|
Israel
Child Abduction
Preventing International Child
Abduction in Israel
ISRAEL: HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Ruth
Levush, Library of Congress
Introduction
The 1980 Hague Convention on the Civil Aspects of International Child
Abduction was incorporated into Israeli law in December of 1991. The
implementing law offers a speedy route for the return of minors to the
country from which they were illegally removed so that the courts of the
other country are able to deal with the issue of custody. The remedy
under the Convention is return of the status quo that existed prior to
the abduction.
I.
Domestic Laws and Regulations Implementing the Hague Convention
A. The
Implementing Law
The
Knesset passed the Hague Convention (Return of Abducted Children) Law,
5751-1991 on
May
29, 1991. The law incorporates the Convention on the Civil Aspects of
International Child
Abduction, signed in the Hague on October 25, 1980 (hereinafter the
Convention), into Israeli domestic law subject to a reservation
regarding the reimbursement for legal expenses in accordance with
article 26 of the Convention.
According to the law, the Attorney General’s Office is designated as the
Central Authority for the purpose of discharging the duties under the
Convention. The Attorney General is authorized to designate qualified
welfare officers within the meaning of Welfare Services Law, 5718-1958,
in order to carry out necessary tasks in accordance with the Convention.
The
delivery of information necessary for implementing the Convention
depends on receipt of a guarantee of secrecy by the Attorney General and
a promise that the information will not be used for any purpose other
than that for which it was delivered.
The
law designates the family court as the authorized court to adjudicate
suits involving the application of the Convention. In accordance with
article 16 of the Hague Convention, after the government receives notice
of a wrongful removal or retention of a child, no decision on the merits
of rights of custody of the minor can be made until it is determined
that the child is not to be returned under the Convention. Therefore,
any proceedings relating to custody of children, either in civil or
religious courts in Israel, will cease until a determination is made on
the status of return under the Convention.
B.
Procedure in Hague Convention Actions
The
implementing law authorizes the Minister of Justice to pass implementing
regulations. In accordance with Civil Law Regulations (Amendment)
5756-1995, Chapter 22(1) titled "Return of Abducted Children Abroad" was
added to the principal regulations. The regulations provide that an
action for the return of a child abroad under the Convention will begin
with the delivery of a pleading to the court in the geographical
jurisdiction in which the child is present. If the location of the child
is unknown, the pleading should be filed with the authorized court in
Tel-Aviv.
The
pleading should be in the form of an affidavit that includes personal
information regarding the child and the parents such as names, places of
birth, passports and Israeli identity cards, places of marriage, place
of last shared residence, information regarding the person holding the
child, and circumstances of the transfer of the child to a different
address. The affidavit should be accompanied by the following: an
authentic original or copy of a decision or an agreement regarding the
plaintiff’s right to have the child in his custody; any other document
substantiating the pleading, including proof of the law governing in the
child’s regular place of residence; and an affidavit from any other
person the plaintiff deems necessary.
At the
time of filing the request, the plaintiff may request any relevant
temporary relief. The court may decide
ex
parte
(in the presence of the plaintiff only) in the following matters:
(1)
the issuing of exit orders against an abductor and/or a child to prevent
their departure from Israel
(2)
the prohibition of the removal of a child from a location specified in
the orders
(3)
the issuance of a decree for deposit of the child's passport or a
passport where the child is registered
(4)
the issuance of an order for the police to investigate the circumstances
of the abduction, locate the child and assist a welfare officer to bring
the child before the court
(5)
the issuance of an order directed at other judicial or administrative
agencies not to review the matter
(6)
the issuing of any order necessary to prevent any additional harm to the
child or to the rights of the parties or that will guarantee the return
of the child by consent or by peaceful means.
In
addition, the law also gives the court general jurisdiction to issue
stop orders when a civil suit is filed before it.
A
notice on the date of the hearing and a copy of the pleading and any
order handed by the court should be provided to the respondent, who is
under an obligation to respond not later than 2 days before the hearing.
The respondent should provide an affidavit and any document or any other
person’s affidavit substantiating his response. The hearing should take
place not later than 15 days following the filing of the suit.
Before
reaching a decision, the court may order the plaintiff to provide proof
of a decision or a determination from the authorities of the country of
the child’s regular residence indicating that the child' s removal was
carried out illegally. A respondent who claims that the return of the
child would deprive the minor of the protection of human rights and
fundamental freedoms will similarly be requested to provide clear and
convincing evidence to substantiate such a claim.
The
Court may order the immediate return of the child to his regular place
of residence, even in the presence of one party, as long as a summons
for the hearing was delivered to the respondent or his designee. When
such an order is issued, the court will provide instructions as to the
return of the child to all relevant parties, as well as to a welfare
officer and the Israeli police. The court should provide a detailed
decision no later than 6 weeks following the filing of the suit.
An
appeal on the decision or on any other order should be filed within 7
days from the date it was made. Copies of the appeal pleading should be
delivered by the appellant to all parties at the time of the filing.
II.
Domestic Laws Regarding Child Abduction and Parental Visitation
A.
Child Abduction
There
are three sections in the Penal Law related to the abduction of a minor.
“Stealing of a minor” is defined as the taking away, detention, receipt,
or concealment of a minor under 14 years of age, by fraud, force, or by
enticement “with the intent to deprive the parent, the guardian or other
person who has the lawful care or charge of him, of possession of the
minor and to secure such possession for himself or for another.” The
offense of stealing a minor is punishable by 7 years imprisonment.
The
taking or enticement of a minor under 16 years of age from the custody
of his lawful guardian without the consent of such guardian is
punishable by 20 years imprisonment. If the abduction involves removing
the minor from the country, the perpetrator may be subject to an
additional penalty of 20 years imprisonment.
A
response to Questionnaire on Preventive Measures submitted by the office
of the State Attorney to the Permanent Bureau, The Hague, on March 30,
2003, states with regard to the above offenses: “All are considered
serious felonies with one felony carrying a maximum penalty of 7 years
imprisonment, and two carrying a maximum penalty of 20 years
imprisonment. It is possible that such stringent penalties serve to
deter potential abductors and may have a preventive effect.” Some,
however, have suggested that the preferred policy in such cases should
be to avoid resorting to criminal intervention as long as civil remedies
are available.
B.
Parental Visitation
Israeli law recognizes the principle of equality with respect to
guardianship of children. Although both parents are considered "the
natural guardians of their children," a competent court is authorized to
determine guardianship "with the interest of the children as the sole
consideration.”
According to the Capacity and Guardianship Law, 5722-1962, as amended,
parents of a minor who live separately may agree on custody arrangements
of the minor, including visitation rights. The court will determine
custody and visitation arrangements only in cases where the parents
either have not reached such an agreement or have not carried out the
agreement they had reached. In so doing, “[t]he court may determine it
to be the best interest of the minor: provided that children up to the
age of 6 will be with their mother unless there are special reasons for
directing otherwise.”
A
decision by an authorized court in Israel under the Hague Convention
does not determine the merits of any custody issue.22 Rather, such a
decision offers an emergency remedy: by ordering the immediate return of
an abducted child, the Israeli court enables the court of the country in
which the abduction took place to deal with custody related issues.
III.
Court System and Structure - Courts Handling the Hague Convention
A.
Court System and Structure
In
accordance with a 1995 amendment of the Hague Convention (Return of
Abducted Children)
Law,
the authorized court for purpose of implementation of any judicial or
administrative function relating to abducted children is the family
court. The latter court, thus, handles all Hague Convention child return
proceedings, visitation, and enforcement of related orders.
Family
courts are magistrates' courts that have been designated as family
courts by a decree signed by the Minister of Justice, with the consent
of the Chief Justice of the Supreme Court. Judges can be appointed to
the family court if they prove to have knowledge and professional
experience in this area.
The
Israeli court system is composed of a general court system and a number
of specialized courts.
The
general court system is comprised of three instances: magistrates'
courts, district courts, and the Supreme Court. As explained above, the
courts that have jurisdiction over implementation of the Hague
Convention are the family courts, which are magistrates' courts, and
thus part of the general court system.
Appeals on decisions of magistrates' courts are entertained by district
courts. The five Israeli district courts are located in Jerusalem, Tel
Aviv, Haifa, Beer-Sheva, and Nazareth. District courts have residual
jurisdiction over all criminal and civil matters that do not fall within
the jurisdiction of the magistrates' courts, and general residual
jurisdiction to hear any matter that is not under the exclusive
jurisdiction of any other court or tribunal.
The
Supreme Court sits in Jerusalem and has jurisdiction throughout the
whole country. Its substantive jurisdiction lies mainly in two areas: it
hears appeals against judgments and other decisions of the district
courts, and also sits as a High Court of Justice. “When so sitting, it
will hear matters in which it deems it necessary to grant relief for the
sake of justice and which are not within the jurisdiction of another
court. . . .” In addition to the general system of courts, Israel has
some special courts, including labor courts, military courts, and
religious courts. The rulings of the appellate tribunals of these courts
are subject to a limited review by the Supreme Court sitting as a High
Court of Justice.
Although family courts have exclusive jurisdiction over requests for
implementation of the Hague Convention, the issue of permanent custody
may be adjudicated by either the family court or the appropriate
religious court.
The
religious courts of Israel have jurisdiction in matters of personal
status relating to members of their communities. According to the
Rabbinical Court Jurisdiction (Marriage and Divorce) Law, 1953, “matters
of marriage and divorce of Jews in Israel, being nationals or residents
of the state, will be under the exclusive jurisdiction of the rabbinical
courts.” Matters incidental to divorce, including suits for maintenance
and custody of children, however, are not within the exclusive
jurisdiction of the rabbinical courts. Jurisdiction by a family court
may be established by filing an action there before filing an action for
divorce and other incidental matters in the Rabbinical court. The
Christian religious courts and the Druze courts have jurisdiction
similar to that of the rabbinical courts. The religious courts of the
Muslim community (the Sharia courts), enjoy the highest level of
substantive independence in that they are empowered with general
exclusive jurisdiction over all personal status matters, not merely over
marriage and divorce.
B.
Court Decisions
Numerous cases involving implementation of the Hague Convention (Return
of Abducted Children) Law have been entertained by Israeli courts. In
most cases the Israeli courts have ordered the return of the children.
The Supreme Court repeatedly held that the general rule dictated by the
Convention is the return of an abducted child to the country of habitual
residence and the protection of rights of access.
While
the general rule enjoys broad interpretation, exceptions to it are
interpreted very restrictively. In the absence of proof of severe harm
to the child expected as a result of the return, the child should be
returned. The time that lapsed since the abduction, the child’s positive
adjustment to the new place, and the strong contact with the abducting
parent are all important considerations in the determination of custody.
Israel’s highest court, however, held that such considerations should be
evaluated by the court of the country from which a child was abducted
during the process of determining the custody of a child based on the
best interest of the child.
The
following is a summary of recent decisions of the Supreme Court on this
matter, reflecting its approach to implementation of the Convention.
According to the rule of
Stare
decisis
as
applicable in Israel, decisions by this court bind all other courts.
C.
Jurisdiction
Einat Ron v. the Superior and Regional Rabbinical Courts,
and Erez Ron.
Decision rendered on January 10, 2002, and confirmed in rejection of a
request for a special hearing on October 6, 2002. In its decision the
High Court of Justice recognized the authority of a New York court under
the treaty to determine the habitual residence of the children as New
York ordered the Israeli rabbinical court to refrain from hearing a suit
for their custody. The Court thus rejected the request to return the
children to Israel.
Facts:
The
petitioner and the third respondent (the husband) are both citizens of
Israel. In 1991 they were married in the United States in a civil
marriage. In 1992, they returned to Israel and went through a Jewish
religious marriage. The couple’s two children were born in Israel in
1993 and 1995. They jointly bought a house in 1995. Upon the advice of a
marriage counselor trying to save the marriage, the couple relocated to
the United States in August 1997. The husband argued that there was
consent that the relocation would be temporary. In May 1998, following
the filing for a divorce, custody of the children, alimony, and property
division, the petitioner and the children moved to the petitioner’s
sister’s house in the United States. Welfare authorities of New York
started investigating suspicions of sexual abuse by the husband towards
the children following a report by a nursery school teacher of strange
behavior by one of the children. Although the husband was notified that
the hearing of the divorce request was scheduled for May 8, 1998, he
left the United States three days earlier and returned to Israel. He
then filed for a divorce, division of property, custody of the children,
and child support at the Tel- Aviv regional rabbinical court.
On
July 27, 1998, the New York court ordered the dissolution of the civil
marriage and further ordered the husband to divorce the wife in
accordance with Jewish law in the rabbinical court in New York. The
court granted the wife exclusive custody of the children without
visitation rights to the husband and ordered the division of the
couple’s joint property in Israel. In early 1999, the husband filed a
request for return of the children to Israel in accordance with the
Hague Treaty. The New York court rejected the request and held that it
had not been proved that the regular place of residence of the children
was not in New York.
The
petitioner requested the High Court of Justice to prohibit the
rabbinical court to entertain the suits for divorce, children custody,
and division of property.
Decision of the High Court of Justice:
While
recognizing the jurisdiction of the regional rabbinical court to hear
the suit for divorce and for division of joint property, Justice Beinish
distinguishes between these suits and the suit for custody of the
children. She concludes that even if the rabbinical court had
jurisdiction to entertain a suit for custody of the children, it should
refrain from exercising it in this case. Based on the Hague Convention,
the authority to determine the place of habitual residence of the
children prior to their removal or lack of return is vested with the
court of the requested state where they are present. It follows that the
New York court has the jurisdiction to determine the children’s place of
regular residence. Because Israel is a party to the Convention, it is
obliged to respect this determination. The Israeli courts, including the
rabbinical courts, cannot sit as a court of appeals over determinations
made by authorized agencies in New York under the Hague Convention.
Doing so will result in circumventing Israel’s obligations under the
treaty and will have a negative impact on the strength of the treaty,
which is based on mutual respect among Member States.
Another reason for the obligation of the rabbinical court to refrain
from exercising its jurisdiction is based on the doctrine of
Forum Non Conveniens,
which recognizes the forum which has most relevant links to the case as
the proper forum for the proceedings. Generally, the proper forum for
child custody proceedings, in accordance with the treaty, is the child’s
regular place of residence. In the current case a hearing on this issue
will require removing the children from their regular residence and
education system to Israel. An additional difficulty arises from the
fact that many social and education workers who handled allegations of
sexual abuse against the husband are in New York. The New York forum is,
therefore, the proper forum.
Justice Englard agreed that the rabbinical court should refrain from
exercising jurisdiction based on lack of sincerity on the part of the
husband, who attached his claim for custody of the children to a suit
for divorce before the rabbinical court even though he knew that custody
proceedings had already begun in the United States and proceeded with
him, or his a representative, intentionally absent. Based on the above,
the rabbinical court was ordered to refrain from entertaining the suit
for custody of the children subject to a commitment by the petitioner to
do whatever she could to allow the entry and the stay of the husband in
the United States for the duration of the proceedings.
A case
where the High Court of Justice reached an opposite decision recognizing
the jurisdiction of an Israeli rabbinical court to determine the
children’s place of regular residence and to hold that they were removed
from Israel illegally is
Malina
Esther Hagag v. the Superior and Natania Regional Rabbinical courts and
David Hagag.36
The decision was rendered on August 6, 2001 to return the children to
Israel.
Facts:
The
petitioner is a Danish citizen who arrived in Israel in 1994. During her
stay in Israel, she converted to Judaism with her first two children and
married the third respondent (their father, hereafter the husband) who
was an Israeli citizen, and they had their third child. In 1998, the
petitioner left Israel with her children for Denmark where she filed a
suit for divorce. Three months later the husband filed a suit at the
rabbinical court in Natania to which he later attached a suit for return
of his children to Israel and a determination of their custody. The
Rabbinical court issued an order to the petitioner to return the
children to Israel within 30 days of the date of the order. The
petitioner’s appeal to the Superior rabbinical court was rejected. At
the request of the husband, Israel’s Attorney General’s Office filed a
request with the Central Authority in Denmark in accordance with the
Hague Convention to return the children to Israel. The Danish court held
that although there was no appropriate reason to refuse the return of
the children to Israel, a final decision would be made after receipt of
a report from a child psychologist and a determination by the Israeli
High Court of Justice regarding the validity of the Superior Rabbinical
Court’s decision.
Decision of the High Court of Justice:
Justice Cheshin held that in the circumstances of this case the
rabbinical court has jurisdiction under Israeli law, which requires that
both spouses are Jewish and citizens of Israel. He interpreted the
additional requirement that the spouses are “in Israel,” as a
requirement of proof of strong linkage to Israel. The petitioner’s
strong linkage is manifested by the fact she lived in Israel with her
husband for 4 years, went through the very demanding process of
conversion to Judaism with her two older children who went to Israeli
schools and spoke Hebrew, had a third child born in Israel, and became
an Israeli citizen with her children. The husband filed for divorce and
return of his children 2 months after the petitioner left Israel.
Although the rabbinical court is not the designated Central Authority
under the Convention, it was fully authorized to make a determination
that the children must be returned. This is because the rabbinical court
has full authority to hear child custody cases based on Israeli domestic
law. Its decision to return the children to Israel does not mean that it
recognizes the rights of the husband for custody, rather that the
petitioner violated the custody rights of the husband. The issue of
custody will be determined after the return of the children and a
hearing of the parties and experts, in accordance with the best interest
of the children.
Justice Cheshin finds no contradiction between the provisions of
Israel’s domestic law and the treaty. Indeed, it is the family court
which has exclusive jurisdiction under the Convention in cases where the
child is in Israel after being illegally taken from Israel to another
state. The Central Authority under the Convention is located in the
requested state. In this case, however, there are no proceedings in
Israel where a Central Authority is requested to order the return of the
children to another country. Instead, it is the Central Authority in
Denmark which is requested to order the return of the children to
Israel.
The
decision of the rabbinical court is therefore within its power and can
properly be forwarded to the Denmark court. If the latter will order the
return of the children, Israeli courts will make a determination of
their custody based on the principle of the best interest of the
children.
D.
Return of children Illegally Removed or Whose Return Was Illegally
Prevented
Joe v.
Doe,
Decision rendered on April 29, 1999 ordering the return
of children to Italy.
Facts:
The
petitioner (the mother) was married to the respondent (the father). They
lived in Italy and had two daughters. In accordance with the divorce
agreement, the mother was awarded custody of the daughters and the
father obtained visitation rights. The mother was prohibited from taking
them out of Italy. In violation of the agreement, the mother took the
girls to Israel. Following the district court decision to return the
daughters to Italy in accordance with the Hague Convention, the mother
petitioned the Supreme Court to allow an appeal.
Decision of the Supreme Court:
After
reviewing all the evidence including the testimony of the psychologist,
Justice Strasberg-
Cohen
held that although the girls have adjusted to life in Israel, their
arrival there was wrong, being in violation of a court order given in
Italy. Their continued stay in the country was also in violation of
Israeli court orders. The continued efforts of the mother to avoid
compliance with her obligation by repeatedly disappearing and changing
her address convinced the Court that the mother should not be given even
temporary custody. Furthermore, the lapse of time since the petitioner
abducted the daughters was not in her favor, since the Hague Convention
did not recognize extending legal proceedings as a defense.
D.S. v. A.S,
Decision rendered on June 1, 1999 to return a child to the United
States.
Facts:
The
petitioner (the mother) was born in Israel, left the country as a child
and settled in the United States with her parents. She had dual United
States and Israeli nationality. The respondent (the father) was born in
Israel and was an Israeli citizen who resided in the United States for
23 years and held an American work permit. The parties married in the
United States in 1979, where they had a child in 1986.
They
maintained close contacts with Israel and visited it frequently. The
child was bilingual. They planned to move to Israel. For this purpose,
they sold their residence and deposited the proceeds in their joint
account in a bank in New York. In 1998, the relationship between the
parties deteriorated and the petitioner reversed her plan to immigrate
to Israel. She conveyed her decision to the respondent and the child and
filed for custody with the authorized court in New York. The respondent
then withdrew all the money from their joint account and transferred it
to Israel. He convinced the child to immigrate with him to Israel using
a new passport based on a false claim that the child’s passport, which
was held by the mother, was lost. The petitioner filed a request with
the Haifa family court for the return of her son. The respondent’s
defense was that the petitioner agreed that the child would live in
Israel and that the child objected to being returned. An appeal to the
Supreme Court was lodged following the district court decision accepting
an appeal over the family court decision accepting the request for
return.
Decision of the Supreme Court:
The
Court accepted the appeal and determined that the child should be
returned to the United States. Justice Dorner held that a child’s
objection was not sufficient for the application of the exception to the
rule of return. Rather, the Court should apply its own discretion by
interpreting the exceptions specified by the Convention very
restrictively. Moreover, the Court should always presume that the best
interest of the child is not to be abducted by one parent and lose
contact with the other parent. The child’s wish to remain in the country
to which he was abducted and his positive adjustment to it are
considerations that should be reviewed in the process of determining
custody. The determination over custody, in accordance with the best
interest of the child, is to be made by the court of the country from
which he was abducted.
In the
circumstances of the case, it was determined that the child loved his
mother. The need to choose between his parents resulted in a deep
anguish for him. The court found that the child was not mature enough to
make a determination based on consideration of all the circumstances. In
light of the appeal and ordered the return of the child to the United
States.
T.D. v. S.D.
Decision rendered on June 14, 1999 to return a child to the United
States.
Facts:
The
parties (a married couple) were Israeli citizens and did not hold any
additional citizenship.
They
arrived in the United States in the summer of 1994 for a two week visit
to the petitioner’s parents who had been living there for twenty years.
During the visit, they agreed to stay in the United States for a period
of two years, during which the petitioner would develop a business and
the respondent would study. They applied for green cards and bought an
apartment. The petitioner established a company with his father. The
respondent completed her studies for a Masters Degree and started
looking for a job in the United States. In December 1995, the minor who
became the subject of the request, was born in the United States and as
such was an American citizen. In 1996, the respondent, with the consent
of her husband, flew to Israel with her one year old son for a visit.
Although their tickets were round-trip tickets, the respondent and the
child did not return to the United States on the return date specified
on the tickets. Both parties started custody proceedings, the petitioner
in New Jersey and the respondent in Israel. The petitioner submitted a
request for return of the minor to New Jersey under the Hague
Convention. The Israeli family court accepted the petitioner’s request
for return of the child to the United States, holding that he was
removed from his regular place of residence and was illegally prevented
from returning to it. This determination was reversed by the district
court.
Decision of the Supreme Court:
In
accepting an appeal on the decision of the district court, Justice
Beinish analyzed several aspects of the Hague Convention. She held that
the court’s role in handling requests under the Convention was viewed as
“putting out fires” or the provision of “first aid, ” for the purpose of
nullifying the results of the abduction and preventing the abductor from
benefitting from the abduction by returning the status quo prior to the
abduction. According to Justice Beinish, the Convention presumes that
any court by virtue of its nature and its judicial role will do the
utmost to make sure that the abducting parent will not benefit from the
abduction. The court will refrain from ordering the return of an
abducted minor, only in rare cases enumerated by the Convention, such as
high probability of physical, psychological, or other harm to the child.
Determination of the custody should rely on the best interest of the
child. The latter, however, is to be decided by the court in the country
of habitual residence and not by the court in the country to which the
child was abducted.
In the
circumstances of the case, Justice Beinish held that the respondent
abducted the child. The date of the return ticket was the date of the
“abduction” for the purpose of implementation of the Hague Convention.
There was insufficient evidence to conclude that the petitioner gave up
his claim to the return of his child. In her decision, Justice Beinish
recognized the anguish of the mother who wished to continue her life in
Israel, supported by her family and in the social and cultural
environment with which she was most familiar. The Convention, however,
does not recognize these circumstances as justification for not
returning the minor to the United States. Although holding that the
child should be returned, the Court recommended that the parties reach
an agreement rather than continue litigation.
E.
Exception to Return: Consent to Illegal Removal or Giving up Rights of
Custody
Roni Gabai et al. v. Efrat Gabai.
Decision rendered on March 21, 1994 to return a child to
the United States.
Facts:
The
first petitioner and the respondent were Israeli citizens and residents
when they were married in Israel. They immigrated to the United States
and acquired United States citizenship (in addition to their Israel
citizenship). Their two children were born in 1981 and 1987 and raised
in the United States. In 1992, the family arrived in Israel on
round-trip tickets to spend the summer in an apartment they had bought
the year before. The parties returned to New York as planned, allowing
their minor child to extend his stay in Israel. The petitioner, who
suspected that his wife was committing adultery, misled her by claiming
that he had to return to Israel to tend to some financial matter. In
fact, he consulted an attorney there to initiate divorce proceedings in
Israel. During that visit he did not visit his child. Upon returning to
the United States, he falsely convinced his wife that they must leave
the United States to escape prosecution for tax evasion. Believing the
petitioner, the respondent consented to leave the minor child in Israel
for an additional period of time and even requested that the child be
registered at a school in Israel. The petitioner then had her sign a
document, according to which she consented to arrive in Israel within 12
days, and allow him to take the children to Israel, or lose all her
property. Two days later the petitioner arrived in Israel and initiated
divorce proceedings in the rabbinical court including a suit for custody
of the children, child support, and division of property. The rabbinical
court ordered temporary custody of the minor with the petitioner in
Israel and a stay of the child’s exit from the country.
The
respondent and her daughter (the second child) stayed in New York in a
grave economic and emotional state. She filed for return of the minor
child under the Hague Convention, but avoided travel to Israel for fear
she would be prevented from leaving the country under the proceedings in
the rabbinical court. The respondent mother tried to take the minor
child out of Israel, but failed because of the stay injunction. The
child was taken by the petitioner and resided at the petitioner’s
parents’ home in Israel. The respondent talked with her son on the phone
and agreed that he would register for school in Israel so that he would
not be harmed.
Decision of the Supreme Court:
Chief
Justice Barak rejected the petitioner’s claim that the mother gave up
her rights of custody of the child. Consent or giving up rights under
Section 13(a) of the Convention is a one-sided legal action which
requires its receipt by the other parent. It is based on a subjective
parental wish manifested by the parent’s behavior. Consent or giving up
rights made under error, fraud, coercion, or duress are voidable.
The
Court recognized the United States as the place of habitual residence of
the minor prior to his arrival in Israel. There he resided, was
educated, and raised. In the circumstances of the case the mother only
consented to a temporary stay of the minor in Israel while constantly
expressing her wish to have him returned to the United States. The
purchase of the apartment reflected a financial investment, but not an
act of settling in Israel. The fact that the child was registered to a
school in Israel did not signify a surrender of the right to an
immediate return of the child. Moreover, the mother’s written consent to
the taking of her children to Israel was taken fraudulently, because her
husband knew well that her signature did not reflect her will to leave
the minor in Israel permanently.
The
Court ordered the return of the child to his mother in the United
States.
F.
Exception to Return: When the Return of a Child Contradicts Israel’s
Fundamental
Principles
Exceptions to implementation of the general rule regarding the return of
abducted children are interpreted very restrictively. However, in
accordance with article 20 of the Convention, when the court is
satisfied that the return of a child contradicts Israel’s fundamental
principles, Israeli courts could refuse a return of a child. One such
case is where the child’s return is requested to a country which would
sever his contact to the other parent. This holding was made by the High
Court of Justice in reference to decisions made by Spanish courts in the
matter of
John
Dow v. The Minister of Foreign Affairs, the Minister of Justice, the
Attorney General and two others.
The decision exemplifies the extent of injustice to the
parties and to the child which may result from manipulation and
deception by abducting parents.
John Dow v. The Minister of Foreign Affairs, the Minister of Justice,
the Attorney General and two others.
Decision rendered on July 1, 1999.
Facts:
The
petitioner (the husband) married the respondent (the wife) in Israel in
a Jewish ceremony.
The
couple resided in Israel. Following the birth of their daughter, the
relationship between the spouses deteriorated. The respondent sued the
petitioner for alimony in the district court. The petitioner, on his
part, filed for divorce at the rabbinical court. As part of the
proceedings before the latter court, the petitioner initiated a
proceeding aimed at declaring his wife as
isha
moredet
(“rebellious” wife). At the time all these proceedings were pending
before the Israeli courts, the respondent and her daughter disappeared.
They were found half a year later in Barcelona, Spain, residing in
proximity to the wife’s relatives, among whom was Mr. M., the wife’s
uncle, who at the time served as Honorary Consul of Israel in Barcelona.
During the search for the mother and daughter, the rabbinical court
issued an
ex
parte
injunction for the wife to return the child to Israel and transfer
custody of the minor to the petitioner.
After
the discovery of their whereabouts, the petitioner requested the Israeli
authorities to start proceedings under the Hague Convention.The Spanish
family court in Barcelona rejected the Israeli request for return of the
minor to Israel. An appeal lodged by the respondent to the Spanish Court
of Appeal was also rejected. Both courts applied article 20 of the
Convention in deciding that the transfer of the custody of the child
from the mother to the father was against the basic principles of
Spanish law and that the child would be severely harmed if the mother
were declared a rebellious wife and, as a consequence, lose all her
custodial rights. Custody of the child was given to the wife, while the
petitioner was awarded very limited visitation with his daughter under
difficult conditions: not conducive to establishing any meaningful
parent-child relationship.
In his
suit, the petitioner requested that the Court order the Israeli
authorities to resort to any legal or diplomatic means to change the
Spanish ruling in the matter. The petitioner also requested assistance
in financing legal representation, a psychologist, and an interpreter in
Spain for the purpose of guaranteeing the return of the minor to Israel.
Decision of the High Court of Justice:
The
Supreme Court reviewed the decisions of the Spanish courts in the
process of evaluating the petitioner’s claim. Justice Cheshin concluded
that the Spanish courts’ decisions were detrimentally influenced by a
false document signed by the wife’s uncle, Mr. M., on formal stationery
of the Israeli Consulate. The document purported to describe the
consequences of the potential declaration of the wife as
isha moredet
by the
Israeli rabbinical court. According to the statement, such a declaration
would result in the full and lifelong disconnection between the mother
and her child.
Justice Cheshin held that the Israeli court, faced with proof of a
similar rule applied by another country, would decide the same way the
Spanish courts did in this case. He stated the following: an Israeli
court would not even imagine, under Israeli law, to “extradite” a child
to a country which is about to disconnect him from his mother only
because of a quarrel between the mother and the father. Thus, the
Spanish courts applied a just rule. The problem, though, was that they
were misled by Mr. M’s statement. The statement by the wife’s uncle was
provided without authority or permission.
Not
being an expert on the Israeli legal system, Mr. M. was not authorized
to provide such a legal opinion. Such a document would not be admissible
in Israeli courts. Moreover, the statement was completely false. A
declaration of a wife as
isha
moredet
has no
bearing on her rights toward her children. The implications of such a
declaration may only affect the relationship between the husband and the
wife, mostly in financial issues, and not her custodial or visitation
rights. A legal opinion explaining the meaning and implications of such
a declaration was submitted to the Barcelona Court of Appeals by the
Chief Rabbi of Israel, who served as the president of the Rabbinical
Court of Appeals, a person who was regarded as the top rabbinic legal
authority on the subject in the State of Israel. The Spanish Court of
Appeals, however, refused to accept into evidenced the Chief Rabbi’s
expert opinion.
As to
the specific remedies requested by the petitioner against Israeli
authorities, the Court concluded that such are not normally provided.
Justice Cheshin recognized that the Ministry of Foreign Affairs could
not have foreseen the irresponsible action of Mr. M. Once the false
statement was made, the Ministry should have resorted to stronger
measures in order to contradict the statement in Mr. M.’s document.
According to the Court, this would have prevented a personal harm to the
petitioner, and a harm to the State of Israel, which was falsely
identified as a backward country which removes custodial rights from a
mother due to controversy with the father. Considering that Mr. M.
resigned from his voluntary post as an honorary consul, that the
Ministry of Justice in Israel assisted and continue to assist the
petitioner, and, as the nature of the remedies requested, the Court
rejected the petition. However, the Court expressed its wish that the
Spanish courts would revisit the case in total disregard of the
statement issued by Mr. M.
Under
article 13(b). Official Position of Israel’s Central Authority
A
recent document submitted by the Office of the State Attorney to a
foreign Central Authority in connection with a specific case reflects
Israel’s position on rejecting claims that “Israel is a war zone and the
return of children abducted from Israel would expose them to physical or
psychological harm or otherwise place them in an intolerable situation.”
The document analyzes foreign courts’ relevant holdings in the United
States, Denmark, Canada, France, Argentina, England, Germany and
Belgium, and concludes that “although the courts, in interpreting the
Convention have not proposed a uniform interpretation of “grave risk of
harm” (within the exception to return provided by article 13(a)), it is
clear that the harm must be grave, not just serious, and must
demonstrate imminent danger to the child prior to the resolution of the
custody dispute.”
The
document rejects the general claim that terrorist acts in a requesting
country make it unfit for posing “grave risk of harm” to abducted
children. It states that “after the recent events in the United States,
terrorism today is a worldwide problem, with terrorist attacks being
perpetrated against civilians in many countries . . . under the
Convention, the issue is not which country is the ‘safest’ or ‘the best’
country for the child (that determination should be made in the country
of habitual residence of the child), the issue is which country is the
child’s home.”
The
document further states that Israel is not at war and is not a war zone.
In spite of events of terrorism in the past 3 years, “Israeli citizens
and residents continue to lead normal lives and to go about their daily
business. Shops and businesses continue to operate as normal.
Kindergartens, schools and universities have remained open continually.
...there continues to be a steady stream of people wishing to immigrate
to Israel from various countries . . . .It is noteworthy that the
Israeli Central Authority has processed a significantly greater number
of incoming cases (abductions to Israel) in the past three years of
unrest, than in the same period prior to the current
intifada.
This would be an unlikely statistic for a ‘war-torn’ country.”
IV.
Law Enforcement System
The
Execution Law, 5727-1967, as amended, regulates the enforcement of court
decisions for the “surrender of a minor.” The law provides:
62.
(a) Where the judgment directs that a minor will be surrendered, or that
contact,
interviews or communication between the parent and the minor child not
in his custody will be enabled or that anything else will be done in
connection with the minor, the Execution Officer will take all steps
required for the execution of the judgment, and for that purpose he will
avail himself of the assistance of a welfare officer, within the meaning
5715-1955.
(b)
Where the Execution Officer finds that the judgment can only be executed
against the will of the minor and, in his opinion, the minor is capable
of understanding the matter, or where the execution of judgement
involves other difficulties, the Chief Execution Officer may apply to
the court which gave the judgment for directions.
Although requests for stay of enforcement (until a final decision in an
appeal is made) can be filed, the courts normally do not grant such
stays in cases where there is no clear chance for winning on appeal.
This
policy is based on the essence of the Convention itself, which is
designed to return children immediately to the country from which they
were kidnapped.
V.
Legal Assistance Programs
Israel
has made a reservation on article 26 of the Convention. Accordingly: [t]he
State of Israel hereby declares that, in proceedings under the
Convention, it will not be bound to assume any costs resulting from the
participation of legal counsel or advisers or from court proceedings,
except insofar as those costs may be covered by its system of legal aid
and advice.
Legal
aid is provided to those applicants who would qualify in their own
jurisdiction. Clients resorting to private attorneys are usually charged
$10,000, exclusive of taxation at 17%, or more to handle the case in the
family court. Appeals are billed separately. The party held liable by
the court for the abduction may be ordered to cover legal and related
expenses, such as hotel stay and travel expenses of the injured party.
VI.
Conclusion
Following its adoption of the Hague Convention on the Civil Aspects of
International Child
Abduction, Israel incorporated the Convention into its domestic law and
passed implementing regulations to enable proceedings under the
Convention. A study of relevant court decisions and statistical data
indicates an overall compliance with the obligations under the
Convention.
According to Israel' s Minister of Justice, neither the actual
implementation of the Convention, nor the policy of his office and the
Office of the Attorney General include any reference to the religion of
the minor or the parents.51 Return will be denied only under the limited
reasons enumerated by the Convention.
Prepared by Ruth Levush, Library of Congress |
