WHAT IS THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION?

The Hague Convention on Civil Aspects of International Child Abduction 1980 is a multilateral treaty intended to:

•  trace and secure the prompt return of children under the age of 16 who have either been ‘wrongfully’ removed from one Contracting State to another or ‘wrongfully’ retained in another Contracting State, and
• organise or secure the effective exercise of access (visitation) rights.
  
  ‘Abduction’ means ‘wrongfully removing’ to another country or ‘wrongfully retaining’ a child in a country where he has not been ‘habitually resident’, i.e. living.

DOES IT MATTER HOW OLD THE CHILD IS?

 Yes. As the Hague Convention on International Child Abduction only applies to children up to the age of 16, abduction involving minors aged 16-18 cannot be dealt with by these proceedings, even if both countries are bound by it. Where such alleged abductions are to Israel, and involve 16-18 year olds, it is necessary to apply in Israel for an order of Habeas Corpus to the Family Court or the High Court of Justice, irrespective of where they were living before. The Israeli Family Court has primary jurisdiction to deal with a custody application of a child below the age of 18.

IS ISRAEL BOUND BY THE HAGUE CONVENTION?

Yes. Under the Hague Convention Law (Return of Abducted Children) 1991, Israel joined the Hague Convention from 1st December 1991 and is bound by its provisions.

WHICH COUNTRIES ARE PARTIES TO THE HAGUE CONVENTION?

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

DOES THE CONVENTION APPLY TO ABDUCTIONS BOTH TO AND FROM ISRAEL?

Yes, providing that the other country is also a party to the Hague Convention. In other words, the convention applies to abduction to and from Israel between where the other country is also a Hague Convention country.

If the abduction is from Israel, then the legal proceedings for the child's return under the Hague Convention will be made in the appropriate court of the country where the child has been abducted to.

WHICH COURT IN ISRAEL DEALS WITH HAGUE CONVENTION RETURN PLEAS ?

If the child has been abducted to Israel, the application under the Hague Convention must be made to the Family Court for the area where the child is located. If the location is not known, then the application should be made to the Tel Aviv Family Court.

IS IT POSSIBLE TO ACT IF ONLY ONE OF THE TWO COUNTRIES IS BOUND ?

The Hague Convention does not apply unless both countries concerned (the country of the child’s normal residence, and the country to where he has been abducted) are parties to the Hague Convention.

In cases where the Hague convention does not apply, the non-removing parent will have to apply in the courts, either of his home country, or the country to where the child has been abducted, for an order giving him ‘custody’ and/or for the return of the child to the place of his normal residence.

The courts of most countries base their decision concerning children on the principle of the ‘welfare’ or ‘best interests’ of the child. The court may therefore investigate the facts of the case and make a decision based on what are called the ‘merits’ of the case in accordance with what it considers to be best for the child’s welfare.

In some countries however, the courts take the view that the principles of the Hague Convention (that international abduction should be discouraged, and custody disputes are best decided by courts in the country while the child has been normally resident), should still apply, even if the two states involved are not bound by it. In this case the court will be very tempted to return the child, as if the Hague Convention principle applies, unless there is some issue about the child’s welfare which makes a return not appropriate.