International Child Abduction & Relocation

Q: Article 13b of the Hague Convention states that “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”. In most cases, the court will consider the circumstances and will not decide solely based on the children’s words but will try to examine whether this is their independent opinion. The court will also take into account their age, the time that has passed, and the opinion of an expert who will be appointed and/or a legal guardian and/or an attorney who will be appointed to represent them in the proceedings (children’s counsel). Thus, in a judgement issued in the appeal of an abducting mother, in the Haifa District Court (Ap. No. 18415-12-23), on 31.3.24, after the appellate court met with the two minors, it was determined that the exception in the Hague Convention of “the child’s wishes”, which justifies non-return to the country of origin (there: Sweden), does not apply. The court there dismissed the appeal filed by the abducting mother.

*Our law firm represented the father in this case.

A: The court has discretion in the matter of appointing an expert. The court of appeal tends not to interfere with judicial decisions given by a lower instance. Thus, in a ruling issued on 24.6.24, in this matter, by the District Court in Nof HaGalil-Nazareth (Family Leave of Appeal # 49959-06-24), a father’s petition to annul decisions issued by the Family Court in Haifa, in his claim under the Hague Convention, including on the issue of appointing an expert, was rejected. The District court there found that it appears that the decision made by the Family court meets the conditions and requirements of the Hague Convention and the case law, and therefore it must be assumed that the appointment of an expert will not delay or complicate the handling of the proceedings and/or cause any distortion of the law for the appellant.

A: Pretty good. The age of the children can be a decisive factor in these matters. Thus, with regard to your 16 and a half year old son, The Hague Convention does not apply to him, but only to children up to the age of 16, and therefore he cannot be returned through a legal process, which is filed according to the Convention. With regard to the daughter, who is 12 years old, the decision also depends on the court’s impression regarding her independent wish to remain in Israel. Thus, in a ruling dated 18.7.2024, which was given in the Family Court in Rishon LeZion (Family File 1392-03-24). The 12-year-old girl was represented by a minor’s counsel (an attorney appointed by the court to represent her in the case), and was heard by the court. It was determined that since all members of the 12-year-old minor’s family (except the father) live in Israel, and since she too wishes to live in Israel, then her return to the United States does not serve her best interests and places her at serious risk, and that the conditions provided for in Article 13 of the Hague Convention are met.

A state of war in the minor’s country of habitual residence may constitute a defense argument, in Hague proceedings, for not returning the minor. The Court will consequently examine the current security situation in the Ukraine and decide whether the exceptions/defenses in the Hague Convention apply. For example, the Family Court rejected the plea of a father to return his minor son to the Ukraine, after examining the Israeli Ministry of Foreign Affairs website stating a Continuous travel warning in relation to the Ukraine/ The Family Court ruled that the war situation in the Ukraine where the minor is force to hide in bomb shelters, attend school on-line and where the child cannot get medical treatment or do sports, all constitute “grave risk” for the minor, if he is returned to the Ukraine (Case # 19298-08-23).

Yes! The Family Court is authorized by law to use his discretion, to ask the defendant (in this case -you) for further evidence in order to prove “Grave Risk” defense (i.e. that returning the minor may cause the minor “grave risk”), even after the proof stage. That being said, the Court may still order that you pay legal costs for the late filing (Case # 19298-08-23).

Not necessarily. You must act quickly and file Hague Convention proceedings, against your wife, for the immediate return of your child to Australia. If your wife can present oral or written proof (i.e. WhatsApp correspondence) that show that you agreed to your son stay in Israel, then the Court may rule against his return, given that your son has already been living in Israel for 6 months. The Family Court in Hadera rejected a Hague Convention plea of a father for the return of his minor daughter to Australia, because he filed his plea 10 months after the child has been in Israel. The Family Court found that the father’s lack of action, expresses agreement to his daughter staying in Israel, i.e. Acquiescence, which is a defense argument according to the Hague Convention, and ordered that the child will not be returned (Case # 30859-11-23).

You should file Hague Convention proceeding against her, at the Family Court in Israel for the immediate return of your minor child.  You should act as soon as possible, because if you linger and do not act fast, it can be interpreted in Court as “acquiescence” which is one of the possible defenses an abducting parent can claim in Hague Convention proceedings, against the return of the child. The Hadera Family Court in a ruling from December 25^th, 2023, rejected a Hague Convention plea of a father because he waited 10 months to file the plea against the mother’ visited the mother and the child in Israel and helped the mother find an apartment there. The Court interpreted the father’s behavior as “acquiescence and also considered the face that the child (a baby daughter) came to Israel with the mother, when she was only 5 months (Case # 30859-11-23).

If your ex-wife does not bring evidence to support her claim, then the Court will not cancel your divorce agreement. On November 12^th, 2024, The Rishon Letzion Family Court dismissed an ex-wife’s claim that her ex-husband tried to run her over with his car, treated her violently and forced her to sign their divorce agreement. The Court ruled that since the ex-wife provided no evidence, since she did not file a complaint with the police, did not get medical treatment for any act of violence, that she did not establish a direct connection between her violence claim (by her ex-husband) and her signature on the Divorce agreement. Therefore, the Court ruled there was no doubt that at the time of the divorce agreement signature, the ex-husband did not perform acts of violence against his ex-wife (Case # 58820-08-21).

The children’s age can be a major factor here. The Hague Convention is applicable only regarding minors under 16. Therefore, your daughter cannot be returned through such proceedings. The court will probably hear your minor son and see whether his wish to stay is independent. In a July 18^th 2024 decision given by the Family Court in Rishon Letzion (Family Case # 1392-03-24), the Court dismissed a father’ s plea to have his 12 year old daughter returned to the US, and ruled that since all the family members of the minor concerned are in Israel (apart from her father) and since her wish is to stay in Israel, therefore her return to the US will not serve her best interest and will put her in Grave Risk.

It saves time, money and heartache, avoids dragging out the legal process via appeals, and provides the opportunity for parties to create a basis for co-operation in the future.