Forum Questions - Abduction To Israel

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.

You will have to bring a plea for an order for your son's return at the Family Court, but not under the Hague Convention because Russia has not ratified it, so it will not apply, even though Israel is bound by it.

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. Transcripts of them will be needed, and probably Hebrew translations.

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.

Yes, get permission to submit the legal opinion of an expert on British family law. The court can then use this to decide on this particular point.

One judge at the Family Court, the court of first instance, which hears the plea for the child's return.

A panel of three District Court judges.

No! The Hague Convention only applies to the abduction of minors who are not yet 16.

Apply to the Family Court in Israel for an order for their return. The Hague Convention does not apply because although Israel has ratified it, the Ukraine has not. You need to make your own arrangements for legal representation in Israel.

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.