WHY IS ABDUCTION FROM ISRAEL SO PREVALENT ?

Israel, like the United States, is a land of immigrants. As the 'homeland' of Jews dispersed throughout the world, it has been a magnet for immigration. Israeli history has witnessed several 'waves' of immigration. Over the last15 years there has been a huge wave of immigration from the former USSR countries, which became independent states, and from South America. "Making Aliyah" or immigrating to Israel has been a dream of many Jews from the West – particularly Anglo-Saxon countries such as the United States, the United Kingdom, South Africa, Australia and Canada. An increase in immigration from France has also been seen in recent years.

With Jerusalem, the centre of the world's three main religions, as its capital, Israel has always attracted people from outside, especially Christians. Furthermore, the kibbutz is unique to Israel and has traditionally attracted young people from all over the world. Many relationships and marriages were forged between kibbutz members and volunteers from abroad.

For all these reasons, multi-cultural and/or mixed religious marriages are common in Israel. These are recognized as being difficult, challenging, problematic, or doomed to failure, depending on one's viewpoint. Furthermore, over the years, there has been a general increase in the social legitimization of separation and divorce, and the rates of marital breakdown have increased over the years. Today one in three marriages end in divorce.

When relationships break down, and one of the parties originates from abroad, the potential for child abduction is clear. Where the mother, for example, is originally from abroad, and the relationship has broken down, she may feel desperate, lonely, isolated, and wish to return "home" with her children, to her native land, where she feels more in control, has support from her family, and has better employment opportunities.

Holiday periods – during the summer vacation, Chanukah/Christmas and Pesach/Easter holidays – represent the classic "abduction" seasons.

WHAT ARE THE LEGAL OPTIONS FOR RETURNING CHILDREN TO ISRAEL ?

The legal action that needs to be taken to secure the return of children abducted from Israel, whether they were wrongfully removed or wrongfully retained abroad, depends on two factors.

The first is whether the country where the children have been removed or retained is bound by the Hague Convention, or not. If it is, then the application for their return can be made via the Hague Convention. If not, then direct application must be made within the foreign country.

The second factor is the age of the children; the Convention can only be invoked for minors under the age of 16.

WHAT PRINCIPLES APPLY TO ABDUCTION TO A 'HAGUE' COUNTRY?

The legal principle that applies generally to children (of all religions) in Israel is that both parents have joint and equal parental guardianship and therefore one parent cannot remove the child from Israel without the permission of the other parent or of a court. Under Israeli law this principle applies to all parents, whether they are married, divorced or unmarried.

WHAT PRE-CONDITIONS ARE NEEDED TO APPLY?

To be reasonably confident of success in a Hague Convention application to another country’s Central Authority, it is advisable that there should be clear evidence that firstly, the applying non-removing parent did not consent or later acquiesce to the removal of the child; and secondly, that Israel was the habitual residence of the child before he was removed or retained abroad.

WHAT LEGAL OPTIONS AND STRATEGIES ARE AVAILABLE IN ISRAEL?

Two options exist for a parent to take the initiative and start child abduction proceedings from Israel itself:

• A parent can apply to the Israeli Central Authority (as the country of the child’s habitual residence) under the Convention itself for transmission to the Central Authority of the country where the child has been abducted. This can be done from Israel, or even from abroad. He/she can even hire a lawyer in Israel to speed up the process. This is usually a convenient option as most of the relevant documentary evidence is usually found in Israel, invariably in Hebrew, and easier and more quickly handled from Israel. 
• A parent can apply for a declaration from the appropriate Family Court in Israel declaring Israel to be the minors' country of habitual residence, and stating that the removal or retention was ‘wrongful’. This application is allowed under Article 15 of the Hague Convention.

Usually parents are passive on this, and a foreign court may, but does not always, request such an 'opinion' from an Israeli court at a later stage. Sometimes it can be of great advantage for a parent to apply for such an order him/herself. It can save time and shorten proceedings abroad – and an Israeli court is likely to be supportive towards such an application, and the foreign court will generally accept the declaration as establishing that the child has been wrongfully removed or retained for the purpose of the Hague Convention.

HOW CAN A PARENT GET 'HELP' FROM ISRAEL COURT ?

In a case (File Family Court File 2461/04) – Tiberias, judgment given June 16th 2004) handled by our law practice in 2004, we represented an Israeli father in Hague Convention proceedings for the return of his two minor children from Belgium, where he claimed they were being wrongfully retained by the mother, to Israel. The mother was originally from Belgium, but had obtained Israeli citizenship after converting to Judaism, marrying her husband and immigrating to Israel. After running into financial and marital problems, the couple decided to try their luck for a year in her native country, so there was mutual consent to the children's removal from Israel. Their business venture failed and marriage problems worsened, but the mother refused to return to Israel with the children, contrary to their prior agreement, so the father claimed.

Because Hague proceedings are often complicated when parents consent to a move abroad, and there was very little progress in Belgium, it was vital for the father to prove that the exit was for a temporary and specific period. He needed to prove that Israel was and remained the children's country of habitual residence, and that there had been no mutual consent for this to be changed from Belgium. Tiberias Family Court accepted the father's application and declared that Israel remained the children's country of habitual residence and that one parent cannot change this unilaterally. It also said that if the children remained in Israel once the family home there, which had been rented out, became available in the summer, there would be an act of wrongful retention by the mother. The father also filed for custody at the family court in Israel. This Article 15 declaration, plus the domestic custody plea and the Hague plea filed in Belgium, precipitated negotiations resulting in a voluntary return of the children in the Summer, in time to start the new academic year back in their old schools in Israel. The practice took the case on in the spring just before the Pesach holiday.

WHAT LEGAL STEPS CAN A PARENT TAKE OUTSIDE OF ISRAEL?

•  legal proceedings for the return of the child can be started in the courts of the country where the child has been abducted, under the ordinary law of that country 
• an application can be made to the Central Authority of the country where the child has been abducted for the immediate return of the child to the country of his habitual residence. That Central Authority should ensure that legal proceedings under the Hague Convention are started in the appropriate local court

HOW DO FOREIGN COURTS VIEW ISRAELI HAGUE APPLICATIONS?

Generally nowadays, most foreign courts apply the rules in the Hague Convention according to the letter and spirit of the Convention. Therefore, if the requirements of the Convention are satisfied, the foreign court will order the return of the child to Israel. There are many, many examples of children being returned to Israel under the Hague Convention from all over the world.

DO FOREIGN COURTS CONSIDER ISRAEL A DANGEROUS COUNTRY?

Do foreign courts take into account the security situation in Israel in deciding whether there is a ‘grave risk of harm’ if the child is returned to Israel?

Abducting parents often try to use the security argument as a defence in Hague Cases. They claim that the children would be at 'grave risk' of physical or psychological danger if returned to Israel. They argue that sending back a child would amount to returning him to a 'war zone', as coined in the 1996 American case of Friedrich. Generally speaking this has been rejected in Hague cases throughout the world when raised, although there have been a few exceptions. The most notable was made by the Supreme Court of Australia in 2002, but was highly criticized, primarily for being based on warnings to tourists, whereas the children were residents and citizens of Israel.

The most important cases which rejected the security defence argument are:

1. the American Silverman appeal case of 2003 in which it was held that regional violence involving suicide bombers did not fulfil the 'zone of war' test required for the defence to succeed. If life is general went on, people went to work, children went to school etc, as it it did in Israel, then the defence that the country was a ‘war zone’, could not succeed; and
2. the U.K. case of Re S in 2002, in which the security argument was again rejected, it being held that the children themselves were not at grave risk of substantial danger, for which there must be clear and convincing evidence. Here, the mother argued that her children would suffer indirectly if returned to Israel because she, herself, would function badly as a parent, having suffered the traumatic after-effects of having been in a department store in Jerusalem when a bomb exploded. Her arguments were rejected.
3. Again, in a case brought in 2004 for the return of two minor sisters to Israel from Ireland, the mother, who had Irish and Israeli nationality, faced Hague Convention proceedings, for wrongfully retaining the minors in her native land, claimed that if they returned to Tel Aviv where they were born and had lived all their lives, they would be at 'grave risk' of physical danger because of the security situation. The Israeli father was represented by our practice, and the security argument was rejected by the Irish High Court in early 2005, following the submission of an expert opinion by ? (discuss if Susan's name can be mentioned or not ). An agreement for the minors' voluntary return was signed by the parties in March 2005, and authorized by the Irish court. 
   

RUSSIA AND UKRAINE

Neither Russia nor the Ukraine is bound by the Hague Convention. Over the last 15 years there has been a considerable wave of immigration from the former USSR, particularly from Russia and the Ukraine. There have been several incidents of children who immigrated to Israel from these places with their divorced mothers, not being returned after visiting their father there. In addition, there have been incidents where the mother, who originated from Russia or the Ukraine, did not return after a visit with the children to her 'homeland', while the father, was waiting in vain in Israel. Getting children back from Russia and the Ukraine is known to be very difficult.

INDIA

India is not bound by the Hague Convention and it is known to be very difficult to get abducted children back from this vast continent.
If the location of the child is, however, known, an application for his/her return can be made to the High Court of the particular state involved, with a right of appeal to the Supreme Court in New Delhi.

THE PALESTINIAN AUTHORITY

Abductions of children from Israel to the neighbouring Palestinian Authority are not covered by the Hague Convention. Thus a parent of a child living with Israel who has been wrongfully removed or retained in the Palestinian Authority will have to make an application akin to a "Habeas Corpus" writ before the appropriate court there.

ISRAEL'S NEIGHBOURING STATES

None of Israel's immediate Arab neighbours – Jordan, Egypt, Syria or Lebanon – is bound by the Hague Convention. Proceedings for the return of children abducted to these states from Israel will, therefore, have to be made directly in the appropriate court.