Child Abduction - Abduction To Israel

Question:

If Hague Convention proceedings are brought in Israel, can the parent bringing the case be safe in reaching an agreement with the "abducting" parent and dropping the case ?

Answer :

Yes, but only if the agreement is in writing, professionally drafted and authorized by the family court where the Hague Convention plea has been filed in Israel. Otherwise, the parent will run the risk of the abducting parent breaching the agreement and finding that all the legal action has been in vain.

For example, in January 2005, during the middle of the evidence stage of the proceedings at Tel Aviv Family Court, the plaintiff, a British father represented by Advs. Amihoud & Louise Elizabeth Borochov, and the defendant, the Israeli mother, entered negotiations for a voluntary return of the minors removed by her from the U.K. in December 2003. An agreement relating to the return of the young children to the UK was drafted by the parties' counsel , signed by the parents in front of the court, which authorized it, and passed judgment accordingly. The agreement set out the conditions for the voluntary return and stated that if the mother did not return the children to the UK as agreed, the father was entitled to do so himself.

Such a court-authorised voluntary return judgment has advantages; it saves time, money and heart-ache as it is not subject to appeal.

Note –

Six months after the minors' return to the U.K, the father was awarded full custody by the High Court of Justice (Family Division) in London, and the mother was only granted supervised visitation.

Question:

Where a family have moved from Israel abroad, but the Israeli mother travels back to Israel with their young child against the father's wishes, and declares that they are not budging, could an Israeli court order her to return the minor abroad , even though she declares that she never agreed or intended to leave Israel permanently and it has always remained the family's "home" ?

Answer:

Yes – as Ashdod Family Court did in July 2008, responding positively to a Hague Convention plea by a father represented by Adv. Amihoud Borochov to return the minor to the U.K.(File 2941/08), from where he had abducted by his mother on 26.2.08. The court held that the father had proved that the child's country of habitual residence prior to the abduction was the U.K., despite unsuccessful claims by the mother that it was Israel, and ordered the child's return to Manchester, where he had been living prior to the abduction. "The cumulative effect " of the mass of evidence brought by the father led the court to the "conclusion that the parties' intention was to move and live in England for two years," it said, and accordingly, the U.K. and not Israel, was the minor's place of habitual residence.

Where there is a dispute between the parents as to their respective declared intentions concerning the move from Israel and whether the minor's habitual residence has indeed changed or not, and the child is very young, the court will examine the evidence that emerges during the proceedings , and will apply a mixed test that takes into account its interpretations of the parents' real shared intentions as to the move , and the "facts on the ground" about where the centre of the child's life was immediately prior to the abduction.

In this case the family had relocated to Manchester following a lucrative job offer received by the father. Ten months after the actual move, the mother returned to Israel with the minor without the father's knowledge or consent, while he was at work.

NOTE - The mother appealed against the judgment, before Beersheva District Court, and in a most unexpected and controversial ruling, it overturned the family court judgment, holding that the minor's place of habitual residence never changed from Israel. The father, however, decided not to appeal to the Supreme Court, although his chances of success were high.

Question:

Where should I bring an action for the return of my 17 year old son to Australia ? He went to Israel on holiday with his Israeli-born father but neither of them has returned. His father (my “ex”) has custody but I see my son several times a week. I miss him and want him back.

Answer:

Petitions for the return of children over the age of 16 who were allegedly abducted to Israel should be made to the Supreme Court of Justice in Jerusalem, regardless of the country they live in.

Question:

If one parent abducts children to Israel and starts settling them down to a new life, can this be used as a defence if Hague Convention proceedings are brought for their return to their country of habitual residence ?

Answer :

Yes, but only after a year has passed since the time of the alleged abduction and the filing of the plea in court in Israel, according to article 12 of the 1980 Hague Convention on the Civil Aspects of Child Abduction in Israel.This provides for a "prompt return" order unless more than a year has elapsed, in which case the court is entitled to consider whether the minors have adapted to Israel. If more than a year has elapsed between the alleged abduction and the filing of the plea in Israel, and it is proved that the children have adapted to their new environment, then the court has jurisdiction not to order them back to the country of habitual residence. Clearly other permitted defences e.g. acquiescence or "grave risk" can be raised, if appropriate.

In January 2005 Tel Aviv District Court accepted an appeal by a British father, represented by Advs. Amihoud & Louise Elizabeth Borochov , against the incorrect application of article 12 by the family court in Hague Convention proceedings. In this case, less than 11 months had elapsed between the alleged abduction of the minors from the U.K. in December 2003 and the filing of the Hague plea in Israel in November 2004. Despite this, the family court had given a temporary decision ordering professional report/s on the "settlement" of the minors in Israel. The panel of 3 District Court judges gave a unanimous judgment overturning the decision and cancelling the reports.

Question:

When my wife and I divorced in Zimbabwe I agreed that she should have custody of our children. My ex-wife’s parents emigrated to Israel on retirement and she asked my permission to take our daughters to see their maternal grandparents. As required in our divorce agreement she asked for my written permission, which I gave for a month’s visit. She has not returned with the girls and tells me she would like to make ‘aliyah’. How can I get them back ?

Answer:

The 1980 Hague Convention of the Civil Aspects of Child Abduction has been in force between Israel and Zimbabwe since October 1997. The convention protects visitation as well as custody rights that have been infringed. Thus a non-custodial parent who claims his Zimbabwian children have been wrongfully retained in Israel after consent was given for their presence there for a limited period can apply for an order under the convention for their return. Initial contact should be made to the central authority in Zimbabwe, the Permanent Secretary of the Ministry of Justice and if the application is successfully processed it will be heard by an Israeli family court. The general rule behind the convention is for a minor under 16 who has been wrongfully removed or retained to be returned to the country in which he normally lives.

Question:

If a parent abducts a child to Israel can he or she claim in his defence that the country they were living in was not a democracy and failed to recognize basic human rights – to persuade the court not to order the minor’s return ?

Answer:

Where the two countries involved are bound by the Hague Convention on the Civil Aspects of Child Abduction the court where the plea is brought for a minor’s return does have discretion not to return him ‘ in the defence of human rights and basic freedoms’ .

In a case decided by the Tel Aviv Family Court in 2000 a mother had abducted her three children from Zimbabwe to Israel, both states being bound by the convention. She claimed that Zimbabwe did not respect basic human rights and freedoms, saying it discriminated against women and Jews, and did not conduct fair legal proceedings. However, the court preferred the expert opinion presented as evidence by the father, over that presented by the mother regarding the situation in Zimbabwe. It ordered the children’s return, rejecting the mother’s claim, and held that Zimbabwe was a democracy, with a constitution and a bill of rights.

Question:

Where Israeli parents live abroad temporarily and their young children are born overseas , which country will a family court in Israel hearing a Hague Convention plea for the minors' declare to be the state of their habitual residence ?

Answer:

Where there is no mutual consent by the parents to permanently uproot from Israel and settle abroad, then Israel will be the minors' place of habitual residence even if they were born abroad . So ruled Tel Aviv Family Court in January 2005 when it rejected a father's plea for the return of two children, aged 2 1/2 and 16 months old, to Paraguay under the Hague Convention.

The parents were a young Israeli couple who had married in Israel but lived in South American countries for vocational/work reasons, without acquiring residency there. Their elder child had dual Israel and Venezuelan nationality and the younger one dual Israeli and Paraguayan nationality, as well as both being Israeli citizens. They had only been in Israel on visits. The parents had only tourist visas in South America and had been obliged to cross the border every three months to remain living there. The couple and their children visited Israel , where their families resided, between one and three times a year. The family had been living together in Paraguay for four months, and the mother and children came to Israel for a two month visit during the Summer of 2004. Soon after the father joined them, the mother announced that she would not be returning as planned.

Question:

If a parent whose child has been ‘abducted’ to Israel delays in filing under the Hague Convention and tries to settle the dispute by other means can this back-fire ?

Answer:

Yes, in certain circumstances. The parent runs the risk of giving the abductor the defence of ‘acquiescence’ if Hague Convention proceedings are later filed. It is advisable to file for the child’s return early and not follow a different legal strategy which could be construed as acceptance of the status quo.

The arguably controversial Leibovitz appeal case heard before the Israeli Supreme Court in 1993 illustrates the point. The parents were Israeli citizens but lived in the U.S.A., where their son was born. The father used to spend long periods in Israel, where he owned property, combining business with visits to his family. During one of his visits the mother arrived in Israel with the child, without the father’s consent or knowledge, and started legal proceedings for child custody and maintenance in Israel. The father filed his defence and filed two pleas at the rabbinical court – one for Marital Reconciliation (‘shlom bayit’) and one declaring his wife ‘rebellious.’ He saw his son regularly. He brought Hague Convention proceedings in Israel for the return of his child 10 months after the alleged abduction, claiming he was unaware of the convention due to poor legal advice.

The District Court – which, before the days of the Family Court, had jurisdiction over child abduction – accepted the father’s plea and ordered the child returned to the U.S.A. The mother appealed to the Supreme Court – and won. It was held that the father’s behaviour showed that he had ‘acquiesced’ in the child’s abduction.

The father had known that the mother’s action was unlawful two weeks after it occurred but he delayed efforts to secure the child’s return to the States until 10 months later, accepting the status quo and working on a different track in the Israeli courts, the Supreme Court held. He had hired a family law specialist and it is inconceivable to think he was unaware of child abduction proceedings, it said. Because of the father’s acquiescence the court was able to consider a broader range of considerations, and held it was in the minor’s best interests to remain in Israel.

The court summarised the concept of acquiescence (consent). To acquiesce a parent must be aware of the unlawful removal of the child and, in general of his/her rights against the other parent, but he need not know about the Hague Convention or the specifics of any available legal procedures, it held. The finding of acquiescence was not dependent on the passing of a year, as the father had claimed; a parent can acquiesce within the one year period mentioned in the convention.

Question:

If Israeli parents have been living abroad for around half of a young child’s life will it mean that Israel is no longer the centre of its life and the country of habitual residence ?

Answer:

Not necessarily. In a judgment given by the Haifa Family Court in September 2003 Israel was held to be the centre of a child’s life, even though the minor, who was born in Israel and was nearly 5, had spent the last two years in the States, where his father, an academic had been studying and working. The couple had lived there before, too. The paternal grandfather, who lived in Israel, had purchased return tickets for the mother and grandchild to visit Israel… but the mother never returned at the end of the visit. The court rejected the claim by the father that the United States was the centre of the child’s life and place of habitual residence. It refused to order his return. Neither parent nor the child had American citizenship, and they had not applied for it either, though the paternal grandfather gave evidence to say that the future of the plaintiff, an academic lecturing and researching at an American University, was in the United States, where they had rented property long-term, and that they had no plans to live in Israel.

Question:

Will an Israeli court hearing an application for the return of a child abroad be influenced in any way by the fact that the air tickets on which the alleged abductor and minor travelled were for both the outward and return journey ?

Answer:

No, according to a judgment given by the Haifa Family Court in September 2003. It rejected the plea by the father, who was studying and working in the States , for the return of the child, to the States. He had claimed that the child had been wrongfully retained here by the mother at the end of a planned visit to her family back in their native Israel, but the court said: “ The centre of the child’s life is the state of Israel and not the places where his parents stayed in the United States. The fact that one is dealing with return tickets does not change my finding, because in many cases return tickets are cheaper than one-way tickets.”

Question:

Is the question of whether Israeli parents bought a property abroad relevant in Hague Convention pleas heard in Israel for the return of allegedly abducted children ?

Answer:

Yes, it can be indicative of whether the parents intended to uproot from Israel and settle abroad. This is relevant in determining whether Israel or the foreign country is the minors' place of habitual residence. To change the place of habitual residence of very young children's country, from Israel to another country, it must be proved that the parents both agreed to do so. In January 2005 Tel Aviv Family Court rejected a plea for the return of two children under three to Paraguay where one of them was born and where they had been living with their Israeli parents for over a year, on the ground that Israel remained their "home". One of the factors presented by the defendant mother was that the couple had not purchased a property abroad, but had rented instead, although they had been able to do so financially.

Question:

What kind of behaviour by a parent bringing legal action under the Hague Convention for the return of minors to Israel would justify the successful defences of “consent” and “acquiescence” by the alleged “abducting parent” ?

Answer:

Examples of “consent” could be a letter or note in which the left-behind parent agrees to the other living in Israel with the children. There is no need for the letter or note to mention express consent to the other parent being the custodian. Acquiescence can be expressed by inaction.

These points emerged in the Luriah abduction case in the 1990’s, where they were successfully pleaded before Tel Aviv District Court.

No Reversal From Acquiesence in Abduction Cases

Question:

Can a parent whose children have been abducted bring successful proceedings for their return under the Hague Convention if,at one stage, he intimated to the abducting parent that he had ' resigned himself' to the situation ?

Answer:

No ! That parent may bring proceedings but they will not be successful if the parent defending the plea proves acquiesence . This is because once a parent has acquiesced to the abduction, he/she cannot retract his/her acquiescence and it will stand as a defence where the key elements of wrongful removal or retention from the country of habitual evidence are proved.

"Acquiesence can be by act or omission and can find expression even in one-off behaviour. Acquiesence can even be implied, the fruit of gradual developments in a sequence of events," the Supreme Court held in the Gabai case in the early nineties.

Furthermore , a few years later in the Dagan case, it said:

"After acquiesence has been obtained, the parent who acquiesced and who is interested in going back on his acquiescence cannot do so… the time for putting out the flames and first aid has already passed," it said.

Question:

My wife has not returned home from a short holiday to Israel, the country of her birth, with our children. I have begged her to come back with them. She in turn begged me for a little longer with her family – I agreed for a week’s extension and said if they were not home then I would file for proceedings for their return. She laughed, saying that she would claim I ‘consented’. Can she do so if she knows I object ?

Answer:

No, not successfully. In a Hague Convention case for the return of two minors to the United States brought by their father at The Tel Aviv Family Court it was held that an alleged abductor cannot claim consent on the part of the other parent when he/she knows that the latter is not willing to give in to the change in the status quo. What counts is the subjective opinion of the alleged abductor – not the ‘objective’ interpretation of the situation by a reasonable outsider, it held. To claim otherwise would counter the principle of integrity or good faith, it added.

Question:

I agreed to my wife visiting Israel with our children but she has not returned – and has told me she has no intention of doing so. When I threatened to bring child abduction proceedings against her she jeered, saying it was a waste of time as she had a signed document from me consenting to them being in Israel. I never signed any such document. How can I prove my case if I bring proceedings ?

Answer:

If a husband brings Hague Convention proceedings for the return of his allegedly abducted children from Israel then the Israeli family court can appoint a graphologist to examine and report on the genuineness of the so-called consent document. The court will include this expert report in the evidence brought before it when making its decision

Question:

Can personal e-mail correspondence that one parent obtains access to between the other parent and her secret lover abroad be used in Hague Convention child abduction proceedings in Israel about whether the removal was wrongful or not ?

Answer:

Yes – even if it was gained without the other parent's knowledge and consent, and is a breach of privacy under the Protection of Privacy Act of 1981. So said Kfar Saba Family Court in March 2005 during Hague Convention child abduction proceedings. Where the breach of privacy is made in good faith to protect a personal interest the breach becomes lawful, and the evidence obtained is able to be submitted to court, it said.

In the particular case, the husband had managed to break into the wife's private e-mail, and discovered hundreds of e-mails between her and a man in the United States which proved adultery and her regret for making the wrong choice of agreeing to settle in Israel with her husband and children, and leave her lover behind. This was accepted by the court to show that the children's removal from the United States had not been wrongful as the mother had consented, although she denied this.

Question:

Can a parent successfully claim that his/her consent to minor children leaving the country of habitual residence to settle in Israel was fraudulently obtained – and a trick to catch jurisdiction - and therefore not valid ?

Answer:

This can be claimed, but will be very difficult to prove, as reference to a case heard by Kfar Saba Family Court in March 2005, where such an argument was rejected, shows. Here, the mother, who had brought Hague Convention proceedings against the father for the return of their minor children to the United States only a month after the family arrived in Israel on 'Aliyah', claimed that she had been pressurized and threatened into agreeing to the children coming, to keep their marriage and family together. The father had filed for divorce and custody at Jerusalem rabbinical court just a few weeks after their arrival – and in response she had brought Hague Convention proceedings for their return to the United States.

The mother claimed that if she had known that her husband would initiate divorce proceedings at a rabbinical court in Israel, she would not have agreed to come or let the children come. She said her consent had been obtained fraudulently, and her husband had plotted to go 'forum shopping' and divorce. However, the court held that the evidence showed only after the family had moved to Israel did the husband discover that his wife had been committing adultery in the United States and that she was planning to return with the children. Thus, her consent had not been fraudulently obtained. Furthermore, the husband had proved that he had a life-long dream to settle in Israel, and this was clear from the start of their marriage. The evidence showed that the wife had made a free but difficult choice to uproot from the United States and settle in Israel., but which she regretted within a few days of her arrival.

Question:

Can a parent who wants to do a 'U' turn shortly after making 'Aliyah' (immigrating to Israel) use the Hague Convention to get the minors back abroad, close to the family's arrival in the country ?

Answer:

Not if it is proved that the children were lawfully removed from the country in which they were living i.e. that there was the mutual consent of both parents . Where the removal was lawful – i.e. it is proved that both parents consented – then there is no wrongful removal, and no abduction, so that the 1980 Hague Convention on the Civil Aspects of Child Abduction does not apply. The parent wishing to return must apply for custody and relocation of the minors in Israel.

These points were made very clearly by Kfar Saba Family Court in March 2005 when it rejected a plea by a mother under the convention for the return of three minor children to the States, filed a month after the family had made 'aliyah' to Israel from the United States. From the wealth of evidence presented the court said it was overwhelmingly clear that the mother had consented to their removal. She had faced a difficult choice - between following her husband's "Aliyah" dream , thereby keeping her marriage and family together, or remaining in the States , where she had had been having a long-term clandestine love affair . She had claimed she had been pressurized into the move, and therefore, her consent was not freely given, resulting in the removal being wrongful. The court rejected this argument. She had clearly planned to uproot and settle in Israel, but quickly regretted her choice as she could not overcome her longing for her lover in the United States, it said

Question:

My wife has abducted our young children to Israel from the U.S.A. She was supposed to take them on a short visit to see her family but did not return as planned. She told me plainly that she intends to stay in Israel with them – and if I bring proceedings for child abduction she will ‘let the cat out of the bag’ about my violence. There has been no history of violence between us – and no complaints to the police or legal action in the states. How will a court in Israel deal with allegations of violence to defend alleged child abduction ?

Answer:

Firstly, when an alleged abductor uses violence as a defence in Hague Convention proceedings brought at a family court in Israel he/she must prove that the minors themselves are exposed to a grave risk of danger – physical or emotional. The family court in Israel would most probably appoint a suitably qualified professional to talk to the minors and report on the findings. When the children are very young the court will not usually choose to hear direct evidence from the minors themselves, for fear of any negative emotional effects it may have on them and because it is not usually helpful, given that the experts are better qualified to assess the situation.

In a Hague Convention case heard by the Tel Aviv family court in 1997 the mother, the alleged abductress, claimed in her defence that the father was violent. The court appointed a psychologist to talk to the two minors, aged 4 and 8 and did not hear evidence from them directly.

Question :

Can a mother who arrives in Israel for a visit with her husband and children successfully fight child abduction proceedings based on the claim that he ‘abandoned’ them and therefore consented to them remaining in the country ?

Answer:

In May 2003 in a child abduction case between an Ultra-Orthodox couple the mother, who was an Israeli citizen married to an American citizen, claimed that her husband effectively agreed to her and the minors remaining in Israel when he put them in a taxi to her parents’ home in Bnei Brak immediately on arrival at the airport, retained their passports and did not purchase return tickets for them. However, the Tel Aviv Family Court rejected her claims, and ordered the minors home. It said that the mother’s evidence was inconsistent and lacked credibility, and that she had failed to prove any of the specific defences. It held that she had not adapted well to life in the United States, and had ulterior motives when she accompanied her husband and their the 3 year old son on a special trip to Israel to participate in a special Lag B’Omer haircutting ceremony, only 10 days after the birth of a their second child. She had decided in advance to either remain in Israel with the children – or to pressurize her husband, who grew up in Israel until the age of 14, to live there instead of the United States, or to make sure he rented accommodation away from his parents in New York.

Question:

At what age will an Israeli court give weight to a child’s views when dealing with an application for his or her return abroad in Hague Convention abduction proceedings ?

Answer:

The 1980 Hague Convention on the Civil Aspects of Child Abduction does not mention any specific age regarding when a child’s wishes should be taken into account, leaving the court hearing the application to decide whether the minor has the requisite understanding and maturity for his/her viewpoint to count. Courts in many countries hearing abduction cases only give weight to the wishes of a child who is around 12 years of age.

In Israel, however, courts dealing with children’s custody usually give weight to their wishes when they are around 10, depending on their maturity and understanding. In a March 2003 case the Haifa Family Court held that a nine and a half year old boy had sufficient understanding and maturity for his wishes to be taken into account in the application by his father for his return to the United States. The judge did so after hearing the minor for over an hour in her chambers, in the presence of a social worker – and after both of them and the court-appointed professional’s report all agreed that he was mature enough for his views to be taken into account.

Question:

How does an Israeli court check to see whether a child has been ‘brainwashed’ by the abducting parent when hearing the minor’s own views on whether he should be ordered to return abroad following Hague Convention Proceedings by the other parent ?

Answer:

According to a judgment by Haifa Family Court in March 2003 it should first establish whether the child has sufficient understanding and maturity to have his wishes taken into consideration in the first place. Part of this will be to see whether he can separate his needs and wishes from those of the abducting parent . If he can clearly differentiate between the two then this is a sign that he has his own opinions and has not been brainwashed. It can establish this from first-hand impressions gained from conversation with the minor in chambers, and/or from reports from professionals .

In the particular case the court said: “ I have got the impression that the child has not been incited or ‘brainwashed’ and that he makes a clear distinction between his own feelings and wishes and those of his mother. Despite his harsh claims against his father, he does not hate him and he does not ask to be cut off from him completely. He objects to his return to the United States because he had a bad time there. He felt alone and alienated, exposed to his parents’ harsh quarrels , forced to give in to the impossible dictates of his father in the choice of educational framework for him where he suffered and was cut off from his childhood friends and family in Israel…..I have no doubt that his wish is genuine and expresses his good in the widest sense. He is crying out against his return to a place and a situation which for him were extremely difficult,” the court said.

Question:

Will an Israeli court hearing a Hague Convention plea to return children who have been abducted to Israel take the views of their views into account ?

Answer:

Yes, if they are of sufficient age and maturity for their views to be taken into consideration, and they object. This is because according to Section 13(b) of the 1980 Hague Convention on the Civil Aspects of Child Abduction, the court dealing with the plea has the discretion not to issue return orders for children in these circumstances.

In December 2005 Beersheva Family Court refused a request by the mother to order the return to Italy of two minors it held had been abducted by the father, the defendant, because the children, aged 12 and almost 10, objected to this, and were found to be of sufficient age and maturity to have their viewpoint taken into account. The court also stated that under Section 12 of the International Convention on the Rights of the Child, which is binding on Israel, it was committed to respecting minors' rights to have their true wishes taken into account in any matter concerning them, in accordance with their age and maturity.

To determine the children's viewpoint, the court appointed an Italian speaking psychiatrist to examine and report on the children's views. In her report, the elder child was reported was "standing firm in her viewpoint, not to return to Italy on any account, even if the judge decides so". The younger child, the son, was reported as trying to find various solutions to the problem, but returning to his basic wish to remain with his father, and not be separated from his sister, in the hope that the mother would join them. When cross-examined in court as to whether the children's answers about not wanting to return to Italy reflected their true wishes, the expert answered positively. She also said that they were consistent in their viewpoints.

A social worker appointed by court also reported that the two children had expressed the same viewpoint to her.

 The children had been abducted by their mother to Italy a few years previously, but the father had been unsuccessful in Hague Convention proceedings for their return.

Question:

How strict are Israeli Courts in interpreting the Hague Convention defence in child abduction proceedings that the child 'objects' to being returned to his or her country of habitual residence ?

Answer:

Much stricter, in the light of recent Supreme Court rulings on the issue. For example in April 2007 the Supreme Court re-iterated the need for an extremely narrow interpretation of the defence, as an exception to the rule of returning abducted children under the Convention. Underscoring a 2006 Supreme Court ruling, it stated that the parent wishing to prove the defence faced a very high standard of proof. The genuinely objecting child had to be of a sufficient chronological age and emotional maturity and his/her objections had to be 'dominant and most strong'.

In the case concerned the Haifa Family Court had refused to order the minors, aged 12 and 10, back to Holland, accepting their "objections" as a defence. The father , who had joint custody under a Dutch court ruling, had won on appeal at the Haifa District Court, but the mother , who had disobeyed a Dutch ruling forbidding her to take the minors out of Holland, applied to the Supreme Court for permission to appeal. It rejected her request , holding that the family court had not correctly balanced the need for a narrow interpretation of the defences with the overall aim of the Convention, to return abducted children .

Question:

Can a court in Israel dealing with a plea for the return of abducted children, condition ordering them back on the parent remaining overseas guaranteeing initial support of the mother and the minors on their return ?

Answer:

Yes. In September 2004 Jerusalem Family Court dealt with a clear case of abduction of two minors from the United States , where their separated Israeli parents had lived for many years, to Israel, and conditioned the granting of a Hague Convention return order upon the father in Los Angeles depositing a total of $8,000 with the mother in Israel, or someone abroad, for rental of accommodation and child maintenance for two months, car rental for a month and the purchase of basic furniture. The court held that immediately the mother notified it that the father had deposited the above sums, then the orders preventing the children leaving Israel would be cancelled, and the return order it granted to the United States would be activated.

In this case the mother agreed to return voluntarily – but had demanded support for the initial period following her return.

Question:

Can someone who gives a ‘haven’ to a minor child who has returned to Israel with one parent ,against the other parent’s consent, get into trouble with the police ?

Answer:

Yes, a person who receives or hides away a minor under the age of 14, and knows that he was removed or detained by deception, force or temptation , is liable for up to 7 years’ imprisonment, according to the Israeli 1977 Penal Law.

Question:

Will an Israeli court dealing with a plea for a return order of a minor under the Hague Convention take into account any past bad faith on the part of the parent bringing the action ?

Answer:

No, according to comments made by the Tel Aviv Family Court in February 2003 when dealing for an application by a father in America for the return of his son following the refusal of the mother to send him back there at the end of his two-year stay in Israel, according to an agreement authorised by Los Angeles Superior Court.

It said: “The main rule is : a person asking the court to grant him relief must come to with clean hands and in good faith. The question is whether there is room to give this principle any weight during proceedings under the Hague Convention, has not been treated in any depth in caselaw or in legal literature. In the light of the legal result we have reached we have not related to this question itself, and it is likely that there will be a place to do so, somewhere else and some other time.”

The family court said that during proceedings between the parties in Israel, it had been proved on several occasions that the father had acted in bad faith. It related one incident where the day after he had agreed to hand over his own passport to the mother whilst in Israel to exercise his visitation rights to guarantee him returning the minor to her at the end of the visit, he had applied for new American passports for himself and his son, citing the theft of his passport as a reason.

It stated that it had not taken the father’s lack of good faith into account in reaching its decision, although it rejected his plea. It did so on other legal grounds – that after two years in Israel, the United States could no longer be regarded as the minor’s place of habitual residence, and therefore, it could not order his return there according to the terms of the agreement.

Question:

Can a relative of a parent abroad bringing a Hague Convention action in Israel for the return of a child abroad give evidence in proceedings here ?

Answer:

Yes. In September 2003 Haifa Family Court heard testimony from the father of the plaintiff , who was in the United States , after it had earlier turned down the latter’s application to give evidence by video-conference. The Court had earlier held that the hearing would take place in the presence of both parties but the plaintiff had said that if he came to Israel he would have to re-apply for a visa in the United States, which was time-consuming and would result in him losing his job. The court stressed that he got the impression that the grandfather’s source of information was the plaintiff, so that his knowledge was second-hand, and his testimony, therefore, had little value.

Question:

What happens if an Israeli court finds that minors have been abducted to Israel and orders their return –but the abducting parent refuses to travel with them ?

Answer:

The court has jurisdiction to order alternative arrangements regarding who should accompany the minors on their return. For example, in May 2003 when the Tel Aviv Family court ordered the return of two minors to the United States under the 1980 Hague Convention on the Civil Aspects of Child Abduction , it stated that the paternal grandmother or paternal grandfather, who lived in Israel, could accompany them if the mother, who had abducted them, decided for any reason not to return with them. The father had not travelled to Israel for the case.

Question:

Can Hague proceedings be used against a parent who relocates to Israel with a minor child lawfully , following an arbitration agreement abroad that places future disputes in the hands of the arbitrators – but then fails to honour visitation arrangements ?

Answer:

Most probably not – if what is sought in the action is a return order, using a November 2005 ruling by Tel Aviv Family Court as a guideline. In this case the parents had entered into two arbitration agreements which had been authorized by court in Canada – one dealing with their separation, and the other with parenting. According to the later the mother had custody and could relocate to Canada , subject to set visitation in Israel and Canada. The agreement stated that continuing jurisdiction over custody / visitation lay with the arbitrators.

However, the mother did not honour visitation set in Canada, and applied and gained a temporary order preventing the child leaving Israel, when the minor was due to fly to Canada for visitation. She claimed she discovered that the minor had apparently been subjected to sexual abuse by his father, evidence of which she provided. The father brought proceedings for the return of the minor under the Hague Convention, but Tel Aviv Family Court rejected the plea, saying that there had been no wrongful removal within article 3 of the Convention, as relocation had been according to a court authorized arbitration agreement, and that the father had not chosen to file for the infringement of his visitation rights under article 21. Furthermore, the court rejected the father's application for a Habeas Corpus order outside the convention, saying that proceedings brought by the mother would deal with all the issues involved.

Question :

I live in the United States , and am separated from my wife, an ex-Israeli, who has temporary custody of our child. She wants me to agree to let her raise our young son , who was born in the States, in Israel for a few years so that she can be near her parents and family, with whom she is very close. She says she will sign an agreement whereby she will come back to the States with our son before he starts school, and he will live with me. Would signing such an agreement be risky for me ?

Answer:

Yes ! If a father signs an agreement in the states which allows a minor’s mother to live with the child in Israel for a period of a few years he could find he does not actualise his rights to custody or visitation according to an agreement they may make in the United States, even if it receives court authorisation there. This is because once a minor lives in Israel for a reasonable amount of time he will become settled and his habitual place of residence will probably become Israel, and not the United States . This would mean that if the mother failed to honour her commitment regarding his return to the United States, and the father brought Hague Convention proceedings in Israel to enforce his rights under the agreement he may well fail.

In February 2003 an American father found himself in this position at the Tel Aviv Family Court, even though he had an agreement regarding legal and physical custody authorised by the Los Angeles Superior Court. He brought legal action in Israel to enforce his rights to have physical custody of his 12 year old son in America, according to the terms of his agreement with his ex-wife, an Israeli. She had refused to return the minor to the States at the end of the agreed two year period . The court rejected the father’s action, holding that the son, who was born in the States and had lived there all his life until he was 10, had become habitually resident in Israel, and, therefore, it had no choice but to refuse to order him to be returned to the United States.