Israeli Family-Law Forum - Child Abduction

Below are readers' questions about 'Child Abduction ', which we have chosen to answer. Further, and more detailed ,information on 'Child Abduction ' is found on our specialist website, 'Child Abduction and Relocation in Israel ', www.child-abduction.co.il and also on our main website, Family Law in Israel , at these pages:

http://www.family-laws.co.il/child-abduction-and-the-Hague-Convention,
http://www.family-laws.co.il/child-abduction-to-Israel,
http://www.family-laws.co.il/child-abduction-from-Israel,
http://www.family-laws.co.il/child-abduction-to-non-Hague-Convention-countries,

No! Your right to bring proceedings to get your son back from Israel has nothing to do with your religion and would be heard by the relevant family court in Israel.This is a civil court and it would hear the plea according to an international convention which binds both Isael and the United States - the 1980 Hague Convention on the Civil Aspects of Child Abduction. The legal points you have to prove to be entitled to get a return order are not connected to religion but relate to proving your rights as a father,  that the USA is your son's place of habitual residence and that your son is being retained in Israel against your will. From the background information stated, you should be entitled to an order for your child's prompt return, if you bring proceedings without delay and within the time frame allowed. Only if you exceed that time frame, and then try to get your child back, could the case be widened.

 

Our legal practice has successfully represented non-Jewish fathers in Hague Convention proceedings for the return of children abducted to Israel by Israeli mothers who were Jewish.

Yes, if you specifically request this during the proceedings, as part of a voluntary return, and this is acceptable to the other parent, and the court.If it is, then a ruling can be given closing the Hague case, either by way of a comprehensive voluntary return package, without a finding on the abduction issue, or by way of a judgment ordering the return, based on your consent to return the children, subject to court ordered conditions,without a full-blown trial, and a finding on whether there was wrongful retention of the children by you, in Israel (a passive form of child abduction) or not.

 

In January 2014, Petach Tikva Family Court in Israel gave a return order of 4 minors to the USA, based on the mother's consent to return them, and for the court to rule on conditions for return, based on the material in the file, without making an explicit ruling on whether there had been an act of abduction or not. In its judgment in Family File 33941-12-13, the court did make a judicial finding that the removal of the children from California, USA, to Israel, had been without the father's consent. This and other factors, including the mother's unnecessary prolongation of proceedings, over return conditions, despite agreeing early on to return the child resulted in the court making a symbolic costs ruling against her, in favour of the father, who was represented by our legal practice.

The mother filed an appeal against the return conditions set. The appeal court upheld the return conditions set by the family court, but cancelled the costs order against the mother, and added further conditons. The February 2014 appeal ruling may be appealed.

 

Yes, as an exception! On January 30th 2014 Petach Tikva Family Court gave a judgment in Hague Convention child abduction proceedings (File 33941-12-13) brought by the father (represented by our law practice) ordering the return of 4 children removed from the United States to Israel by their mother without the oral evidence stage of proceedings. At the preliminary hearing, after filing her defence, the mother agreed to return the minors, in principle, but demanded various conditions, which were unacceptable to the father. After the parties failed to reach a comprehensive negotiated settlement, they agreed that the court should rule on the conditions for the return, without the need for the full proof stage, in the light of the mother's consent to return to minors to the USA, which she acknowledged as their place of habitual residence.

Initiate fast-track Hague Convention child abduction proceedings at the local family court in Israel. By not returning the children to France, their country of habitual residence,and retaining them in Israel, beyond the agreed time, your wife is committing a civil act of passive child abduction and you have grounds for obtaining an order for their prompt return from the Israeli family court. Our law practice specializes in such proceedings which are supposed to be decided within 6 weeks from the time of filing in court.

In Israel - where you should bring Hague Convention child abduction proceedings for the return of your abducted children to the United States. Sometimes the Israeli court will ask for an opinion from the foreign court or government body but only the relevant court in Israel -where  the abducted child/ren are currently present - will have the jurisdiction to hear the child abduction case  and to actually return the children overseas.

 

Both Israel and the U.S.A. are bound by an international civil law convention that deals with unilateral movement  (whether it be  wrongful removal and./or  wrongful retention) of  a childr/en by one parent  from one country to another , in your case, from America to Israel. This convention creates  fast-track civil proceedings  for the return of abducted child/ren to the/ir country of habitual residence. Hague Convention child abduction proceedings are not custody proceedings - they  deal with whether a return order is granted or not.

The idea is that custody proceedings should be determined in a child's home country (his/her country of habitual residence) where his/her best interests can be assessed properly. If the Hague proceedings held in Israel are successful, and a return order is granted (and is unchanged on appeal, if challenged), then the child/ren will be returned overseas, and  custody proceedings will take place there. If a return order is refused (and not overturned on appeal, if appealed), then the children will remain in Israel,and custody proceedings will proceed in Israel.

Firstly, you cannot bring fast track Hague Convention  proceedings to get a return order because although both Israel and the United States are bound by a special convention  on child abduction, it only applies to minors under the age of 16.

Secondly, you could bring non-Hague proceedings in Israel,to recognize and enforce a foreign order, from  an American court, that  you should  try to obtain first , declaring the USA to be his 'home' , his retention in Israel as unlawful, and ordering his father to return your son to your custody , in  the U.S.A . The Israeli family  court would have discretion whether to recognize and enforce the American court order  or not, making sure your son has the opportunity to have his voice  heard.  The Israeli Family court  may refuse to return your son if he, himself, objects strongly, and is found not be subject to manipulation from his father. If  your son  has no strong views  on the subject and is willing to return /or is found to be subject to manipulation/incitement  from his father, then, the Israeli family court may well recognize and enforce an American court order to send him back to the States, even if the Hague Convention itself does not apply because your son has just turned 16.

 

You can bring legal action in the family court in Israel for a Hague Convention order for the return of your abducted son to the U.K. By retaining your son in Israel against your wishes, and not returning him to his country of habitual residence, your wife is acting unilaterally and wrongfully, and committing a form of passive civil child abduction. Both the U.K. and Israel are bound by a convention covering international child abduction and there is a special fast-track legal process for filing for an order for his prompt return.

After you file in court, there may also be the opportunity to negotiate a voluntary return, without the case running the full course. Though it is extremely rare for there to be marital reconciliation after a scenario like this, it is possible. For example, our office represented a father, whose wife refused to return to the U.S.A with their  children at the end of the school vacation, in the Summer of 2014. After filing Hague proceedings, at Tel Aviv Family Court, the parties reached agreement for a voluntary return. Within a matter of days, the wife and  children flew back to the States,  the Hague file was closed,  the family reunited, and the marriage reconciled (File 13200-08-14).

Yes! If you are the child's biological father, under Israeli law, then you have shared,  parental decision making rights, equal to those of  the mother, as the child's natural guardian, including about where the child should live. If the child is habitually resident in Israel, the mother cannot unilaterally impose a change in the minor's place of residence by relocating permanently overseas with the child, against your will. If she does, you are entitled to bring child abduction proceedings overseas, for the minor's return. 

It is easier if you are already formally registered as the child's biological father, and listed as such in his/her birth certificate, but  it is also still possible, even if paternity is not formally registered.

Bring Hague Convention civil child abduction proceedings for the child's return to Israeli  at the appropriate Israeli family court.  If the mother is holding your mutual child in France in excess of  the period agreed upon for his/her visit to France, against your will, and the child is habitually resident in Israel, then, on the face of it, this amounts to wrongful retention, a passive form of child abduction and you would be entitled to a prompt return order, unless a defence is proved.

Hague Convention proceedings are emergency proceedings that are supposed to end in a first level judgment within 6 weeks from the time of filing for a return order.

 

 

Initiate Hague Convention proceedings in Israel against your husband for the wrongful retention of your minor child in Israel, and for an order for the child's return to Canada, his/her country of habitual residence. Wrongful retention or non-return of a child to his/her country of habitual residence is a form of passive child abduction protected by the Hague Convention. In July 2016 the Israeli Supreme Court upheld a Tel Aviv District Court appeal judgment ruling (Family Appeal File 6666-06-16) ordering the return of a two year old to the U.S.A., ruling that the father (a dual Israeli and US citizen) had wrongfully retained the minor in Israel, and wrongfully prevented her return to the States, her country of habitual residence, with her mother. The District Court held that the U.S.A had remained the child’s place of habitual residence and accepted the American mother’s appeal against the first instance family court ruling which had rejected her claim, and had based its overturned ruling on the mistaken finding that the child’s country of habitual residence had changed from the States to Israel. In 2014 our law practice initiated Hague convention child abduction proceedings in Israel for passive child abduction, on behalf of an American mother who had come to Israel on a trial basis, at her husband’s request, but had become “stuck” in Israel against her will, with their children for over a year and a half. After the husband/father was filed with proceedings for a Hague return order, based on wrongful retention,the couple entered intense negotiations, and a comprehensive agreement was reached, covering the children’s relocation back to the States with their mother, visitation, child support and divorce. Within less than 3 months after initial filing, the children were back in the USA, in their mother’s custody.

No! There is no compulsory preliminary mediation stage in child abduction proceedings in Israel. A  parent whose child/ren has/have been wrongfully removed to Israel, or wrongfully retained in Israel, from a "Hague" country can file Hague Convention child abduction proceedings at the Israeli family court straightaway without having to give mediation a chance.

New legislation in Israel which came into force in Israel on 17.7.2016 to make alternative dispute resolution compulsory before adversial family court proceedings can be initiated ,expressly excludes Hague Convention Child Abduction proceedings.

Having said this, once Hague Proceedings are filed, the "left-behind" parent can apply to the Israeli family court for an immediate referral to the court assistance unit, to see if there is a possibility of a mediated settlement, and  family court judges often take the initiative and  give decisions referring the parents there anyway, once the file is opened.

The convention applies between member states (including Israel and U.S.A), until a minor is 16 and Hague proceedings cannot be invoked for child abduction after that. If proceedings start before the child’s 16th birthday, the moment he or she becomes 16, they will stop immediately, even in the middle.

Yes, you certainly are! If you allow your wife to remain in Israel with your child you are at significant risk of “acquiescing” (agreeing after the fact) to your son’s continued presence in Israel and providing her with a defence in civil child abduction proceedings which you could invoke in Israel, to get your son ordered home to Canada. If your wife keeps your child in Israel against your will, this is known as “wrongful retention” and is a form of passive child abduction under international law binding both Israel and Canada in this matter.
Furthermore, you have a limited “window of opportunity” to invoke Hague Convention child abduction proceedings in Israel, for a “prompt return” order of your son to Canada, and the longer you delay bringing action, the more you reduce your chances of securing your son’s return.

Bring Hague Convention child abduction proceedings against your wife at the family court in Israel for the “prompt return” of your child the USA, his/her place of habitual residence. From your description, your child left the States, with your consent, for the purposes of a visit only, and is being wrongfully retained in Israel, by your wife, in a classic act of passive, civil child abduction . Both Israel and the States are bound by international law concerning the civil aspects of child abduction and you are advised to apply for a return order without delay.

Bring Hague Convention civil child abduction proceedings for your daughter's return to Israel. Both Israel and Italy are bound by the convention covering child abduction, including cases like yours, of wrongful retention, whereby you agreed to your wife taking your child out of Israel, her place of habitual residence, for a visit only, but you did not agree to her leaving Israel and relocating, permanently, to Italy. Her non-return without your consent is known as "wrongful retention" and is a form of passive child abduction. The proceedings will be held in Israel but it may be useful to get a declaratory judgment from an Israeli court to prove that Israel is your daughter's country of habitual residence.

Bring Hague Convention child abduction proceedings for the immediate return of your daughter from Israel (where she is being wrongfully retained by her your wife) to the U.K., her country of habitual residence, at the family court in Israel. From the background provided, all the pre-conditions are met entitling you to be granted an order for the “prompt return” of your daughter to the U.K. . Unless you are manipulated or tricked by your wife, into allowing her to stay on (which could give rise to a defence of “acquiescence”) or she can prove a “grave risk” defence (which is exceptionally difficult and irrelevant if you are normative), then you can expect a return order to be granted within 6 weeks of filing.
If you hire legal counsel directly, rather than waiting for an appointment of a lawyer through the Hague Convention authorities, then a plea can be filed very quickly, within a matter of up to a few days, at the relevant Israeli family court, for an order for the prompt return of the abducted children from Israel to the U.S.A, their country of habitual residence. Immediately upon filing, you can apply for relevant urgent ex-parte applications e.g to request the deposit of your wife and children’s passports and to grant stop-orders against them, to ensure that the Hague Convention child abduction court proceedings can take place in Israel , and very importantly, to prevent the children being re-abducted to another country, especially to one not bound by the Hague Convention. Unlike in some jurisdictions, where opening the file is quite a technical act, in Israel, you need to file a Hague child abduction plea with the relevant background, substantiated, with relevant documentation, to show that the preconditions for granting a ‘prompt return’ order are met.
If you have reason to believe your wife is planning to abduct your child from Israel, you can apply for an emergency ex-parte order at the family court, against your child, on the minor’s Israeli and foreign passport/s. If you persuade the court that there is sufficient grounds for suspecting your wife to be planning to abduct your child, then the family court can grant a temporary order preventing the minor’s exit from Israel, before your wife is even served with the application.If your wife wishes to cancel the stop order against your child, then she will have to apply to the Israeli family court to do so, in which case a hearing will be set, in front of both of you. Even if the court grants her permission to travel overseas temporarily with the child,for a visit,it may condition this upon financial or other guarantees. If these are substantial /realistic they could act as a deterrent against child abduction and an incentive for your wife to return your child to Israel at the end of the visit. If you do not take this preventative action, you may be faced with having to bring Hague Convention child abduction proceedings to get your abducted child back to Israel , which will be more difficult and the proceedings will be held in Russia, not Israel.

Yes, in principle. Under Israeli  civil procedure regulations regarding Hague Convention child abduction proceedings, a parent has a right of appeal, within 7 days, against a judgment given by the first instance court (the family court), before the appeal court (the District Court). However, despite this, in October 2015, a defendant mother, who had abducted her young daughter to Israel, was effectively denied the right of appeal by reprehensible conduct of the Tel Aviv Family Court, which gave its decision, in File 13332-09-15 , in the absence of the parties, at the end of the working day, at the end of the week, ordering the immediate cancellation of the prevention of exit orders against the minor, while refusing to grant a stay of proceedings, requested by the mother’s counsel , without informing or sending out the judgment to them, and releasing it only to the father’s counsel, paving the way for the father to whisk the minor out of the country, within c 2 hours of the judgment having been released!

While the mother (represented by our law practice) requested a stay of proceedings at the appeal court, within a short time,  the same day, until the end of the proceedings in the appeal, which was to be filed, the father managed to whisk the child outs of Israel, before the District Court set a hearing for the following morning, to discuss a stay of proceedings.

Harsh criticism was voiced against the procedural handling of the case by the Tel Aviv Family Court, in the District Court decision in Family Appeal  File 46344-10-15, concerning its granting of a return order, without  the presence of the parties,  together with its refusal to grant a stay of proceedings, while ordering the immediate cancellation of the stop orders, in a manner which effectively prevented the mother from exercising her right of appeal, and her  right to a fair trial, and the opportunity to exhaust the legal process.

 

A complaint is in the process of being made to the judicial disciplinary board.

 

 

File for a "prompt return" order under the 1980 Hague Convention on the Civil Aspects of Child Abduction at the relevant local  family court in Israel, providing your son is under 16.

From your description, this appears to be a classic case of "wrongful retention" , a passive form of child abduction, justifying you bringing fast-track, emergency legal action to get your abducted child back .

Both Israel and the U.K. are bound by this private international law convention designed to prevent and correct attempts by parents to bring about  unilateral changes in the habitual residence of their mutual minor children.

The underlying thesis behind the Convention, which applies to minors under 16 only, is that custody proceedings between parents and decisions about where a child should live should be heard in the minor's country of habitual residence based on best interests proceedings.

 

Fortunately, earlier in 2014, Japan joined the states that are bound by the 1980 Hague Convention on the International Aspects of Child Abduction (which Israel adopted earlier, in 1991). Therefore, acts of wrongful removal or wrongful retention of children under 16, between Israel and Japan, that took place in the Summer of 2014, are covered by this piece of international legislation. Your son can initiate legal proceedings against his wife for the return of his child under the Hague Covention.

Bring Hague Convention proceedings at your local Israeli family court  for the return of your children under the 1980 Hague Convention on the Civil Aspects of Child Abduction, which binds both Israel and the U.S.A. If you only consented to your children travelling to the States for a holiday then their continued presence there would appear to a passive form of child abduction (wrongful retention) and you can apply for an order for the children's return to Israel, their country of habitual residence.

Quite possibly - if, for example, after being served with a professional drafted  plea, the defending  parent realizes , on  receiving advice ,that his/her legal position is difficult, then he/she may back down quickly, perhaps with the added intention of reducing  possible "damage" in legal proceedings abroad in the future.

Our practice filed Hague Convention proceedings for a father whose children had not been returned from a vacation in Israel in August 2014,  and just 8 days later , the family court authorized a joint notice signed by both  parties' counsel, according to which the mother and children would return home to the States , on a specific date, and the file would be closed, after the minors' safe return to the U.S.A , without a finding as to whether there had been an abduction or not.( File No. 13200-08-12).

 

 

Possibly bringing civil child abduction proceedings against your husband in Israel for the return of your young children to Canada - depending on the exact circumstances of your case, and the evidence available.

You would be advised to seek specialist legal counselling without delay to see if you meet the pre-conditions for bringing a Hague Convention case for passive child abduction (wrongful retention of the children in Israel) . Both Israel and Canada are bound by an international convention designed to prevent and deal with both the wrongful removal and the wrongful retention of minors from their country of habitual residence by one parent where there are two parents with parental rights concerning where their mutual children should live. Among the pre-conditions you would have to prove, would be that your last shared intention with your husband was for a trial move only to Israel, during which period Canada remained their habitual place of residence. A limited window of opportunity exists for bringing such action and the sooner action is taken, the greater the chances of achieving the children's return.

Sometimes bringing Hague Convention proceedings can precipitate mediation and a negotiated settlement to a conflict between parents about where the family should live/comprehensive international divorce package. For example, in April 2014, our law practice brought Hague Convention proceedings for the return of two minor children, to the USA, at the Krayot Family Court on behalf of a married mother, against her husband, in similar circumstances, together with an immediate request for a referral to mediation at the court assitance unit. Following this a negotiated comprehensive divorce settlement was achieved, and authorised in court, in Israel, and in less than 3 months from the time of filing, the children actually returned to the States, with their mother (File 40036-04-14).

Hague Convention child abduction proceedings can be filed in Israel for an order for the children's  immediate return to Australia. Both Australia and Israel are bound by an international convention dealing with the civil aspects of child abduction. Removal of the children by your daughter-in-law, without the knowledge and consent of your son, from Australia, the country of their habitual residence, is an act of child abduction.

The first level proceedings at the family court in Israel are supposed to take 6 weeks from the time of filing. There are limited defences available to an abducting parent, the standard of proof required is very high, and the breakdown of the parents' marriage/relationship per se, is not a  justification or defence, for child abduction.

Yes! The Israeli court ordering the return of the children has discretion to give instructions like these concerning the execution of the return order. It can, for example, order that if the abducting parent does not return the minors, the other parent, who brought the action, can take the children overeas himself.

In two recent cases , in 2012, where our law practice successfully represented fathers who brought Hague Convention proceedings, Tel Aviv Family Court gave specific instructions in its judgment stating that the father could return the minors, if the mother did not. (Cases 5134-05-12 and 161-07-12).

Nearly always! In some jurisdictions e.g. the United Kingdom, oral evidence is rarely heard, and the courts give their rulings on the basis of documentary evidence only. In Israel, however, the family courts tend to hear oral testimony, certainly of the parents, as a matter of course. This is so even though under the Convention the left-behind parent, who brings the action for the abducted children's return, is not obliged to attend the hearing.

 

Israeli courts prefer to form their own impressions about the credibility of the parties and their claims. Judges often ask parents giving testimony questions , in addition to those of the opposing lawyer, during  cross examination. In one recent Hague case,  a father living in Australia, represented by this law practice, travelled out to Israel in Spring 2012, to give oral testimony before Haifa Family Court, following the court's comments at a preliminary hearing about its preference for his attendance in person.

Yes! However, your chances of success will depend on your particular circumstances under Dutch law (e.g. whether your paternity and your paternal rights were registered and whether you were exercising visitation rights or had applied for joint custody. Even if your joint parental rights are not registered according to Dutch law , you may still be able to succeed in Hague Convention child abduction proceedings in Israel, if you, nevertheless, filed for joint custody in the Netherlands prior to the child's removal to Israel.

Such was the case in August 2012 when Tel Aviv Family Court accepted the Hague convention plea of an unmarried Dutch father, represented by our law practice, and ordered the return of two minor children to Holland, even though the mother , and his ex-girlfriend, had sole custody. (File 161-07-12).

In this case, the father's paternity had been registered, the minors bore his surname, but his paternal rights had never been registered. He had, however, filed for joint custody in the Netherlands in February 2012, and had been awarded visitation rights during the proceedings. The Rotterdam court had also ordered an investigation to be made, by the child protection board, and a report and recommendations submitted. The Israeli court accepted the argument that the removal of the minors, during the middle of court proceedings, frustrating both his visitation rights and the investigation, was an act of abduction.

In theory, 6 weeks, as Israeli law adopts this time-frame set in the Convention itself, in its domestic law, but in practice, Israeli courts usually take longer for the first instance judgment.

In case 161-07-12, where this practice successfully represented a Dutch father, in Hague Convention proceedings, Tel Aviv Family Court took to order the two minors back to Holland, in August 2012, just a month after the file was opened. In another recent Hague case, again before Tel Aviv Family Court, No. 5134-05-12,where this practice also successfully represented a father in Hague proceedings for the return of 3 abducted minors to the U.S., it took the court 11 weeks from filing in May 2012, to give its judgment, in July 2012, including a break for negotiations, after the main hearing.

In another case, an Australia father, also represented by this practice, filed his Hague Plea for the return of his wrongfully retained minors in February 2012, yet Haifa Family Court has yet to pass judgment, (mid August 2012 ) ,after nearly 6 months, in protracted proceedings where the necessary permission from the Court President was given to digress from the 6 week default time-frame.

He can use any relevant documentary  evidence he has to show he was not passive, but active and demanded and took action to secure their return. In July 2012,Tel Aviv Family Court accepted the plea by a father,represented by our law office, for the return of 3 children to the U.S.,in File 5134-05-12,in Hague Convention Child abduction proceedings, giving considerable weight to the text messages between the parents which the father had submitted, to successfully rebut the mother's claims of "acquiescence" on his part.

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. 

Your situation is complicated and difficult. You cannot employ fast-track Hague Convention child abduction proceedings to get your child back because the Philippines is not a party to the 1980 Hague Convention on the Civil Aspects of Child Abduction, although Israel is, and even if they were, it would be too late to use this mechanism, as there is a time limit of a year for acting from the time of the alleged act of abduction ,when your son was retained overseas against your will.
 
You have two options for filing at the family court in Israel – one for a Habeas Corpus order to order your child back, non-Hague child convention proceedings. The other option, or if this fails, is to file for custody and relocation. Even if the child's father acted wrongly,and retained your child without your consent, there is no guarantee that the court would order his return,after such a long time, and would only do so if it was convinced that it would be "in his good", and after receiving reports and recommendations from professionals. 
 

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.

Only if the act of abduction took place after 1st March 2012 when the 1980 Hague Convention on the Civil Aspects of Child Abduction came into force for abductions of minors below the age of 16 between Israel and Russia. Russia only recently acceded to the Convention, and Israel is one of about a dozen countries who accepted it, at the time of answering this question (August 2012).

 If the abduction took place before this date, you will have to bring initiate Russian court proceedings directly over there 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.

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.

If the abduction took place on or after 1.3.2012, then you can bring Hague Convention child abduction proceedings in Israel. This is because the Convention only came into force for abductions between Israel and Russia on that date.

If the abduction took place prior to that date, you cannot take advantage of fast-track proceedings under the convention, to get your child back, and will have to bring Habeas Corpus proceedings in the Israeli court system.

The Russian Federation signed the Hague Convention on the Civil Aspects of Child Abduction in 2011. Israel approved its accession on 21.12.2011 and the convention became "relevant" as regards abductions betweent the two states as of 1.3.12.