Convention In Action

No. Marital strife is not a defence under the Convention, nor is being homesick.

The main principle of the Hague Convention is that custody battles over children should be fought in the country where the child is ‘habitually resident’, meaning the country where the child was living before he was abducted. 

The Hague Convention court proceedings take place in the country where the child is physically present (where has been removed to or where he has been retained). There is a strong presumption in the Hague Convention in favour of courts returning a child who has been wrongfully removed or retained if all the pre-conditions are met.

• it does not deal with criminal aspects of international child abduction ;
• it is not intended to decide on rights of custody or access to a child, but to return the child to his habitual residence, where those rights can be decided and enforced ;
• a court deciding a Hague Convention case does NOT apply the principle of the child's welfare as the overriding consideration. However, it should be remembered that the principle behind the Hague Convention is the child's welfare; it is considered to be in the child's best interests for him to be returned to the country where he had been 'living' before he was abducted, and for the courts there to decide on the merits of his future place of residence;
• it is not necessary to have a prior court order in one's favour to apply under the Convention (although a parent seeking the return of a child to Israel can apply to the Family Court for an Article 15 declaration that the removal was 'wrongful');
• a parent must file under the Convention within one year from the date of the wrongful removal or retention in order to obtain an order for the immediate return of the child (unless the abducting parent can rely on one of the defences provided) ;
• free or subsidised legal representation of applicants, who apply for the return of the child to Israel, may be available in countries which provide this.

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.

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.

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.

No. The Hague Convention does not apply to children who are not yet born. International legislation only covers children who were actually born before the act of abduction took place. 

However, in some countries it may be possible to take steps to protect the rights of the foetus, in order to assist in proceedings after the child is born overseas. In Israel, domestic legislation goes further and options exist for preventing a pregnant mother leaving the country against the future ‘father's’ wishes.

Removal or retention refers to the removal or retention out of the jurisdiction (outside) of the country of the child's habitual residence. Wrongful removal or retention within the borders of the state of the child's habitual residence falls outside the scope of the Convention.

•  REMOVAL occurs when a child, who has previously been in the state of habitual residence, is taken away across the frontier of that state.
• RETENTION occurs where a child, who has previously been for a limited period of time outside the state of its habitual residence, is not returned on the expiry of that limited period or beyond the period agreed by the parties. A retention can also subsequently become 'wrongful' if, following the removal, the court of the child's habitual residence makes a valid order giving interim care and control to the applicant and for the return of the child which is not obeyed. (This is because the Convention should be construed purposively rather than semantically, and proper effect can only be given to the term 'retention' if it is interpreted as wide enough to include not only acts of physical restraint on the part of the retaining parent, but also judicial orders obtained on his invitation).
• 'Wrongful REMOVAL or RETENTION' are separate and mutually exclusive events; they both occur once and for all on a specific occasion.
• 'Wrongful removal' is not a continuing state of affairs, so a subsequent removal after a temporary return of the child to the state of habitual residence constitutes a new 'wrongful removal' within the meaning of Article 3. Accordingly, the time limits under the Convention run again from the date of the second removal.
  
  The applicant must prove that removal or retention is wrongful, otherwise the application will fail. 
  'Wrongful' includes:
• if the removal is contrary to an express court order;
• if the removal is prohibited according to the general law of the jurisdiction from where the child was taken
• retaining a child beyond the time allowed by a court or beyond the period agreed by the parties
• retaining a child before the expiry of the agreed period if the mother has announced her intention never to return the child; a retention becomes wrongful from the time the parent abandons the intention to honor the agreement.

But, the unilateral removal or retention of a child by an unmarried mother is not 'wrongful' if the unmarried father has no rights of custody and no court order prohibiting removal has been made. In Israel, however, the situation is different than in many other countries, and an unmarried father is still a child's natural guardian and may be able to bring Hague Convention proceedings.

Disobeying a court order requiring a child's return, made after an otherwise lawful removal, may also be a 'wrongful retention' for the purposes of the Convention.

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.

In Israel, in the appropriate Family Court.

1. in breach of 'rights of custody' attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention'.

To make an application under the Hague Convention, it is not necessary for the applicant to have a court order in his favour.

Hague “Rights of Custody” are defined in Article 5 of the Convention

"Article 5

For the purposes of this Convention -

a)   "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; 
b)   "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

‘Rights of custody’ includes rights relating to the care of the person of the child, and, in particular, the right to determine the child's place of residence’. ‘Rights of custody’ is a term which is wider than the term ‘custody’ when that word is used alone. In practice the term has been given a wide interpretation, meaning some kind of ‘parental authority’. 

Different legal systems define who has ‘rights of custody’ over a particular child differently. In some countries, unmarried fathers do not automatically have rights of custody, ie. parental authority though they can get these rights by agreement or by court order. In Israel, unmarried biological fathers are automatically one of the child's two natural guardians, with parental authority.

As long as the ‘left behind’ (or 'non-removing') parent was, at the time of the wrongful removal or retention, exercising functions of a parental or custodial nature, in the state asking for the return, that parent is regarded as having ‘rights of custody’ without the need for any court order or official custodial status. 

Under the Convention Hague ‘rights of access’ are treated differently from Hague ‘rights of custody’. A mother with sole custody of the child does not act in breach of the father’s ‘rights of custody’ if he has no parental authority and the access order in his favour does not entitle him to prevent the mother taking the child out of the country. A right to be consulted on where the child should reside but without a power to veto does not amount to ‘rights of custody’ for the purposes of the Convention.

The power to veto the removal of a child from Israel is regarded as part of the right to determine a child’s place of residence – as in article 5 “Hague Rights of Custody”.

This “Ne Exeant” Right is recognized as a uniform threshold standard for allowing a non-custodial parent to bring action for the return of an abducted child under the Hague Convention  (Abbott v Abbott,  US Supreme Court -2010 ).

A  European Court of Justice Case from 2009 also confirmed that Israeli guardianship law includes the right to determine the place of a child’s residence and that a  non-custodial father who has guardianship rights under Israeli law has Article 5 “Hague Rights of Custody”. (Neulinger and Shuruk v. Switzerland (Application No 41615/07)

The parent requesting a return order needs to prove that the country from which the child was allegedly abducted – and not the country where the child is located and the Hague Case held – is the country of habitual residence.

 Sometimes there will be a dispute about which country is the country of habitual residence and this can be the major issue in the Hague case  :  for example, if the whole family ‘moved’  ,in certain circumstances  the defending parent  may claim  that the child’s habitual residence has changed, to the country where the child is actually present  now - and that the Hague Convention does not apply, and there is no need to order a return. The parent requesting a return will claim that habitual residence was retained throughout the period.

The problem is that the convention itself does not define what ‘habitual residence’ means and there are many different approaches and interpretations about it among the contracting states, and even within them.

Some approaches focus on parental intentions about where the family should live and their last joint intention and examine relative ties to each country. Others are fact-based, from the child’s perspective. Some combine the two, but giving emphasis to facts, from the child’s perspective. 

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.

• LATE APPLICATION / CHILD SETTLED IN NEW ENVIRONMENT –Where Hague Convention proceedings are started more than one year after the wrongful removal or retention a return, the court has a discretion under Article 12 not to order the child's return if it is proved that he " is now settled in its new environment'.
  'Settled' means emotionally and psychologically, and physically (in the sense of being established in a community). 'New environment' means place, home, school, people, friends, activities and opportunities, but not the relationship with the abducting parent. 
• NON-EXERCISE OF CUSTODY RIGHTS - By Article 13(a) the court may refuse to order the child's return if the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention. In practice it is only in the most extreme circumstances that a court would rule that a parent is not exercising his custody rights.
• CONSENT OR ACQUIESCENCE - The court may refuse to order the child's return if it is shown that the person, institution or other body having the care of the person of the child has consented to or subsequently acquiesced in the removal or retention.

1. CONSENT - Whether an alleged consent to the child's removal is valid or not depends on the circumstances of each case. Consent will not be treated as valid if it has been obtained through a calculated and deliberate fraud by the abducting parent. Consent cannot be passive. It need not be in writing because parents do not necessarily put their agreements and understandings about their children into writing even at the time of marital breakdown. But the consent must be real positive and unequivocal usually 'express' but it could be implied from conduct. Once consent is given (and acted upon) it cannot later be withdrawn by the parent who gave it after he has changed his mind.
2. ACQUIESCENCE (agreeing after the act) can be active or passive. Whether the wronged parent has 'acquiesced' in the removal or retention of his child is a question of fact which depends on his actual state of mind and his subjective intention. The issue is not the other parent's perception of the applicant's conduct but whether the applicant acquiesced in fact.
   But where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the automatic return of the child, then the wronged parent will be held to have acquiesced.

One of the difficult issues here is where the wronged parent has delayed in making a Hague Convention application. Because the question is the subjective intention of the wronged parent, delay in making an application because of mistaken legal advice seems to negate what would otherwise be acquiescence, and acquiescence is unlikely to be proved if the applicant does not know of the act or does not know that it is wrongful.

• GRAVE RISK OF HARM. By Article 13(b) the court may refuse to order the child's return if it is proved that there is “a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Again the burden of proof is on the abducting parent. The risk must be 'grave', or extreme. And the evidence brought must be "clear and convincing". This defence is often relied on by abducting parents, but in the courts of most western countries at least, often fails. Here, one is talking about a risk of physical and/or sexual and/or emotional abuse, to the child, not the parent. However, though there is a grey area where a child suffers indirectly from abuse against the removing parent, courts are usually very clear in requiring evidence of risk of direct abuse against the child himself, and not the 'removing' parent. This is because it is presumed that a parent who is violent towards the other parent may not necessarily be violent against their mutual child, and because there are ways of protecting the removing parent from alleged violence even if the child is returned.

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.

Yes. Under Article 15 of the Convention, the "left-behind" or "non-removing" parent can apply to a court of his home state (which is also the child's habitual residence) for a declaration that a removal was 'wrongful'.

In Israel a person seeking the return of children to Israel can apply to the Family Court in Israel for this declaration. The purpose of this declaration is to satisfy the appropriate judicial or administrative authorities of the other State that the removal was wrongful under Israeli law.