Forum Questions

Bring Hague Convention proceedings for your children's return. They are being wrongfully retained in Israel by your wife – this is a form of child abduction. A court in Israel can order their return.
 

Yes, but only if you get permission from a UK court, after filing for relocation. If you just move with them without a relocation order, you will be abducting them, and could face Hague Convention proceedings for their return.  
File for the enforcement of your visitation rights in Canada. Where, as in your case, there is no child abduction, the Hague Convention is not very helpful in guaranteeing exercise of access rights, even though both Israel and Canada are bound by it.  
Yes, in principle, providing both the countries involved are bound by the Convention and you were exercising some kind of parental authority (in Hague language misleadingly called 'rights of custody') according to the laws of your home country when the children were removed.  

Yes, by filing and winning a legal action for their relocation abroad.

Unless you consent, she will be forced to bring a legal action to get court permission in Israel. If she does, you can file defence pleadings, and argue that relocation will not be in the children's best interests, and will/could result in irreversible emotional damage to them. If you really suspect she will abduct the children, you can apply for an ex parte 'stop order' to prevent the children leaving Israel.

If the other parent consents, it is legal, but if he/she does not consent, then only if a court has granted an order permitting their relocation.

Yes! This is known as ‘wrongful retention’ and is one of two forms of abduction recognized under the Hague Convention covering child abduction between member states such as Israel and South Africa.

Yes, child abduction covers children up to the age of 18, but where they are between 16 and 18, the Hague Convention on Civil Aspects of International Child Abduction 1980 cannot be invoked even if both states involved are member countries. This is because the Convention only covers children under 16.
 

In principle, the decision should be joint, because parents have shared and equal responsibility under Israeli law for deciding where a child should live. If they cannot agree, the parent wishing to move abroad must win a relocation plea filed against the other parent, but first will need to obtain custody, if he/she is not already the custodial parent.
 

 Yes - but only in relation to alleged wrongful removal or wrongful retention of minors between the two countries from 1.4.2014 and thereafter. Japan has only recently become a Hague Country, and the Convention is in effect between Israel and Japan only in relation to alleged child abduction or or after this date. Alleged child abduction between Israel and Japan prior to this is not covered by the convention.

Firstly, its full name is the Hague Convention on Civil Aspects of International Child Abduction 1980. It is a treaty binding over 60 different countries in the world designed to deal with abduction of children between them quickly – and return them to their home country as soon as possible, save for in exceptional situations.
 

Yes, providing the other country involved is also bound by it.
 

Yes, because these countries are bound by the Hague Convention, which also covers abductions between these countries and Israel in the other direction.
 

Most of them, but not if the abductions involve Bolivia or Paraguay.

Possibly, as many of these states are bound by the Convention, vis a vis abductions from Israel, including Ukraine,whose accession to the Hague Convention came into force in 2007. The Russian Federation finally acceded to the Hague Convention in 2011,  Israel accepted its accession, on 21.12.2011, and it came into force for abductions between the two states on 1.3.2012. Accordingly, Hague Convention proceedings can be used if the abduction from Israel to Russia took place on or after 1.3.2012.

No. None of the Israel's neighbouring Arab states are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. The concept of parental authority and rights under Islamic law is very different from the guiding principles behind the Convention. 
 

The only Arab state  bound by the Hague Convention is Morocco, though it is not a close neighbour. It became a Hague Country in 2010. The Hague Convention is in force regarding child abduction between Israel and Morocco, as of 1.6.2010.
 

Only Morocco. Israel accepted Morocco's accession to the Hague Convention in 2010. The Hague Convention came into force regarding abductions between Israel and Morocco taking place on 1.6.2010.

In this case the Convention will not apply, and the 'left-behind' parent will have to bring an action for the child's return in the country to which he/she has been abducted.

 

It should not, as the case will be heard by a civil court, the appropriate family court, and the principle governing the plea are those of the Hague Convention, which are not related to religion at all.
 

Yes, the Hague Convention on the Civil Aspects of International Child Abduction covers abductions between Israel and Australia, which have both ratified it.  

Possibly. Much depends on which “Hague” country proceedings are being heard . Under  the Convention, a child’s objection to  being returned to his/her country of habitual residence, following proven child abduction, does constitute a defence, if proven, but no specific age is mentioned, and the mechanism provided for considering a minor’s views, is subject to differing interpretation, according to domestic law. The child must be ‘old’ enough and ‘mature’ enough to have their views taken into consideration, and even if they are considered, they may not necessarily be upheld.

 

For example in 2010, in a Californian appeal case ( Escobar v. Flores)in the USA, the objections of an 8 year old were upheld, and it stated that no minimum age for the defence could be set, but in a 2013 2nd appeal level Canadian ruling , the objections of a 10 year old in RM v JS ,were not upheld. The Court of Appeal of Alberta, Canada, allowed the mother’s appeal , ordering the minor’s return to East Jerusalem, qualifying and restricting the defence under the Convention. In this case the parents were both Arab Moslems who had divorced under Sha’aria Court in 2008, in East  Jerusalem, Israel and the child was held to have been wrongly retained by the father, at the end of summer visitation with the father, in Canada.

 

 

 

 

In general, no, because the Convention does not cover unborn children. However, certain proceedings may be possible after the birth, depending on the particular countries involved.

Yes, you can bring child abduction proceedings for your son's return under the Hague Convention as both Israel and the United States are bound by it. The case will be heard in the States.

No! Rabbinical courts in Israel have no jurisdiction to hear pleas for an order to return abducted children. Jurisdiction to return the children lies only within the civil system – i.e. at first instance with the Family Court, and then at the appeal stage with the District and Supreme Courts. A rabbinical court in Israel is, however, regarded as a judicial authority entitled to give a legal opinion or declaratory judgment about whether children were habitually resident in Israel or not prior to their removal/retention, and whether they abducted or not.
 

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.
 

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.

No .The principle is that custody will be decided in the 'home' country after the child is returned. Courts hearing Hague cases decide whether the child should be returned to the country where he/she was living prior to the abduction. If, however, a return order is granted, the court can decide that if the removing parent refuses to return with the child, the other parent is entitled to travel back with him/her instead of that parent.

Yes. Technically speaking a parent has one year from the time of the alleged wrongful removal or retention until the plea for their return is actually filed at the Israeli Family Court - that is to enjoy the presumption of a quick return under the Convention. After that time, the court has discretion not to order a return if the children are shown to be settled into life in Israel… and after one year it is highly likely that they will have done so, unless they are very young. In practice, however, even within the one year period, the longer the children stay, the more they plant roots in Israel, and the greater the risk of the defending parent proving that the other parent has 'acquiesced' (resigned himself to the abduction) which is a legitimate defence. The sooner a child abduction plea is started, the greater the chances of return are. Parents often waste time negotiating and getting toothless orders in their home countries, before taking action under the Convention.

No, it only covers abductions between two countries bound by the Convention, and not internal ‘abductions’.

Not necessarily. Even where the court has no doubt about the child being abused, the removing parent will have to bring clear and convincing evidence of abuse, and that returning the child would expose him to a 'grave risk' of physical or psychological harm, or put him in an 'intolerable position'. Even then the court has discretion about returning the child or not. Proving 'grave risk' defences is very difficult, and it should be remembered that the child is not being returned to the alleged abuser's custody – but to the home country where it is presumed that appropriate action can be taken to protect the child.

Yes! Agreeing after the event (or in Hague Convention language 'acquiescing') can be passive, as well as active. Silence can amount to acquiescence, in certain circumstances.
 

No! Consent must be active, but need not be in writing. It must be real and unmistakable, but need not be explicit, and can be implied from the circumstances. It must be proved in court to succeed as a defence.
 

Possibly, but you might be able to successfully defend proceedings because the court in Europe hearing the case may refuse to order the children back if you can prove that their father was not exercising his 'rights of custody' when you removed them – i.e. did not visit them, provide for them financially in any way etc.
 

Yes, it can be, where the violence is directed against the children. Violence against the abducting parent is not usually considered a defence, unless the spin-off on the children is very marked. Courts are very reluctant to accept 'grave risk' defences based on physical and emotional abuse and require clear and convincing evidence. They stress that a return order is to the home country, and does not transfer the child into the custody of the alleged abuser, that various orders can be granted in the home country to deal with abuse, and that visitation there can be supervised, if necessary.
 

Yes, you can, but consent will be a thorny issue, and if proved could lead to the court not ordering the children back to Israel. If you do bring Hague Convention proceedings, your wife will bear the burden of proving that you consented … and that your consent was unequivocal and real. Under the Convention you cannot take back consent once given. If your argument was witnessed by someone, or recorded, you will be in big trouble. Be careful not to admit to consenting in future telephone conversations, which she could record, and try and trap you. Also avoid admitting to consent in any letters or e-mails you may send. All could be used in evidence against you.
 

Certainly. You can reach a voluntary return agreement through your respective lawyers which includes conditions and undertakings about accommodation and support for you and the child upon your return, until the court in Israel makes a further decision. You can negotiate an agreement to live separately from your husband, and for him to cover accommodation and living costs for you and the baby meantime. You can also get him to undertake not to enter the home, or bother you. Such an agreement can be recognized and enforced in Israel. Upon your return, you can also apply to court for various orders.

No, some are strict in its application and some are lax. Most states whose legal systems are well established and respected generally have a good reputation now for respecting the underlying principles of the Convention.
 

Yes, in exceptional circumstances, apparently, according to the Perez-Vera Explanatory Report to the 1980 Hague Convention on the Civil Aspects of Child Abduction. This makes specific reference is made to this in Paragraph 110. It points out that where the parent applying for the return order no longer lives in the country from where the child was habitually resident prior to the abduction, ordering his/her return there could cause practical problems returning the child there e.g. where that parent has ended a posting in that country. It says: "The Convention did not accept a proposal to the effect that the return of the child should always be to the State of his habitual residence before its removal…. The Convention's silence on this matter must therefore be understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter's present place of reference."
 

The court will look at both parents' alleged intentions and try to find the maximum common ground, to establish the shared parental intention . It will also look at the plain geographical facts, from the minors' point of view. For example, in the mid-90's Feder U.S. appeal court case, it was held that although the parents moved from United States to Australia for different reasons – the father 's being employment related, and the mother's to give their marriage a last chance – this did not matter, as there was a joint decision to relocate, and , from the evidence given, the child had established habitual residence in the new country after six months.

In another case where a return order was granted after a short period of habitual residence , this time to Germany, in Re F, the U.K. court hearing the case in 2003 reconciled the differing parental claims about the time they intended to spend there with their child, and held that they both consented to living there for six months. According to the mother, she had agreed to live in Germany with their child for a maximum of six months, while according to the father, this was the minimum period. Although the family actually lived there for less than the compromise period of six months, habitual residence was still established, on the facts.
 

Yes, depending on the particular circumstances of the case,  the "home" country involved, whether it is a "Hague Convention" country or not, whether the "left-behind" parent had parental responsibility and how progressive domestic legislation is there.

 

For example, if the child was habitually resident in a "Hague Convention" country, and the left-behind parent also had established  parental rights there, under domestic law, the chances of success will be much greater. However, even if the left-behind parent did not have established parental rights, at the time of the alleged abduction,  if the domestic law of the "home country" is progressive, it may still be possible to succeed. For example, UK law was supportive of a non-biological gay mother in a high profile case in February 2016, (Re B (a child) ) , the first international single-sex child abduction case. The precedent setting ruling allowed a non-biological Lesbian parent to seek the return of a child, who had been removed by the biological mother (her former partner) to Pakistan ( a non-Hague country),  on the basis that the minor was still habitually resident in the UK when she took initiated proceedings regarding  the child in the UK before she discovered that the child had been  removed from UK jurisdiction a few days previously. The child was made a ward of court and the UK courts retained jurisdiciton over the child i The left-behind parent  had raised the child jointly with the biologial mother in the UK, for several years before they split up, and the UK was the only possible forum for proceedings regarding the child because Pakistani law did not recognize same-sex relationships and the Hague Convention did not apply as Pakistan is not a "Hague Country". 

 

Therefore, for example, a non-biological parent in a former single sex relationship , who seeks the return of a child abducted to Israel, will be able to initiate child abduction proceedings in an Israeli family court,  if the minor is allegedly removed from a Hague Convention country and he/she has recognized parental rights there, or the domestic courts there have /should have jurisdiction over the child, and the case should be  heard as a Hague Case. Clearly great importance would be attached to the legal opinion on UK law from a family law expert regarding the existence of parental responsbility and the exercise of parental rights, prior to the alleged act of abduction.

 

 

Yes, depending on the particular circumstances of the case,  the "home" country involved, whether it is a "Hague Convention" country or not, whether the "left-behind" parent had parental responsibility and how progressive domestic legislation is there.

 

For example, if the child was habitually resident in a "Hague Convention" country, and the left-behind parent also had established  parental rights there, under domestic law, the chances of success will be much greater. However, even if the left-behind parent did not have established parental rights, at the time of the alleged abduction,  if the domestic law of the "home country" is progressive, it may still be possible to succeed. For example, UK law was supportive of a non-biological gay mother in a high profile case in February 2016, (Re B (a child) ) , the first international single-sex child abduction case. The precedent setting ruling allowed a non-biological Lesbian parent to seek the return of a child, who had been removed by the biological mother (her former partner) to Pakistan ( a non-Hague country),  on the basis that the minor was still habitually resident in the UK when she took initiated proceedings regarding  the child in the UK before she discovered that the child had been  removed from UK jurisdiction a few days previously. The child was made a ward of court and the UK courts retained jurisdiciton over the child i The left-behind parent  had raised the child jointly with the biologial mother in the UK, for several years before they split up, and the UK was the only possible forum for proceedings regarding the child because Pakistani law did not recognize same-sex relationships and the Hague Convention did not apply as Pakistan is not a "Hague Country". 

 

Therefore, for example, a non-biological parent in a former single sex relationship , who seeks the return of a child abducted to Israel, will be able to initiate child abduction proceedings in an Israeli family court,  if the minor is allegedly removed from a Hague Convention country and he/she has recognized parental rights there, or the domestic courts there have /should have jurisdiction over the child, and the case should be  heard as a Hague Case. Clearly great importance would be attached to the legal opinion on UK law from a family law expert regarding the existence of parental responsbility and the exercise of parental rights, prior to the alleged act of abduction.

 

 

Bring Hague Convention child abduction proceedings against your wife, at the family court in Isarel, for  the prompt return of the children  to the U.S.A.

 

Although your wife travelled from the USA to Israel with the children, your consent to their departure was within the context of a visit /vacation. You did not consent to them relocating to Israel permanently  and , therefore, their retention by her, in Israel, after the planned return date is an act of passive child abduction ( "wrongful retention").

 

Both the U.S.A and Israel are bound by an international convention designed to prevent civil acts of child abduction. According to this, any disputes relating to the children are to be decided upon in the children's country of habitual residence, which in your case, is in the United States, and where their best interests can be ascertained. One parent

is not entitled to effect a unilateral change in the children's country of habitual residence, as your wife is trying to do, and for which a legal remedy is available.

 

 

 

 

File Hague Convention child abduction proceedings for their immediate return, in Israel, at the relevant family court. This can be done via the Central Authority in the UK, or you can file directly, at the Israeli family court , via privately retained Israeli counsel, to save time, and co-ordinate with the Central Authorities, in both the UK and Israel. 

Yes! The parent initiating the proceedings does not have to be physcially present in the alleged country of habitual residence, but can actually be present in Israel, at the time of filing , although this is rare.

 

In 2012 our legal practice successfully represented a father in Hague convention proceedings for the return of 3 children to the USA even though he was in Israel at the time of filing , unsuccessfully trying to persuade the mother to return the children voluntarily (wrongful retention - File 5134-05-12- Tel Aviv Family court ).

 

In 2014 our legal practice initiated Hague proceedings on behalf of a mother, for the  the return of 2 minors, whom she claimed were wrongfully retained in Israel,  to the USA. Again the mother was present in Israel at the time. This case (File 40036-04-14- Krayot Family Court) resulted in a comprehensive negotiated settlement which included divorce and return/relocation of the minors to the USA with their mother, with visitaiton and contact arrangements for the father.

 

 

Rarely, though this can happen, as in Family Court case 161-07-12 , where Tel Aviv Family Court gave a judgment in August 2012, in favour of the "left behind" father, a Dutch citizen living in Belgium, and represented by our legal practice, within a month. In another case, also involving a Dutch father represented by this practice, and two abducted children, the first level proceedings took nearly 5 months before a return order was given in February 2013– in case 36930-09-12.
Special permission is needed from the vice-president of the family court, if first level proceedings extend beyond the 6 week default time. Complex cases, involving the preparation of reports by legal and psychological experts, and cross examination of expert witnesses, usually take longer than 6 weeks.

Yes, if this is expressly written in the judgment – as in Family File 5134-05-12 in July 2012, where Tel Aviv Family Court Judge Samara expressly ruled that the father , who was represented by our legal practice, could return the 3 abducted minors to the U.S., if the mother did not do so. This is what happened in practice, too.

 

Within six weeks, from when the plea is filed until the judgment is given, at the court of first instance, the Family Court, if domestic procedural rules are adhered to. Even when judgment is given within this time-scale, there is also the possibility of delaying implementation, or appeals, to both the District Court, and later to the Supreme Court.
No, a person may be allocated a lawyer in Israel arranged by the Ministry of Justice without cost, depending on the country involved and the parent's eligibility, but he/she also has complete freedom to hire specialist counsel privately, in Israel, and choose him/her personally, according to terms agreed upon. Whoever is chosen to represent the parent bringing the action will actually prepare the plea to be filed in the court, and manage the whole case.

If the abduction took place on or after 1.3.12, the date on which the convention came into force between Israel and Russia, you can bring fast-track Hague convention proceedings in Russia. If the abduction took place prior to that date, you will have to file child abduction proceedings at the relevant Russian court, but not under the Hague Convention.

 

The Russian Federation finally acceded to the Hague Convention in 2011, Israel accepted its accession on 21.12.2011, and it can come into force between the two states on 1.3.2012.  

Yes, but only after one year has passed since the alleged act of abduction and the filing of the plea in court. There has been some debate about whether Israeli courts interpret the beginning of proceedings as the time when the parent applied to the Central Authority abroad or the Israeli Central Authority, or when the plea was filed in court in Israel. This has now been resolved – and the relevant time is between the act of abduction and the actual filing in court.
The UK. It is clearly your children's country of habitual residence according to the principles of the Hague Convention on the Civil Aspects of International Child Abduction, if you were to bring legal action under it for their return. What your wife is doing is called 'wrongful retention' under the Convention, which amounts to an act of child abduction. While your children have Israeli citizenship and a right to live in Israel, for child abduction purposes, the UK is their country of habitual residence or 'home', not Israel.
Bring a legal action under the Hague Convention for their return. From what you say, their father has ‘wrongfully retained’ them in Israel, while Australia is their country of habitual residence under the Convention. You have a good chance of succeeding, on the face of it.

Yes, letters can be used in evidence to support your defence claim that your husband resigned himself to the children remaining in Israel, or in the words of the Convention, "acquiesced."

Yes, that is why it is wise to apply for an urgent, ex parte order preventing the children from leaving Israel, at the same time as the main Hague Convention plea for their return is filed at the Family Court in Israel. This is usually granted as a matter of course, and a copy of the order immediately sent to the border police.
One judge at the Family Court, the court of first instance, which hears the plea for the child's return.

Apply to the Family Court in Israel for a Hague Convention return order . The Hague Convention came into force for child abductions between Israel and the Ukraine in 2007.

Yes, it would appear so. Determining your children's place of habitual residence is difficult but if you have been traveling continuously without acquiring residency permits in any country, it would not appear that there is a mutual intention to change your and your children's country of habitual residence from Israel, even if they were born abroad. While Australia, like Israel, is bound by the Hague Convention, it is unlikely that a plea for the children's return would be processed by the Central Authority there.
Under South African law your wife is not entitled to take your mutual child outside of the country without your consent. Israel and South Africa are bound by the Hague Convention and you can bring proceedings under it for the return of your child to Israel.
Your legal situation is complicated because you are not married. Although the Hague Convention binds both Israel and the UK, only parents who have ‘rights of custody’ can apply under the Convention for the return of the child. Under English law an unmarried father does not have automatic ‘parental responsibility’ (in the language of the Hague Convention this is the same as ‘rights of custody’). There are ways under English law of obtaining ‘parental responsibility’ . You need to take speedy legal advice from an expert in English family law, in order to find out whether you have ‘parental responsibility’, whether you can get it, whether this is a situation where under English law the court can be treated as having ‘rights of custody’ (for example if there are court proceedings in existence between you and your partner about your child), and, finally, whether you can use the Hague Convention. If the answer is that you cannot, you will have to start legal proceedings in an Israeli Family Court for the return of your child. You need good legal advice in Israel to do this.
According to a U.S. State Dept. report to Congress in 2004 on Compliance With the Convention, Israel was listed as a "Country of Concern", or the third category of “Countries coming under criticism”. The most-criticized category of countries was dubbed "Non-Compliant Countries", the second-most criticized category of countries was referred to as "Countries Not Fully Compliant". The report said the department had two principal concerns regarding Israel. It said: "With increasing frequency, Israeli courts request psychological evaluations in initial hearings related to return applications, and courts frequently condition return on broad "undertakings" that place an onerous burden on left-behind parents and tend to lengthen court proceedings." In particular the report criticized some pre-conditions demanded for a return order as being unrealistic and causing delays. It said: "Left-behind parents are often unable to fulfill some preconditions for return, such as requiring assurances that a taking parent will receive a visa or be able to reside lawfully in the U.S. While a left-behind parent's agreement to undertakings may ultimately result in a return order, negotiating the exact nature and extend of undertakings, in light of the taking parent's requests and the left-behind parent's ability to address those requests, often increases the length of court proceedings." It should be noted that help, by lawyers or even by the Central Authority, regarding obtaining visas for "abducting" Israelis allowing them to re-enter the U.S.A. legally is often vital in overcoming technical barriers to a return order. In cases where the parent abducting a child (who was perhaps even born in America) to Israel was living in the United States illegally he/she may claim in his/her defence that a return order would result in a grave risk of harm to the child. The abducting parent could argue that a return order would mean that the minor would effectively be cut off from him/her because of his/her lack of ability to enter the United States.
Yes, even if the court in Israel finds that the child has been abducted, it has discretion not to grant a return order, if it finds that the minor objects to this, and that he/she is of sufficient age and maturity for his/her views to be taken into account.
Yes – in December 2005 Beersheva Family Court rejected a plea filed by the mother for the return of two minors , aged 12 and nearly 10, for their return to Italy , because they objected to going back, and were found to be of sufficient age and maturity for their views to be taken into account, after an expert was appointed to comment on this.

Yes, in December 2005 Beersheva Family Court exercised its discretion not to order the return of two minors to Italy, basing its judgment not only on the provisions of the Hague Convention, but also on the International Convention of the Rights of the Child, which binds Israel. In agreeing to accept the wishes of the children, aged 12 and almost 10, not to return to Italy, in its judgment it specifically referred to Israel's international commitment to respect the rights of minors to have their say in any matter concerning them, in accordance with their age and maturity.

Yes, certainly. For example, in 2005 Beersheva Family Court appointed a psychiatrist to report on whether either of two children abducted to Israel from Italy by their Israeli father objected to being returned there. In her report, she addressed other issues , too, and expressed her own opinion on whether it would be better for them to return there and live with their mother, or stay in Israel, with their father. The court "weeded" the report, selecting only the answer to the question it had asked, and disregarded other irrelevant issues, or those which it was outside its jurisdiction to ask within the confines of a Hague Case. It concentrated purely on whether the minors were of sufficient age and maturity to have their views taken into account, and whether the views they had expressed reflected their true wishes. The children had objected to the idea of being returned to Italy, and the expert told the court that these wishes, as reported, reflected their true wishes. The court ignored the viewpoint openly expressed by the expert recommending , however, that they be returned because in the long-run she estimated that they would be at risk of suffering emotional damage because the mother had stated she would not return to Israel herself if the children remained.

According to a 2005 Hague Convention 'Country Report' prepared jointly by UK academic Professor Nigel Lowe & Israeli academic Dr. Rhona Schuz, based on statistics provided by the Israeli Central Authority for 1999, the overall return rate of children abducted to Israel was 43%, below the global average of 50%. The rate of court-ordered returns was 32%, identical with the global Hague average, but the rate of voluntary returns was below par. Apparently, statistics for 2002 show an improved overall return rate, according to the report.

All complaints about children abducted to Israel are supposed to be received by a special liason officer who passes the information on to the police in the district/s where they are likely to be located. The police in the particular district can research Ministry of Education records to see if the children they have been registered at school or kindergarten. They can also search National Insurance Institute Records to see if child allowances or other benefits have been claimed for the children. They , can, too, have access to Ministry of Interior records, (which also record entry into the country according to Israeli I.D. numbers). They can, of course, send officers in the field to investigate.

Yes ! For example, in 2004 a father won a Hague Case at Tel Aviv Family Court for the return of their minor son to the U.S.A. , where he was born, and where the parents had been living for several years after emigrating to Israel. The court set financial conditions to be fulfilled . The father failed to meet them. It later transpired that he had left U.S.A. because he could not get permission to remain there – but had not informed his ex-wife or the court. Finally, Tel Aviv District Court ruled on the mother's appeal in May 2006 – over two years after the original ruling. It not only accepted her appeal (even though she had wrongfully removed the child to Israel), but cancelled the finding and gave a heavy costs ruling against the father. It held that he had acted in bad faith, and caused the mother unnecessary legal costs even though he knew it was impossible for him to keep to the conditions set and for the judgment to be realized. At one stage he lost all contact. At another stage he had misled her into agreeing to a deferral of the appeal , saying he hoped to settle his residency problems shortly, therefore allowing him to work and meet the financial conditions.

Possibly, though it depends what the non-custodial parent files for. In November 2005 Tel Aviv Family Court rejected a plea for a Hague Order for the return of a minor to Canada, after the mother failed to allow the minor to visit the father abroad, against a background of recently-discovered alleged sexual abuse. The mother had obtained a temporary order from the Israeli court preventing the minor from leaving Israel. The court held that the father had been wrong to file for a return order as there had been no wrongful removal – the minor had left Canada for Israel as part of a court-authorised arbitration agreement which gave the arbitrators abroad continuing jurisdiction over future child custody/visitation disputes. It did mention that it may have considered an application under article 21 for the enforcement of visitation rights ,but the father had not opted for this course of action.

Without knowing the child's age and level of maturity and whether he is really being manipulated, no clear-cut answer can be given. As a guideline, however, courts dealing with Hague Convention applications to return an abducted child will not order the minor 'home' if he is of sufficient age and maturity to have his views taken into consideration, and he objects of his own free will . In Israel , courts generally take children's views into consideration around the age of ten, though again only if they are sufficiently emotionally mature. In a case heard by Tel Aviv Family Court in March 2007 the parent defending the case argued that his daughter, who was 9 years and 9 months old at the time of the judgment, objected to being sent back abroad. A child psychologist who interviewed the minor said that she was too young and immature to have her views taken into account, and they were indeed discarded, although she was not sent back for other reasons.

Israeli courts are quite open in that they respect their international commitment to let minors have a say in legal proceedings concerning them, providing they are of sufficient age and maturity. As a rule of thumb the voice of a 10 year old will be heard. Having said that, the Supreme Court has re-iterated the need for a very strict interpretation of Hague Convention defences in child abduction proceedings, in recent rulings in 2006 and 2007. In April 2007 , the Supreme Court stressed that a very strict interpretation must be given to the defence of a child's objection , when it refused a mother permission to appeal against a District Court (first level appeal) ruling rejecting the objections of siblings, aged 12 and 10, to being returned to Holland. Prior to this, at the family court (first instance) the minors' objections had been accepted as a defence. Thus, even if a child's objections are accepted at first instance, it is likely that they could be overruled on appeal, especially in the light of recent Supreme Court directions emphasizing the need for a very narrow interpretation of the defence, to achieve a correct balance with the aims of the Hague Convention, the securing of a swift and prompt return of abducted minors. In this case, not only did the father have joint custody under a Dutch court ruling, but the mother blatantly infringed a court order prohibiting her from taking the minors outside of Holland.

Everything will depend on the circumstances as the move could change the country of habitual residence of a minor from Israel to that of the destination country, but not necessarily so. In an appeal ruling in July 2007 Tel Aviv District Court upheld the finding of Tel Aviv Family Court that a trial stay of 1 year and 8 months in the United States , during which the family had lived in two different States and the father had gone from job to job , did not mean that the minor's country of residence had changed from Israel to the United States. It rejected the mother's appeal against the judgment given in March 2007, which had thrown out her request for a Hague Convention return Order for their mutual son, on the basis that Israel , and not the United States, was the minor's place of habitual evidence. "Not every move abroad should necessarily be seen as a permanent move as in relocation/emigration.....As long as one is talking about a trial period, then from the point of intention, one should not see the new place as the place of habitual residence," the District Court held.

Yes, this is possible. The court dealing with a Hague Case has discretion to tailor-make the conditions of the return order, depending upon the circumstances of the case, until a court in the "home country" rules otherwise . Regarding accommodation, the court can condition the return order upon the parents living separately, or it can order the minor back to the marital home and make temporary decisions regarding this, as it sees appropriate in the circumstances. For example, in July 2008, Ashdod Family Court did just this in Hague Convention Proceedings brought by the father, represented by Adv.Amihoud Borochov, against his wife for the return of their abducted minor son to England. In its judgment it ordered her to return the abducted minor to Manchester, England, under the same roof as the Plaintiff father, ordering them to live on separate floors in the 3-storey house. It added that if the Plaintiff was not interested in such an arrangement, he should provide rented accommodation for the mother for up to six months.

Yes! This point was discussed by the Supreme Court in August 2007 when it granted a mother leave to appeal against a Beersheva District court judgment that upheld the family court's Hague Return order . In this particular case it held that the child could be returned to Belgium, and not France, from where he was abducted and which had been his place of habitual residence, following a foreign appeal ruling switching physical custody from the mother in France, to the father in Belgium. The 8 year old child had been ordered to return to Belgium, to his father's physical custody, although the mother had abducted him to Israel from France. The child had been living in France in his mother's lawful custody for over two years, having gained permission to relocate from a Belgium court. Shortly before the abduction, a Belgium appeal had overruled the earlier judgment, and ordered a switch in physical custody from the mother in France, to the father in Belgium. In reaching its decision on this point, the Supreme Court noted that the Belgium appeal court judgment switching physical custody of the child to the father had been recognized in France. Furthermore it referred to the Perez-Vera explanatory report that accompanies the 1980 Hague Convention on the Civil Aspect of Child Abduction. While the convention itself was silent on the matter, the court held that the report gave backing for returning an abducted minor to the country where the left-behind parent lived, even if this was not the minor's country of habitual residence prior to the abduction , or the country from which he was abducted. As to the final outcome, the Supreme Court sent the case back to the district court, for a further report on the child.

If one of the parents is prepared to take the case to the highest level, the Supreme Court, then he/she is likely to find an extremely high level of commitment. For example, in August 2007 a Jewish mother and Israeli citizen appealed for the second time against a Hague Return order given by Beersheva Family Court ordering the return of her 8 year old son to his Christian father in Belgium. It criticized the fact that the expert appointed by the family court to observe interaction conducted in French between the father and son, and to make a report/recommendations,had not been a French-speaker. The Supreme Court emphasized that it was vital for the child's voice to be heard, in accordance with Israeli's international commitment to acknowledge and respect the right of a child to have a say in judicial proceedings concerning himself. This could not be done so without the professional understanding French, it held. Furthermore, as well as ordering a further report, before a French speaking expert, and sending the case back to the District Court ( the first-level appeal instance ), it also ordered that the child himself should appear before the panel of judges, unless it was decided by the professional that this would be harmful to the child.

As a rule of thumb, around 10 years old. However, this can be lowered, if the child is sufficiently mature emotionally. For example, in 2006 Beersheva Family Court appointed a professional to investigate the possible effect of a return order on a boy of eight, and in August 2007, when the same case reached its second appeal, this time before the Supreme Court, instructions were given for the appointment of another psychologist, and the preparation of a second report, this time when the child was aged 8 1/2.

Yes, this is possible. The court dealing with a Hague Case has discretion to tailor-make the conditions of the return order, depending upon the circumstances of the case, until a court in the "home country" rules otherwise . Regarding accommodation , the court can condition the return order upon the parents living separately, or it can order the minor back to the marital home and make temporary decisions regarding this, as it sees appropriate in the circumstances. For example, in July 2008, Ashdod Family Court did just this in Hague Convention Proceedings brought by the father, represented by Adv.Amihoud Borochov, against his wife for the return of their abducted minor son to England. In its judgment it ordered her to return the abducted minor to Manchester, England, under the same roof as the Plaintiff father, ordering them to live on separate floors in the 3-storey house. It added that if the Plaintiff was not interested in such an arrangement, he should provide rented accommodation for the mother for up to six months.
In theory, from the plea for a return order is actually filed, the family court dealing with the case is supposed to give a judgment within six weeks, in accordance with the deadlines set by the 1980 Hague Convention on the Civil Aspects of Child Abduction. In practice, however, cases frequently over-run these deadlines, though , in theory, according to the Civil Procedure Regulations governing Hague Convention cases special permission must be obtained in advance for the extension of deadlines. To illustrate the point, a British father represented by Adv. Amihoud Borochov opened Hague Convention proceedings for the return of his abducted son on 1/4/08 at Ashdod Family Court . After a marathon 14 court sessions and the submission of written summations from both sides, the court finally gave judgment on 24/7/08 – just under four months later – ordering the minor's return to England. The mother had abducted the minor from England to Israel on 26/2/08 . On 24/3/08 the father instructed counsel in Israel to represent him after a personal "peace mission" to Israel to return mother and child to England had failed, and the mother had obtained an ex-parte order from court preventing the minor leaving Israel.
Yes, you would certainly have "rights of custody" under U.K. law if you are the biological father and were legally married to the mother at the time of the birth. Even if you are not a non-custodial parent , but were enjoying visitation rights up until the abduction i.e. seeing your child, then you would be exercising "rights of custody", as is required under the convention. A supporting letter from the Central Authority in the U.K., citing the relevant law would be helpful in this matter, as well as documentary evidence, to prove this. However, the most watertight method of proving that you have and were exercising "rights of custody" under U.K. law at the time of the alleged abduction would be to submit an expert legal opinion on foreign law. The expert could also answer written questions submitted by the other side, or be cross examined in court, if necessary. As part of his case for a successful Hague return order to the U.K. before Ashdod Family Court in April 2008, a British father submitted a legal opinion on U.K. child law by an expert, on the issue of "rights of custody" under U.K. law. The expert also answered supplementary questions and gave oral testimony. The father, who was represented by Adv. A.Borochov, was granted a return order on 24/7/08 according to which his wife, the child's mother, was to return the 4 year old to the U.K. by 28/8/08 (Family File 2941/08).

Yes – you can contact your local police station yourself, with all the background, with the aim of persuading them that there is a real and imminent risk of your child being abducted to Israel by your Israeli wife. If you are successful the police can issue an "All Ports Warning" which is effective for 28 days. If not, the alternative is to apply for a court order to prevent your child being removed from the U.K.

Clearly this will depend on the exact circumstances of the case , but as a guideline ,this is unlikely if she changes her mind quickly enough, within a matter of days or at the most a couple of weeks, and stops the child from acquiring habitual residence in the U.K. The English court dealing with the Hague application will have to decide whether the child's country of habitual residence had changed from Israel to England or not. For the father to be entitled to an order for the child's return to England, the English court will have to be convinced that the U.K. was the child's country of habitual residence immediately before the alleged abduction. According to U.K. precedent, the English court will examine whether the mother had a "settled intention" to remain in the U.K. and whether an appreciable period of time had elapsed for the child to have acquired habitual residence there or not. In the 2007 case of Re A (Abduction: Habitual Residence) the High Court of Justice refused to grant a father a Hague Return order where the child had been physically present in the U.K. for just eight days prior to the alleged abduction and the mother had changed her mind about the permanent relocation to the United States a few days after the move and announced to her husband that their marriage was over. It held that on arrival the mother did have a settled intention to remain, but that this had evaporated shortly afterwards. The child had never established habitual residence in the U.S.A. , it held, even though the parents had sold their home in the U.K. and shipped out their possessions as part of a permanent plan to relocate. In another U.K. case it has been held that habitual residence can, however, be acquired by a child within a month.  

Act on two fronts simultaneously- both of which are possible since Russia became a signatory to an international convention on child abduction, and Israel confirmed it accession, so that since March 2012, abductions between Israel and Russia are covered by the 1980 Hague Convention on the Civil Aspects of Child Abduction and a specific legal mechanism exists which covers your situation.

 

Firstly, you should contact the Convention's Central Authority in Israel, requesting it to act via its equivalent body in Russia, to get a court order for the prompt return of your child, to Israel, and secondly, you should act directly at the Israeli family court to obtain a declaration under Article 15 of the Convention, to state that Israel is the child's place of habitual residence, and the centre of his life. You are advised to initiate this, and not wait waste time waiting until the Russian court requests this.

 

In September 2016 Petach Tikva Family Court granted such a declaration, at the request of a father, for use in the legal proceedings in Russia. The three children had been abducted to Russia by their mother during the Summer holidays in 2016 - while the father  thought they were spending the break with their maternal grandmother in Israel.

Firstly, the Hague Convention order you would be seeking would be to order the child back to the country of his/her habitual residence or the “home” country . As there is no definition of habitual residence in the convention itself , this concept is interpreted differently by different “Hague” countries. Secondly, the Hague proceedings requesting a return to the “Home” country actually take place in the country where the child is physically present – in your case, this would be the States. In Israel, the courts’ interpretation of habitual residence is child-based, although it also considers the parents’ last common intentions, but in the U.S.A, greater emphasis is given to parental intentions.

For example, in December 2013, a U.S. federal appeal court refused to return a child to New Zealand ruling that the minor had retained habitual residence in the United States despite actually living in New Zealand for three and a half years. The reason given was that the parents, both of whom were naturalized U.S. Citizens (the mother South African and the father a New Zealander) , had shared a common intention to live in America permanently before they separated in New Zealand, where they had been living only temporarily, prior to the unilateral removal of the child to the States, by the Mother.

In contrast, in Israel, courts hearing a request for a return order overseas, tend to concentrate on “facts on the ground” and the position from the child’s perspective. While they examine many factors, including parental intention, when deciding whether Israel, or the requesting State ,is the country of habitual residence, because the situationis viewed primaily from the children’s perspective, children can establish habitual residence relatively quickly, in Israel, if they attend school, and have established social connections etc. Therefore it is particularly important to act quickly in child abductions to Israel,to maximize the chances of a prompt return order.

Bring Hague Convention child abduction proceedings against her in Singapore, for the child's return to Israel. Singapore, like Israel, is a "Hague Convention Country" and from 1.9.2011, cases of alleged child abduction  between the two countries are bound by the Hague Convention. 

 

Proceedings may be brought there through the Central Authority in Singapore, or directly via counsel there, for the return of your child, who is being wrongfully retained there, against your will.

No! An important Hague Convention appeal case in the United States in 2003 (Silverman Case) rejected the security argument, and held that Israel is not a 'zone of war' which would justify their non-return because of them being in physical danger. Most countries dealing with Hague Convention cases have also rejected such arguments.
No. Under Israeli law a biological father has equal legal parental rights as the mother, as they are both the child's natural guardians. If you move back without the father's permission, you could face Hague Convention proceedings for child abduction.
You may succeed in leaving the country, but possessing passports does not entitle you to remove them from Israel without your husband's consent. He could bring Hague Convention proceedings for the baby's return if you stay on.
You can bring legal action for their return to Israel under the Hague Convention, which binds both countries involved. When you both agreed to go abroad with your children for a specific period (his studies) you did not agree to change the children's habitual residence from Israel to the States and he, as one parent, cannot unilaterally impose such a change. He is wrongfully retaining them in the States. It may be helpful for you to apply to the family court in Israel to get a declaratory injunction declaring Israel as the children's country of habitual residence.
No. If your daughter removes the baby from Israel without the father's consent she could face child abduction proceedings under the Hague Convention in the United States. It does not matter that she is not married to the baby's father. Under Israeli law he has equal guardianship rights as the mother. She should apply for custody and relocation in Israel, if he will not reach agreement about her moving abroad with the baby.
Yes, apply for an order preventing your son's exit from Israel, and ask the court to condition his exit upon his father providing substantial financial guarantees. You will need clear evidence of a danger of your son not coming back to get the order to remain in force.
Ask the court for an order preventing their exit from the country, and another order making her deposit the children's passports with the court.
The Hague Convention will not apply, as India, unlike Israel, is not bound by it, so you will have to file for an order to the appropriate court in the state where you believe your son to be. To do so you must have a custody order from Israel, even temporary.
You can bring Hague Convention proceedings to get your child back to Israel, his/her country of habitual residence. It does not matter that you are not married to the mother. You have equal parental rights with the mother under Israeli law and what you describe amounts to an 'act of abduction'.
Yes, by bringing Hague Convention proceedings for the return of your child who is being wrongfully retained by your wife in Greece. Like Israel, Greece is bound by the Hague Convention, so proceedings for the return of your abducted child can be brought under it.
Even though you are not married to your son's mother, as his father and natural guardian under Israeli law, you are entitled to bring Hague Convention proceedings for his return to Israel, if he has been wrongfully removed or wrongfully retained abroad ,both of which are forms of child abduction. Both Israel and Brazil are bound by the 1980 Hague Convention on the Civil Aspects of International Child Abduction. You can initiate proceedings by making an application to the Central Authority in Israel, the International Department of the State Attorney's Office, which will process it, so that a court case can be opened in Brazil for his return.

The Hague Convention itself does not define "habitual residence" and no mention of a minimum period of time a child must live in a country for it to qualify as such is given. The principles, however, are clear; one parent alone cannot unilaterally change a child's country of "habitual residence". The decision to change habitual residence from one country to another must be joint. Once the decision is made, the 'new' country can very quickly become the country of habitual residence for Hague purposes. For example, in 2001 a German district court returned a child to Israel. It held that it had become the child's country of habitual residence after just 4 months.

Yes - for example, in the Watkins case heard in Germany in 2001, both parents were US forces personnel, who had moved from a German to an Israeli posting with their mutual child. Shortly after moving to Israel, the mother went back to Germany with the child, with the father's consent, for a brief reserve duty posting, but, while abroad, she informed her husband that she wanted to separate and divorce, and not return to Israel, as planned, and agreed, after her reserve duty ended, for the remainder of her husband's 3-year posting. In accordance with US army rules, permission is required to return to the US before the end of duty, so the mother petitioned to the German court to return to the US early, instead of Israel. The father brought Hague Convention proceedings and the child was ordered back to Israel. The German Court hearing the Hague application rejected the mother's argument that because the marriage broke down the agreement about her returning to Israel with the child after her reserve duty was obsolete. It called her behaviour "absolutely one-sided". She was able to avail herself of the early return programme to the States, and to file for divorce, but the child must be returned to Israel, it said.
This would be for the family court dealing with the matter to decide, but in August 2005 Tel Aviv Family Court rejected such a claim from a father who filed for 420,000 NIS for pain, suffering and anguish incurred , without explaining how he reached the sum. It decided not to award damages for pain, suffering and anguish, because the child was returned to Israel (two months after his intended return date) and had been transferred into the father's permanent custody. The chances of being awarded compensation under this head clearly depend on the circumstances, and are very much at the court's discretion. Clearly, according to the reasoning in the above case, the longer it takes to secure the child's return, the greater the chances of compensation. If the abducted child remains in the custody of the abducting parent, the chances for compensation will probably be greater, too.

Yes, an order for costs may be obtained in either or both countries, though the same expenses claimed in one jurisdiction cannot be awarded again in the other. The court dealing with the claim has jurisdiction to accept, or reject the claim made, wholly or partially. In August 2005 a father whose child had been returned to Israel after successful Hague Convention proceedings in Australia was awarded some of the proven expenses he claimed in his plea for 700,000 N.I.S. against the mother at Tel Aviv Family Court . The Australian court had ordered the mother to pay him 9,000 Australian dollars for expenses resulting from the Australian proceedings. The Tel Aviv Family Court rejected the mother's argument that it had no jurisdiction to rule on expenses because the Australian decision on costs had ended the matter. It held that it could award costs against the mother for proven expenses actually paid out, and not dealt with in the Australian proceedings… and did so, index-linking them.

Clear proof that these sums were paid out in practice, and were connected with the abduction/proceedings e.g. receipts for legal fees. In August 2005 Tel Aviv Family Court refused to award a father under certain heads of damage claimed because he had estimated the sums involved, without actually attaching evidence of the money paid out. He was awarded costs in connection with proven amounts he had paid out for which he had receipts, and which were clearly linked.
Yes ! Hague Convention proceedings for the children's return can be started in the U.K. on the basis that the children have been wrongfully removed from Israel , and are being wrongfully retained in the U.K, presumably at their maternal grandmother's home. The application can include a request for a "seek and find" order to locate the children. If the children are not there when service of the appropriate orders /summons is attempted at the maternal grandmother's home, she can be arrested if she refuses to disclose their whereabouts.

You should start Hague Convention proceedings for the child's return to Israel as soon as possible. When the application is filed at the High Court of Justice (Family Division) you can ask for an order making her surrender all passports belonging to her and your child and for her to remain in the U.K. with him, and attend a hearing . A "Port Alert" can be given so that the authorities will be ready to prevent them leaving the U.K. if they attempt to do so.

Yes , according to a decision given by Tel Aviv Rabinnical Court in December 2006, when it imposed a graduated fine of between $250-$1,000 on a mother for each day she continued to hold her daughter abroad. The mother , who disputed the rabbinical court's jurisdiction over custody, had abducted the child for the second time after she lost Hague Convention proceedings in Turkey, and also proceedings at the European Court of Human Rights. The father , who said his massive efforts to locate his daughter had failed so far, claimed that only a very substantial fine would force the mother to return the minor to Israel.

 

From what you say the mother may be trying to manipulate you into backing off, so that you do not bring child abduction proceedings against her , as it appears that the child is being wrongfully retained abroad. You do not say where your son is being held against your will, but if it is in a "Hague Convention" country , then if you do bring proceedings, the court will most likely be very sceptical about accepting claims of you not being the father , and will probably order the child's return, on the grounds that as the official documentation shows you to be the father, the place to deal with issues of paternity is in the country of habitual residence – Israel. For example, in 2002 a French court dealing with a Hague Case refused to deal with the issue of disputed paternity, and ordered a 4 year old back to Israel, stating that the mother could dispute paternity in the Israeli courts, but must first return the child. Thus, presuming your child is in a "Hague Convention" country, it would appear that you should initiate child abduction proceedings, and without losing time, with the aim of being granted a return order quickly. The issue of paternity can then be dealt with by the family court in Israel upon the minor's return – and be determined by genetic testing, which can only be done in Israel on the basis of a court order. Once pressure is brought on the mother by Hague Child Abduction proceedings, it may even be possible to negotiate an agreement for to be authorized by a court dealing with the proceedings abroad, which links consent to genetic testing and the other relevant issues, so that if you are not the biological father you will not object to her living abroad with the child, and you will not have any obligations financial or otherwise. Remember that time is of the essence – the longer the child is abroad, and the more time passes before you act, the lesser your chances of getting him returned are, especially given his young age, because very quickly Israel could cease to be the country of habitual residence.

A definitive answer would depend on the particular circumstances of the case, whether , for example, her agreement was conditioned or not, whether this can be proved, and whether the children had in fact become habitually resident in Israel. However, assuming the mother's agreement was not conditioned in a clear, provable way, if the family relocated to Israel and lived there for a year, then Israel would have become the children's place of habitual residence. Accordingly, the mother would not be entitled to make a unilateral decision, and wrongfully retain the children abroad, in contravention of the joint parental decision to relocate to Israel . Her failure to return them to Israel, their new country of habitual residence, would constitute child abduction , under the Hague Convention on the Civil Aspects of Child Abduction, which binds both the U.S.A. and Israel. Her change of heart could not undo the legal situation whereby the children's country of habitual residence had changed from the U.S. to Israel. In this connection, in 2003, in the U.S. Silverman appeal court judgment where a Hague Convention return order to Israel was granted by the U.S. appeal court for the 8th Circuit, it was held that the mother's "post-move desire to return to the United States, and the finding by the district court that she was subjected to coercion and abuse beginning two months after her arrival, does not change the legal conclusion that the habitual residence of the children changed from Minnesota to Israel. "

Clearly, the answer would depend on the full circumstances of the case , although, on the face of it, assuming the "native country" , was , like Israel, a "Hague Convention country, then if the children had moved there with one of the parents physically , but with the actual proven consent of both, and had become habitually resident there, then the protesting parent would not be justified in bringing Hague Convention proceedings afterwards. The fact that he did not go through with the move himself does not matter. In the Canadian case of DeHaan v. Gracia [2004] it was held that the evidence showed that the parties expressly intended to establish permanent residence in Canada prior to the move, which is the relevant time to determine the parties' intention. As it was proved that the defendant consented to the children's move from France to Canada he " cannot later change his mind and revoke his consent if he does not subsequently like the result of his decision."

 

No, you are not "stuck" with rabbinical court jurisdiciton. Primary jurisdicition for relocation lies with the family court where the plea can be filed, directly.

Even if you expressly consented to rabbinical court jurisdiction at the time, children have independent legal personalities and are not bound by the choice/s of their parent/s regarding the judicial forum the chose to adjudicate on legal proceedings concerning them, according to long-standing  Supreme Court of Justice binding precedent. Your children can initiate relocation proceedings themselves, as plaintiffs, via you, as their natural guardian, in the family court. You can also file for relocation, as a plaintiff, too.

Yes - or permission from the family court in Israel, if you do not consent. If your 'ex' relocates overseas without your consent or court permission, unilaterally, then this would be an act of civil child abduction. 

 

If you oppose the idea of your 'ex' relocating overseas permanently with your child, then she must apply to the family court for permisison to relocate, and you can oppose the application. If your have  grounds to suspect that she is planning to relocate, uilaterally, because she knows you will not consent, then there are pre-emptive emergency legal steps that you can take, to prevent the child's exit from Israel.

Apply to the family court for permission to relocate overseas with your minor child for a specified period of time. Where parents cannot agree about where a child should live, even temporarily, then the family court hears the parties' competing claims, and can rule on the dispute. It has discretion to overrule the non-custodial opposition's oppostion to relocation overseas.

Bring legal proceedings against your ex-husband at the family court in Petach Tikva, asking it to grant an order allowing your child from your first marriage to relocate overseas permanently.

 

You will have to prove that the grounds for your relocation application are legitimate and reasonable, and prove that it is in the child's best interests and is the least detrimental alternative,or least harmful alternative, in the circumstances, given all the options. The court can grant you such an order, and overrule your husband's objections, as part of the legal proceedings, but you will need a clear "relocation plan" which shows  how the father-child relationship can be retained despite the distance, as well as what arrangements are proposed  for the minor in terms, of educational, health and social activities etc.

Yes,  as a rare exception. An Israeli family court will  not usually digress from the expert’s recommendations or order a supplementary report in relocation proceedings, unless there are “heavy-weight” reasons justifying this , but it is possible for a supplementary report to be ordered, if, for example,  it is found that not all the factors or options that should have been considered, were considered.

 

For example, in February 2016, Tel Aviv District Court, a supplementary expert report by was ordered as part of relocation appeal proceedings. It  was  held that a court appointed expert in child relocation proceedings must check out all the possibilities thoroughly, including the implications for the minor/s of the parent wishing to relocate with the child/ren in question, actually relocating alone, and leaving them with the other parent, even if he/she expressly declares that he/she will not do so. The decision to allow relocation in the child/ren’s best interests,  is usually a difficult choice , of  the ‘least detrimental alternative’, in practice, and there must be full consideration of the quality and nature of the child/ren’s relationship with each parent, and a comparison of likely damage resulting from separation from each parent. 

Good. Your plans sound legitimate, and reasonable. As your child is under 6, and Israeli law gives preference to mothers of young children gaining custody, then if you apply for relocation, are the toddler's main carer, and a reasonably competent parent, then it is likely that the professional appointed by court to make a report and recommendations will recommend that you be granted permission. The court, however, must be convinced that relocation to Holland with you would be best of the options available from your child's point of view.

There is no guarantee of this, but remarriage is considered a legitimate ground for relocation. If you filed for relocation in Israel based on remarriage to someone with a livelihood abroad, who could not easily live in Israel, you would have a reasonable chance of success, assuming that the professional reports recommended that this was in your child's interest, given all the circumstances and options.

You must try and convince the court that relocation would be against their interests, and result in serious and irreversible emotional damage to them, especially the one undergoing therapy, which could not be continued without your ongoing presence.
It is certainly a factor taken into consideration, especially if the parties are of limited financial means. The further the country is from Israel, the more difficult and expensive visitation will be. A court will be very concerned about maximizing visitation arrangements if the child moves abroad.
Not while the case in Israel is pending appeal. A judgment must be unappealable and final before it can be recognized by a ‘mirror order’ in the UK, and a residence (custody) order obtained there.
Yes, providing the child is of appropriate age and maturity (generally around 10), and is regarded by professionals who have made reports not to have been incited/pressurized or brainwashed by one of the parents. The reasons the child gives will be relevant and the judge is entitled to meet the child in his/her chambers without either of the parents being present, to gain a first hand impression, if necessary.

It will certainly investigate the stability of the new relationship, and a professional appointed to make a report and recommendations may even meet with the mother's new husband, as well as her and the children, and yourself.

Yes, especially if she has a poor record, and frequently sabotages or interferes with visitation. A parent's willingness and ability to maintain contact with the other parent and to recognize his/her legitimate role and rights – and the importance for the children of an on-going relationship with the other parent– is a vital factor. A court could refuse relocation because of a mother's poor record on this.

No, all issues related to children like custody and relocation are dynamic, and can always be re-opened. Relocation may not be in a child's best interests at a particular time, but may be later on. A custodial parent who is refused permission by the court to relocate when the child is young may be successful later.

You first need to apply in the Israeli Family Court for a custody order and an order giving you permission to relocate to England. If you are granted these, you may then legally leave Israel with your child. When you get to England you can apply to the appropriate English court (usually the county court local to where you live) for what is called ‘a mirror order’ which will in effect recognize the Israeli orders that you obtained. There may even have been a condition in the Israeli orders that you obtain an English ‘mirror order’ to protect any visitation rights which the father was given by the Israeli court.
No clear answer can be given, as this would depend on many factors, but if your 'ex' went for an all-out battle including two appeals, it could take a few years. For example, in May 2005 a mother of Canadian origin who remarried in 2003 finally got permission from the Supreme Court to relocate abroad with her two daughters from her first marriage following an all-out battle with her ex-husband that included two appeal proceedings following the original family Court judgment. Successful negotiation resulting in a court-authorised agreement over relocation and visitation, however, can slash time down to a matter of weeks or even months. Even if a legal battle has started, it can stop in the middle and agreement can be reached, saving time, money and emotions.
Yes! Meeting your new spouse is part of the assessment process carried out by the professional who the court has appointed to report on whether relocation with you abroad is in your children's welfare. The professional will be looking to see whether your partnership seems stable and whether your new spouse and your children have a reasonable relationship.
Not necessarily. The court will appoint a professional to test the relative parenting skills of both you and your 'ex' and to make a report and recommendations on whether relocation abroad with their mother is in your children's welfare ie preferable to remaining in Israel with you. While the expert will be impressed by your commitment as a parent, being too extreme could boomerang. For example, in a relocation case which reached the Supreme Court in 2005, one of the reasons given for overturning the District Court's refusal for permission for the children to relocate abroad with their mother was the father's "totality", which the expert's report had noted. It had said that both the mother and father were very capable parents but the professional appointed to make a report and recommendations noted that the father's unwillingness to see any advantages for the children in relocation and the totality of his views put pressure on them, whereas their mother's more open and balanced approach had a calming effect on them. She saw the advantages and disadvantages of both options for them – of staying in Israel with the father, or moving to the United States with her, whereas he could only see the negative side of relocation, and the positive side of staying in Israel. "I estimate that the father's deep persuasion that the girls' place is here, without any doubts, puts hidden pressure on them," the expert wrote.
Not necessarily, because the court has discretion and the last word here. For example in May 2005 the Supreme Court finally put an end to a two year court battle between divorced parents, both of whom had remarried, over relocation of their mutual children. It re-instated the original Family Court's judgment allowing relocation, but held that both sides would bear their own costs, which covered two appeals, and specifically recommended that the District Court's ruling on costs be reversed.
Not judging by a successful relocation case decided by Tel Aviv Family Court in September 2005, where a divorced mother, originally from the U.K., was given permission to relocate there with a 10 and an 8-year old, over whom she had custody in Israel. She had originally planned to relocate to England to be near her family in the South Coast , but later amended her plans to remarry and live in London. She had made it clear to the psychologist appointed by the court to make a report and recommendations that if her plea were rejected, she would remain in Israel.The psychologist noted that if the mother had to remain in Israel should her plea be rejected, the same problems of isolation and strain she experienced before would resurface, and this would have an indirect negative effect on the children as it would weaken her parental capability. Furthermore, refusal would fan the flames of animosity between the parents which would boomerang on the children, and they could bear a grudge against their father because of this.

Yes, you will most probably be asked to meet the clinical psychologist appointed by court to make a report and recommendations about whether relocation would be in the children's welfare. You will probably meet him/her alone, and also with the mother, and the professional may even observe how you and the mother interact with the children. For example, in September 2005, as part of a divorced mother's plea to relocate from Israel to her native UK with her minor children, where she was planning to re-marry, her prospective new-husband met the psychologist appointed by court alone, with the mother and with her and the children. The psychologist reported his impressions, noting that the partner was aware and supportive of the help they may need in adapting to life in the UK, but clearly understood and respected the important role the minors' father had in their lives, and had no intention of imposing on it. The court, which passed judgment authorizing relocation, subject to a detailed plan being permitted concerning the minors' schooling, took all this into consideration.

It could require the selection of a suitable school , near the minor's intended home abroad, which caters to his/her needs. For example, in a relocation case in September 2005 Tel Aviv Family court permitted relocation of minors to London, subject to certain plans/conditions, including those relating to their education. After the mother had selected a Jewish primary school with a good academic reputation near their intended home, that provided a supportive framework to Jewish Israeli children with language and other difficulties, and provided proof of this, the court held that the school answered the minors' needs, and authorized their registration there, as part of the decision approving conditions for their relocation.

This would very much depend on the particular circumstances of the case, but it could be possible, at least in relation to some of the visitation. For example, Tel Aviv Family Court allowed a mother to relocate with two minors to the U.K. in September 2005, and ordered her to foot the bill for a one week visit to London once a year. The flight ticket and accommodation in a three star hotel for a week were on her account, it held.

Presuming you were the plaintiff in the relocation file, the best strategy would be to file an additional, independent plea in the child's name at the family court, as your child is an independent legal personality, with his/her own rights, and ask for the two pleas to be joined. As your child is a minor the plea would be filed via you, as his/her legal guardian. A relocation plea filed at the family court would circumvent the problem of jurisdiction as binding precedent states that a child is not bound to agreements between his/her parents concerning him/her, and this principle extends to the issue of jurisdiction. The family court has primary jurisdiction for relocation pleas . The family court would have to make an initial decision on whether it has jurisdiction over your child's relocation , given your husband's claim that it lacks jurisdiction. You will, of course, also have to file a defence at the rabbinical court in the custody proceedings brought against you there disputing its continuing jurisdiction ,but without further details nothing significant can be said on this.

Actually, this argument was tried and rejected in a three year relocation battle that ended with a Supreme Court judgment allowing a mother of two to relocate to the UK, in May 2006 . Her original relocation plea had been amended to include her partner abroad. Rejecting an appeal by the father (her ex-husband) against the Tel Aviv District Court's decision reaffirming the family court's ruling in favour of relocation, it was specifically stated in the leading judgment " .. To my mind, the fact that the requested relocation is made for the need of the mother and not because of the children's needs does not make it faulty to my mind and does not in itself show anything, as counsel for the father asked to plead before the previous courts relating to lack of responsibility on her part or of failing parental capability. The creation of a new couple framework often happens after the separation of the parties and where the couple framework is good, warm and supportive, it would seem that the matter even benefits the children, without harming their relationship with the other parent."
 

If you are registered as the co-owner of rights in the marital home, you can offer these are a financial guarantee. Such a guarantee could be in the form of a irrevocable power of attorney allowing for the transfer of your rights in the property should you fail to return the children, in accordance with a court decision. The prevention of exit orders on the children could be lifted upon its deposit in the court safe, and reinstated upon their return, following the return of the guarantee. This way you would not have to provide cash, or pay bank fees. If the other side is in agreement, a joint application can be made to court , on the basis of this mechanism, for the lifting of the exit orders to allow the visit . If the other side is not in agreement, an application can still be made, and the parent wishing to travel can suggest the mechanism as a form of guarantee, should the court condition the visit upon guarantees. On a general note, where the parent needing to find a guarantee has no rights in real estate him/herself, but his/her family own rights in property in Israel, it may be possible for these to be used as a guarantee in such a situation. The mechanism of using property rights in Israel to guarantee the return of minors from a short visit abroad was agreed upon by parents , and approved in principle by Kfar Saba court in December 2005, in connection with a client at this practice , a father, who had filed for custody and relocation of his children and wished to take them on a visit to his family abroad. The mechanism was put into effect during the Summer of 2006, instead of the usual bank guarantee.
No ! There is no legal obligation upon your ex-wife's new husband to agree to this at all. The court can grant your ex-wife permission to relocate if after hearing the expert opinion/s it considers that it is the best option for her in the circumstances, even if you object. In November 2006 Tel Aviv Family Court granted a mother with custody , who had remarried a French businessman , permission to relocate to France with a six year old son . It adopted the findings and recommendations of professionals which held that relocation was in the minor's good, or was the "least detrimental alternative" . In doing so, the court rejected a claim by the father that his ex-wife's new husband's refusal to promise to let her and the child return to Israel if the minor were unhappy in France , proved that his welfare was not being put first. It held that the new husband was under no obligation to make such an undertaking.

Up to a point; if he does not agree, you can apply to relocate in the appropriate court in the country where you are living. Your 'ex' can object, but the court will have the power to overrule him, and grant you permission, if you meet the legal criteria.

Certainly not! This would be child abduction, clearly and simply.

No! Even if the children have been returned to Israel under the Hague Convention, in child abduction proceedings, they have a legal right to file, independently, as separate legal personalities, to relocate overseas, in your custody, and you can also file for their relocation.

 

The court can grant a relocation order even though there were child abduction proceedings overeas , if it considers that this to be in  the children's best interests, after all the evidence in the Israeli relocation proceedings has been heard/considered and the summation stage completed . Clearly, to be successful, you will have to overcome the stigma of the 'abduction' and any court-appointed expert who recommends relocation will have to stand up well to cross examination in court.

 

Our legal practice has successfully represented mothers in relocation proceedings, after they returned to Israel with minor children, pursuant to Hague Orders.

Yes, if the Israeli Family Court hearing the case is satisfied that this would be in the child's best interests after all.

No, there have been a number of cases in Israel in the last few years where mothers of young children who have been returned under the Convention, have fought custody and relocation cases to European countries, and won them, after having earlier returned to Israel following Hague Cases. They will get a fair hearing, and the child's best interests, as perceived by the court, will be the overriding factor deciding the case. A court may be sceptical about the parent's good faith – regarding honouring future visitation if allowed to leave Israel with the child, especially in the absence of substantial financial guarantees. Where real bias against a party is suspected, the option of asking for the judge to disqualify him/herself is always open.

Almost immediately after it has been given, in principle. The lawyer representing the parent who won the order can check with the border police to see if it has been registered.

His/her Israeli identity card, which should cross-reference with any Israeli passport the child may have. If it all possible, also details of any foreign passport including the number. The child's name in English, as spelt in his/her passport is important, too, as is gender, place and date of birth.

This may be possible, in certain circumstances, as domestic Israeli legislation does recognize foetal rights and a Family Court could appoint a guardian for the foetus and possibly grant a 'stop order' for its removal from Israel while in the mother's womb. This area of law is complex.

No, as long as she does not leave England for more than one month. English law generally allows a parent to take a child out of the country temporarily for up to one month without the permission of the other parent, even though where they are married he has equal and joint parental responsibility for the child. So, make sure that her return tickets are within one month. If she stays longer than one month without your permission, this would be a case of a ‘wrongful retention’ under the Hague Convention, which allows you to take proceedings for their return.

Yes, an Israeli court can "punish" a parent who unjustifiably refuses to co-operate over a minor's passport by ordering costs against him/her. For example, in 2005 after hearing the evidence and viewpoints of the parties, Tel Aviv family court told a father that it had found no reasonable justification for him objecting to his teenage child being issued a new Israeli passport , and that if he withdrew his objection, and consented, no costs would be ordered against him. He refused to consent, so as well as ordering the Ministry of Interior to issue the child a passport, it ordered him to pay the mother's legal fees for bringing the action.

An order preventing a minor's exit is a stronger safeguard – the mechanism of the remaining parent's authorization provided for may be too weak or open to abuse by a manipulative parent. For example, if prior written agreement is required an "abducting parent" could forge this. The mechanism may not require written agreement, but just say agreement in which case the "abducting parent" could claim he/she had oral consent, and leave with the minor.
The whole point of a temporary order granted by the court is that it can be registered at all ports ,with the Israeli border police, according to the I.D. and passport details given for the minor, and thus minimize the risk of the minor leaving the country . There is always the risk of the minor leaving on a false passport, or an additional foreign one ,the details of which are unknown to the remaining parent, or being smuggled across a land border. Barring this,however,a 'stop order' registered at the points of exit from Israel should prevent the minor from being able to leave.

Yes! While, generally, the court will concentrate on the relocating parent providing financial guarantees , it may also ask the other parent to guarantee the return of the child/ren after the end of visitation. For example, in September 2005 Tel Aviv Family Court , in a case relating to the relocation of children to London, the relocating parent, the mother, was required to provide a $60,000 to guarantee the father's visitation rights. The remaining parent, the father, was required to provide a bank guarantee of 100,000 N.I.S. every time the children visited Israel, to guarantee their return to London.

Access (6)

Yes, there are several options that would allow your children to visit their father in Israel, and give protection , of varying degrees, against their possible non-return, at the end of visitation. 

 

These range from a notarized written undertaking by their father, in Israel, to return them to the UK at the end of visitation, through a written agreement, signed by each of you, and even authorized in court in both countries, prior to the visit, defining the purpose and conditions of the visit, and clarifying your conditioned consent to the children's departure from the UK, their country of habitual residence, and the father's undertaking to return them.

 

Notwithstanding these options,  non-return of the children  to the UK at the end of the agreed period of visitation to Israel would amount to a passive act of child abduction under the Hague Convention, but the above steps would provide added protection and would be aimed to offset potential defences.

The best option for you is to file for the enforcement of visitation rights under the divorce agreement in the country where the children live. Even if the other country is bound by the Hague Convention like Israel, this Convention is of very limited use in enforcing visitation rights where there is no abduction involved.

Certainly, as under Israeli law you remain joint legal guardian with the mother, even though you are divorced, and she has custody. The Hague Convention will apply. Where visitation rights are infringed because of child abduction, the Convention is very effective in securing the children's return.

If the judgment awarding the mother custody does not deal with the issue of the father's access, then the mother is not under a legal obligation to make sure that visitation takes place. The right to actualize visitation lies in the father's hands, not the mother's. However, as Israeli law regards it being in the child's welfare to meet her father even if he lives abroad, it is preferably to try and reach agreement with the father regarding access in Canada, as well as in Israel. Ideally this can be done via negotiation without the father having to file for access (visitation) in the Israeli family court. However, should no agreement be reached, he will have no option other than to file for access. The door will still be open to reaching agreement , even after proceedings have commenced, and , failing this, the court will decide on the matter.

Regarding guaranteeing the child's return, the court has discretion on the matter. The custodial parent has no automatic right to financial guarantees.

File for access both in Israel and overseas in a Family Court in Israel. Your 'ex' will have to file a defence. You can ask the court to appoint a social worker to make a report and recommendations on the issue. In general courts in Israel recognize the right and emotional importance of a child having a relationship with both parents, and initially is likely to make this clear to a custodial parent who displays hostility towards respecting this, even at a preliminary hearing.

The first option is to file for access or visitation rights in Israel, and ask for a social worker/welfare officer to be appointed by court to make a report and recommendations on the matter. This will involve an investigation of all the inter-relationships in the family, including the relationship of your eldest child with you and her mother, and how this affects the situation with your son. If the professional appointed considers that you are being denied access and this is causing irreparable harm to your son e.g. that he is suffering from Parental Alienation Syndrome, then he/she can initiate proceedings. He/she can ask the court to declare your son "a minor in need of protection” according to the Youth (Care & Supervision) Law of 1960. This is, however, a highly controversial move since if the court does make such a declaration then it can issue a care or supervision order which will transfer custody of the child to the welfare authorities . They can then decide where the child should live and what treatment he should get. Basically the idea behind this is to put the child in a neutral environment so that he can get the psychological counselling he needs to enable him to rebuild his relationship with the alienated parent.

es, she could be trying to get you to 'agree' without realizing it into the children remaining overseas. Once you agree (after the act) you cannot take it back. You may not even realize you are agreeing, and she may try and record the phone conversation and use it in evidence against you. Beware! Any agreement should be negotiated through your lawyers and authorized in court so that it is legally valid and enforceable. 'Self-help' agreements can rebound and basically provide the abductor with a defence.

Yes, this is known as a ‘voluntary return’, the terms of which can be negotiated, and it has many advantages for both sides.

No, it does not rule on that. It may refer to a removal or retention of the children, but will not say if this was wrongful or not. That is a basic tenet of a voluntary return.

Payment of air-tickets home, rental or provision of accommodation and overheads for the mother and child, the payment of maintenance for them, plus even a lump sum payment.

It saves time, money and heartache, avoids dragging out the legal process via appeals, and provides the opportunity for parties to create a basis for co-operation in the future.

Yes, up to a few weeks is normal in a court-authorized voluntary return agreement.

The agreement itself should provide for this event, but in principle a condition of such a voluntary return is that if the removing parent fails to return as arranged, the other parent is entitled to return the children.

On the face of it the removing parent may not be obliged to return the children at all, and the case is over, and the children will remain abroad. However, different options can be built into the agreement and the answer will depend on the wording in the particular case.

Yes! For example, in a Hague Convention case in which our legal practice represented the Mother (the Plaintiff) in 2014, the parents reached a negotiated settlement, in the form of a detailed written agreement, that was authorized, separately, in two languages and became incorporated into a Judgment, giving it full legal validity. The agreement was first authorised in Hebrew,at a hearing, in July 2014,and later the same month, in English, after the parties' counsel agreed on a parallel version/translation  in English. (Krayot Family Court 40036-04-14).

Yes! It is possible to open Hague Convention child abduction proceedings  at the family court in Israel,  and  at the same time specifically file for a referral to mediation.

 

This is exactly what a mother, represented by our legal practice, did at the end of April 2014, when she opened child abduction proceedings at the Krayot Family Court for the return of the couple's minor children - whom she claimed were being wrongly retained in Israel by the husband/father -  to the U.S.A.  The mother filed simultaneously for a referral to the court's assistance unit, which offers mediation services free of charge. The father filed his defence pleadings but the court process was put on hold, to give mediation a chance and the case ended by a negotiated settlement, which was authorized in court in July 2014 (Family file 40036-04-14). The settlement was incorporated into a judgment dealing with  divorce, relocation of the minors back to the USA with the mother, in her custody, child support,  arrangements for visitaiton in both countries, and ongoing virtual contact, and financial issues.

 

 

Hague Convention Countries

The “Hague” countries that are bound by the Convention in relation to abductions to and from Israel are:

Andorra | Argentina | Australia | Austria | The Bahamas | Belarus | Belgium | Belize | Bosnia and Herzegovina | Brazil | Burkina Faso | Canada | Cayman Islands | Chile | China | (Hong Kong & Macau) | Colombia | Croatia | Cyprus | Czech Republic | Denmark | Ecuador | Estonia | Falkland Islands | Fiji | Finland | France | Gabon | Georgia | Germany | Greece | Honduras | Hungary | Iceland | Ireland | Israel | Italy | Japan | Latvia | Lithuania | Luxembourg | Macedonia | Malta | Mauritius | Mexico | Monaco | Moldova | Morocco | Netherlands | New Zealand | Nicaragua | Norway | Panama | Paraguay | Peru | Poland | Portugal | Romania | Russia | St Kitts and Nevis | Serbia and Montenegro  | Singapore | Slovakia | Slovenia | South Africa | Spain | Sweden | Switzerland | Turkey | Turkmenistan | United Kingdom | United States of America | Ukraine | Uruguay | Uzbekistan | Venezuela | Zimbabwe

New countries may join the Convention in the future so that it applies to abductions between them and Israel, if Israel accepts their accession.