Access

If the judgment awarding the mother custody does not deal with the issue of the father's access, then the mother is not under a legal obligation to make sure that visitation takes place. The right to actualize visitation lies in the father's hands, not the mother's. However, as Israeli law regards it being in the child's welfare to meet her father even if he lives abroad, it is preferably to try and reach agreement with the father regarding access in Canada, as well as in Israel. Ideally this can be done via negotiation without the father having to file for access (visitation) in the Israeli family court. However, should no agreement be reached, he will have no option other than to file for access. The door will still be open to reaching agreement, even after proceedings have commenced, and, failing this, the court will decide on the matter.

Regarding guaranteeing the child's return, the court has discretion on the matter. The custodial parent has no automatic right to financial guarantees.

The first option is to file for access or visitation rights in Israel, and ask for a social worker/welfare officer to be appointed by court to make a report and recommendations on the matter. This will involve an investigation of all the inter-relationships in the family, including the relationship of your eldest child with you and her mother, and how this affects the situation with your son. If the professional appointed considers that you are being denied access and this is causing irreparable harm to your son e.g. that he is suffering from Parental Alienation Syndrome, then he/she can initiate proceedings. He/she can ask the court to declare your son ‘a minor in need of protection’ according to the Youth (Care & Supervision) Law of 1960. This is, however, a highly controversial move since if the court does make such a declaration then it can issue a care or supervision order which will transfer custody of the child to the welfare authorities. They can then decide where the child should live and what treatment he should get. Basically the idea behind this is to put the child in a neutral environment so that he can get the psychological counselling he needs to enable him to rebuild his relationship with the alienated parent.

‘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.

File for access both in Israel and overseas in a Family Court in Israel. Your 'ex' will have to file a defence. You can ask the court to appoint a social worker to make a report and recommendations on the issue. In general courts in Israel recognize the right and emotional importance of a child having a relationship with both parents, and initially is likely to make this clear to a custodial parent who displays hostility towards respecting this, even at a preliminary hearing.

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.

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.

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.

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.

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.

Yes, there are several options that would allow your children to visit their father in Israel, and give protection , of varying degrees, against their possible non-return, at the end of visitation.



These range from a notarized written undertaking by their father, in Israel, to return them to the UK at the end of visitation, through a written agreement, signed by each of you, and even authorized in court in both countries, prior to the visit, defining the purpose and conditions of the visit, and clarifying your conditioned consent to the children's departure from the UK, their country of habitual residence, and the father's undertaking to return them.



Notwithstanding these options, non-return of the children to the UK at the end of the agreed period of visitation to Israel would amount to a passive act of child abduction under the Hague Convention, but the above steps would provide added protection and would be aimed to offset potential defences.

The best option for you is to file for the enforcement of visitation rights under the divorce agreement in the country where the children live. Even if the other country is bound by the Hague Convention like Israel, this Convention is of very limited use in enforcing visitation rights where there is no abduction involved.

Certainly, as under Israeli law you remain joint legal guardian with the mother, even though you are divorced, and she has custody. The Hague Convention will apply. Where visitation rights are infringed because of child abduction, the Convention is very effective in securing the children's return.