In the UK case of N v. N in 2000 this question arose. The mother, a British citizen, faced Hague Convention proceedings in England brought by the father, an Iranian who had subsequently acquired British nationality, for the return of their three young children to Spain, where, he claimed, the family had moved to permanently.The alleged abduction took place two months after the family's arrival in Spain.

The marriage was problematic and the mother claimed that the move to Spain was a last minute decision and other options for living in the UK were still being investigated. She stressed that some of the family's possessions remained in storage in the UK, no arrangements for accommodation in Spain had been made up until two days prior to the family's departure, and although they purchased a bar in Spain shortly after their arrival, this was merely to supply an income, and had not used up a significant portion of their assets. No residential status or education had been obtained for the children. Although the couple purchased a home in Spain in joint names a week before the alleged abduction, the court accepted she had already made up her mind to return to England before.

The court held that the father had indeed acquired new habitual residence in Spain, but that he was wrong to claim that this also applied to the children. Their habitual residence remained the UK. They had not lost this and had not become habitual resident in Spain. The conditional enterprise undertaken by the mother could not be regarded as agreement to or acquiescence in the children's habitual residence changing. Accordingly, the mother's removal of the children had not been wrongful and no return order to Spain was given.

Question:

Does the Hague Convention have a role in helping the non-custodial parent actualize his visitation rights if there is no actual abduction ?

Answer:

Yes, but a limited one. The Preamble of the 1980 Hague Convention on the Civil Aspects of Child Abduction includes the protection of contact or visitation rights as one of its aims: “Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, …”

However, in practice where there is no act of abduction involved, and realizing visitation rights is the only issue, and they are not being breached as part of an act of child abduction, then the non-custodial parent can only have recourse to the central authorities as facilitators for encouraging and facilitating those rights e.g. by helping the drawing of a plan of contact, and not to the courts .

This point was made by the Haifa Family Court in April 2004 ,which rejected a plea by a father to initiate legal proceedings regarding visitation rights under the convention , independent of a current act of abduction. It said “ The most the plaintiff can obtain under the convention is the co-operation between the central authorities of the two states to ease the realization of the visitation rights which he gained in the state in which he is present.”

Question:

Is a court in a country to which a child has allegedly been abducted always best qualified to rule on whether the minor’s removal was unlawful ?

Answer:

No – under the 1981 Hague Convention on the Civil Aspects of Child Abduction a court receiving an application for the return of a minor who has allegedly been unlawfully removed can actually refer the issue back to a foreign court.

This is what happened in August 2000 when a U.S. district court for New Jersey delayed Hague Convention proceedings regarding a young child whom the father , who had joint custody, argued had been unlawfully removed from Israel . It referred the case back to the Jerusalem Family Court , for an analysis and ruling on the mother’s behaviour in the light of the parties’ divorce agreement, which it had authorised. The mother claimed that under her divorce agreement, she was entitled to leave Israel if the father did not pay child maintenance. The family court held the mother had not unlawfully removed the child and that the father’s custody rights had not been infringed because he had committed a fundamental breach of contract in relation to maintenance payments and under their agreement she was entitled to act as she had done so if this occurred.