International Child Abduction: Israel

The Hague Convention was adopted by Israeli Knesset in 1991, to facilitates the return of minors wrongfully removed from their country of residence, allowing the courts of the country of origin to address custody matters. The Convention’s purpose is to restore the status quo before the wrongful abduction.

Israeli Law: Child Abduction and Custody

Israeli Penal Law defines child abduction as follows:

1. Stealing of a Minor: Taking/detaining a child younger than 14 to deprive the custodial parent of possession, which punishable by up to 7 years imprisonment.
2. Abduction of a Minor under 16: Taking a child without guardian consent, punishable by up to 20 years imprisonment.
3. International Abduction: Wrongfully removing a child from the State of Israel, which is punishable by an additional 20-year imprisonment.

Decisions under the Hague Convention address exclusively child return, and do not resolve custody issues.

Procedure in Hague Convention Cases in Israel

The below is a streamlined process, which guarantees a quick outcome in international child abduction cases.

1. The Minister of Justice issues new laws, including Chapter 22(1) of Civil Law Regulations (Amendment) 5756-1995, regulating petitions for the return of abducted children.
2. A petition has to be filed in the court of the child’s location if knows, or in Tel-Aviv if unknown.
3. The pleading have to include affidavits containing information about the child, parents, and custody, along with evidence and supporting documentation.
4. Temporary Relief can be requested (e.g. order to return the child or police investigations).
5. The hearing will be set within 15 days, and pending a hearing and determination on the matter, the court may order immediate return if conditions are met.
6. An appeal has be filed within 7 days.

The family court is the competent court to handle Hague Convention cases, however, no custody decisions can be made until the return status is determined. The courts stress that custody issues should be determined by the court in the child’s habitual residence and not as part of a Hague’s petition.

Israeli Court Decisions Over the Years: Upholding Return of a Child vs. Withholding Return

Israeli courts have generally upheld the Hague Convention, ordering the return of abducted children to their country of habitual residence. Below is a non-exhaustive list of some cases in which Israeli Courts emphasizing the application of the Hague Convention to restore the status quo before the abduction and leaving custody decisions to the original jurisdiction, have ordered to return children to a foreign country:

1. Einat Ron v. Erez Ron (2002): The Supreme Court recognizing the New York court’s authority to determine the children’s habitual residence, ordered that, under the Hague Convention, the Israeli courts, including religious courts, must respect the foreign court’s decision.
2. Malina Esther Hagag v. David Hagag (2001): The High Court ruled that the rabbinical court in Israel could determine custody and order the return of the children to Israel. The issue of custody would be settled after their return, considering the best interest of the child.
3. Joe v. Doe (1999): The Supreme Court ordered the return of children to Italy after the mother illegally took them to Israel, violating a court order.
4. S. v. A.S (1999): The Supreme Court ruled the child should be returned to the U.S. despite objections, emphasizing that the child’s preference is not sufficient to override the return rule.
5. D. v. S.D (1999): The Supreme Court ordered the return of the child to the U.S., despite the mother’s desire to stay in Israel, reinforcing the principle that the child’s return takes precedence over the circumstances of the abduction.

However, there have been instances in which Israel has refused to return a child to their habitual residence under the “grave risk of harm” exception to the HAGUE. Below is a non-exhaustive list of some of these cases:

1. Roni Gabai et al. v. Efrat Gabai (1994)
   The case involves a custody dispute where the mother, living in the U.S. with her children, was misled by her husband into leaving their child in Israel under false pretenses. The husband initiated divorce proceedings in Israel, and the mother filed for the child’s return under the Hague Convention. The court ruled that the mother’s consent to leave the child in Israel was obtained under fraud and duress. The child was ordered to return to the U.S.
2. John Dow v. The Minister of Foreign Affairs (1999)
   A mother and daughter were found in Spain after fleeing Israel during divorce proceedings. The Israeli courts requested the child’s return under the Hague Convention, but Spanish courts denied it, citing that it would sever the child’s bond with the mother. The Israeli court noted that the Spanish decision was influenced by a false legal document and rejected the claim for assistance in reversing the Spanish ruling. The court also expressed hope that Spain would reconsider the case without the false document.

Israel’s Central Authority’s Role in Hague Cases

The Attorney General’s Office is Israel’s Central Authority, responsible for Convention duties. Israel officially rejects the legal position that it would be a “grave risk of harm” under the Hague Convention to return children to Israel, because of terrorism or conflict in the region. Israeli Execution Law, adopting the Hague, asserts that Israel is not a war zone, emphasizing that, despite past terrorist events, daily life remains normal, and that the child’s habitual residence should be the deciding factor in return decisions.

Law Enforcement System (Execution Law, 5727-1967) and Legal Assistance Programs

Execution Law, 5727-1967 regulates enforcing court orders for the return of a minor child to his country of habitual residence. An Execution Officer, with the assistance of a welfare officer, ensures the enforcement of the judgment. In case the minor resists or other difficulties arise, the Chief Execution Officer can ask the court intervention, however it is extremely very rare for a court to grant a stay in this case unless there is a strong chance of success on appeal, as the Convention aims for prompt return of abducted children.

The abductor may be ordered to pay legal and related expenses. Israel usually reserves the right to not cover costs for legal counsel under Article 26 of the Convention. However, there is an exception when legal aid is available to those who qualify.

Conclusion

Israel has adopted the Hague Convention on International Child Abduction and incorporated it into its domestic law. Generally, the country complies with the Convention’s requirements. Return of the child is denied in cases of “grave risk of harm” and under the other 5 exception outlined in the Convention, with no consideration given to the religion of the minor or parents.