FRANCE – SAID VS LEBOEUF – 2002 (Return ordered) BEN SAID v LEBOEUF. The father took five of his six children to France in violation of a temporary custody order. The court found that Israel was the habitual residence of the children and that a “grave risk” defiance fails. “Documents have been produced in hearings that the political situation in Israel has always been tense since the creation of that State in 1948” The court “orders the immediate return of the five children to the residence of their mother in Israel”.
===========================================================
Ben Said vs Leboeuf [France 2002]Marseilles Regional Court Registration no. 02/06691
09 International Abduction [FRANCE 2002]
===========================================================
EXTRACT FROM THE ORIGINAL RECORDS OF THE CLERK OF
THE MARSEILLES REGIONAL COURT
DEPARTMENT OF BOUCHES-RHONE
FRENCH REPUBLIC ON BEHALF OF THE FRENCH PEOPLE
MARSEILLES REGIONAL COURT
6 rue Joseph AUTRAN
13006 Marseilles
Stamp: Case: [illegible]
Versus: LEBOEUF et al
Decision dated: July 19, 2002
001 The President of the Marseilles Regional Court,
Department of Bouches-du-Rhone, has handed down a decision,
the terms of which are as follows:
WHEREFORE:
THE FRENCH REPUBLIC summons and orders
002 All the Bailiffs of the Court, in connection with
this requirement, to enforce this decision.
003 The Public Prosecutors employed in the Courts of
Appeals and the state Prosecutors employed in the Regional
Courts to deal with the matter.
004 All the Commanders and Officers of the Police Force
to render assistance when legally required to do so.
005 In witness whereof this decision, certified pursuant
to the official records, has been sIgned, sealed and
delivered by the undersigned clerk of the court.
006 For a certified true copy of the original bearing a
writ of execution delivered to:
Mater, RUIN
MARSEILLES, on July 19, 2002
CHIEF CLERK OF THE COURT
Stamp: MARSEILLES REGIONAL COURT
MARSEILLES REGIONAL COURT
Registration no. 02/06691
Case: STATE PROSECUTOR/BEN SAID/LEBOEUF
FOURTH DIVISION
JUDGMENT NO. 1218
COMPOSITION OF THE COURT:
Judge GHIGO, FAMILY LAW JUDGE
Mrs. AYVAZIJAN,. Clerk of the Court
HEARINGS IN THE JUDGE’S CHAMBERS ON: July 16, 2002.
Before Judge GHIGO, FAMILY LAW JUDGE
007 Upon conclusion of which the date of the
deliberations was notified.
008 JUDGMENT given in court on: July 19, 2002
009 By judge GHIGO, FAMILY LAW JUDGE
010 Assisted by Mrs. AYVAZIAN, Clerk of the Court
NATURE OF THE JUDGMENT
011 In the presence of both parties and in the first
instance.
NAME OF THE PARTIES
APPLICANT:
012 THE STATE PROSECUTOR, residing at 6 rue Joseph
Autran, 13006, MARSEILLES
013 Represented by Mrs. PAUTROT, Deputy Public Prosecutor
RESPONDENT:
014 Mr. Jean Marc LEBOEUF, born on April 6, 1964 in LYONS
(69293), of French and Israeli nationality, residing at the
house of Mrs. Veronique FARROUZ 36 rue Leon d’Arrros 13013
MARSEILLES.
015 Assisted by Mater Pierre BELLALS. Adv.
INTERVENING PARTY:
015 Mrs. Ruth Judith Anne BEN SAID wife of ZENOU, of
French and Israeli nationality, residing at 17715 Na’halat
Har Habad St Qiryat (ISRAEL)
016 Represented by Mater Martine RUIN, Adv. (MARSEILLES)
and Mater Veronique CHAUVEAU, Adv. (PARIS).
017 Mr. Jean-Marc LEBOEUF and Mrs. Ruth BEN-SAID were
married on June 10, 1986 in the presence of the register of
the town of EPINAY SOLTS SENART with no previous contract.
018 Six children resulted from this marriage:
Haya-Mouchka LEBOEUF, born on April 4, 1989 in Montfernei
(Seine, Sainit-Deriis)
Devorah Leah LEBOEUF, born on February 10, 1992 in Gonesse
(Val d’Oise)
Berachah LEBOEUF, born on September 22, 1993 in Gonesse (Val
d’Oise)
Menou’hah Ra’hel LEBOEUF, born on February 18, 1995 in
Gonese (Val d’Oise)
Sim’ha LEBOEUF, born on February 10, 1997 in Antwerp
(Belgium)
Hadassah LEBOEUF, born on February 25, 1999 in Gonesse (Val
d’Oise).
019 By order of the Vice President of this Court dated
July 4, 2002, the Department of the Public Prosecutor has
been authorized to summons Mr. Jean-Marc LEBOEUF to appear
at fixed-date proceedings in court on July 16. 2002.
020 As a result, and by act of bailiff dated July 4,
2002, the State Prosecutor employed by this Court summonsed
Mr. Jean-Marc LEBOEUF to appear before the Family Law Judge
so that an order could be given, based on Article 12 of the
Hague Convention of October 25, 1980 relating to the civil
aspects of international child abduction, for the immediate
return of the children:
Haya-Mouchka LEBOEUF
Devorah Leah LEBOEUF
Berachah LEBOEUF
Menou’hah Ra’hel
Sim’ha LEBOEUF
021 To the habitual residence of their mother in Israel,
after recognition of the wrongful nature of the removal by
the father of the minors to France. That Mr. Jean-Marc
LEBOEUF be ordered to pay all the legal costs of the
proceeding, as well as the charges incurred by Mrs. Ruth
BEN-SAID, pursuant to Article 26 of the above-mentioned
Convention.
022 In support of his application, the State Prosecutor
of Marseilles explains the following facts:
023 By virtue of a decision delivered on January 29,
2002, the ASHKELON Rabbinical Court confirmed the divorce
agreement concluded that day between the spouses, who
accepted the principle of the divorce and the temporary
custody of the girls granted to the mother until the
Rabbinical Court issued a definitive ruling in May 2002.
024 Taking advantage of a walk with five of his six
children, Mr. Jean-Marc LEBOEUF took the children with him
to France without the knowledge of the mother, on April 7,
2002, in violation of the temporary custody decision.
025 Emphasizing the wrongful nature of the removal of the
five minor children, the Israeli Central Authority
instituting this proceeding sought their return to Israel
based on Article 12 of the Hague Convention.
026 Mr. Jean-Marc LEBOEUF explains that the divorce,
which did not make a ruling regarding the custody of the
girls, does not comply With French law since it was issued
under pressure from religious authorities. He adds that the
children are in the effective custody not of the mother, but
of an institution of strict religious persuasion.
027 He declares that he deliberately took his girls back
to France, with the exception of the youngest since he did
not have her passport in his possession, without the consent
of the mother, primarily because he wished to protect his
children and keep them safe from the multiplicity of attacks
on Israeli territory.
028 He claims that his behavior is not unlawful since
immediately upon his arrival in France, he hoped to
regularize his situation by applying to the French courts
for the right of custody of the children.
029 He believes thai the return of the children to
Israel, a country in a state of war, exposes them to
indisputable moral and physical danger owing to the
indiscriminate attacks taking place there.
030 Mrs. Ruth BEN-SAID, intentional intervening party in
the proceedings, argues that the conditions for application
of the Hague Convention have been met, since the father has
removed the the oldest girls to France without her
authorization.
031 She emphasizes that the couple, with their six
children, had settled in Israel with full knowledge of the
circumstances, in 1999, a date when terrorist attacks were
already happening and had been happening for a long time.
032 She stresses that the father fails to prove that the
situation in ASHKELON exposes the children to grave and
immediate physical or mental danger.
033 She is seeking the return of the children to Israel
with a daily penalty for failure to comply in respect of a
deLay exceeding 96 hours, and is seeking the amount of 5000
euros by virtue of Article 26 of the Hague Convention of
October 25, 1980.
GROUNDS FOR THE DECISION
034 Whereas an examination of this application in
practice falls within the purview of the Family Law Judge in
the place to which the children have been moved, pursuant to
the provisions of Articles 247 of the Civil Code and I.
312-1 at the Code of the Judicial Authority, whereas Article
11 of the Hague Convention of October 25, 1980 pertaining to
the civil aspects of international child abduction provides
that a judgment must be handed down within a period of ~
weeks from referral of the case to the central authority; in
this case, the referral took place on June 19, 2002;
035 Whereas under the terms of Article 3 of the
aforementioned Hague Convention, the removal or non-return
of a child is deemed to be wrongful when it takes place in
violation of a right of custody exercised either alone or
jointly, granted by the law of the State in which the child
had his or her habitual residence immediately before his or
her removal or non-return, this right of custody may result
not only from a legal or administrative decision but also
from operation of the law;
036 Whereas this article obliges the Judge In the
requested state to analyze the removal from the perspective
of the applicable law of the applicant state to determine
whether the removal is wrongful;
037 Whereas in this case, the LEBOEUF/BEN SAID couple, of
the Jewish faith, had their habitual residence with their
children in Israel since 1999;
038 Whereas by a decision of January 29, 2002, the
ASHKELON Rabbinical Court confirmed an agreement by the
parties who accepted the principle of the divorce and
entrusted the six girls to the temporary custody of the
mother while waiting for a definitive decision from the said
Court in May 2002;
039 Whereas Mr. LEBOEUF is dIsputing the validity of this
judicial decision, citing the absence of his consent, i.e.
the pressure;
040 Whereas if it is not the responsibility of this
jurisdiction to assess the validity of the divorce
proceeding in progress pursuant to Israeli law, on the other
hand, it is indisputable that, as with French law the law of
the State of Israel as it arises from documents produced in
hearings, attributes the custody of the children by law, in
the sense of the Hague Convention, jointly to the two
married parents;
041 Whereas on the assumption supported by the father
whereby the right of custody has not been attributed to the
mother by the decision of the Rabbinical Court, the two
parents should make a joint decision, in the absence of an
opposing decision from the qualified judge regarding an
alteration in the habitual residence of the children;
042 Whereas, as a result, in any event, notwithstanding
the challenge by the husband of the decision of the ASHKELON
Rabbinical Court of January 20, 2002. the removal of five of
the six children as of April 7, 2002 on the sole initiative
of the father, without the consent of the mother remaining
in Israel, to establish the residence of the children
outside the territory of Israel in a unilateral and
authoritarian manner, must be considered to be wrongful in
the sense of Article 3 of the Hague Convention.
043 Whereas a Judge dealing with the return proceeding
within the framework of the application of the Hague
Convention, does not have to assess the appropriateness of
the measures to be taken in relation to custody of a chiLd,
since the merits of the contentious proceedings are not at
issue, but only to bring a halt to the act of violence
constituted by the deprival of possession of the guardian
parent by restoring the previous situation and ordering the
return of the child to the original State until judgments
are handed down;
044 Whereas Article 13 of said Convention stipulates on
the other hand that the judicial authority dealing with the
matter is not bound to order the return when the abducting
party establishes that the person who bad care of the person
of the child was not actually exercIsing the custody right
at the time of the removal, or that there is a grave risk
that the return of the child would expose him or her to
physical or mental danger or otherwise place him or her in
an intolerable situation;
045 Whereas, at the time of their removal, the education
of the children in a religious boarding school controlled by
the rabbinical authorities, a fact which is not disputed by
the mother, would not, contrary to the declarations of Mr.
LEBOEUF have resulted in effectively transferring custody of
the children, in the sense of the Hague Convention, to the
religious educational institution.
046 Whereas with regard to the grave risk, documents have
been produced in hearings that the political situation in
Israel has always been tense since the creation of that
State in 1948, that this permanently tense climate did not
dissuade Mr. LEBOEUF and Mrs. BEN-SAID from taking up
residence there with their six children in 1999;
047 Whereas, in contrast, the crisis situation known as
the second Intifada, which began in September 2000. did not
prevent Mr. LEBOEUF from waiting until April 2002 to remove
five of his daughters, thereby separating the siblings, on
the grounds of an intolerable lack of security
048 Whereas if it is indisputable that random and
unpredictable suicide attacks are perpetrated in that
country, necessarily entaIling an obvious risk, on the other
hand, the idea of risk must be strictly assessed;
049 Whereas no document has been flied by the respondent
to demonstrate the current exact situation of Qiryat
Malachi, the habitual place of residence of the children;
that in contrast, the deputy mayor of this town states that
this area has never been the victim of an act of terror,
that the religious educational institution
attended by the children, before their removal has never
been attacked;
050 Whereas the cited general state of danger, while
businesses, schools, adminIstrations, means of transport
continue to function, since the father could have left the
country and taken his children, would not constitute a grave
risk exposing the children of Mr. LEBOEUF to physical or
mental danger;
051 Whereas Mr. LEBOEUF consequently fails to prove that
his five daughters who would thus rejoin their youngest
sister, would be especially and personally exposed to
physical danger were they to return to Israel;
052 Whereas there are grounds for granting the
application presented by the Public Prosecutor’s Office
based on the Hague Convention of October 25, 1980 and
ordering that the five children be returned immediately to
Israel to the residence of their mother;
053 Whereas the application of the mother for the return
of the children with a penalty for failure to compLy is
unsuccessful;
054 Whereas this decision will be added to an order
making the judgment immediateLy enforceable notwithstanding
the lodging of an appeal, since this measure proves to be
necessary and compatible with the nature of the case;
055 Whereas the applIcation of Mrs. BEN SAiD for payment
of 5,000 euros is rejected owing to the absence of
supporting evidence;
056 Whereas Mr. LEBOEUF will bear legal costs as well as
the expenses incurred by the French central authority
specified in Article 26 of the Hague Convention.
ON THESE GROUNDS
057 Judge C. GHIGO, FamiLy Law Judge, issuing a public
ruling after bearings in the Judge’s Chambers, in a judgment
after bearing bath parties, and in the first instance.
058 In view of the Hague Convention of October 25, 198O
regarding the civil aspects of international child
abduction,
058 States that Mr. Jean-Marc LEBOEUF is WrongfulLy
retaining his five daughters in France:
Haya-Mouchka LEBOEUF, born on April 4, 1989 in Montfernei
(Seine, Sainit-Deriis)
Devorah Leah LEBOEUF, born on February 10, 1992 in Gonesse
(Val d’Oise)
Berachah LEBOEUF, born on September 22, 1993 in Gonesse (Val
d’Oise)
Menou’hah Ra’hel LEBOEUF, born on February 18, 1995 in
Gonese (Val d’Oise)
Sim’ha LEBOEUF, born on February 10, 1997 in Antwerp
(Belgium)
059 Orders the immediate return of the five children to
the residence of their mother in israel,
060 Dismisses the remainder of the applications of the
parties,
061 Orders this judgment to be immediately enforceable
notwithstanding the lodging of an appeal.
062 Order Mr. Jean-Marc LEBOEUF to pay all legal costs as
well as the expenses incurred by the French central
authority specified in Article 26 of the above-mentioned
Convention;
063 DONE AND DELIVERED IN THE LAW COURTS OF MARSEILLES,
ON JULY 19, 2002.
Signed: Clerk of the Court
Signed: Family Law Judge