WHAT IS THE PRINCIPLE BEHIND THE HAGUE CONVENTION ?

The main principle of the Hague Convention is that custody battles over children should be fought in the country where the child is ‘habitually resident’, meaning the country where the child was living before he was abducted.

It follows that the application under the Hague Convention by the non-abducting parent will normally be made to a court in the country where the child has been removed to, or where he has been retained.
There is a strong presumption in the Hague Convention in favour of courts returning a child who has been wrongfully removed or retained.

UP TO WHAT AGE ARE CHILDREN COVERED BY THE CONVENTION?

The Hague Convention only applies to children under the age of 16 who were ‘habitually resident’ in one Contracting State immediately before a ‘wrongful’ removal to, or retention in, another Contracting State (Article 4).

CAN A PREGNANT WOMAN ‘ABDUCT’ HER UNBORN CHILD?

No. The Hague Convention does not apply to children who are not yet born. International legislation only covers children who were actually born before the act of abduction took place.

However, in some countries it may be possible to take steps to protect the rights of the foetus. For example, if a mother, while she is pregnant, leaves the country of her ‘habitual residence’ for another country, it is possible that following the birth, a court in that other country could exercise an inherent jurisdiction, and order that the new-born child be returned to the original country. This is because under the law of some countries a foetus is treated as a unique organism, so that it might be possible for a father (who does not yet have parental rights) to issue proceedings for ‘rights of custody’ for the purposes of the Convention before the pregnant mother leaves the jurisdiction.

In Israel, domestic legislation goes further and options exist for preventing a pregnant mother leaving the country against the ‘father's’ wishes.

HOW DOES THE HAGUE CONVENTION BASICALLY WORK?

The Hague Convention was created in order to provide a speedy and summary procedure in cases of international child abduction. The idea was to avoid the need to investigate different foreign laws, and to provide some limited defences where returning the child would be seriously against his welfare.

Article 12 provides that where less than one year has passed since child was wrongfully removed or retained, and proceedings started, then the ‘the authority shall order the return of the child forthwith’. Even where more than one year has passed, the authority ‘shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment’. 
 
 

WHAT ARE THE MAIN FEATURES OF THE HAGUE CONVENTION?

• it does not deal with criminal aspects of international child abduction ;
• it is not intended to decide on rights of custody or access to a child, but to return the child to his habitual residence, where those rights can be decided and enforced ;
• a court deciding a Hague Convention case does NOT apply the principle of the child’s welfare as the overriding consideration . However, it should be remembered that the principle behind the Hague Convention is the child’s welfare; it is considered to be in the child’s best interests for him to be returned to the country where he had been ‘living’ before he was abducted, and for the courts there to decide on the merits of his future place of residence;
• it is not necessary to have a prior court order in one's favour to apply under the Convention (although a parent seeking the return of a child to Israel can apply to the Family Court for a declaration that the removal was ‘wrongful’);
• a parent should file under the Convention within one year from the date of the wrongful removal or retention in order to obtain an order for the immediate return of the child (unless the abducting parent can rely on one of the defences provided) ;
• the Hague Convention does not operate retrospectively, but only applies to wrongful removals or retentions occurring after implementation by a Contracting State the dates on which Contracting States implement the Convention are therefore important; 
• free or subsidised legal representation of applicants, who apply for the return of the child to Israel, may be available in countries which provide this.

WHAT IS AN ACT OF CHILD ABDUCTION ?

The act of child abduction means a removal or retention which is ‘wrongful’ within the meaning of Article 3. It is ‘wrongful’ when the removal or retention is: 

1. in breach of ‘rights of custody’ attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention’.

To make an application under the Hague Convention, it is not necessary for the applicant to have a court order in his favour.

WHAT ARE ‘RIGHTS OF CUSTODY’?

‘Rights of custody’ includes rights relating to the care of the person of the child, and, in particular the right to determine the child's place of residence’. ‘Rights of custody’ is a term which is wider than the term ‘custody’ when that word is used alone. In practice the term has been given a wide interpretation, meaning some kind of ‘parental authority’.

Different legal systems define who has ‘rights of custody’ over a particular child differently. In some countries (for example, England) unmarried fathers do not automatically have rights of custody, ie. parental authority though they can get these rights by agreement or by court order. In Israel, unmarried biological fathers are automatically one of the child's two natural guardians, with parental authority.
(For more detail on the situation in Israel, see [2.8]).

As long as the ’left behind’ (or 'non-removing') parent was, at the time of the wrongful removal or retention, exercising functions of a parental or custodial nature, in the state asking for the return, that parent is regarded as having ‘rights of custody’ without the need for any court order or official custodial status.

Under the Convention ‘rights of access’ are treated differently from ‘rights of custody’. A mother with sole custody of the child does not act in breach of the father’s ‘rights of custody’ if he has no parental authority and the access order in his favour does not entitle him to prevent the mother taking the child out of the country. A right to be consulted on where the child should reside but without a power to veto does not amount to ‘rights of custody’ for the purposes of the Convention.

WHO HAS RIGHTS OF CUSTODY IN ISRAELI LAW?

In Israeli law, ‘rights of custody’ belong automatically to both parents who have ‘parental guardianship’ of their children under the Legal Capacity and Guardianship Law 1962. In Israel, parents (whether they are married or not) have equal parental rights, and therefore both have ‘rights of custody’ over their children. This is the law in Israel regardless of the religion of the child or parents.

Under Israeli law, unlike the situation in some countries, a mother is not normally entitled to remove a child from Israel to another country without the permission of the father (irrespective of whether they are married, cohabiting, divorced or unmarried). It does not matter if there have been custody/access rulings or not.

WHAT IS A ‘REMOVAL’ OR ‘RETENTION’?

Removal or retention refers to the removal or retention out of the jurisdiction (outside) of the country of the child’s habitual residence. Wrongful removal or retention within the borders of the state of the child’s habitual residence falls outside the scope of the Convention.

•  REMOVAL occurs when a child, who has previously been in the state of habitual residence, is taken away across the frontier of that state.
• RETENTION occurs where a child, who has previously been for a limited period of time outside the state of its habitual residence, is not returned on the expiry of that limited period or beyond the period agreed by the parties. A retention can also subsequently become ‘wrongful’ if, following the removal, the court of the child’s habitual residence makes a valid order giving interim care and control to the applicant and for the return of the child which is not obeyed. (This is because the Convention should be construed purposively rather than semantically, and proper effect can only be given to the term ‘retention’ if it is interpreted as wide enough to include not only acts of physical restraint on the part of the retaining parent, but also judicial orders obtained on his invitation).
• ‘Wrongful REMOVAL or RETENTION’ are separate and mutually exclusive events; they both occur once and for all on a specific occasion.
• ‘Wrongful removal’ is not a continuing state of affairs, so a subsequent removal after a temporary return of the child to the state of habitual residence constitutes a new ‘wrongful removal’ within the meaning of Article 3. Accordingly, the time limits under the Convention run again from the date of the second removal.
  
  The applicant must prove that removal or retention is wrongful, otherwise the application will fail. According to the Convention the question of whether a removal or retention is wrongful is decided by the court of the jurisdiction in which the Convention application is made.
  ‘Wrongful’ includes:
• if the removal is contrary to an express court order;
• if the removal is prohibited according to the general law of the jurisdiction from where the child was taken
• retaining a child beyond the time allowed by a court or beyond the period agreed by the parties
• retaining a child before the expiry of the agreed period if the mother has announced her intention never to return the child; a retention becomes wrongful from the time the parent abandons the intention to honor the agreement.

But, the unilateral removal or retention of a child by an unmarried mother is not ‘wrongful’ if the unmarried father has no rights of custody and no court order prohibiting removal has been made. In Israel, however, the situation is different than in many other countries, and an unmarried father is still a child's natural guardian and may be able to bring Hague Convention proceedings.

Disobeying a court order requiring a child's return, made after an otherwise lawful removal, may also be a ‘wrongful retention’ for the purposes of the Convention.

IS ABDUCTION POSSIBLE IF THE OTHER PARENT CONSENTS TO REMOVAL?

Yes, because the issue of consent is specifically dealt with under the Convention as a ‘defence’ to what would otherwise be an unlawful abduction. If proved, this defence means that the court is not obliged to order the child’s return, although there was a wrongful removal.

CAN A 'LEFT-BEHIND' PARENT TAKE USEFUL ACTION AT HOME,TOO ?

Yes. Under Article 15 of the Convention, the "left-behind" or "non-removing" parent can apply to a court of his home state (which is also the child’s habitual residence) for a declaration that a removal was ‘wrongful’.

In Israel a person seeking the return of children to Israel can apply to the Family Court in Israel for this declaration. The purpose of this declaration is to satisfy the appropriate judicial or administrative authorities of the other State that the removal was wrongful under Israeli law.

Actually, a declaration can be made at the request of any person appearing to the court to have an interest in the matter provided it would serve some useful purpose and not simply to delay proceedings.

WHAT IS MEANT BY THE COUNTRY OF ‘HABITUAL RESIDENCE ?
 

The Convention does not define what ‘habitual residence’ means, but courts in different countries have built up a picture of what it is:

• where the child ‘has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective’ (US decision)
• a person’s ‘abode’ in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being whether of a short or long duration (English decision) 
• In the case of married parents living together, the parents’ shared intentions in living where they do must have a sufficient degree of continuity about them to be described as settled. A complication is that each parent may have a different intention as to where they are living; so, it is quite possible for parents living together to have separate habitual residences. Also, parents can agree either expressly or impliedly that their child should live apart from them and thus either retain or acquire a habitual residence different to their own. 
• where parents separate and both parents have equal rights of custody, unilateral action by one of them cannot change the habitual residence of their child, except by the agreement or acquiescence over time of the other parent, or by a court order determining rights of residence and custody. 
• the ‘habitual residence’ of a young child depends on the choice of the parents of that child. Normally while parents are living together their young child has the same habitual residence as the parents, and neither parent can change it without the express or implied consent of the other or an order of the court. An older child might be able to establish his own habitual residence. If a baby is born in one country to parents who are a married couple who are habitually resident in another country at the time of the birth of the child, the baby will also at birth generally be habitually resident in that country, even though he is born abroad.

The Israeli courts apply similar rules as the US for deciding on habitual residence. They look at the factual situation, from the child's viewpoint.

WHAT DEFENCES EXIST UNDER THE HAGUE CONVENTION?

Background: Under Article 12, where Hague Convention proceedings are started less than one year from the date of the abduction, then the court must order the return of the child immediately, from where he has been ‘wrongfully’ removed or retained, back to the country of the child’s habitual residence.

Defences: under Articles 12 and 13 there are a number of exceptions or defences to an automatic return. The abducting parent has the burden of proving that one of the following defences should apply. The courts of most Western countries do not usually easily allow these defences to succeed in preventing the return of the child. This is because they in effect negate the main purpose of the Convention.

• LATE APPLICATION / CHILD SETTLED IN NEW ENVIRONMENT –Where Hague Convention proceedings are started more than one year after the wrongful removal or retention a return, the court has a discretion under Article 12 not to order the child's return if it is proved that he " is now settled in its new environment’.
  ‘Settled’ means emotionally and psychologically, and physically (in the sense of being established in a community). ‘New environment’ means place, home, school, people, friends, activities and opportunities, but not the relationship with the abducting parent. 
• NON-EXERCISE OF CUSTODY RIGHTS - By Article 13(a) the court may refuse to order the child’s return if the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention. In practice it is only in the most extreme circumstances that a court would rule that a parent is not exercising his custody rights. 
• CONSENT OR ACQUIESCENCE - The court may refuse to order the child’s return if it is shown that the person, institution or other body having the care of the person of the child has consented to or subsequently acquiesced in the removal or retention.

1. CONSENT - Whether an alleged consent to the child’s removal is valid or not depends on the circumstances of each case. Consent will not be treated as valid if it has been obtained through a calculated and deliberate fraud by the abducting parent. Consent cannot be passive. It need not be in writing, because parents do not necessarily put their agreements and understandings about their children into writing, even at the time of marital breakdown. But the consent must be real, positive and unequivocal, usually ‘express’ but it could be implied from conduct. Once consent is given (and acted upon) it cannot later be withdrawn by the parent who gave it, after he has changed his mind.
2. ACQUIESCENCE (agreeing after the act) can be active or passive. Whether the wronged parent has ‘acquiesced’ in the removal or retention of his child is a question of fact, which depends on his actual state of mind, and his subjective intention. The issue is not the other parent’s perception of the applicant’s conduct, but whether the applicant acquiesced in fact.
   But where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the automatic return of the child, then the wronged parent will be held to have acquiesced.

One of the difficult issues here is where the wronged parent has delayed in making a Hague Convention application. Because the question is the subjective intention of the wronged parent, delay in making an application because of mistaken legal advice seems to negate what would otherwise be acquiescence, and acquiescence is unlikely to be proved if the applicant does not know of the act or does not know that it is wrongful.

• GRAVE RISK OF HARM. By Article 13(b) the court may refuse to order the child’s return if it is proved that there is “a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Again the burden of proof is on the abducting parent. The risk must be ‘grave’, or extreme. And the evidence brought must be "clear and convincing". This defence is often relied on by abducting parents, but in the courts of most western countries at least, often fails. Here, one is talking about a risk of physical and/or sexual and/or emotional abuse, to the child, not the parent. However, though there is a grey area where a child suffers indirectly from abuse against the removing parent, courts are usually very clear in requiring evidence of risk of direct abuse against the child himself, and not the "removing" parent. This is because it is presumed that a parent who is violent towards the other parent may not necessarily be violent against their mutual child, and because there are ways of protecting the removing parent from alleged violence even if the child is returned.

HOW ARE UNDERTAKINGS USED TO COMBAT DEFENCES?

One technique used by courts to avoid allowing a defence to succeed, but at the same time to protect the welfare of the child when he returns to the country of his habitual residence, is to accept an ‘undertaking’, which is a promise to the court, which has the same force as a court order but is given voluntarily. The court may accept undertakings to ease what would otherwise be an intolerable situation, for example to make the return of child easier and to provide for his necessities such as a roof over his head and adequate maintenance. They are intended to have a short life, until an application relating to the child can be made in the court of the child’s habitual residence. So the court must be careful to not in any way usurp the functions of the court of habitual residence; undertakings are only accepted by the court in order to regulate affairs relating to the child up to the time that the court of the children’s habitual residence can start to make its own orders based on the child’s welfare.

DO COURTS TAKE INTO ACCOUNT THE CHILD’S VIEWPOINT AND OBJECTIONS?

Yes. Under Article 13, the court can also refuse a return order if the child objects to being returned and ‘has attained an age and degree of maturity at which it is appropriate to take account of his views’.
One issue for the court is whether the child objects to being returned to the country of habitual residence because this is inextricably linked with his objection to living with the other parent, so that the two factors cannot be separated.

There is no age limit below which a child’s view will not be taken into account but generally, the younger the child, the less likely that he will have the maturity to make it appropriate to take his views into account. In practice a child under eight is unlikely to have his views taking into account. Also a child’s perspective of what is in his own short, medium or long term interests may be limited; and the reasons for his objection may not be found in reality; he may not actually understand the implication of objecting to being returned; and his views may have been ‘coloured’ by undue parental pressure, direct or indirect.

The court may order an investigation of the child’s objection and views by a skilled independent person (such as a welfare officer), but may not do so if it considers the defence to be a delaying tactic by the abducting parent.

Israeli courts take children’s views into account at an earlier age than in many other countries – usually from the age of 10, or even younger, if they are sufficiently mature.

IF A DEFENCE IS PROVED, IS A RETURN AUTOMATICALLY REFUSED ?

Not necessarily- the court has discretion whether to order a return or not.

In all these defences under Articles 12 or 13, the abducting parent has to prove that the defence should apply. If he succeeds, the court will order that the child should not return to the country of his habitual residence.

But even if he proves a defence, the court may still order the child’s return (Article 18). The court will take into account the child’s interests, but balance them against the fundamental purpose and spirit of the Convention, which is to order the child’s return.

The court may look at the following factors in exercising its discretion:

• the comparative suitability of the courts in the competing jurisdictions to determine the child’s future in the substantive proceedings
• the likely outcome (in whichever court they are heard) of the substantive proceedings
• the consequences of any acquiescence, particularly the extent to which a child may have become settled in the requested state
• the situation which awaits the abducting parent and the child if compelled to return to the requesting jurisdiction 
• the applicant’s delay in pursuing his Convention rights. 
• the expected emotional effect on the child of an immediate return order 
• the extent to which the purpose and underlying philosophy of the Hague Convention will be frustrated if a return order is refused.

HOW DO COURTS INTERPRET THE DEFENCES?

The Israeli courts as well as the courts of many other countries, especially the US and UK, apply these exceptions or defences very strictly and narrowly. It is therefore difficult to obtain a decision not to return a child who has been wrongfully removed or retained from his country of his habitual residence, to one of these Convention countries.

WHO CAN USE THE CONVENTION?

In practice, the person who usually applies is the 'left-behind' parent, via the Central Authority of the 'home' country, though the Convention allows for others to apply, too.

It states that: ‘Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights’ may apply for the child’s return. Usually applicants are individuals having ‘rights of custody’ or ‘rights of access’, but any person (even the child himself, if old enough), institution or body (for example, a welfare local authority or a court) can apply, as long as the child’s removal or retention is ‘wrongful’ within the meaning of Article 3 (Article 8).  

HOW IS A HAGUE CONVENTION APPLICATION STARTED?

A person claiming that a child has been removed to or retained in another Contracting State and who wants the child’s return, can seek assistance from the Central Authority of the child’s habitual residence or from the Central Authority of the State to which the child has been taken. Direct application may also be made to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of the Convention. Applicants are normally best advised to apply under the Hague Convention via their own Central Authority.

On receiving the relevant documents the Central Authority will process and transmit the application to the appropriate Central Authority in the other Contracting State, which then takes steps to discover the child’s whereabouts and seek the child’s return.

The authorities must act quickly. If no decision has been reached within six weeks of the commencement of proceedings the requesting Central Authority or the applicant has the right to request a statement of the reasons for delay. The Central Authority may refuse an application where it is clear that the requirements of the Convention are not fulfilled or that the application is not well founded.

CAN A PARENT APPLY FOR EFFECTIVE EXERCISE OF 'ACCESS' ?

Yes, it is possible for a parent to apply under the Hague Convention to a Central Authority for the exercise of his access rights, but unless there is also an abduction involved, the Convention has a very limited role here. The Central Authority’s duty is simply to act as a facilitator for visitation/access, and to assist the parent to apply under the relevant domestic legal system (see [10.1]).

IS THERE ANY FINANCIAL HELP FOR LEGAL SERVICES IN HAGUE CASES ?

Yes, in some countries. Parents are advised to check the situation in the relevant country.

WHAT ARE THE LIMITATIONS AND WEAKNESSES OF THE CONVENTION?

Yes. The main limitations of the Hague Convention are that:

• The court hearing the case does not consider the child's welfare in deciding to order a return unless certain defences apply 
• a return order may separate a returned minor from siblings from the removing parent's previous marriages or relationships - this is not a concern, in general

Israeli Case Study:
Sometimes strict application of the Convention will result in harsh or even cruel consequences, as the 2003 UK case of Re B (a minor) showed. Here, the English High Court returned a toddler, wrongfully retained in England, to Israel, even though this meant she would be separated from her siblings who were her divorced mother's other children from previous marriages, as their fathers would not allow them to move to Israel. The judge remarked that he was not allowed to consider the minor's best interests. The mother, he said, was left with the 'cruelest of choices' – between returning with her baby and abandoning her other children, or staying with them in the UK and letting the Israeli father take the child back to Israel. The mother, who was represented by our law practice, was later reunited with her other children after the Tel Aviv Family Court granted her custody of her daughter and permission to relocate to the U.K. with her. 

• The Convention is not always interpreted and applied consistently in all member countries; some are more lax and some are more stringent. Critics claim that certain countries have a 'poor' Hague record (of returning abducted minors), while others have a 'good' Hague record. Accordingly, a parent abducting a child to a country with a 'poor' Hague record will have a better chance of successfully defending proceedings under the Convention than if he/she 'abducted' the minor to a country with a 'good' Hague record. 
• Undertakings are not always honoured when a child has been returned to the country of habitual residence. The parent applying for the child's return may impress the court about his sincerity and ability to provide for the child upon his /her return until the court abroad deals with the issue. The court, which may find it harder to get a character impression of someone from a different country, may misjudge his sincerity or ability to provide for the minor upon his/her return, and may not really investigate the prospects of this materializing. For example, while a court ordering the return of the child may oblige the applying parent to provide accommodation and maintenance for the child upon its return, in practice this might not occur, and the returning parent will have to bring legal action later regarding this. 
• The Convention is often criticized for being 'toothless' as regards enforcing assess or visitation rights. Its role ends with filing of a plea to uphold these rights, and for encouraging, arranging and facilitating meetings between the child and the 'left-behind' parent. The 'left-behind' parent will need to bring legal action in the country where the child is to enforce access rights. 
• The Convention only applies to minors under the age of 16. 
• The Convention does not, in principle, apply to unborn children being carried by pregnant mothers, though it has been argued that Hague Cases can be brought after the birth in the country where the parents were not habitually resident prior to the birth.