Child Abduction

The mother can apply to the relevant Israeli family court for an urgent ex-parte order preventing the departure of the child from Israel,and specifically request that the child's foreign passport details are included in it, in order to prevent his abduction by his father,or a third party. The foreign embassy should also be informed of the order so that a replacement foreign passport, or temporary travel document (Laissez Passer) is not issued for the child meantime, based on a possible false declaration by the father that the child's passport has been lost.

Bring child abduction proceedings under the Hague Convention, which binds both Israel and the U.K, and request an order for the minors' "prompt" return to Israel, which is their country of habitual residence.

No! The Hague Convention only relates to acts of abduction concerning minors aged under the age of 16. Once a minor reaches 16, even during the height of proceedings, the Hague Convention cannot be applied.

Yes! China (apart from the Hong Kong and Macau regions) is not a party to the Hague Convention on child abduction, so that if the wife/mother does not return the child to Israel at the end of the planned visit, the husband/father cannot take advantage of the convention to get the minor back home, even though Israel is bound by it. The family law system in China favours parents who are nationals over non-Chinese parents and does not normally recognize or honour foreign agreements or court judgments concerning Chinese children,even if they also have Israeli nationality,according to Israeli law. Accordingly, an Israeli father who consents to his child visiting China in these circumstances is at considerable risk of never seeing his child again outside China, and is virtually dependent on the mother's goodwill. He can reduce the risk somewhat by conditioning the visit on substantial financial guarantees.

Fortunately for you,the Hague Convention on the Civil Aspects of Child Abduction is now in force between Israel and Morocco, and can be used in child abduction proceedings in Morocco, to get your abducted son back home, to Israel, which would appear to be his country of habitual residence. A parent's refusal to return a child to his "home" country, at the end of the agreed period for a visit, and the child's continued presence overseas, constitutes an "act of abduction".

The convention applies to acts of abduction between Israel and Morocco, as of is 1.6.2010, when Israel's acceptance of Morocco's accession to the convention came into force. 

Bring legal action in Israel for a Hague Convention order for the return of your abducted child, as soon as possible. Your husband's refusal to return your child, against your wishes, after the agreed period of the visit, is an act of child abduction. Singapore recently acceded to the 1980 Hague Convention on the Civil Aspects of child abduction,and,following Israel's acceptance of Singapore's succession,as of 1.9.2011, the convention is in force betweeen Israel and Singapore, and can be used in child abduction cases involving the two countries.

Yes! The non-return of a minor under the age of 16 to the country representing the centre of his life, is likely to be regarded as an act of abduction under the 1980 Hague Convention on the Civil Aspects of Child Abduction, which binds both Israel and the United States. The father could initiate child abduction proceedings for the minor's return but the refusal of a 15 year old is likely to be regarded as a legitimate reason for the non-granting of an order for his return to Israel, in a U.S. court, which would hear the Hague proceedings.

The problem may be solved by negotiation between the parents, out of respect for their son's true wishes. If such negotiation succeeds, a new agreement should be drafted which provides for the legal transfer of the minor into the mother's custody and his relocation to Israel , and , of course, for the provision of visitation rights for the father. The agreement should be authorised in the relevant courts, in Israel and America. If no settlement is reached, and/or the minor is not voluntarily returned to Israel, then there may be no choice other than to wage a legal battle, in the United States, either for the minor's return, or over his custody.

Yes, it is possible, though difficult, as the Philippine Islands are not bound by the 1980 Hague Convention on the Civil Aspects of Child Abduction, which makes the process of returning abducted children much easier.  Legal action can be brought outside the convention in the Philippine courts, to get your children returned. Our legal practice can assist in this matter and work together with lawyers in the Philippines to act to secure the return of your children.

Incidentally, in 2010 the Philippines became a member of  the Hague Convention on Private International Law. Furthermore, the Philippines is the chosen venue for the 4th Asia Pacific Regional Conference at the end of October 2011, and one of the subjects being discussed is the Hague Convention dealing with child abduction. It is possible that the Philippines will become a "Hague child abduction Country" in the near future, but is is not currently , so that child abductions to or from the Philippines, are not covered by the Hague Convention, even if the other state involved is bound by it.

Firstly, if you relocate to Israel with the children, after being denied permission by an American court, rather than appealing , you will be taking the law into your own hands, ,and will very likely face proceedings in Israel  brought by their father, under the 1980 Hague Convention on the Civil Aspects of Child Abduction. This convention binds both Israel and the U.S.A. You can expect to have to defend a plea for an order for the children’s prompt return, in proceedings against you at the family court in Israel.

From your brief description , your planned actions would appear to be an “act of abduction” under the convention – a wrongful removal of the minors, from their country of habitual residence ,in breach of their father’s parental rights, if he has been exercising them (i.e. has been in contact with the children) up until the “abduction”. A few possible recognized defences might be relevant, but you would need to consult with a family law expert experienced in Hague Cases, to assess all the necessary background,and available evidence,and get strong professional advice, and representation, if relevant . Hague defences are very difficult to prove,and the Convention is strictly interpreted by the Israeli courts.

One possible defence, if you do face Hague proceedings, would be the children’s own refusal to return. Children of 12 and 10 would probably be regarded as sufficiently mature to have their opinions taken into account, and the Israeli family court would probably appoint an expert to determine whether this is indeed the case, and that their refusal was genuine,and that they had not been “brainwashed” or pressurized by you. Another possible defence ,related to the accommodation issue you mention, is that a return to the States would pose a “grave risk” to the children – and place them in an “impossible situation” . The expert, if appointed, would probably be asked to give his opinion on this , too.

Of course, there is also the possibility that their father will back down and negotiate an overall settlement,allowing the children to remain in Israel with you. In this connection, if you “play for time”, it is possible that their father may not initiate proceedings immediately,and if he does so, after some time, further defences may become relevant – that the children are settled in to their new environment,and that Israel, and not the States, is now their country of habitual residence, or that their father “acquiesced” (agreed after the fact), if you can provide suitable evidence.

You can start legal proceedings for a return order under the Hague Convention, directly in Israel, at the family court serving the area where the children are located, through a lawyer specializing in child abduction. Non-return of minors to their country of habitual residence (in your case, the States), by one parent against the other's wishes, is a form of child abduction. From your description, your chances of getting a prompt return order under the 1980 Hague Convention on the Civil Aspects of Child Abduction are good,if you are a normative parent, unless you make legal mistakes now, e.g. are tricked over the phone into “acquiescing”  to the children’s continued presence in Israel ,while trying to discuss matters . Our legal practice can initiate legal proceedings within a matter of days, and has successfully obtained return orders or negotiated voluntary returns of children abducted to Israel, from various countries.

Yes , you can bring Hague Convention proceedings to actualise visitation rights, even though you appear to have "missed the boat" to get an order for the children's actual  return to Israel. Under the 1980 Hague Convention on the Civil Aspects of Child Abduction, which binds both Israel and Belgium,a parent has a 12 month window -of -opportunity to bring action to get  abducted children returned to their country of habitual residence, if they were wrongly retained overseas,against one parent's wishes. It appears too late for you to get a Hague Convention order for the return of your abducted children from Belgium to Israel, but you can apply to enforce rights of visitation, under the Convention.

Yes, as part of a judgment ordering a mother to return her baby daughter to Finland, Rishon LeZion Family Court held, in January 2011,that if she did not carry out the order, the police could intervene and "assist" her. It specifically stated that the mother, who had abducted the child,should only receive the minor’s passport after the policeman had ensured that the child had boarded the plane to Finland.

In other cases, the return order may specifically state that if the abducting parent does not return the abducted minor by a specific date, the parent who sought and obtained the return order, can return the child him/herself.

Yes! In January 2011 Rishon LeZion Family Court in Israel granted an order for the return of an abducted baby to Finland, and in its judgment ordered the mother,who had abducted the minor, to reimburse the father for the money he paid on flight tickets and hotel accommodation he incurred as a result of the abduction.

Yes! Although consent by a parent, once given, is a defence in Hague Convention proceedings for the return of abducted minors, and cannot be retracted, this only holds if the consent is real, freely given, clear and unconditional. The parent claiming consent as a defence to the child abduction proceedings has the burden of proving that the consent was valid.
Consent obtained by trickery or under duress is not true and valid consent. If the father brings Hague Convention proceedings, for the return of children allegedly retained in Israel against his will, and can prove that the alleged consent was not valid, or was conditional, or limited in time, then he has a chance of his children being ordered home.
The Israeli court hearing the case will have to decide, on the basis of the pleadings and evidence,both written and oral, including the actual wording of the note itself, the circumstances and conditions under which it was made, and from cross examination of the parties and witnesses on the subject, whether the father really ‘consented’ to his children remaining in Israel or not. If it decides that his consent was valid, then, the court has discretion not to order a prompt return of the minors. If , however, the court decides that the consent was not valid, then it will be under an obligation to order the children home promptly, unless there are other grounds for a valid defence.

Another possible defence, related to consent, is ”acquiescence” (retroactive consent). Again, the burden of proof lies with the person defending the child abduction proceedings.

The chances are slim. As part of an appeal before the Supreme Court of Israel in August 2010 concerning a child abducted from the United States to Israel, it was held that: “..experience shows that aside from exceptional cases such as the abduction of the child using violence or repeated abductions – the chance…of (her) being arrested are not great…we will not accept the claim that the abducting parent will be able to claim that there is an obligation to leave the child in the country to which he was taken because of the fear of arrest in the state where the abduction was carried out. Of course, this is not the viewpoint of caselaw.”

Only after a year has passed since the alleged act of abduction and the start of Hague Convention proceedings in Israel. The Israeli Supreme Court emphasized this in August 2010 concerning a child whose return was sought to Nevada, U.S.A. What matters is when the Hague file was opened, not when the court really started discussing the case, it said. The latter interpretation of the ‘opening’ of proceedings was wrong, contrary to the Hague Convention and would encourage abduction, it said.

A special plea for his return can be made at the appropriate Israeli family court based on the recognition of foreign order/s for the return of the protected person or vulnerable adult.

Our law practice successfully represented the UK mother of a 21 year old mentally handicapped  daughter with autistic tendencies, epilepsy and challenging behaviour who lacked legal capacity in the UK and who had been abducted to Israel by her father. She was returned to the UK  within 7 weeks of legal proceedings being opened in Israel. A Habeas Corpus plea based on the recognition of the UK orders was filed on the mother's behalf. The judgment ordering the daughter's return was given by Tel Aviv Family Court in the Spring of 2010, and withstood two unsuccessful attempts by the father, who had applied for a stay of proceedings at the District and then the Supreme Court , to stall the implementation of the return order, prior to actually filing an appeal at the District Court.  He later withdrew his appeal at the District Court.

The daughter was  abducted by her  father who had acted to foil a residential placement based on a 'best interests' judgment by the High Court of Justice (Family Division) in London , which was not to  his liking.

As the daughter was over 16 the Hague Convention on the Civil Aspects of Child Abduction did not apply,although both Israel and the U.K. are bound by it. A Hague Convention dealing with  vulnerable adults does not apply to  abductions between Israel and the U.K., so that a legal lacuna (loophole) existed as to the appropriate legal steps to be taken.

Yes, as part of a voluntary return or indeed a forced return order , the court in Israel can set down basic undertakings or stipulations on this. For example, in December 2010 Nazareth Family Court )case 54043-08-10) ordered a baby who had wrongfully retained by her mother in Israel, back to the U.S., but ordered the father to deposit 6,000 dollars in a trustee account in the States, which she would receive immediately upon her return there with the minor, on account of financial support for herself and the child, to be decided upon by a court there.

Yes ! Courts dealing with Hague Convention cases have declared many times that the status of the parent seeking a return order, and that of the child in the country where he was allegedly living up until the time of the wrongful removal or retention is irrelevant. In December 2010 in case 54043-08-10 Nazareth Family Court ordered the return of a baby ,who had been wrongly retained in Israel by his mother, to the United States even though the applicant father’s status there was at risk after his wife had notified the authorities that she was stopping her studies there, so that her husband’s visa, which was dependent on her student visa, would be at risk, too. 

You can avoid risking facing child abduction proceedings if you have a written agreement drawn up between you and your husband ,in Israel, which gives you the express ,legal right to return to Israel with the children,should you wish to do so. The agreement should be drafted by a lawyer specialising in international child custody disputes ,and would ,of course, use appropriate language to safeguard your interests. It should, preferably, be authorised at a family court in Israel before you leave Israel for Canada,to give it maximum legal force.

Such a carefully worded court authorised agreement would provide a clear defence if , for instance, you returned to Israel with the children,as you were entitled to, but,despite everything, your husband did try to bring child abduction proceedings in Israel ,to return the children to Canada. Israel and Canada are bound by the 1980 Hague Convention on the Civil Aspects of Child Abduction, and the agreement would be regarded as clear 'consent' on the part of your husband to the children returning to Israel and living here. Once clear consent is given,it cannot be taken back,and,as such, your husband's attempt to get a return order would be rejected.

Additionally, if the wording of the agreement were sufficiently professional, it would state that Israel was to remain the family's/children's country of habitual residence,despite the temporary move to Canada,and as such, your husband's plea would fail.

Accordingly, your husband would be prevented by the agreement from proving that you had wrongly removed the children from their country of habitual residence, as required ,in order to get a 'return order',as Israel,and not Canada,would be the children's country of habitual residence,and his prior consent had been given to the move -  in the court authorised agreement.

As  Israel and France are bound by the 1980 Hague Convention on the Civil Aspects of Child Abduction, you can apply for an order to return the children ,from France,where they are being wrongfully retained by their mother,against your will, to Israel,the country of their habitual residence. Wrongful retention of minors in a country where they are not habitually resident is recognised as an act of child abduction under the Convention . You are entitled to bring Hague Convention child abduction proceedings for their return.

The case will be heard in France,but much of the preparation of the file will need to be carried out in Israel. Although under the convention you are entitled to free legal representation by a lawyer overseas,in the proceedings in the appropriate French court, you would be advised to engage an Israeli lawyer,too,who specialises in child abduction. The latter should be able to assist in the preparation of affidavits and in obtaining vital evidence, from Israel, to build and strengthen your case . He/she would help prove your claims, and help disprove any defences claimed by your wife, and would work in conjunction with your lawyer overseas.

By invoking the 1980 Hague Convention on the Civil Aspects of Child Abduction which applies to alleged acts of international child abduction between Israel and Thailand since 1/11/03. You can start off the process in Israel but the proceedings will take place in Thailand and you will be appointed a lawyer by the Central Authority in Thailand ,created  under the convention, to represent you there.

Since 1/2/07 the 1980 Hague Convention on the Civil Aspects of child abduction applies to alleged international child abduction between Israel and the Ukraine. You can bring Hague Convention proceedings for the return of your son,who appears to have been 'wrongfully retained' in Israel by his mother, and ask the family court in Israel,which will hear the proceedings, for a return order.

No! You are not entitled to remain abroad with your children,against your husband's wishes. If you do so, you risk him bringing legal proceedings against you in the U.K., for their return to Israel, following their 'wrongful retention',an 'act of abduction' under the 1980 Hague Convention on the Civil Aspects of Child Abduction,which binds both Israel and the U.K. Marital breakdown is no defence or excuse to child abduction,under this convention.

No! The management of a 'Hague Convention' child abduction case does not,in itself, give the Israeli family court dealing with it jurisdiction over proceedings such as child custody or maitnenance,where the family's place of habitual residence and centre of life is abroad. In practice, though, a parent who abducts a child to Israel may be inclined to start legal proceedings concerning the minor e.g. child custody and maintenance, in Israel.

However, according to section 16 of the Hague Convention (Return of Abducted Children) Act of 1991,where the left-behind parent brings Hague Convention proceedings in an Israeli family court, the latter must deal first of all with the abduction proceedings, and cannot deal with any other matters meantime. If the left-behind parent wins and a return order is granted, the court will not have jurisdiction to hear other files concerning the minor as in the Hague case it will have been established that the child's place of habitual residence was overseas,and not Israel.If, however, the left-behind parent fails to get a return order, and the minor is not returned abroad, then jurisdiction for other proceedings concerning him will lie in Israel.

No! While Israeli is a signatory to the 1980 Hague Convention on the Civil Aspects of Child Abduction,Russia is not. You will have to bring proceedings directly n the Russian court proceedings, and cannot use the legal apparatus in Israel that applies to Hague Convention cases.

An urgent ex-parte court order can be applied for and obtained from the family court to prevent the baby being taken out of Israel,because of the threats and real risk that the father will attempt to abduct him, and travel abroad with him,without the mother's consent. As the minor has dual nationality and bears the father's surname, the father may attempt and even be able to get foreign travel documents for him,depending on the particular rules of the consulate involved. Once obtained, the court order can be registered with the Israeli Border Police.

Furthermore, as a further precautionary measure, your daughter should contact the relevant foreign embassy as the child is probably entitled to foreign citizenship through her father.Accordingly, there is the possibility of foreign travel documents being issued covering your grandchild,that might be used in an abduction attempt. You should update the foreign embassy and,in the circumstances, state your clear objection to any foreign passport or temporary travel document being issued for the child, at the father's request, and given to him.

No, not at all. Do not be confused by terminology. You have to prove that under Israeli law you have what is termed 'rights of custody' in terms of the 1980 Hague Convention on the Civil Aspects of Child Abduction. Visitation rights in Israel count as 'rights of custody' in Hague Convention child abduction proceedings. Thus you are able to initiate Hague proceedings for the return of your abducted children to Israel, even though  you are not the custodian.  Failure to give non-custodial parents this right to get their abducted minors back would make a mockery of the convention as a custodial parent would have the green light to abduct from Israel , under cover of a custody order !

No! Under Israeli law a biological father is a child's natural guardian even if unmarried or separated from the mother, and has clear rights. If you relocate abroad without the father's knowledge and consent, this amounts to an act of chid abduction,and you are liable to face Hague Convention proceedings.

Yes ! A non-custodial parent with visitation rights can certainly bring Hague Convention child abduction proceedings.

While technically speaking the Hague Convention gives a 'left-behind' parent up to 12 months to act from the time of abduction until starting legal proceedings, the reality is that he/she is strongly advised to act almost immediately, to increase the chances of securing the child's 'prompt' return. The sooner a 'left-behind'  parent acts the greater the chance of securing a return, and vice versa. A 'left-behind' parent who acts within days or a few weeks of an abduction will increase the chances of his/her abducted child being returned quickly.

In many 'Hague' countries, courts have held that a child can establish habitual residence in the new country very quickly, for example, after a few months, and in some cases, even sooner. If it is proved that a child has become habitually resident in the new country, this means that a request for a return order would be rejected on the grounds of  failure to prove 'habitual residence' i.e. that the child was no longer habitually resident in the 'old country' even if he had been wrongly removed.

Yes, if the children have been living in Israel for more than a year, and were abducted from another 'Hague' country, then , according to the Hague Convention on the Civil Aspects of Child Abduction, the court has discretion not to order a return them, if it has been proved that they are now 'settled' into their new environment.

In practice, however, children who have been abducted to Israel, from another country which is bound by the Hague Convention, may not be subject to a return order, on the grounds that Israel, and not the country where they were allegedly abducted from, is the country of habitual residence . A child can establish habitual residence in Israel relatively quickly, and a Hague return order can be refused , because Israel has now become his/her country of habitual residence. Accordingly, it is important to act very quickly to ensure a quick and prompt return of abducted minors.

Also, the  longer a 'left-behind' parent  waits without acting the greater the chances of acquiesence being successfully claimed by the abducting parent.  

The classic defences are that a return order would put the child at  a 'grave risk' of physical or psychological danger, or place him/her in an otherwise 'intolerable situation'.

In addition, there are defences of consent and acquiescence. Where the child is older, his/her own genuine refusal may prevent a return order.

A parent defending a Hague case can also dispute key elements that need  to be proved e.g. habitual residence - he/she can challenge the alleged claim that the children were removed from a country where they were habitually resident.

Acquiesence (agreeing after something has happened) is one of the defences in Hague Convention child abduction proceedings. You will have to prove it.

Apply for an ex-parte order from the family court preventing the minors from being taken out of Israel, to prevent them being abducted. If granted, and registered with the border police, then if your wife attempts to leave Israel with the children, then they should be stopped ,on the basis of I.D. and passport numbers you provide.

That issues of custody should be decided in the country where the children normally live (or are 'habitually resident' in Hague language) by the appropriate court. Parents cannot take the law into their own hands , move children around unlawfully and cause them trauma.

States that are bound by the 1980 Hague Convention on the Civil Aspects of Child Abduction are supposed to engage in " first-aid" legal proceedings to secure a fast return of wrongly removed or retained minors, to their 'country of habitual residence'). Defences are limited, and a high standard of proof is expected.

Bring Hague Convention child abduction proceedings for their return from France to Israel.Both states are bound by the 1980 Hague Convention on the Civil Aspects of Child Abduction, through which a return order can be requested ordering the minors back to the country of habitual residence. Your wife's removal of the children from Israel ,without your consent, was wrong, and an act of child abduction.

Yes - it is 'wrongful retention' , one of two possible acts of child abduction, under the 1980 Hague Convention on the Civil Aspects of Child Abduction, which binds both Israel and the U.S.A. Once your wife refuses to return the children beyond the time scale you consented to, then your consent ends, their continued stay is illegal, and an act of child abduction.

The Russian Federation only signed the Hague Convention on the Civil Aspects of Child Abduction in 2011, and Israel has not yet approved its accession. Accordingly, the convention is not yet in force regarding cases of child abduction between Israel and the Russia. This means that you cannot use the fast-track mechanism created by the convention to get your abducted son back. You can use other legal proceedings to secure his return to Russia, and apply for a "Habeas Corpus" order in Israel.