Convention In Action

Yes, apply for an ex parte order from the Family Court in your home area declaring Israel to be the children's country of habitual residence, and stating that their removal was wrongful. This can be submitted to the court abroad hearing the case.

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.

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.

Not directly. The Hague Convention on the Civil Aspects of International Child Abduction does not deal with criminal issues. Separate legislation deals with this. If you bring Hague proceedings and you reach a voluntary return agreement with your wife, you can undertake not to take any personal steps to initiate or further criminal proceedings, in so far as this is within your control.

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. In general, the objection should be independent/genuine and strong.

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.  Israeli regulations require courts to get input from the child, from his/her perspective before deciding on a return order, as a routine matter, and may even appoint an expert to hear  and report on the child's "objections" or 'grave risk' claims by the parent.

 

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.

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).  

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.

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]).

In Israeli law, both parents (whether they are married or not) have shared ‘parental responsibility’ or ‘guardianship’ of their children under the Legal Capacity and Guardianship Law 1962 . This is the law in Israel regardless of the religion of the child or parents and unless expressly taken away or relinquished in a court ruling. They are supposed to make decisions jointly – and if they cannot agree on a guardianship issue, then each parent is entitled to apply to court, for appropriate relief, and the court will decide.

Where parents live separately they may  (but are not obliged) to come to an agreement about custody and access/contact and other guardianship issues. Such an agreement requires court authorization, and will be authorized only after the court is satisfied that it is in the “child’s good”.  It could include specific conditions about foreign travel with either parent – and specify that the children are habitually resident in Israel.

 

If parties cannot agree, or the agreement is not carried out, then the court has jurisdiction to decide, with the “child’s good” being the supreme factor. Mothers of children under 6 are the preferred custodians, by law, unless there is a special reason otherwise.

Despite this, 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) – even if she has sole custody.

Repeated recommendations to cancel or reduce this bias have not yet resulted in a formal change in the law. However, courts have been putting other reform recommendations into practice and in recent years are increasingly awarding joint (physical custody) or “ joint parental responsibility” with substantial “parenting time”.Terminology is changing from the terms ‘custody’ and ‘contact’/’access’/visitation rights  ( although these are still used in the context of child abduction ) and the tendency is to set “ joint parental responsibility” (guardianship) and to set “parental time”.

 

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