Child Abduction – the return of a child to his home
The “Convention on the Civil Aspects of International Child Abduction” signed in 1980 is also known as the “Hague Convention” (hereinafter: “the Convention”). The convention deals, with the issue of abduction / non-return of kids from countries that are their usual place of residence. The abduction is done when there is no consent of the other parent, and in violation of custody or visitation rights. The Convention states that in each of the signatory countries, there will be a “central authority” (hereinafter: “the Authority”) which handles such cases. Authorities in each state, will cooperate with each other on “child abduction” and work on returning the children to their habitual place of residence.
What are the objectives of the Hague Convention?
The Convention has a number of objectives as follows:
- Return of abducted / non returned children to their habitual place of residence as soon as possible. How do we determine what is the habitual place of residence? This is a factual test largely based on the child’s past daily life, not future daily life. While future intentions of parents can be taken into consideration in the factual test, the test focuses primarily on the past.
- Collaboration between the signatory countries, respecting custody rights or parental visitation rights of their children.
- Parental deterrence from unilateral measures regarding their children.
- Safeguarding and preventing harm to children due to their displacement from their habitual and natural place of residence.
Is the State of Israel signed to the Hague Convention?
The State of Israel adopted the Convention, and the law (Return of Abducted Children) (hereinafter: “the Law”) was enacted through the Hague Convention, in 1991. The law adopts the convention clauses as is. In addition, there are other instructions regarding the Convention in the Civil Procedure Regulations, 1984 (hereinafter: the “Regulations”).
Conditions for the application of the Hague Convention
In order for the convention to apply, there are a number of cumulative conditions which are listed below:
- Both states (the child’s habitual country and the country he was abducted to) signed the convention.
- The abducted child is under the age of 16, at the time of the abduction.
- The parent claiming the abduction has custody / visitation rights over the child, and these rights have been exercised prior to the abduction (section 3 of the law).
- Procedures have been opened to recover the child within a year of the abduction.
Even after one year, the child will be returned to his habitual place of residence, unless the child is integrated into his new environment (section 12 of the Law).
What is integration into the new environment? The child integrates well into his new environment and his return to his habitual place of residence will harm him and his well-being (Stegman v. Burke).
Who is the authorized authority in Israel to decide on the return of abducted children under the Hague Convention?
The court with authorization to rule on the return of abducted children under the Convention is the Family Court (hereinafter: “the Court”), (section 6 of the Law). The purpose of the Convention is to bring the abducted child back to his habitual place of residence as soon as possible (section 1 of the Law). In addition, to prevent the child’s “integration” claim in the abducted country, there is a need for expedited procedure.
In accordance with the above, the Court will act very quickly to clarify the applicability of the Convention to the case before it. The regulations themselves set short time frames for speeding up the procedure as follows:
- “The hearing of the claim shall take place no later than fifteen days from the date of filing of the claim” (section 295h of the regulations).
- “The court will give a reasonable judgment in the claim no later than six weeks from the date the claim was filed” (section 295m of the regulations).
- “Upon filing of the claim, the plaintiff can file any interim relief application” (section 295e of the regulations). These measures are generally intended to prevent the child from being smuggled into a third country.
Are there any exceptions where a child will not be returned, even if the Hague Convention conditions are met?
Since the purpose of the convention is to return an abducted child to his habitual place of residence as quickly as possible, the court discussing the return request has very limited consideration on the matter. In addition, it will not decide on the issue of custody, this issue will be discussed at the child’s habitual residence (Section 19 of the Act, Roo v. Roo).
However, the law provides a number of exceptions, in which the child will not be returned to his habitual place of residence. The exceptions will be interpreted narrowly, and the burden of proving them is on the person claiming their existence (Gabay v. Gabay). The exceptions are as follows:
- The parent / body / institution claiming the abduction, who has custody rights, did not exercise those rights at the time of the abduction (section 13 (a) of the law).
- The parent / body / institution claiming the abduction, expressed consent to take the child to another state. Or, came to terms with the situation after the fact.
- “Completion” can be done in an act (signing an agreement with the “abductor”) or implied by not taking action to return the child (Section 13 (a) of the Law).
- “There is a grave concern that returning the child may expose him to physical or psychological harm or otherwise put the child in an intolerable situation” (Section 13 (b) of the Law).
- “The child objects to his return and that he has reached the age and maturity level that his views should be taken into account” (Section 13 (b) of the Law).
- “The return is not permitted under the basic principles of the requested state regarding the protection of human rights and fundamental freedoms” (Section 20 of the Law).
Can abducted children be returned to their usual place of residence when the Hague Convention does not apply?
What happens when one of the terms of the convention is not fulfilled? And the convention doesn’t apply, such as:
A child aged 16-18, the country which the child was taken from or taken to, is not signed to the convention. In these cases, is there any way to return a child to his habitual place of residence?
In these cases, the child can be taken back. The party claiming the abduction should apply to the Supreme Court for the order of “Habeas Corpus” (unlawful possession). This is an order instructing the “abductor” parent to release the child because he unlawfully holds him (Amado v. Amado).
The various parties that deal with applications for the return of abducted children
There are two parties that treat cases of child abduction under the Convention:
- The Central Authority in each of the signatory States.
In Israel, the Central Authority is the “International Department of the State Attorney’s Office”.
- Private attorney
Sometimes the lawyers and the central authority work together to streamline the process. “Central authorities will cooperate with each other and promote cooperation between competent authorities in their countries to ensure the immediate return of children” (Section 7 of the Law).
It is recommended to contact a private attorney who will handle child abduction cases. The attorney is proficient in the various proceedings and procedures. he will also be able to expedite proceedings with the various authorities required. Another reason to contact a private attorney is the load of work usually placed on the central authority.
In addition, these cases are usually intertwined with additional conflicts (divorce), and an attorney can also address these issues as well.
Need help with recovering abducted children? Cohen, Decker, Pex & Brosh law-firm are here at your service
At Cohen, Decker, Pex & Brosh law-firm, You will find attorneys specializing in “child abduction” cases. The attorneys will administer the various procedures for you, such as:
Filing documents, opening and answering claims, contacting the various authorities and the court, as well as any other issues related to the case.