Child Abduction & 'Non-Hague' Country

Question:

What can I do to get an abducted child back if they are in a country which has not implemented the Hague Convention on the Civil Aspects of Child Abduction?

Answer:

Unless the abductor returns the child voluntarily the only legal means to secure the child’s return is to start proceedings in the country in which the child is physically present, if it is known. The whole process is much more difficult where the child is in a non-convention country or “on the run” with the abductor.

Advice should be taken from the State Attorney’s Office in this connection.

Question:

My husband and I are new immigrants to Israel. He is from India. Recently he took our son there to visit his family but has not returned. We have been having marital problems . I explained to him that if we cannot patch up our marriage we can split up – but stay living in Israel. How can I get my son back to Israel?

Answer:

Unlike Israel, India is not a ‘Hague Convention’ country so that The 1980 Hague Convention on the Civil Aspects of Child Abduction does not apply to legal proceedings regarding child abductions between these two states. The remaining option is for an order of Habeas Corpus ( literally : returning of the body ) in the appropriate court in India.

Question:

What action should a parent whose child has been abducted from a non-convention country to Israel take to get their return ?

Answer:

There are two options. The ‘first-aid’ option is to file a petition at the Supreme Court of Justice in Jerusalem for a Habeas Corpus Order for the return of the child abroad. This is the usual option where the abduction is ‘fresh’ and from a non-Hague Convention country.

The second option is to file for the child’s return at an Israeli family court but the process will be longer. The family court has jurisdiction under the Family Courts’ Act of 1995 to hear cases where the alleged abduction is from a country which is a signatory to the Hague Convention on the Civil Aspects of Child Abduction (1980) and also where the country is not a signatory.

It should be noted that if the second option is chosen and the abducting parent then starts files for custody at the same family court, and no hearings have taken place on this abroad, then it is likely that the two pleas, the abduction and the custody plea, will be heard together and the emphasis will be on the ‘child’s good.’

Question:

After my wife and I got married we moved abroad, as I worked for an Israeli construction company in various projects in the developing world. Our young daughter was born in Israel. We have always visited Israel every year. Our daughter, like us, has Israeli citizenship . Recently, my wife suddenly disappeared with her . She phoned me from Israel saying she refuses to live abroad any longer. I phoned the nearest Israeli embassy and was told the country I am working in has not signed the Hague Convention on child abduction. What can I do ?

Answer:

If an Israeli parent who is posted overseas in a ‘non Hague Convention country’ finds that his/her child has been abducted to Israel, and he/she wants to continue working and living abroad, but also wants his/her child near, if not in his/her custody, the most immediate option is to petition the Supreme Court of Justice in Jerusalem for the minor’s return. The parent should request a special ‘Habeas Corpus’ Order for the minor’s return which the court has jurisdiction to grant under the Basic Law: Judiciary.

Another option for an Israeli parent in this situation is to apply to a family court in Israel for an order to return the minor. The Family Courts’ Act of 1995 empowers the family court to deal with abductions from ‘ Hague Convention countries’ and those which have not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This is so only where no petition or application has been made for the child’s return at the Supreme Court of Justice.

The disadvantages or dangers of this should be noted. Firstly, the process is slower. Secondly, if no previous legal proceedings have taken place but in response to the abduction plea filed at the family court the abducting parent files for custody there, the whole issue will have an Israeli ‘flavour’ . The court will decide on both issues, the emphasis will not be on the abduction itself, and the ‘child’s good’ will be paramount.

In December 1999 the Tel Aviv Family Court gave a judgment saying how it would handle two conflicting pleas filed by Israeli parents concerning their three minor children - one for abduction filed by the father, an Israeli living and working in Sri Lanka, and one for custody, filed by the mother, who had allegedly abducted them to Israel.The children had all been born in Israel. They had been brought up in Asia all their lives and had visited Israel every year. When the family was due to fly to Sri Lanka ( a non – Hague Convention Country ) from Israel the mother stayed on with the children. Three months later the father brought abduction proceedings at the Tel Aviv family court, where the mother then filed for custody. The father filed for custody in Sri Lanka but no hearing had been held.

The family court said in its judgment: ‘ The solution that is called for is to discuss the question of the minors’ custody first, where their parents live in two different countries, according to the children’s good, so that the question of in which country the children should live, will be decided according to the ruling on which of the parents should have custody over them.’

Question:

How can a Russian father act to get his children back from Israel after the mother went to Israel with them without his permission ?

Answer:

As Russia only acceded to the 1980 Hague Convention on the Civil Aspects of Child Abduction, in 2011, and  Israel only approved its accession on 21.12.2011  "Hague" child abduction proceedings cannot be invoked unless the alleged abduction took place after 1.3.2012, the date on which the convention came into force for abductions betewen the two states. Thus, if the alleged abduction took place on or after 1.3.2012, the Russian father can use fast-track Hague Convention child abduction proceedings to get this chidren back from Israel, to Russia.

If the alleged abduction from Russia took place before 1.3.2012, a plea for a "Habeas Corpus" order can be brought in Israel , however, and the children can be returned within these proceedings.

Question:

What can an Israeli father do if his Russian wife asks to go to Russia on holiday with their child,but he is afraid that if he agrees his son will never return, because they are in heavy debt ,the marriage is problematic, and he suspects she may try and escape from the whole situation?

Answer:

The safest legal option is to prevent a likely abduction, by applying for an ex-parte order to prevent the child from leaving Israel. The 1980 Hague Convention on the Civil Aspects of Child Abduction, is now in force for abductions between the two states as of 1.3.2012 . So if the minor is wrongfully removed from Israel to Russia, or wrongfully retained there, the fast-track legal process for returning an abducted child to Israel under the Convention will now apply,which should make it slightly easier to get the child back, though yours may be a "test case" as to the Russian courts' willingness to abide by the Convention's spirit.

Once an order is granted by the family court preventing your child leaving Israel, the mother would have to apply for its cancellation, and convince the court that she will return the child,and supply guarantees,if necessary. As you are in debt,as a couple, the court would be very wary,and normally requests financial guarantees, such as a bank guarantee against cash,or real estate property rights in Israel,before allowing a child to leave Israel,even for a holiday,in such circumstances. The court will also be aware that although Russia is now a "Hague Convention" country, it is not clear how the Central Authority and the courts there will internalize and actualize their duty to implement the convention.

Question:

What legal action should a parent living in the Palestinian Authority take in Israel to secure the return of a child abducted to Israel ?

Answer:

The Palestinian Authority is not a state and therefore lacks the legal capacity to be a signatory to the 1980 Hague Convention on the Civil Aspects of Child Abduction, to which only recognised states can sign. Therefore, although Israel is a signatory, a parent living in the Palestinan Authoirty cannot bring a ‘Hague Convention’ case in Israel for the return of an abducted child. The quickest remedy lies in an application to the Supreme Court of Justice in Jerusalem for a Habeas Corpus writ to return the child to the Palestinian Authority.

In March 2000 a father living in Gaza brought Habeas Corpus proceedings at the Supreme Court of Justice for the return of his two children whom he alleged had been abducted by his mother, from whom he had divorced, to Israel. His petition was rejected. The court held: ‘ The matter of the children’s custody should be discussed before the family court, where it is pending.’ The mother, an Israeli citizen, Christian Orthodox by religion, had filed for custody at the family court a few weeks earlier, claiming that the minors refused to return to Gaza where they were subjected to physical and emotional cruelty.