ARE THERE ANY DIFFERENCES IN THE APPROACH OF THE ISRAELI COURTS?
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:
- 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;
- 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;
- 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:
- they enjoy the administrative back-up and co-operation of the Central Authorities in both countries;
- court regulations give time-tabling priority to the hearing of Hague cases;
- Hague cases are designed to be quick and decisive, and reduce room for maneuver and the exercise of discretion;
- they are designed to provide an insurance policy for the prompt return of children abducted between members of the ‘Hague club.’