Abduction To Israel Forum Questions
Yes. If that country is not a party to the Hague Convention, then different rules apply. See [4.6]. If the country is bound by the Hague Convention, then the procedure is governed by this. In Israel there are special regulations which deal with the procedure for Hague Convention cases.
HOW IS A CONVENTION APPLICATION MADE RE A CHILD BROUGHT TO ISRAEL?
Any application made under the Convention by or on behalf of a person outside Israel must be addressed to the Ministry of Justice as the Central Authority in Israel. A parent whose child has been abducted to Israel is entitled to hire independent and private legal representation from experienced child abduction specialists in Israel. Some parents may be eligible for free legal representation by lawyers working for legal aid in Israel The lawyer representing the 'left-behind' parent will prepare and file the plea for the child's return at the appropriate Family Court. It is vital to file in court early on to increase chances of success in the case, and narrow down opportunities for successful defences. Once filed, a Hague Convention application freezes other proceedings relating to the child e.g. custody that the removing parent' may have already brought in Israel. Filing a Hague plea may stop the child acquiring a new place of habitual residence.
Yes. Hague Convention cases are meant to be heard and decided quickly. The Convention sets a time-limit for Hague Cases of six-weeks from start to finish. A court hearing a Hague Case can be made to answer for delays. Each country has its own procedural rules governing the time-table. In Israel special regulations exist for Hague Convention abduction cases that lay down procedure and deadlines that can only be altered in special circumstances. These oblige a Family Court in Israel hearing a Hague plea to make a reasoned decision within 6 weeks of the file being opened. Appeals (on both temporary decisions and final judgments) are supposed to be filed within a week. A decision on an appeal against a temporary decision should be made within a week of it being filed. A decision on an appeal against judgments should be made within 30 days of being filed. If a Family Court hearing a Hague Case in Israel is not managing it according to the time-table set out in the regulations, or according to the rules of the Convention itself, an appeal can be made to the District Court regarding relevant temporary decisions. Sometimes decisions on the management of the case can have vital implications – and it is imperative to appeal against them. A final decision or judgment on a Hague case made by the Family Court is appealable before the District Court. The Supreme Court hears appeals on District Court judgments.
The Tel Aviv Family Court (Civil Appeal 1360/04 (Tel Aviv District Court- hearing 9th Jan, decision 11th Jan 2005) misapplied the Hague Convention in a plea brought by a British father, represented by our law practice, for the return of his young sons to the UK. The Family Court had ordered that it had a discretion not to order their return if it was satisfied that they had settled in their new environment. However, under the Convention, the court can only consider if they have settled in their new environment if more than a year has passed since the abduction and the start of proceedings. In this case just over 11 months had passed. The father appealed successfully to the District Court. In January 2005 the District Court ruled that the Family Court had no right to consider whether the children had settled in life in Israel, and banned a report on this from being submitted to the court. This case finally ended a week later in the Family Court with an agreement for the voluntary return of the minors to the UK.
To see the scanned flow-chart first select "Publications" from the menu on the homepage, and then "Abduction to Israel". Then select "4.5 Flow Chart - Return Of Abducted Child". Alternatively, the stages can be summarized as follows:
Appeals:
In Israel there are two types of applications for the return of children allegedly abducted to Israel which can be made outside of the Hague Convention. The first is the power of a court to issue a writ of 'Habeas Corpus' (a special order for the bringing and release of a person's actual body). The second arises under the Legal Capacity and Guardianship Act 1962 allowing a court with jurisdiction to take any steps – temporary or permanent – to protect a child's interests. Which court may hear the case? These two types of non-Hague Convention cases involving child abduction are now heard in the Family Courts, although the High Court of Justice (Supreme Court of Justice) can still issue writs of Habeas Corpus. In what kinds of circumstances would an abduction case be brought outside of Hague Convention proceedings? Abduction cases in Israel outside Hague Convention proceedings based on these two powers, can arise in the following circumstances:
The principles applied will be those built up by cases decided by the Supreme Court of Justice which at one time was the only court empowered to hear abduction cases of any kind, and issue Habeas Corpus writs. The original idea was to respond to applications from custodial parents for the return of children who were brought to Israel in breach of their rights of custody determined by a foreign court order, parental agreement or law. The Supreme Court later extended this so that a non-custodial parent whose visitation rights were breached because of the abduction could also bring an action for the return of his/her child. Where the court has serious doubts about whether there has actually been an unlawful 'abduction' (e.g. whether custody was properly granted ex parte, whether the basic rules for a fair hearing were not adhered to, or whether there was no real discussion), then the Israeli court has a discretion not to order a return, and to hear the custody case.
There are similarities and differences in the approach of the Israeli courts between Hague Convention and non-Hague Convention cases. Both types of proceedings aim to discourage abduction, which is regarded as undesirable, and as a rule to preserve the status quo, although the language they use to describe and apply these principles may be different. There are, however, key differences, between Hague and non-Hague cases, the main ones being:
Advantages of Hague cases - in contrast, Hague cases do have certain advantages:
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