Abduction To Israel

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In Israel a ten year old who is declared as being sufficiently mature will have his views taken into account in family law cases, but in an abduction case heard by Haifa Family Court even the views of a mature 9 year old were heard. In the case ,decided in August 2006, the court listened to the views of an 11 year old girl and her 9 year old brother and refused to return them to Holland, from where their mother had abducted them . Under the Convention where a child is of sufficient age and maturity and objects to being returned, the court has a discretion not to order his/her return, even if there is an act of abduction. In this case the children's elder sibling lived in Holland with the father.

Yes. If that country is not a party to the Hague Convention, then different rules apply. See [4.6].
If the country is bound by the Hague Convention, then the procedure is governed by this. In Israel there are special regulations which deal with the procedure for Hague Convention cases.

HOW IS A CONVENTION APPLICATION MADE RE A CHILD BROUGHT TO ISRAEL?

Any application made under the Convention by or on behalf of a person outside Israel must be addressed to the Ministry of Justice as the Central Authority in Israel.



A parent whose child has been abducted to Israel is entitled to hire independent and private legal representation from experienced child abduction specialists in Israel. Some parents may be eligible for free legal representation by lawyers working for legal aid in Israel



The lawyer representing the 'left-behind' parent will prepare and file the plea for the child's return at the appropriate Family Court. It is vital to file in court early on to increase chances of success in the case, and narrow down opportunities for successful defences. Once filed, a Hague Convention application freezes other proceedings relating to the child e.g. custody that the removing parent' may have already brought in Israel. Filing a Hague plea may stop the child acquiring a new place of habitual residence.

To see the scanned flow-chart first select ‘Publications’ from the menu on the homepage, and then ‘Abduction to Israel’. Then select ‘4.5 Flow Chart - Return Of Abducted Child‘.



Alternatively, the stages can be summarized as follows:

• Child under 16 is abducted from his habitual residence –
  
  he is 1. wrongfully removed or 2. wrongfully retained.


• ‘Left behind’ parent applies under Hague Convention to Central Authority (CA) of his habitual residence (or to Central Authority of country to where child has been abducted or of any country)


• Non-removing parent provides to CA details of child and abduction and believed location


• CA transmits approved application to CA of state where child now is


• CA initiates application to the appropriate local court in its state (in Israel the local Family Court or in Tel Aviv) for an ‘immediate return’ of the child


• Court must set an urgent first hearing not more than 15 days after the date of the application, and give notice to the abducting parent


• Abducting parent must respond by affidavit to the application no less than 2 days before the date set for the first court hearing


• First court hearing – sets timetable for hearing – any adjournment should not be for more than 7 days – court may make temporary orders


• Full hearing of Hague Convention application:

1. court may allow or refuse to hear witnesses, and


2. court may hear child, depending on his age and maturity

• Court should make a final decision on the application within 6 weeks from filing the application


• Court may make the following orders:

1. If the application was made less than 1 year after the abduction, the court MUST order the child’s ‘immediate return’ to his habitual residence


2. If the application was made later than 1 year after the abduction, the court
   
   (i) SHOULD order the immediate return of the child; but
   
   (ii) MAY refuse to order the return of the child because he has ‘now settled in his new environment’.


3. In any case (whether one year has passed or not from the abduction), the court MAY refuse to order a return because one of the defences in Article 13 has been proved: that
   
   
   
   a. the applying parent with care of the child was not actually exercising his custody rights at the time of the abduction
   
   b. the applying parent consented or acquiesced,
   
   c. the child objects, and is of an age and maturity to take into account his wishes
   
   d. there is grave risk of harm if the child is returned, etc; or
   
   e. fundamental principles of the requested state do not permit a return


4. The court MAY order the child’s return on the basis of ‘undertakings’ received by the court from the applying parent which provide guarantees for when the child returns to his habitual residence


5. The court MAY approve an agreement for a voluntary return

• The child is returned (in cases 1, 2(i), 4, or 5)

Appeals:

1. An appeal may be filed within 7 days of the court’s final judgment


2. An appeal against the return of the child must be heard within 10 days after the appeal is filed


3. The parties’ main arguments must be presented to the court within 2 days before the appeal hearing


4. The appeal court must give its decision within 30 days after the appeal is filed.

Yes. Hague Convention cases are meant to be heard and decided quickly. The Convention sets a time-limit for Hague Cases of six-weeks from start to finish. A court hearing a Hague Case can be made to answer for delays. Each country has its own procedural rules governing the time-table.



In Israel special regulations exist for Hague Convention abduction cases that lay down procedure and deadlines that can only be altered in special circumstances. These oblige a Family Court in Israel hearing a Hague plea to make a reasoned decision within 6 weeks of the file being opened. Appeals (on both temporary decisions and final judgments) are supposed to be filed within a week. A decision on an appeal against a temporary decision should be made within a week of it being filed. A decision on an appeal against judgments should be made within 30 days of being filed.



If a Family Court hearing a Hague Case in Israel is not managing it according to the time-table set out in the regulations, or according to the rules of the Convention itself, an appeal can be made to the District Court regarding relevant temporary decisions. Sometimes decisions on the management of the case can have vital implications – and it is imperative to appeal against them.



A final decision or judgment on a Hague case made by the Family Court is appealable before the District Court. The Supreme Court hears appeals on District Court judgments.

The Tel Aviv Family Court (Civil Appeal 1360/04 (Tel Aviv District Court- hearing 9th Jan, decision 11th Jan 2005) misapplied the Hague Convention in a plea brought by a British father, represented by our law practice, for the return of his young sons to the UK. The Family Court had ordered that it had a discretion not to order their return if it was satisfied that they had settled in their new environment. However, under the Convention, the court can only consider if they have settled in their new environment if more than a year has passed since the abduction and the start of proceedings. In this case just over 11 months had passed.



The father appealed successfully to the District Court. In January 2005 the District Court ruled that the Family Court had no right to consider whether the children had settled in life in Israel, and banned a report on this from being submitted to the court. This case finally ended a week later in the Family Court with an agreement for the voluntary return of the minors to the UK.

In Israel there are two types of applications for the return of children allegedly abducted to Israel which can be made outside of the Hague Convention. The first is the power of a court to issue a writ of 'Habeas Corpus' (a special order for the bringing and release of a person's actual body). The second arises under the Legal Capacity and Guardianship Act 1962 allowing a court with jurisdiction to take any steps – temporary or permanent – to protect a child's interests.



Which court may hear the case?



These two types of non-Hague Convention cases involving child abduction are now heard in the Family Courts, although the High Court of Justice (Supreme Court of Justice) can still issue writs of Habeas Corpus.



In what kinds of circumstances would an abduction case be brought outside of Hague Convention proceedings?



Abduction cases in Israel outside Hague Convention proceedings based on these two powers, can arise in the following circumstances:

1. where the child whose return is sought is aged between 16 and 18, irrespective of whether the two countries involved are bound by the Hague Convention or not;


2. where the alleged abduction is from a non-Convention country;


3. where, for tactical reasons, the parent decides to make the application outside of the Convention, although the other country is a Hague convention country;


4. where more than one year has already elapsed since the alleged act of abduction – and proceedings would have been possible under the Convention, but were not started in time;


5. where Convention proceedings could be taken but no effective co-operation is anticipated from the other Hague Convention country.

The principles applied will be those built up by cases decided by the Supreme Court of Justice which at one time was the only court empowered to hear abduction cases of any kind, and issue Habeas Corpus writs. The original idea was to respond to applications from custodial parents for the return of children who were brought to Israel in breach of their rights of custody determined by a foreign court order, parental agreement or law. The Supreme Court later extended this so that a non-custodial parent whose visitation rights were breached because of the abduction could also bring an action for the return of his/her child.



Where the court has serious doubts about whether there has actually been an unlawful 'abduction' (e.g. whether custody was properly granted ex parte, whether the basic rules for a fair hearing were not adhered to, or whether there was no real discussion), then the Israeli court has a discretion not to order a return, and to hear the custody case.

There are similarities and differences in the approach of the Israeli courts between Hague Convention and non-Hague Convention cases.



Both types of proceedings aim to discourage abduction, which is regarded as undesirable, and as a rule to preserve the status quo, although the language they use to describe and apply these principles may be different.



There are, however, key differences, between Hague and non-Hague cases, the main ones being:

1. the greater flexibility of non-Hague Cases in which the courts have more freedom not to return a child. They can make assessments about the principles of law likely to be applied overseas if the child is returned – and not return him/her if they do not meet up with the expectations of a developed /progressive legal system. Furthermore, they can choose not to return a child to save it an unnecessary run-around. For example, if a court hearing a non-Hague application considers that if the child is returned abroad the ‘abducting parent’ is the worthier of the two and is likely to win custody and even relocation anyway, then it has a discretion not to ‘give the child a run-around’, and to decide not to return him/her, and rule on custody itself in Israel;


2. the greater importance attached to the child's welfare in non-Hague cases - in Hague cases the child's welfare only comes into play when certain defences are raised; in Habeas Corpus applications it is the overriding factor. In non-Hague cases it is easier to prove that returning the child would be harmful – the test and standard of proof are much lower;


3. time-limits - in non-Hague cases the court does not have to wait one year from the abduction to test whether the defence that the child is now settled in the Israeli environment, as it does under the Convention. In Hague Cases, the court is bound to return the child if the plea is filed within one year of the abduction, unless one of the defences is proved.

Advantages of Hague cases - in contrast, Hague cases do have certain advantages:

1. they enjoy the administrative back-up and co-operation of the Central Authorities in both countries;


2. court regulations give time-tabling priority to the hearing of Hague cases;


3. Hague cases are designed to be quick and decisive, and reduce room for maneuver and the exercise of discretion;


4. they are designed to provide an insurance policy for the prompt return of children abducted between members of the ‘Hague club.’