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CAN A PARENT EFFECTIVELY PREVENT ABDUCTION?
Whatever legal steps are taken there is no 100% guarantee that abduction can be prevented in practice.
WHAT ALTERNATIVE STRATEGY EXISTS FOR GETTING ACCESS?
Where there has not been an abduction, and even if both countries are bound by the Hague Convention, it is usually easier and a preferred strategy in practice to obtain access or enforce an access decision under the domestic law in the country where the child is living, rather than by applying under the Hague Convention.
WHAT PRECAUTIONS CAN BE TAKEN RE PASSPORTS?
A parent, who suspects that the other parent may try and abduct their mutual child, can be vigilant regarding the issue or renewal of passports, especially if the child has dual nationality. Consulates of different countries operate different policies regarding this, and a worried parent should check these out for himself. A further precaution is to photocopy the relevant page of a child's passport, or the other parent's passport where the child appears, or make a note of the numbers.

It is sensible to keep up to date pictures of the children, and their heights and distinctive features in case of abduction, when descriptions are vital.
CAN ACCESS BE OBTAINED WHERE ABDUCTION IS ‘NON-HAGUE’?
Yes - this section deals with the obtaining access where it is denied by a parent who has abducted the child to a non-Hague Convention country. In these circumstances the following principles are relevant:

As the Hague Convention does not apply a parent who is denied access should apply under the ordinary law applied by the courts of the country where the child is now living.

If the abducting parent has broken an access order, then the local courts may have the power to impose a penalty on that parent. Where there was a financial guarantee written into a previous access agreement which had received court authorization, then the court may enforce that guarantee against the abducting parent. However, the actual question of access to the child will in most Western countries be dealt with according to the overriding principle of the child's welfare.

In Israeli law (and in other countries, such as the UK and European countries) a child has a constitutional right to know both his parents and to have an ongoing meaningful relationship with them, even if the parents live apart. This right will be enforced by the courts, and in Israel and the UK if the custodial parent consistently denies access to the other parent, the latter can file for custody and the court may transfer it.
WHAT'S IMPORTANT RE GETTING & RENEWING PASSPORTS?

ISRAELI PASSPORTS FOR CHILDREN
The Ministry of Interior, which is responsible for issuing passports to its citizens, recognizes that parental guardianship under Israeli law includes the power of one parent to veto the issue of a passport to a child under 18.

Strict procedures govern the issuing of passports for minors, as precautionary  measures. In certain circumstances one signature may be sufficient ( e.g. where no paternity is registered, or according to a court judgment, the other parent's signature is not required, or the parent applying has sole guardianship. Also if parents are married, and no notice has been received that the other parent objects to a passport being issued, then one of them can act alone).

However, in certain circumstances two signatures are required (e.g. where the mother is single and paternity is registered, or where parents are divorced, and there is no court  judgment providing otherwise. Also, if the parents are married, but it has been reported that they separated or that one of them objects to a passport being issued for the child).

Children's passports are for five years and the minors themselves are required to appear in person. Children can no longer be listed on a parent's Israeli passport. A child who is an Israeli citizen is supposed to leave and enter Israel on an Israeli passport.

Regarding Israeli passports issued at Consulates abroad, the procedures are different, but the principle exists that Israeli passports should not be issued outside of Israel without the knowledge and consent of a non-Israeli parent.

In practice, however, it has been known for Israeli citizens abroad to manage to get Israeli passports for their children at very short notice, in alleged 'emergency' situations without the knowledge and consent of the other, non-Israeli parent abroad.

NON-ISRAELI PASSPORTS AND DUAL NATIONALITY
Where a child has dual nationality, having a foreign as well as an Israeli passport, the situation is more complicated, as although he/she is supposed to leave Israel on the Israeli passport, it is possible to do so on a foreign passport.

Physical presence of the parent who does not apply for the passport may not be needed. The details of the foreign passport may not be known to the other parent, and may therefore elude a 'stop order' issued by an Israeli court. It is, therefore, advisable, where possible, to keep a note of children's foreign passport details.

SPECIAL ARRANGEMENTS FOR FOREIGN PASSPORTS
The US has changed its policy about issuing passports to children. Both parents must attend in person for a child to be issued a US passport. The US Embassy in Israel co-operates with the Israeli authorities with information about the issuing of passports where a possible abduction is suspected.

A parent who suspects that a child with US citizenship who is habitually resident in Israel might be abducted out of Israel can notify the US embassy. He/she can request that a new passport should not be issued, if, for example, an Israeli court rules on a dispute between the parents.

Certain other embassies may also co-operate in this way, but there is a general policy of not trying to make life difficult for a citizen of that country who wishes to take out a passport for a child. It is generally regarded as up to the other parent to get legal advice and, if necessary, apply for a 'stop order' to prevent the minor leaving Israel if there is a fear of abduction.

HOW CAN ACCESS BE OBTAINED IN ORDINARY CASES OF DENIAL?
Here, the situation concerns obtaining access where there has been no abduction and the Hague Convention does not apply.

For example, if a mother with custody obtained permission from an Israeli Family Court to relocate the child abroad to a non-Convention country, and set access conditions in favour of the father, but the mother then broke the terms of access, the father should apply to enforce his access in the ordinary courts of either Israel or the other country under the ordinary law relating to access. He can also apply to impose any penalties which were part of the terms of the original access order.
OPTION OF LEGAL ACTION RE ISSUE/RENEWAL OF PASSPORT
In the face of opposition by one parent to the issue or renewal of a child's Israeli passport, the other parent can bring a legal action at the Family Court.

After hearing the reaction of the objecting parent and the Ministry of the Interior, the court can decide whether opposition to the issue/renewal of the passport is justified or not. If it is not, the court can order the Ministry of Interior to issue/renew the minor's passport.
WHY IS MEDIATION ADVANTAGEOUS IN ABDUCTION CASES?

Except in extreme cases where the abducting parent (usually the mother) has a genuine,and strong defence, it may be advisable  to consider a voluntary return, and even negotiate on conditions, rather than being labelled as an abducting parent, which can impact negatively in proceedings back in the home country. This can save time, money, and emotional energy, by ending proceedings, instead of letting them drag out through the appeal system, and be in the children's best interests. Instead of investing all these in difficult legal proceedings, energy can be directed towards the future.

It allows a fairer deal for both parents regarding the conditions for the minors' return, as it allows the parties to negotiate through their respective legal counsel, rather than letting the court make an arbitrary decision regarding the undertakings in the foreign country, the practical workings of which he is unfamiliar. It also creates a more positive framework or platform for co-operation between the parents upon the minor's return.

A voluntary return may often be reached after hours of negotiation, even in the court corridors, when the judge orders a break in proceedings. Such an agreement can be signed by the parties in court and incorporated into a legally binding judgment, which can be recognized and enforced abroad. Such recognition and enforcement can even be built in as a condition of the agreement itself.

WHAT COURT PREVENTATIVE COURT ORDERS ARE THERE ?

The most effective preventative action that a parent suspecting abduction can take is legal action. A parent may apply for the following orders in the country where the child lives:

HOW CAN A PARENT ABROAD RELOCATE A CHILD TO ISRAEL?

The most important point is that relocation should be done lawfully according to the law of the country in which the child is then habitually resident. If the local law is not followed, then moving the child to Israel will be an unlawful abduction.

Most of the principles which apply to relocating a child FROM ISRAEL also apply to relocating a child TO ISRAEL. This is because most Western countries operate on similar principles of law concerning children’s rights.

CAN VOLUNTARY RETURNS APPLY TO ISRAELI ABDUCTIONS?
Yes, and it does not matter if the children were abducted to or from Israel. The parents can reach a negotiated settlement authorised by the court hearing the plea for a voluntary return of the children. The following are examples of voluntary returns involving minors with dual nationality - Israeli and foreign - where one parent was originally Israeli.

In January 2005 a voluntary return was reached in a Hague Case before Tel Aviv family court, where the UK father, was represented by our legal practice. In March 2005 an Israeli father, whose Hague plea for the return of his children from Ireland, had been filed with the Central Authority by our legal practice, reached a voluntary return agreement, in the High Court in Dublin. A voluntary return was also reached for the return of two minors from Belgium to Israel in the Summer of 2004 . In this case our practice represented the Israeli father by filing the Hague Plea with the Central Authority in Israel ,obtaining an ex-parte declaratory judgment at Tiberias Family Court declaring Israel to be their home, and filing for custody there, too.
HOW HIGH ARE THE FINANCIAL GUARANTEES SET IN ISRAEL?
The various financial guarantees set by Israeli courts to deter child abduction and encourage the return of minors after visitation abroad – following permission for a custodial parent to relocate or go on a foreign holiday with a child, or where the non-custodial parent lives outside of Israel – relate to the risk involved. Where there has been a history of child abduction, the guarantees set are generally much higher than where there has been a history of respect for court decisions on custody and visitation. Guarantees usually vary from anything from around $US 10,000 to up to even $200,000 per child.

ISRAELI CASE STUDY
In 2003 an American mother who had immigrated to Israel with her ex-husband's written consent, feared he would not return them to Israel at the end of their planned visitation in the States, following him filing for custody in his home state. The mother, who was represented by our legal practice, gained an ex-parte prevention of exit order, from Haifa Family Court, which could only be lifted upon the father putting up a $60,000 guarantee. (The final decision is due soon).
CAN THE OTHER PARENT OPPOSE RELOCATION TO ISRAEL?

Yes. The remaining parent can make an objection to the relocation of his child to Israel.

If a parent applies to the local courts for permission to relocate, then the remaining parent can defend that application, based on the welfare of the child. However the principles used by Western courts to decide on relocation are similar to those used in Israel, and if the relocating parent’s proposals are legitimate and reasonable, there is a reasonable chance that permission to relocate will be given.

If the ‘relocating’ parent does not apply for prior permission from a local court, or does but is refused permission, and does actually remove the child, then the ‘relocating’ parent will have in fact abducted the child to Israel.

CAN A NEGOTIATED SOLUTION BE BEST RE RELOCATION?
Yes, sometimes, it may be preferable to try and negotiate a fair solution, if mediation seems likely or inevitable, especially if the professional reports submitted to court seem clearly in favour of this. A thoroughly negotiated solution can save time, money and emotions later, and may result in a better option than letting the judge set the conditions. A negotiated solution is likely to be more detailed and planned than a court judgment, and may prevent the need for costly appeals.

A negotiated solution is signed by the parties and approved by the court and incorporated into a judgment.
HOW CAN THE POLICE BECOME INVOLVED?
Several options exist when a child is missing, but believed to still be in the country. A parent can report the child as missing to the police, and express concern about possible abduction. In Israel, cases of alleged abduction or kidnapping are treated as missing persons cases initially, but all borders are also checked and warned about a possible abduction. If checks show that the abductor and/or the child has left Israel, Interpol (the International Criminal Police Organisation) will be notified.

The police in Israel will obtain helpful supporting information and assistance in tracing missing children from government departments and non-governmental agencies, such as schools, nurseries, health institutions and social workers.
WHAT SHOULD BE DONE AGAINST DE-FACTO RELOCATION?

In this case, WHERE THE CHILD HAS BEEN MOVED TO ISRAEL WITHOUT THE OTHER PARENT'S CONSENT OR COURT PERMISSION, HE/SHE HAS BEEN ABDUCTED, and the rules for an abduction will apply.
 

IN PRACTICE IS PREVENTION ALWAYS SUCCESSFUL?
No. Whatever legal steps are taken there is no 100% guarantee that a child cannot be abducted using another name and a false passport to cross passport control, or smuggled across a border somehow.
RELOCATION AFTER ABDUCTION
The principles which apply to relocation abroad after an abduction to Israel - and the subsequent return of a child - follow the same pattern as the principles which apply to abduction and relocation generally.
WHAT IS 'ACCESS’?
‘Access’ means a decision for the ‘contact’ or ‘visitation’ which a child may or may not have with any person. This would apply to ‘access’ rights of children living in Israel and exercised abroad, or vice versa.
DO ISRAELI COURTS ALLOW RELOCATION AFTER ABDUCTION?
Yes. The situation being considered here is of a child who was originally living in Israel with parents who had been married but now divorced, the mother then unlawfully abducts the child to her country of origin, the Israeli father applies for an immediate return under the Hague Convention, the foreign court makes an order for the immediate return of the child under the Hague Convention, the mother returns the child to Israel, then the mother applies in the Israeli Family Court for a relocation order to allow her to lawfully move the child back to her home country.

In this case, the Israeli court will deal with the mother’s application according to the ordinary principles relating to applications about children which come before the courts. The case will be treated as a relocation application, to which the usual legal principles for relocation cases apply, and the decision will be based on the welfare of the child.

The difference is that the court might be more suspicious of the mother’s good faith, for example is honoring any orders for access for the father, and may demand suitable financial guarantees. However, in a case of a younger child, where the welfare reports point to the welfare of the child being cared for by its mother, the Israeli court will grant custody and permission to relocate, if that is the right decision on the merits of the case according to the child’s best interests.
DOES THE CONVENTION DEAL WITH ACCESS ORDER BREACHES?
Yes. The Hague Convention deals not only with cases of abduction, but also in Article 21 with cases where there has been a breach of an access order.
CAN A PARENT OBJECT TO RELOCATION AFTER ABDUCTION?
Yes, of course the other parent may object, by filing written defence pleadings, but the general principles which apply in children’s cases will operate, and the court may decide in the end that the parent who abducted the child should now be given custody and lawfully allowed to relocate the child abroad.

ISRAELI CASE STUDY
In November 2004 (Family File 44262/04) an English mother represented by this legal practice was granted permission by Tel Aviv Family Court to relocate with her three year old child, who had been returned to Israel from the UK under Hague Convention proceedings. Where a minor is under 6, even if the mother has been returned to Israel with the child under Hague Convention proceedings previously, he/she will still have an advantage regarding custody and relocation in Israel, providing she has been the primary carer and is the preferred custodian.
DOES THE CONVENTION HELP TO OBTAIN EFFECTIVE ‘ACCESS’?
In theory, yes, the convention can be invoked where access rights are being denied but in practice this is unlikely, unless the custodial parent has actually also abducted the child. Where the custodial parent has not abducted the child, but has located abroad legally, the Hague Convention has a very limited role, and is rather 'toothless'. Outside of abduction, its role in access is restricted to allowing applications for organising or securing the effective exercise of rights of ‘access’ to be presented to a Central Authority in the same way as an application for the child’s return (Article 21).

The Central Authority is required by Article 21 ‘to promote the peaceful enjoyment of access rights’ and to ‘take steps to remove, as far as possible, all obstacles to the exercise’ of access, and may initiate or assist in the initiation of proceedings to organise or protect access. '

The courts, however, do not have any duties under Article 21. Therefore a person who wants ‘access’ rather than a return of the child, has to apply for an access order under the ordinary law of the country law and this application will be heard on its merits in accordance with the child’s best interests. On receiving an application under Article 21 the Central Authority’s only duty is to make appropriate arrangements to provide lawyers to act on the applicant’s behalf to institute proceedings under domestic law (in Israel this is to apply for an order under the Legal Capacity and Guardianship Law). Even in those countries which provide legal aid for Convention abduction cases, legal aid is not provided for access applications under the domestic law.

In access cases, Convention proceedings end on presentation of the application for access to court.
HOW CAN ONE RELOCATE A CHILD OUTSIDE OF ISRAEL LEGALLY?

By getting the other parent's advanced consent, and failing this, win legal permission in court.

If one parent wishes to remove a child permanently out of the country, he or she must get the permission of the other parent. This means that he or she must inform the other parent first of the intention to relocate. The other parent must agree, or he will be presumed to agree unless he actively disagrees.

A parent who wishes to relocate the child, without the other parent's agreement, should make a specific application to the court for permission to relocate the child out of the country. The court may grant permission, either generally or for a specific purpose such as for a limited purpose or period of time.

HOW CAN CHILDREN BE MOVED ABROAD?

Mutual children can be moved abroad in one of  two ways : lawfully, by ‘relocation’ or unlawfully, by ‘abduction’. Relocation and abduction are two sides of the same coin.

A parent  who  relocates abroad with a minor after obtaining  a final court ruling granting permission to do so ,despite objections from the other parent, will be acting legally, after the court in the ‘home country’  has considered the child’s best interests.  In contrast, a parent who acts unilaterally and removes or retains a child abroad could, depending on the circumstances, be “abducting”, and risks facing  civil proceedings for the minor’s return, and even criminal proceedings.

WHAT ARE THE LEGAL OPTIONS FOR RETURNING CHILDREN TO ISRAEL?

The legal action that needs to be taken to secure the return of children abducted from Israel, whether they were wrongfully removed or wrongfully retained abroad, depends on two factors.

The first is whether the country where the children have been removed or retained is bound by the Hague Convention, or not. If it is, then the application for their return can be made via the Hague Convention. If not, then direct application must be made within the foreign country.

The second factor is the age of the children; the Convention can only be invoked for minors under the age of 16.

DOES IT MATTER WHICH COUNTRY THE CHILD IS ABDUCTED FROM?

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.


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.
WHAT IS THE PRINCIPLE BEHIND THE HAGUE CONVENTION?

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.

MOVING CHILDREN OVERSEAS - WHOSE DECISION?

Who is entitled to decide where a child may live will vary, according to the  laws of the particular country concerned,  but there are general principles that apply in most developed legal systems. The key principle is that decisions about where a child lives, can or should be made jointly by parents, where possible, especially when they would involve an international move, but in the absence of agreement, the court has the authority to decide. It is generally accepted – including in Israeli law - that one parent cannot unilaterally impose his/her preferences where this involves moving abroad, and where the parents  have shared guardianship or parental responsibility.  

Legal systems in different countries, however, vary about how much say an unmarried or a non-custodial divorced parent has regarding changing a child's residence.

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