Forum Questions - Convention In Action

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.
 

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.