Forum Questions - Abduction From Israel

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."

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.