Tel Aviv District Court
Case Number: M.A. 2898/92
Nov 1992
Before: The Honorable Justice Hayim Porat
Personal Status (2)
With reference to: The Hague Treaty Law (Return of Abducted
Children 5751-1991)
And with reference to Minors:
1. R. F. Born 09 Apr 81
2. S. N. F., Born 19 Sep 82
3. R. L. F., Born 28 Aug 85
Petitioner: S. (S.) F.
Respondent: S. A. (S.) F. M.
Argued by: Attorney Edwin Freedman – for the petitioner
Attorney Y. Ben Menashe – for the respondent
JUDGMENT FN 01
The Proceedings
1. The proceeding is a father’s request dated 16 Jun 92 in
accordance with The Hague Treaty Law (return of abducted
children) 5751-1991 (hereinafter, “The Hague Treaty Law”)
FN 02 to return to him, in Canada, his three minor
daughters whose particulars are mentioned in the above
heading, and who were abducted in Canada on 5 Mar 92
according to him, by the respondent who is his divorced
wife and the mother of the girls, and transported to
Israel.
2. The respondent mentioned four claims in her defense:
a. It is common knowledge that Canada consists of several
provinces/territories. Quebec, from where the girls
were transported to Israel, is not a “country” bound
by the Hague Treaty and The Hague Treaty Law does not
apply in this instance.
b. The appellant is not entitled to demand the return of
the girls since the mother is the one who has custody
rights of the girls and no abduction took place.
Therefore paragraph 3 of the Treaty, referring to the
civil international abduction of children, as signed
in the Hague on 25 Oct 85, and whose primary clauses
were adopted in the appendix to the Law of the Hague
Treaty (hereinafter “The Hague Treaty” or “the
Treaty”) does not apply.
Paragraph 3 states the following: FN 03
“The removal of, or failure to return a child
is considered illegal when: (a) it involves
violation of custody given to a person, an
institution or any other body, whether together
or separately, according to the law of the
country which was the usual residence of the
minor close to the time of his removal or
failure to return him; also. (b) during the
removal or failure to return the child, said
rights were exercised, whether together or
separately, or would have been exercised had
the removal or failure to return the child not
taken place.
Custody rights mentioned in sub-section (a) may
especially result from a judgment, a court or
administrative decision, or an agreement of
lawful validity in accordance with that
country’s legal statutes.”
The custody rights are defined in Chapter 5 of the Treaty:
FN 04
“The custody Rights” include those related to the child’s
physical presence, especially the right to determine the
child’s place of residence.
I wish to comment that, to the best of my knowledge, there
are two mistakes in Chapter 3 (a) of the Treaty, probably
printing errors, in the words mentioned in the above
quotation.
1. “The custody rights” should be “Custody rights” with
the “THE” in my opinion, being added by mistake. The
“THE” is not in the English version of the Treaty, it
is not appropriate to the written text, and is not
suited to the definition of “custody rights” in
Chapter 5 of the Treaty. The definition of the term
and formula indicate that there is room for violation
of part of, but not all custody rights.
2. There is a mistake in the word “bimeuchar” (later, it
should read “bimeuchad” (together, united). The “d”
was replaced by an “r”. This mistake is implicit when
compared to the English version of the Treaty, as well
as the connection of together and separately in
Chapter 3 (b) of the Treaty.
(c) The respondent claims that great harm will befall the
girls if they are returned to Canada. She supports
this with the defense mentioned in Chapter 13(b) FN 05
of the Treaty which states: ” In spite of what is
mentioned in the previous chapter, the judicial or
Administrative Authority of the country requested to
return the child is not obliged to order it if the
person, institution or any other body objecting to the
child’s return has proved that
(a) . . .
(b) A serious apprehension exists that the return
of the child will expose him/her to physical
or psychological harm, or will, in any other
way, put the child in an unbearable
situation…”
(d) The fourth defense is based on other details in
Chapter 13(b) of the Treaty which relates to possible
objection by the girls to returning to Canada.
The text states: FN 06
“The judicial and statutory authorities will
take into consideration the information
pertaining to the child’s background, as
produced by the central authority or any other
authorized body in the child’s usual place of
residence”.
3. I will deal with the first defense, which is essentially
judicial, and then with the second defense, giving at the
same time the judicial and factual details needed for its
debate. Finally, I will deal with the other two defenses
together, while stating the legal background to implement
both. Then I will examine the evidence in accordance with
the legal system.
The references quoted will naturally be foreign as well,
since we are dealing with a law concerning international
relations. As such, they warrant uniform or similar
methods of interpretation in their application in the
various countries bound by The Hague Treaty. In any event,
it is important to insist on uniformity in the method of
interpretation and application in the various countries.
In this respect, it was determined in the High Court in
B.SH.A 1648/92 Turne v. Meshulam, verdict not yet
published, by the Honorable Justice Netanyahu (page 5). FN
07 “When we speak of an international treaty which creates
mutuality among the bound countries, great importance is
placed on conformity in interpreting (except if the
internal legislation instructs otherwise)”.
Thus the basis for the decision of the Honorable Justice
Netanyahu is international reports and others on the
interpretation and application of the Treaty, and on
British case law excerpt, i.e. C.v.C. (Abduction: Rights
of Custody), (1989) 1 W L R 654, 663-4 per Lord Donaldson,
M.R. (1989) 2 All ER 465, FN 08 and as was determined in a
verdict from New Jersey in the appeals division on 18 Sep
92 in the case of Fred Trahan v. Michelle Duquettee. FN 09
A certified printout of the verdict was supplied by the
appellant’s representative for the file.
“Although we are not bound by the decisions of
courts in other states, or by the manner in
which a Treaty has been interpreted by other
nations…a proper regard for prompting
uniformity of approach in addressing a Treaty
of this kind requires that the views of other
courts receive respectful attention: (page 5 of
the verdict printout).”
Part of the foreign references have gained official
publication, and part of them were submitted in an
unofficial reprint provided by the appellant’s
representative, attorney Freedman, who received them from
a collection of attorney William M. Hilton of Santa Clara,
California, who gathers international articles, verdicts
and reports from around the world pertaining to The Hague
Treaty and supplies this kind of material to whoever asks
for it. This material also exists in the Jerusalem
Ministry of Justice. Reprints of all verdicts to be quoted
later and which have not been published, including those
of attorney Hilton, were submitted for this case.
4. Relevance of The Hague Treaty
The respondent removed the three girls from Quebec, Canada
on 05 Mar 92 and transported them to Israel.
The Hague Treaty Law was published and became valid on 29
May 91. On 02 Apr 92, “an announcement was published
regarding countries with whom the State of Israel is bound
in the Treaty”, signed by the foreign minister (and it was
published by mistake in I.P. 3990 that it had been signed
by the secretary of state), as stipulated by Chapter 3 of
The Hague Treaty. The announcement includes Canada as a
country bound to Israel in The Hague Treaty. As determined
in B.SH.A 164-8/92, Turna v. Meshulam.
“The required publication in Chapter 3 is not
essential. It is not this which determined when
the law should take effect. It is not
conditional upon its taking effect. The
publication is only explanatory. It is the
method the law determined to inform the public
regarding the countries with which Israel is
connected in the Treaty”.
With the law becoming valid on 29 May 91 (in B.SH.A
1648/92) and the girls being removed on 5 Mar 92, it seems
clear that the law applies to this incident.
5. However, attorney Freedman produced a reprint of the
Canadian Law which applies in Quebec, Canada to The Hague
Treaty in Israel. An Act Respecting the Civil Aspects of
International and interprovincial Child Abduction (Chapter
A – 23.01).
According to Chapter 41 in the same law, an announcement
is required indicating the name of every country in which
every Quebec resident will be able to enjoy procedures
similar to those regarding the law. The announcement
should be published in the official newspaper indicating
the validity of the law in each country.
Attorney Freedman has taken the trouble to obtain written
declaration from the clerk of the central authority in
Quebec, Canada who declared in writing on 25 Sep 92 that
all the chapters of the Canadian Law mentioned above were
in effect on 01 Jan 85, the law had not been amended since
it was enacted, all chapters of the law were in effect on
04 Mar 92 (the eve of the girls abduction) and since 01
Dec 91, Israel was among the countries in which the
citizens of Quebec could benefit from procedures similar
to those of the law. In other words, as of that day,
Quebec saw itself bound with Israel according to The Hague
Treaty. This declaration was published in Quebec’s
official Gazette on 15 Apr 92, also attached, legally
certified and translated from French to Hebrew.
A declaration and verification as aforesaid are acceptable
and sufficient proof of the above-mentioned fact (chapters
7(h) and 30 in The Hague Treaty).
Confirmation was also supplied by Dr. Hayim Goldwater of
the Ministry of Justice in Israel, the assistant attorney
general in matters of private international law, that the
above-mentioned Canadian Law (copy attached) was filed in
the Ministry of Justice a of 01 Jun 92. It is true that
the Canadian publication of the law and its relevance to
Israel was published only on 15 Apr 92 (the children were
removed before, on 05 Mar 92), but as decided in B.SH.A
1648/92 and quoted above, the date of publication should
not be seen as the start of validity, especially where it
is specified that the law takes effect with regard to
Israel as of 01 Dec 91.
6. It is therefore clear and beyond any doubt that the law of
The Hague Treaty is valid in this dispute, and it was
valid and encompassed abduction cases before the date on
which the girls were transferred from Canada to Israel,
and Canada, including the province of Quebec, and Israel
are within the scope of “related states” as per the Hague
Treaty for the purposes of this case.
The Father’s Custody Rights – The Appellant
Legal Conditions – General
7. The definition of custody rights in Chapter 5 quoted in
Paragraph 2 above is special for the purposes of applying
the Treaty and different from any definition of custody in
other contexts and that in the internal laws of the
various countries (C.v C. quoted in Paragraph 3 above on
p. 658, 662 and 663); the phrase “especially the right to
determine the child’s place of residence” was not
mentioned without cause. Moreover, according to Chapter 3,
which defines “unlawful removal”, the Treaty refers to the
violation of custody rights “granted to a person, an
institution or any other body, whether together or
separately”, meaning that the right does not have to apply
to the father only.
In the case of Re J. (minor; abduction; ward of court)
(1989) 3 All E.R. 590, FN10 the minor was considered a
WARD OF COURT, meaning under the court’s supervision.
The meaning of this concept was explained in the verdict,
and since the removal of the girl from England required
approval from a court, it was determined that the custody
rights also belonged to the court. This is why, in spite
of the fact that the girl was under the mother’s care and
control, i.e. in her “practical custody” (as per justice
Landau in a minority opinion in B.D.N. 23/72 P.D 27 (2)
197, 203), and the father had visiting rights only each
week during the day, the mother was still not authorized
to remove the girl from England to the U.S.A. the removal
being determined as unlawful. While the parties assumed
that the father did not have custody rights, he actually
did have them, together with the court (page 596 opposite
the letter F-G). For that reason, the court found it
necessary to declare that there was an unlawful removal
according to the Treaty. The central British Authority
agreed to demand the return of the girl to the proper
authorities in the U.S.
The need for agreement by a person or body to determine a
minor’s place of residency, or leaving the country with a
minor, turns that person or body into the holder of
“custody rights”.
8. In addition, a person who actually demands the return of
the minor who was unlawfully removed does not have to be
in the country according to the law, and according to the
Treaty, he himself has guardianship rights to initiate
proceedings to return a minor, if various required
elements are met. “Any person, institution or any other
body claiming that the child was removed or not returned
in violation of the custody rights has the right to
approach the central authority of the child’s usual place
of residence, or the central authority of any other
related country, and ask for assistance in returning the
child”.
In this manner, in the story of Re J. mentioned above, the
central British authority intended to appeal in the U.S.A.
for the return of the child owing to the mother’s appeal
to the authority to act, and since the child was in the
court’s custody too, as stated above.
There is another Australian precedent Gsponer v Johnstone
(1988) 12 Fam L.R. 755. FN11
(The publication is in a series of Australia verdicts and
a reprint from attorney Hilton’s collection is supplied
for the file). The central authority in Australia turned
to the court in Australia to return minors to Switzerland
in answer to an appeal of the central authorities in
Switzerland, who acted on behalf of the father’s claim
that the children were removed from him. The parties in
the proceeding in Australia were the central authority in
Australia, whose representative was Mr. Peter Johnston,
and the respondent was the mother, Mrs. Gsponer. The
father and the Swiss authority were not formal parties in
the trial and the father did not appear at all in the
Australian process. His interests were represented by Mr.
Johnston. (Incidentally, in Australian law there are
changes in the text of the Treaty, as already mentioned
and as quoted in the precedent. In spite of this, the
decision was handed down, but this has no bearing on this
case).
9. To complete the case and the description of the legal
background, reference must be made to Paragraph 19(a) of
the Treaty which states.
“In spite of the tenor of the previous paragraph, the
legal or administrative authority of the country requested
does not have to order the return of the child if the
person, institution, or any other body objecting to his
return have proved that: (a) the person, institution or
other body responsible for care of the child’s body did
not actively exercise the rights of custody at the time of
removal or failure to return the child” meaning that
somebody in the country from which the child was removed
and responsible for the child’s physical well being was
supposed to actually activate custody rights.
In the case of Re J. that case was the basis on which the
court gave its decision to lace the girl under the court’s
supervision as a WARD OF COURT, although physically, the
girl was held by the mother, “the abductor”. But the court
was empowered and authorized to activate custody rights
(as explained in Paragraph S of the Treaty) and used those
powers as a way to observe the law which forbids the
removal of the girl abroad without her permission, such
permission not having been given.
10. We will now continue to examine the relevant facts to
check whether there was a “custodian” in Canada, a single
appellant or more, as is possible according to Paragraph 3
(b) in the Treaty.
Background To The Application
11. The appellant, a Jew, is a resident and citizen of Canada.
The respondent, who is a convert, was born in Los Angeles,
U.S.A. She moved to Canada and became a citizen and
resident of Canada as well as being an American Citizen.
Her first marriage was to a French Canadian with whom she
had a daughter Miriam. After 10 years of marriage she
divorced her husband and married the appellant. The
parties married in a religious and civil ceremony in
Canada, and the appellant even adopted Miriam, who is 14
today, but not relevant to this discussion.
In the course of their marriage, three daughters were born
to the parties, who are the subject of this discussion:
R. on 09 Apr 81, S. N. on 19 Sep 82 and R. L. on 28 Aug 85.
The parties lived in Montreal, Quebec,
Canada and led an orthodox religious life. It was
explained to me that the level of orthodoxy was the same
as that of those in AGUDAT ISRAEL in Israeli terms.
Unfortunately, the marriage did not work out and finally,
the couple divorced.
12. At first, there was a religious divorce in a Rabbinical
court when the parties signed an agreement on 21 May 91
entitled “Custody Arrangement and Visitation Rights”
(translation from English).
In this agreement, among other things, it was determined
that custody of the girls would be the mother’s (paragraph
1), the father would take the girls every second weekend
from Friday afternoon to Sunday evening at 8:30 p.m.
throughout the school year (Paragraph 3). During the week
in the school year, the father could contact the children
according to prior arrangements made with the mother
(Paragraph 4): all the Jewish holidays would be evenly
divided in a fair manner, and in case of a dispute between
the parties, a Rabbi would be approached for advice
(Paragraph 5) summer vacations would be evenly divided in
a fair manner, and in case of a dispute between the
parties, a Rabbi would be approached for advice (Paragraph
6).
A paragraph of special relevance to this case is no. 8
which states (in translation).
“Each party requires the other’s confirmation to every
vacation, major change or any unusual event which may be
controversial according to Jewish law”.
The agreement was to take effect with the giving of the
GET (Jewish divorce document) (Paragraph 10) and there is
no dispute as to the fact that the GET was given.
The last paragraph no. 11 states that this agreement is
subject to change by a court of law if circumstances
warrant. (It is clear that the reference is to a
Rabbinical court owing to the use of the words “BEIT DIN”
and not “BEIT MISHPAT”).
13. In addition to a religious divorce, a civil
divorce was granted by a Canadian court in Montreal,
Quebec.
The Verdict of the civil divorce was given on 04 Oct 91,
as well as a certified agreement including the following
instructions: the mother will continue to receive legal
and physical custody of the girls who were, at that time,
in her custody (Paragraph 1); the father’s rights to visit
and access would be established on an amicable basis
between the parties and if lacking, the parties would
consult a rabbi (Paragraph 4).
The appellant claims that the “amicable basis” is the same
agreement as the one made for custody and visitation
rights of 21 May 91, which was reached in the Rabbinical
court. I tend to accept this version in view of the
following; both parties observe the Torah and mitzvot and
the attachment to rabbis is strong for both of them.
Indeed, they both continue to consult rabbis regarding
their relationships with the girls.
Rabbi Irwin Gimple, one of the members of the Rabbinical
court, signed a document dated 15 Apr 92 presented and
certified by the appellant in his testimony (pp.9-10). In
it, Rabbi Gimple confirms that the “amicable basis” in the
civil divorce verdict refers to and is the same as the
agreement established by the Rabbinical court on 21 May
91.
Also, in the agreement attached to the civil verdict there
are supportive elements to the existence of previous
situation which the parties continued to observe, as per
the wording of Paragraph 1 of the civil agreement
mentioned above, that the respondent “will continue to
receive” custody of the girls “already” in her charge.
The appellant has testified (see page 11) and I believe
him, that until February 1992, when a change took place
(which I will deal with later) visiting rights existed
according to the agreement reached by the Rabbinical court
on 21 May 91.
The journeys to Israel and the respondent’s wish to
emigrate to Israel with the girls since August 1991 caused
the two parties to approach the Rabbis.
In her testimony (page 20), the respondent mentioned that
she had asked permission from her Rabbi to visit Israel,
which she did in August 1991. Since the visit involved
expenses, she was worried that she would not have enough
money for her daughters. Since the costs were only for
herself, she thought it right to consult a Rabbi.
She therefore approached the Chief Rabbi of Montreal,
Rabbi Menachem Hirshprung, and asked for his intervention.
He refused to make a compromise between the parties
(Paragraph 12 of the respondent’s written declaration).
The appellant in his testimony, mentioned that he, too
approached the Rabbis in the Rabbinical court (pp. 11-19)
about whether the respondent should be allowed to move to
Israel with the girls. He asked the respondent to join in
those discussions, but she refused. The Rabbis refused to
approve the move to Israel owing to the absence of an
agreement by the appellant (See Rabbi Gimple’s document).
Both parties acted on the basis of the agreement of 21 May
91 and the respondent has no other version. Moreover, it
was clear to both parties that the move to Israel with the
girls was not possible, and forbidden without the
appellant’s agreement, otherwise the respondent would not
have appealed to the appellant so many times for his
consent (pp. 10-11 of his testimony). All this behaviour
was in accord with the civil verdict agreement in which an
“amicable basis” was required for establishing ties
between the father and his daughters. I do not see any
flaw in the “amicable basis” already in existence prior to
the verdict given, and which, as mentioned above, referred
to a condition existing in the past.
Actually, the appellant consented to the transfer to
Israel of the respondent and her daughter Miriam only,
while totally refusing the same thing for the three girls.
The appellant’s refusal was notified to the “Aliya”
(immigration) center in Montreal (page 11 in the
appellant’s testimony).
14. When the respondent did not stop voicing her wish to
emigrate to Israel with the girls, creating increasing
tension in the relationship between the appellant and his
daughters, the appellant approached the court in Montreal
on 20 Feb 92 asking to transfer all three girls to his
custody (page 11 in the appellant’s testimony), or instead
to determine regular and clearly spelled out visitation
rights.
In application verified in a written declaration of the
appellant to the Canadian court (copies of which were
presented as an addendum to the appellant’s declaration),
the appellant complained that for two weeks, the
respondent has refused him any contact with the girls
except for a few instances and for a couple of hours,
claiming that the girls refused to come to him on his
weekend visits with them.
The appellant also declared that since the divorce
judgment on 04 Oct 91, the respondent had voiced her
desire to move to Israel and was “brain washing” the girls
to hate the appellant due to his refusal to agree to their
move to Israel, directly or via her daughter Miriam.
In the application and the declaration, there are
additional facts about the negative behaviour of the
respondent and her threats, and about the appellant’s
signing an agreement for her and Miriam to move to Israel;
and that the three other girls should fall under his
custody (Paragraph 15 of the application). He also
claimed, with supporting facts, why it would be to the
girls benefit to be under his custody owing to his
situation with the respondent.
The respondent confirmed her wish to move to Israel and
that the girls were also enthusiastic about the idea; but
she denied influencing them to hate their father and had
no objection to the father’s access to the girls. On the
other hand she felt that she was the most suitable
custodian.
When this declaration was signed, the respondent already
had the tickets to Israel for herself and the four girls
in her possession, and on the same day, they all flew from
Canada, via England to Israel (see her testimony on page
20). In her words, she had to fly in order not to miss the
plane (in England)…(Page 22).
After the appellant discovered that the respondent and
their daughters had disappeared, he presented another
declaration to the Canadian court on 11 Mar 92 reporting
the disappearance of the respondent and the girls, and
voiced his fear that they had moved to Israel without his
consent.
In accordance with this, on 25 Mar 92 the Montreal court
ruled that custody of the three girls be transferred to
the appellant.
The Montreal police gave the appellant a declaration dated
02 Jun 92 stating that the respondent had disobeyed
criminal law paragraph 282 and that a warrant for her
arrest had been issued.
15. In Canadian law in Quebec, as quoted in Paragraph 5 above,
Chapter 3 defined unlawful removal more or less in the
spirit of The Hague Treaty. Paragraph 4 subsequently
states:
“In addition to the cases contemplated in
Section 3, the removal or the retention of a
child is considered wrongful if it occurs when
proceedings for determining or modifying the
rights of custody have been introduced in
Quebec or in the designated State where the
child was habitually resident, and removal or
retention might prevent execution of the
decision to be rendered”.
The petition for custody transfer was filed on 20 Feb 92
prior to the departure from Canada of the respondent and
the girls on 5 Mar 92. As of that day, the removal of the
girls was forbidden by law as well.
Legal Implications
16. There is no doubt that, from the general legal point of
view, even without The Hague Treaty Law, an “abduction” by
the respondent took place in this case, even though the
appellant had no custody rights, only visitation rights
(B.SH.A. 1648/92 Turne v. Meshulam on page 3 of the
verdict; High Court of Justice 836/86 Bechar v. Gail, P.D.
Vol. 41(3) PP-701, 704-; D.N. 23/72 Goldestein v.
Goldestein, Vol. 27(2)pp. 197, 209-210, 211, 212-213,
216).
The respondent’s deception and cunning regarding the
appellant and the Canadian authorities are particularly
evident in this case-the respondent’s signature on a
declaration on 05 Mar 92 in response to the appellant’s
demand to obtain custody of his daughters, and her
declarations that she had no objections to his visits.
Immediately after signing the declaration and on the same
day, she moved to Israel with the girls, clearly knowing
that the appellant objected to this and was asking for
custody. Her desire was to obstruct the procedure from a
practical point of view.
The ruling of The Hague Treaty does not detract from the
rights of the claim that existed prior to its commencement
as explained in Paragraph 29 of the Treaty.
What is limited in The Hague Treaty is the extent of the
defenses against the legal petition return abducted
children (B.SH.A. 1648/92 Turne v. Meshulam, page 12, end
of Section 9).
17. However, enough conditions in The Hague Treaty were met in
Canada to consider “custody rights” in the sense of the
Treaty as being violated by the respondent, and the
appellant is the one hurt by the situation.
a. According to the custody arrangement and visitation
rights as set out in their agreement dated 21 May 91
it was determined very clearly that any major change
or unusual event required the consent of both parties.
This condition was actually accepted in an agreement
included in the civil divorce judgment, failing which
the intervention of a third party would be required,
that of a Rabbi. It is clear that, not only did the
appellant not agree, but a Rabbi also failed to agree
to the removal of the children.
b. From the day the application was presented for a
change in custody on 20 Feb 92, it was prohibited by
law to remove the girls from Canada. The respondent’s
right was taken away from her, even if she had
possessed such a right in the past and even partially
(and I do not maintain that she did have such rights
in the past).
In order to remove the girls from Canada, the consent
of the court or the father’s consent was required. Had
the father so wished, he could have asked to cancel
this procedure.
c. Therefore, the right to refuse removal of the girls
from Canada belonged to the appellant, whether it was
his by itself or combined with other additional
elements (a Rabbi or court of law). This alone is
enough to be considered a custody right which was
violated in light of the conditions in Paragraph 3 (a)
and (b) of The Hague Treaty.
From this viewpoint, there is similarity to the case
of Re J. quoted in Chapter 7 above, in which the
prohibition of removal from the country was a result
of a legal condition by which the girl was a Ward of
Court.
The need for the appellant’s consent to take the girls
out of Canada is what makes him the possessor of
custody rights, according the The Hague Treaty C.v C.,
quoted in Paragraph 3 above on pp. 654, 658, 662 and
663. See also B.SH.A. 164-8/92 Turne v Meshulam
d. The appellant made use of his custody rights, the
right to determine the place of residence, by refusing
to give his consent on several occasions to remove the
children to Israel and by requesting the court for a
transfer of custody to him. If the girls had not been
moved, he would have received sole custody in
accordance with the Canadian judgment dated 25 Mar 92.
Defense of the psychological damage of returning the girls and
their refusal to return to Canada
18. I have chosen to deal with both defenses at the same time
since they are inter-connected.
19. During the court case, a supporting social services review
and opinion by Nurit Levy, an expert in family guidance
and care, was submitted showing that the girls strongly
refuse to return to Canada, especially the older two,
Rivka and Sarah (11 and 10 respectively).
All the girls were very close to each other and to their
mother. The respondent and the girls live in Safed, they
receive support from various religious circles. Mrs. Levy
thinks that great harm will befall the girls if they are
forced to return to Canada and that they should not be
separated.
Of the two parents, Mrs. Levy thinks that the mother is
more suitable to raise the girls and keep them, and that
the father, in spite of being warm and loving, lacks the
ability to raise them.
Before undertaking a more precise analysis of the facts,
we should examine the legal case. What is the accepted
interpretation of the defenses according to Chapter 13(b)
in The Hague Treaty. After this clarification, the facts
can be analysed in a more relevant and suitable fashion.
The general commentary and general application of the defenses as
per Chapter 13(b) in The Hague Treaty
20. In any event, considerations “of the child’s best
interest” in the general sense of the term are not
applicable in these proceedings.
“The child’s best interest” in connection with this law is
seriously deliberated, but only in the way in which the
child is harmed by the abduction. The purpose of the
Treaty is to defend children from the harmful effects of
their abduction and to return them as soon as possible to
their usual place of residence.
The above principles are accepted in the literature and
the case law regarding the Treaty without any difference
of legal opinion. See B.SH.A. 1648/92 Turne v Meshulam,
Section 9, C.v C. (Section 3 above) pp. 654, 656, 667 Re A
(Minor) (1988) 1 F L R 365, 367, -8 C.A. Gsponer v.
Johnston (1988) (Section 6 above)
The latest verdict quotes an additional British judgment
on page 14 which was not published in the same matter: Re
Corie (a mlnor) 1988 per Latey J.
Also, see the verdict of the appeal level in New Jersey,
U.S.A. quoted in Section 3 above. Tahan v Duquettee:
Responsibility for the child’s welfare in the usual
meaning of the word is mainly the responsibility of the
legal court cases in the country to which the child will
be returned, and we must assume that here, the court will
do its utmost to minimize harm to the child: C.v.C.
(section 3 above) page 664. Gsponer v. Johnston (1988), in
Australia, page 17 of the reprint Barlow v. Barlow, a 1991
Swiss judgment taken to appeal. A print out of this from
the collection of attorney Hilton was presented in this
case. FN12
The reprint of attorney Hilton’s 1988 Swiss judgment from
a (first degree) Swiss court, Korowin v Korowin, FN13 was
presented. In this case it was decided to return a two
year old boy to his father (see pp.5, 8).
21. Since the aim of The Hague Treaty is the return of
abducted children, the commentary on defenses, according
to Sections 12, 13 and 20 of the Treaty, is restrictive.
The court will therefore hesitate greatly before claiming
protection according to Section 13. Furthermore, even if a
defense exists, the court must still reason whether to
return the children or not. The burden of proof of the
defense falls on the abducting parent, and the burden is
heavy.
As references .for all the above, please note: Re Evans
1988 (CA) and Re A (1988) 1 F L R 365, 369, quoted in the
case of Gsponer v Johnstone in Australia, page 14, Barlow
v Barlow, Switzerland, 1991, where it was determined that
the damage has to be so extreme that the return would be
impossible pp. 4, 5.
In the same case, three children (ages 3, 2 and 1) were
abducted by the mother, the youngest being a year old and
not yet weaned from its mother’s milk. The court of appeal
determined that the child could be bottle-fed should the
mother refuse to return, and assistance could be obtained
from day-care centers where many Swiss children are kept.
Therefore it was nothing out of the ordinary. Staying at a
day-care center for a few hours could not be considered as
extreme and damage in accordance with Section 13(b) and to
the detriment of the father’s custody, from whom the
children were abducted. That is why the court agreed to an
appeal of the judgment of the first instance, where a
verdict of returning the children was rejected.
An additional verdict, in Korowin v. Korowin, also Swiss,
in 1992, examined a claim of damage done to a 3-year-old,
contrary to an expert’s opinion, and it was determined
that the damage had to be significant, as did the reasons
for the return. Tahan v. Duquettee, a judgment from 1992,
an appeal case in New Jersey. U.S.A. (Section 3 above ).
Please also note the interpretative report of Professor
Elise Perez-Vera of the Treaty, published by the Centre of
International Law in The Hague, in Sections 28-35 and 113,
and in an article summerizing judgments in the U.S.,
England and Australia reviewed in this verdict too:
Carolina LeGette International Child Abduction and The
Hague Convention: Emerging Practice and interpretation of
the Discretionary Exception 25 Texas International Law
Journal 287, 297, 303 (1990).
22. Section 13(b) states:
“There is a grave risk that the return of a
child will expose him/her to physical or
psychological harm, or will otherwise place the
child in an intolerable situation”.
a. The words “hashash hamour” are translation (in my
opinion, not correctly) of the words “grave risk”. In
my opinion, a more suitable translation would be
“sikun hamour” since the graveness relates to the
harm, i.e. the grave risk is to the harm or damage and
not to the concern or the probability that harm will
be done. This is the understanding of all interpreters
and precedents, and that is how it was actually
explained in B.SH.A 164-8/92, so that although the
translator used the word “hashash” and not the word
“sikun”, it was explained as if the word was “risk”.
Since we are talking about an international Treaty and
an applicable convention (See Section 3 above), it is
important to be precise in the translation, otherwise
the Treaty will be applied differently in each
country. Nevertheless, a country is permitted to
establish various legal regulations different from
those of the Treaty (as was done in same countries);
but quoting the Treaty has to be exact and uniform.
b. From the language of this section, three potentially
damaging positions emerge:
Physical damage
Psychological damage
Otherwise placing the child in an intolerable
situation.
The above mentioned conclusions were drawn from the
following references, among others:
C.v C. (Section 3 above), page 664
Re A (a minor) (abduction) (1988) 1 F L R 36 (CA) pp.
369-371 (judgment quoted at length in C.v C. and other
references in England and Australia).
Gsponer v Johnstone (1988) of Australia (Section 8 above),
page 15 in a submitted printout.
Barlow v Barlow of Switzerland, pp.2-3.
The work “intolerable” testifies to a very high degree of
severity. The language used is superlative to distinguish
it from other words which could have been used, such an
unacceptable, unsatisfactory or unsuitable.
23. In every abduction, damage is done, and in every return,
damage is caused. This stems from the dramatic experience
of a sharp uprooting from one place and movement to
another. But these are distinct damages and cannot
themselves be taken into consideration. When dealing in
damages resulting from the return of children, damage
resulting from the return of children, more is needed.
C.V.C. (Section 3 above), page 664. Navarro v Bullock FN
14a 1989 California decision. A printout from attorney
Hilton’s collection was supplied for the file.
24. The purpose of the Treaty is not to make it possible for a
parent to profit from the abduction, nor to cause
psychological damage, and then to rely on it and delay the
return. The delay defense according to Section 13(b), will
for the purpose of the Treaty, which is not a reasonable
application. Therefore, severe and significant damage is
required. C.v C. (Section 3 above), page 661. Gsponer v
Johnstone (1988) (Section 8 above), page 18 in a printout
which relies in this matter on the Court of Appeals in
England in the case of Re Evans. FN15 Korowin v
Korowin, the 1991 Swiss case. Page 8 of the printout
mentions that the case depends on the abducting mother
whether the children will be harmed, not upon the father
demanding their return. She could return with the children
and prevent them being harmed by being removed from her.
The Treaty did not refer to this kind of interpretation in
Section 13(b).
25. The damage in question would not result from separation
from the abductor, but rather, as a result of returning to
the country from which the child was abducted. C.v C.
(Section 3 above), page 654 on page 661 opposite the
letter C.
It is therefore necessary to examine the damages and risks
to the child in the country to which the application for
return applies. That is why the end of Section 13(b)
exists, which allows the child to be assisted by
background material supplied by the central authority of
the said country. Tahan v Duquettee, New Jersey.
26. Within the framework of consideration, weight must be
given to questioning the abductor’s motives not to return.
Is the refusal based on her own motives alone? If so the
entire abduction was caused by the abductor’s own selfish
reasons. Her reasons and arguments are not relevant nor
are her damages due to her return with the children. C.v
C. (Section 3 above), pp. 654, 656, 661.
Thus, the court in the case of Gsponer v Johnstone
(Section 8 above), page 16 in the Australian printout of
1988, did not refer to the abducting mother’s claims that
she was abused by her husband, that her husband also
abused the child and was not suited to be a custodian.
These are general complaints. They are insufficient and
should be discussed in a custody case, but not according
to the law in question (page 18 in the judgment printout).
In the 1992 Swiss case of Korowin v Korowin, the court
rejected the mother’s claims that she wanted to improve
her living conditions and to improve her legal chances of
divorce. Conditions must exist making it impossible for
the return of the mother to her country of origin, with
the child (page 7 of the printout). If the mother really
cared, she could return with the 2-year-old child to his
country of origin, the U.S.A. (page 8).
27. In most of the precedents quoted above, an expert was
appointed to examine the expected damage to the children
resulting from their possible return. Indeed, the experts
specified damages resulting from the removal from the
adbucting parent. But the courts examined the facts and
came to different conclusions from those of the experts,
deciding that the damages determined by the experts were
not serious enough nor relevant to the requirements of
Section 13(b) of the Treaty. The courts did not see
themselves bound by the opinion of the experts. Moreover
there are cases where the courts have reacted contrarily
to the experts opinions.
See, for instance: (1) Navarro v. Bullock, a 1989
California decision (Paragraph 23 above) where the
psychologist determined that the 12 year-old girl was
psychologically fragile and would be permanently harmed by
removal from her mother.
The 10 year old boy also kidnapped would be harmed less,
but harmed nevertheless.
The court thought that the damages brought as proof were
not severe enough. They were subject to too much
speculation by denying the return from the U.S.A. to Spain
and the father. The court did not deny the possibility of
existing damages resulting from the mother’s action.
(ii) The 1991 Swiss case of Barlow v. Barlow (Paragraph 20
above).
28. As to the wish of the children and their refusal, the
courts examined why they refused, were they afraid of
something in the country of origin, were they afraid of
the appellant’s parents, or perhaps, wished to stay or
have contact with the abducting parent?
When the reasons were not significant enough nor connected
to fear of the appellant, or the child was too young, the
claim of the defense was denied, as long as it was based
on the children’s refusal to return.
The court also examined brainwashing or strong influence
by the mother, i.e. pressure from the mother would make
questionable the expressed refusal of the children to
return.
For example, in Navarro v. Bullock (Paragraph 23 above),
the children, aged 12 and 10 could not explain their
reluctance to return to their father. They simply
preferred that he leave them alone and go away. In fact,
the children did not strongly object to returning to their
father; they were more worried about returning to Spain.
The court examined the children’s past with their father
in Spain and found that their father had kept them in
Spain on different occasions, he was considered
trustworthy, caring and law-abiding, and the mother had
misled the children into believing that they had left
Spain legally. In the meantime, they made friends in
U.S.A.
The court determined that the reasons for the children not
returning to Spain were not strong enough and had been
influenced by the mother’s brainwashing. In light of the
evidence, the court was not convinced that the children
(aged 10 and 12) were mature or old enough to voice a
significant opinion in court.
In Tahan v. Duquettee, New Jersey, 1992, a child of 9 was
discussed, as well as a psychologist’s opinion of the
boy’s refusal to return to his mother in Quebec, Canada,
after he was kidnapped by his father. Owing to that
opinion, the court though that the child was too young for
significance to be attached to his wish.
Background To The Defense Of Paragraph 13(b) And Its Analysis
29. I will return to the facts which I started to detail
generally in Section 19. I can state right now that I have
no reason to say anything against the observations of the
social worker and Mrs. Nurit Levy, but I do not think that
their conclusions are compatible with the Treaty and its
interpretations, including those of the legal authorities
in the various countries, as described above.
30. As soon as the application was lodged, I ordered efforts
to locate the mother and daughters with the help of the
Israeli police and the social worker appointed by the Head
Social Worker (See Paragraphs 4 and 7 of The Hague
Treaty). I determined that as many meetings as possible
should take place on a daily basis between the father and
daughters as soon as they were found. The mother and
daughters were located quickly in Safed, and social worker
Hanna Levy of Safed was appointed to the case.
31. Mrs. Levy’s report of 30 Jun 92, two weeks after the
appellant filed the request with the court, describes the
first meetings between the appellant and his daughters.
The following are descriptions taken from the report to
illustrate the facts in a situation full of surprises and
lack of foresight regarding the appearance of the father
and the measures taken in the legal proceeding. This is
how things should be read and understood.
I have underlined the words and lines which are important
in analyzing the facts and reaching conclusions. The
emphasis is not in the original.
“The first visit took place under the auspices of the
Safed police. The three girls, at home, found the
situation oppressive and sad. First, the girls and their
mother were encouraged to speak, but they were speechless.
There was no desire to cooperate. However, this quickly
disappeared…”
Since there was no fear that the mother would hide the
girls, they were left in her custody. The following is
description of the meetings which followed.
“The first visit between the father and daughters was
difficult for all. But soon, a conversation began between
them. The father had brought presents for the girls from
Canada. They were happy when they received them. The
mother said almost nothing to Mr. F. . After a while,
Mr. F. asked to remain alone with the girls, and
stayed with them for about one hour in my room”.
“The oldest daughter, Rivka, left the room a few times and
went to her mother, her face red from crying and
excitement. The meeting ended and it was decided to meet
the next day”.
“On the second day, 11-year-old Rivka asked me to stay in
the room with them during the meeting. With the father’s
agreement, I stayed in the room and observed the meeting,
which was very sad. Rivka and Sarah were very harsh
towards him, crying most of the time, and continually
asking him to let them stay in Israel with their mother”.
They claimed that they were not happy in Canada, feeling
different from everyone else. They said they were
miserable, feeling like “paupers among the rich”, while in
Israel they were happy and contented, feeling like
“paupers among the poor”. They had friends and felt more
free. They asked their father to come and live in Israel
so that they could meet. Rachel hardly made a sound.
First, she sat quietly, and after her father called her,
she sat on his lap, and that is how the talk was
conducted…”
“At the next meeting, Rivka and Naomi (Sarah) refused to
meet outside the room, claiming that it was hot outside.
They agreed that the meeting should be conducted as
before. Towards the end of the meeting, they agreed to go
out to the nearby pedestrian walk, after which they
returned to the office. Everyone cooperated. The
atmosphere in the room was sometimes extremely heavy, but
the father tried with all his strength to create a
comfortable and good atmosphere. He brought candies to the
meeting and did not pressure the girls when they disagreed
with his plans. He behaved with restraint…”
“To conclude, the meetings between father and daughters
were conducted in a good atmosphere in view of the
situation, mostly due to the cooperation of the parents. I
was impressed with the conversation between the father and
the daughters. Rivka and Sarah expressed their wish to
stay in Israel with their mother at every meeting. Rachel
did not speak at all, even when encouraged to do so. In my
opinion, the contact was renewed between Rivka and Sarah
and their father, but they kept a certain distance, and
reminded him constantly that they enjoyed living in
Israel.
After that, the social worker described how the girls
became acclimatized to the educational institutions. (This
is not relevant owing to the short period spent in Israel
and the directives in Paragraph 12 of The Hague Treaty).
She stated that Rivka, Sarah and Rachel were very bright,
cognitive and advanced beyond their years. (However, since
she generalized about all three in spite of the age
difference, 11, 10 and 7; in my opinion, there is not much
value in terms of paragraph 13(b) of the Treaty concerning
the girls opinion).
The social worker was under the impression that “a heavy
imprint which cannot be erased was left on the girls from
the unhappy period of their parents marriage “.
As to her general impression of the girls, the social
worker wrote:
“It should be noted that Rivka and Sarah are showing
determination and know how to express themselves. They do
not hesitate to do so. They are determined to remain with
their mother in Israel. Rachel, as mentioned before, does
not express any opinion”.
32. The above describes the situation over two weeks, from the
day the application was presented to the court. In
understanding the situation, the surprise and confusion of
the meetings themselves should not be overlooked. The
respondent had left Canada with the girls like thieves in
the night, keeping it a complete secret from the father.
It can now be understood why the mother canceled meetings
with the father in February 1992, probably to keep her
secret. From the meetings in Safed, a certain openness
emerged between the daughters and the father, which is why
there was anxiety that the secret would be revealed. It is
also clear that the girls were privy to the secret, an act
which was fundamentally wrong, so that they were
disappointed and shocked when it was revealed to them that
it was an inappropriate action which their mother had
taken. It was morally reprehensible and damaging to the
mother’s reputation and credibility. The situation was
definitely difficult, as the social worker described,
since nobody can remain unmoved before the tears of little
children. The crying was also a protest against very
strong helplessness and embarrassment after some
adjustment to the escape. What happened was a kind of
“bond between thieves in the night” with the mother.
The father was not seen to flinch. On the contrary, there
was positive contact between the father and the daughters
and the ability to converse (although agreement was not
reached it is not always a must between parents and
children).
Also, not to be forgotten is the fact that in the first
period in Safed, the girls and mother gained waves of
sympathy due to their “aliya (immigration) to Israel” from
the diaspora and coming closer to Judaism (as proven later
by the expert Nurit Levy). It was a period of euphoria in
a way, but a false one. In reality, there was no
acclimatization. The social worker reported, as stated by
the respondent. that the mother and the girls were living
off savings and some odd jobs. The girls defined
themselves as “poor among paupers”. Of course, it is
better to have a dry piece of bread and peace and quiet
than a home full of sacrifices and disputes. But quarrels
between parents are no reason to uproot children from a
parent by abducting them and transporting them across the
ocean.
The older girls desire, set against the background
detailed here, is easy to understand. The desire may be
clear, but it is not mature and realistic, as prescribed
in Paragraph 13(b) of the Treaty. The girls wanted the
father to immigrate to Israel so that they could meet. But
that possibility could also occur with the return of the
mother and daughters (or the daughters alone) to Canada.
No serious complaints against the return were heard,
except for some feelings of inferiority due to the
family’s financial situation and the unpleasant feeling of
being “poor amongst the rich”.
Nothing was verified regarding what might have been
expected from the respondent’s declaration about the girls
reservations towards their father in Canada. There was no
reservation, although there may have been times where the
girls preferred to spend time engaged in a certain leisure
activity rather than in a visit to their father.
33. Today, having closely studied the precedents, there may
have been no need to appoint another expert on the report.
In my opinion, the descriptions in the report do not carry
the burden of proof – that the respondent has to prove the
defenses according to Paragraph 13(b), as detailed in the
part of the case law above.
Nevertheless, following routine, the opinion of an expert
was ordered. Also, with the consent of the expert, Mrs.
Nurit Levy was appointed to relate her impressions and
express her opinion and conclusions on the defenses in
Paragraph 13(b) of The Hague Treaty, while always fully
aware that she was not a psychologist or psychiatrist but
belonged to the profession of social work and family care.
Mrs. Nurit Levy gave a very detailed opinion and was
examined on the witness stand. I do not contest that what
she saw and what she heard were true, as well as part of
her impressions. But I do oppose the conclusions drawn
from them for the purpose of applying The Hague Treaty
Law. Her conclusions may be suitable for deliberating in a
custody case, where a custodian has to be selected from
two parents in the accepted legal sense. This does not
necessarily cause damage to the rights of legal
guardianship beyond custody in the practical sense, and it
may also include maintaining a close relationship with the
other parent. But such considerations are faulty and
irrelevant when dealing with the law of The Hague Treaty,
and as specified above in the legal discussion (e.g. in
Sections 20 and 21 above).
It seems to me that Mrs. Nurit Levy does strengthen the
theories which I submitted in the summary in Section 32
above.
34. Mrs. Levy met the family for two days when the girls were
brought to her in Ramat-Gan from Safed. According .to her
testimony (page 25), the girls reached her quite spent and
half fainting from the trip. Conditions for the
examination were, therefore, not easy.
35. Mrs. Levy detailed four elements as the basis for her
considerations in her expert opinion.
a. The family in question is in a continuing crises. It
has not stabilized itself after the divorce, which was
preceded by fighting between the parents. The present
situation is nothing but an additional stage in the
family war.
b. Both parents, in their battles, are not informed
enough about the girls needs and the harm caused to
them. The girls are exposed to pressure and influence,
they are torn and frustrated. What answers can they
have to the various and opposing expectations of both
parents?
c. As a direct result of the situation, the girls were
hurled into a “condition worse than anything, they are
totally dependent on the parent who is chosen, the
legitimacy of enjoying contact with their father has
been taken away from them as well as the possibility
of expressing a positive relationship towards him, and
to maintain contact with him.
d. Thus, the damage in this case is derived not only from
the latest incidents of the transfer to Israel and the
question of returning to Canada, but to the
accumulating influence in light of previous
relationships and the measure of hurt to the girls at
this point in time.
I am prepared to accept these points, but in light of
the case law as stated above (especially in Sections
23, 25 and 27), they deviate from the framework of the
discussion on the type of damage which has to be
proven and considered with regard to Paragraph 13(b)
in The Hague Treaty. According to the written text, it
is required to only relate to the damage caused by the
return. One should feel sorry for the harm caused to
the girls over the years. However, the damage of the
abduction itself is considered by The Hague Treaty Law
as serious damage from the point of view of “the best
interests of the child”. That is why the purpose of
the Treaty is to return those abducted as soon as
possible and correct this damage, except for a few
cases where the possibility of very severe damage in
returning the children is proven.
The damages resulting from the divorce and from the
abduction unfortunately exist in most abduction cases
and should therefore be neutralized according to the
case law. The respondent’s brainwashing should also be
neutralized since it distorts discretion in forming an
opinion for or against the return (see the judgment,
especially Sections 24 and 28 above), Brain-washing
usually has limited results, and through treatment it
is possible to overcome.
36. Description of the girls in the written opinion is as
follows:
a. Rachel “has a hard time to make contact and express
her feelings, probably because she, more than the
other girls, is close to her father. Her stand is
ambivalent, which she has difficulty in concealing.
She misses him, feels his absence and is happy to meet
him and enjoy the warm feelings that he expresses
toward her”.
Further on the bad influence of the abduction:
“On the other hand, she owes loyalty to her sisters
and does not allow herself to fully and openly express
her enjoyment and needs because she is afraid of being
seen as a “traitor” and of endangering herself to
condemnation by this significant group upon whose love
and support she is dependent”.
The contact between the father and Rachel was also
strong in the past, stronger than with the rest of the
girls. In her oral testimony, Mrs. Levy emphasized
Rachel’s love for her father (page 43) and her desire
for contact with him (page 29). She stated clearly
that, had Rachel’s case alone been discussed, without
the existence of the other girls, her “opinion” to
remain would have been insignificant, i.e. it would
have been possible to return her to Canada. Belonging
to the group is what ties her to her sister (page 45).
b. Sara, at 10, the middle daughter, “resembles her
mother in style. She is stiff, rigid, very much to the
point, is not a victim of her emotions, is
straightforward and caustic. She is very involved in
the quarrel without understanding its details. Sara
expresses herself clearly and stands by her opinions.
She has trouble listening to and being open to
information and accepting behaviour different from her
own. She imitates her mother and her older sister,
Miriam. She is fed by them, maintained by them, and
waits for their approval each time a question is put
to her. She is dependent on their support and on
receiving legitimacy from them, which indicates a lack
of autonomy and freedom of choice”.
It seems to me – and the judgment in Section 28 above
confirms this that this description negates Mrs.
Levy’s opinion that the child’s wish has to be
considered. It is not a mature or authentic wish in my
opinion, and her stability or decisiveness is also a
result of the mother’s coaching, which was reinforced
by the illegal abduction, as will be shown, Indeed, in
her oral testimony, Mrs. Levy agreed that the girl’s
reality denied her the choice to express an authentic
opinion (page 29).
c. Rivka, the oldest of the three at 11, is described as
a sensitive, vulnerable child, more delicate than her
sisters and resembling her father. She understands
more than her sisters the complexity of the family
situation, and is capable of relating to the
individual difficulties of each family member… She
is the only one who talks with her father in a direct
and open manner, and can express her various feelings
toward him. She demands and expects him to understand
her and her sisters problems and to sacrifice his own
wishes to their needs”.
This means that there is contact and an ability to
converse with the father. Testimony also revealed that
she is the favorite granddaughter of her grandfather,
the appellant’s father, and she remembers this fact
(page 39).
37. In Mrs. Levy’s description of the parents, we learn of the
father’s positive qualities, and the mother’s negative
qualities and, for the purposes of this debate, to
differentiate from the implications in a custody case. To
clarify:
a. It is true that the father is described (on page 5 of
the statement) as a “weak, insecure person who is
unable to mobilize a minimum of assertiveness towards
his daughters… That is why the daughters see in him
a weak figure and allow themselves to be impudent to
him, without his daring to put them in their place”.
But the father’s conditions in Israel, being away from
his home and his livelihood, with not unlimited means,
facing a situation not of his creation, set against
his divorcee who conspired against him and had
abducted his daughters, and against his daughters
after a traumatic break, represented an extremely
difficult situation. The descriptions of the social
worker (as set out above), in my opinion are quite
complimentary to the father’s patience and
sensitivity. On the witness stand, I also had a
positive impression of the father. He sounded honest
and trustworthy to me. True, as Mrs. Levy stated more
than once, the father is a person who “transmits
warmth and honesty to his daughters” (page 5 of the
statement), and in her testimony, she stated that he
is a warm person by nature (page 38) and even very
warm (page 4-3), Yet he is passive and does not
possess an iota of aggression (page 27); nor could she
see any sign of the father being evil, frightening,
etc. (page 28). The daughters behaviour towards their
father is also not described as personally negative
towards him in the social worker’s report, in the
expert opinion or in Mrs. Levy’s testimony. The
rejection was not of the father himself, but of his
opinion, in that he did not agree to the girls
remaining in Israel (page 33). They did not hate him,
but were disappointed and angry over his wish to
return them (page 35) and that he did not praise them
enough (page 35).
It seems to me that the outburst of the older girls
against their father during the meetings and their
great agitation at his refusal to let them stay, and
their repeated requests to him to let them stay, all
show that the girls do not cancel out the father and
do not avoid him. Daring to protest rather than
running away from him shows that the girls trust him,
even though disappointed in his attitude and his
persistent wish for their return to Canada. Their
threats to run away, hide or jump out of the airplane
(page 34) were just the childish reaction of
frustrated young girls suffering mental distress
brought on by their mother. A person in distress
should not be taken at his ward and not everything he
says should be taken literally.
In another case in which I was involved and which was
mentioned here, that of Lukasc, there was also an
objection to a child being returned to his mother. But
the circumstances were quite different, as confirmed
by Mrs, Levy (page 34) that is why this should not be
compared to my stand in that case not to return the
child abroad. This case must stand on its own merits.
b. A description of the mother relating to the discussion
according to The Hague Treaty Law is more difficult,
in my opinion; and I am not referring to her faults
and virtues as a mother nor to any discussion on
custody which may take place in Canada.
On page 5 of the opinion, it is stated: “The mother is a
cold person, distant and very hardened, afraid and
suspicious. She is very concerned to “find herself” and is
not available for the developmental and emotional needs of
her daughters”.
The coldness, the distance and the hardness of the
respondent was evident in the courtroom as well. Mrs. Levy
testified orally to the lack of motherly warmth (pp.
37-38). Immigration to Israel was the outcome of her own
selfish consideration in terms of the return to religious
observance, and not done out of any consideration for the
girls. Then came signs of a return to an orthodox way of
life which repels nonconformity, although in the past, the
parties had also lived a life of keeping the Torah and the
commandments (to which I will relate later on – pp 7-6 of
the opinion). The intention and understanding was thereby
to remove the girls from their father, not for their own
good (page 27). This behaviour has enough weight in the
case law to negate damage caused by these circumstances
(see Sections 24 and 26 of the decision). The girls
underwent serious brain washing, as stated by Mrs. Levy
(page 7): “In the half-year that passed from the time that
the mother visited Israel last summer until March 1992,
the time she brought the girls to Safed, a most thorough
and effective job of brain washing was done by the mother,
probably with outside help. The girls learned to feel
contempt, to hate and negate everything connected to
Canada and Montreal and their previous life, while seeing
everything connected to the Land of
Israel/Safed/Hassidism, etc. through rose-tinted glasses.
The above-mentioned also recalled what the father felt in
Canada disruption in the order of visits, and allegations
against him and the mother’s activities in that respect,
resulting in an application to the court in Canada to
transfer the girls to his custody. Needless to say, using
religion to reject the father is also improper, and with
girls of such a young age (11, 10 and 7), it was part of
the brain washing. It caused anger in the girls. Why?
Because their father did not observe the Sabbath strictly
enough (page 35).
This can hardly be justified as a significant long-term
reason for distance form the father, especially in view of
his character as detailed above, as well as the continuing
contact between father and daughters.
This kind of brain washing is known as “Parental
Alienation Syndrome” (PP 24-25), created due to divorce
procedures, hostility between parents, incitement, brain
washing, etc. Through it, a child develops a certain
hostility to one parent. That is how the girls distorted
outlook was instilled in them, the loyalty to the mother
which requires hostility to the father (page 28), although
he was not frightening. Developing hostility to a parent
under such conditions does not mean that the parent is
bad, as children might believe (page 25). In this case,
the girls do not believe that the father is bad, in spite
of their outbursts against him.
According to Mrs. Levy, the mother gave the girls security
although without warmth (page 37). This point, however,
belongs to debates on custody and not on The Hague Treaty
Law. Moreover, this security, based on the wrongful
removal from the father and the complete cutting off from
the past, is suspect. It was, also, not for the first time
in the mother’s life, as Mrs. Levy stated extensively in
her report (pp. 7-8).
“The mother is still trying to find herself, wandering
from ideology to ideology, and has continued to do so for
several years”. Mrs. Levy’s, belief that this time she
will find security and tranquillity is only speculation,
which may or may not happen.
Miriam, the daughter of a previous marriage, was also
trying to find her way and was disappointed in her life,
passing from one parent to the other until completely
removed from her biological father, adopted by the
appellant, and now removed from him (see page 4 in the
expert opinion and pp. 29-30 in the testimony). The girls
are going through a similar process at the mother’s
initiative, and even though the circumstances are
different, the results are similar (page 30).
During the case, I was notified that Miriam, who
immigrated with her mother to Israel with the appellant’s
permission, does not live with her mother any more, but
moved to an orthodox boarding school in Jerusalem and
spends time with her mother and sisters on vacations only
(page 37). It was explained to me that this is customary
in religious circles, to come closer to the place of Torah
(page 37). But why not in Canada? And where is the
security and togetherness which became weaker a few months
after immigration to Israel?
38. As explained by the case law and the language of Paragraph
13(b) of the Treaty, including the end part, it is
important to examine the child’s social background, the
real background (as it should be provided by the central
authority or another authorized authority in the child’s
usual place of residence), not the background distorted by
the brain washing process along with nullifying (if such a
process as opined by Mrs. Levy (page 36), and if
significant, since only a few few months had passed. I
will elaborate later on).
The evidence shows that the girls were born and lived all
their lives in Canada, they speak the language and still
have difficulty in Hebrew. They lived in an orthodox
Jewish area in Canada as well, and went to religious
educational institutions in the Beit Ya’acov system, which
belongs to Agudat Yisrael. Thus, transit from country to
country and the return to Canada is not a transition from
secular to religious (page 37).
In Canada, the girls had friends and they remember them
favorably (page 29). However, they are afraid (although it
is not clear why) that those friends will not like them
owing to recent events (page 43).
The girls visited the father in July-August of 1991,
stayed with him for about six weeks with a break of one
week in the middle. This holiday was agreed upon by both
parents, due to the mother’s visit to Israel in August
1991, and as per the mother’s request (pp. 19-20, 21).
The mother testified that she thought it would be good for
the girls to be with the father (page 21), and she did
leave the girls with him. Therefore, the claims against
him today, and those still related to him in Canada, are
not reasonable and are not consistent with the fact that
they spent a long holiday with him.
It is true that the mother has testified that the girls
were not pleased with that holiday and they cried, but the
mother’s testimony is not reliable enough to determine a
finding on the basis of her words alone, and especially in
light of the father’s testimony that the girls told him
that it was the nicest period they could remember (page
20).
Today, having a distorted perception of reality, the girls
say it was hot and boring (page 36). But these are not
serious complaints and have nothing to do with the stay
with their father.
The reasons why, in such a short period, they have a
complete misperception of their summertime vacation with
their father and a general loss of positive memories of
their visits with him, are not that clear, save for one
explanation. As part of the preparation for the move to
Israel, the mother brainwashed the girls to see everything
connected to their Life in Canada and their attachment to
their father as being negative. She instilled in them the
desire to move to Israel so completely and, as mentioned
above, created a kind of “honor among thieves”, that the
girls were able to hide the concrete plan with the time
table of its execution from the appellant.
There were more visits after that during the summer,
although at a diminishing rate, and continuing until
February 1992.
That is why we cannot assume that there was a cut-off of
any kind between father and daughters, but only a gradual
alienation, the result of the mother’s brainwashing.
During a certain period, “they were coached and forgot
everything positive connected to the past”, as Mrs. Levy
wrote (page 36) and testified. ‘As for myself, I am not
sure that the entire past was erased; I am inclined to a
different opinion. It is likely that in Canada there were
requests from time to time to cancel a visit, as happens
in other families. But this was not due to wishing to get
away from their father, but because something more
exciting, such as a party, or a celebration at school for
completing the Chumash (Torah), as the respondent
testified (page 21). The appellant has reLatives in
Canada, the grandfather, grandmother and uncles of the
girls. According to Mrs. Levy, it is not a united and
supportive family (page 32). But it cannot be denied, for
instance, that Rivka, in particular, was loved by her
grandfather. This means that there is contact with the
family, and I did not hear a bad word about these
relatives from the girls. As regards Rivka, Mrs. Levy
testified that she remembers the grandFather being very
close to her (page 39).
Therefore, it can be determined that there is no factual
basis for real negative elements in the past in Canada to
warrant a conclusion that returning to Canada will place
the girls in an intolerable situation or harm them (see an
article in Paragraph 13(b)).
Indeed, Mrs. Levy has also admitted in her testimony that
it is difficult to say that the girls did not feel secure
in Canada (page 42). It is true that there was shortage
and poverty, and for a few months at the end of 1991, the
father did not pay child support when he was out of work
(but he did resume payment); the girls did feel like “poor
among the rich”. But poverty and shortage are no reason to
feel shame. Meanwhile, the girls still felt poor in
Israel, poor among the poor.
Such a situation is definitely not justified according to
the Hague Treaty as grounds for not returning children to
their country of origin. The financial situation is a
major consideration when discussing a custody case.
It should be noted that, in spite of non-payment of
alimony and the distress claimed, the mother had money to
finance a trip to Israel in August, 1991. Also after
financing herself and her four daughters from Canada to
Israel in March, 1992, there was still money to sustain
them in Safed, from savings and occasional work, as stated
in Mrs. Levy’s report.
The daughters lived with the father in Canada for a long
time until the parents separated, and the father explained
that he was able to keep them and raise them. He had a
place for them and the situation was not strange to the
girls. I therefore do not accept Mrs. Levy’s version that
his place and his living conditions are not substantial.
For the purposes of the girls return to Canada, they are
definitely substantial (see the two Swiss verdicts in
Barlow and Korowin, Section 21 above). The question of
whether these conditions are optimal for the purposes of a
custody case has to be left to the court in Canada.
39. The apparent conclusion is that the behaviour of the girls
today and their objection to returning to Canada is not
based on reality or on anything connected to the father or
Canada, but only on the dependency on the mother who
abducted them, brainwashed them for a year (half a year in
Canada and Israel each), and incited them against their
father and everything connected to him, including the past
in Canada.
Acceptance of this situation(pp. 31-32) is awful, and such
a damaging situation is a shame, says Mrs. Levy (even
without the matter of returning to Canada). One should not
justify acceptance of the point of view as if agreeing
with the mother implies rejection of the father or vice
versa, since according to Mrs. Levy, the girls understand
reality. However, that understanding is distorted and
should not be encouraged for the purposes of The Hague
Treaty Law.
The damage should be corrected and not enlarged by
agreeing to its creation and giving the mother the
opportunity to benefit from her evil actions (see Sections
27-32).
I do not agree with Mrs. Levy’s opinion that we must
accept a distorted reality and foster warped and damaging
contact with the mother as a result of which the
applicant’s plea will constantLy be rejected.
40. As for the chances of receiving treatment and its success,
they are not connected to this case since, according to
the case law, it is a matter of the law in the country
from which the children were abducted and it is reasonable
to expect that the matter will be taken care of, if
brought to court (see references in Section 20 above).
It should be noted that the mother was not at all
concerned with the need for therapy in this case until
Mrs. Levy drew her attention to it Mrs. Levy thinks that
if the mother goes for therapy the girls will be less
hostile towards the father (page 40). But I do not see why
she would do so since she has great resistance and
hostility toward the appellant. Therapy is against her
point of view and way of life. What is more, the father’s
absence in Israel will make therapy more difficult (page
40), and Mrs. Levy admits that she will not do so in
Canada either if she does not want to (page 34). And why
should she want to undergo therapy in Israel when there is
no pressure or coercion on her?
Mrs. Levy thinks that therapy has less of a chance in
Canada due to the initial loss for the mother in this
battle (page 34) and the disappointment from it (page 44).
As mentioned, the matter of therapy is up to the law in
Canada, and I do not see the catastrophe for the girls to
know that the mother indeed acted badly. There is no way
to justify a bad deed and convert it to a good one,
especially when dealing with the application of The Hague
Treaty. Therapy is really necessary, in order to return
the girls to reality and diminish the damage already done.
Ignoring the mother’s bad deeds is not the correct way to
proceed and is unacceptable in a hearing of this kind.
Even in Israel, after several years, the girls could
become disappointed with their mother when they develop
their own opinions.
40. Undoubtably, it would have been better for the respondent
to agree to return with the girls to Canada. This is
always recommended in abduction cases. It would allow the
girls continuous contact with both their parents and would
prevent damage from the separation from one parent caused
by the abduction, particularly as the two parents live on
two different continents. Returning with the mother would
minimize the damage (pp 39-40).
In her testimony, the respondent said that she has nothing
to do in Canada and that there is a warrant for her
arrest. Even if the warrant is canceled, she does not
think she will return (page 23). But she did not speak in
a decisive and convincing manner, and I cannot tell
whether her mind is made up not to go back.
The respondent related that she has difficulties in
finding a job in Canada in her own profession, teaching.
But in Israel, too, there is no guarantee of finding a
job. She has been in Israel for about half a year, a
foreign country, without a steady job, not knowing any
Hebrew and with all the problems of absorption. She is
dependent on kind families who help her, i.e. she depends
on charity.
In Mrs. Levy’s opinion, even if the mother returns with
the girls, the damage will remain with regard to the
mother’s credibility (pp. 39-40), but I do not understand
how we can even consider this a factor. Of course, the
mother is not reliable, as shown by her actions which have
no defense. The therapy is supposed to reduce the damage
caused by the mother, not that caused by the father or
returning to Canada.
I also cannot accept Mrs. Levy’s justification of
embarrassment at returning and the theory attributed to
the girls; as if the mother cannot go back, not because of
the warrant for her arrest but because her name was
tainted in the community and family, etc.
This is not to be taken seriously. A person should be able
to bear the consequences of his/her deeds and not expect a
reward for evil actions.
The action was wrong, both in Israel and Canada, and if
the girls are not aware of it now, they will be in a few
years. Not understanding the deed and not evaluating it
correctly represents an escape form reality and is, in
itself, damaging.
If the mother had said that she is ready to return to
Canada, it would have been conceivable to place conditions
on the appellant, as in the case of C. v C. (although not
to the extent done there for reasons, perhaps, unknown to
us). For instance, we could have instructed the father not
to initiate any punishment against the respondent, and to
agree that the girls would stay, physically, with the
mother until there was renewed, in-depth, discussion in
Canada on the question of custody, etc. But since the
mother has not agreed to return to Canada, I do not see
shy the girls should stay in Israel just because the
mother is not ready to return with them. I do not see any
point in advancing theoretical considerations.
41. In conclusion, Mrs. Levy’s considerations in assessing
damages relevant to The Hague Treaty Law are unacceptable
to me. I also do not accept that damage resulting from the
return to Canada are of the same strength and seriousness
as those required in Paragraph 13 of The Hague Treaty.
Neither do I accept the girls wish as authentic, mature or
worthy of consideration.
Mrs. Levy’s considerations in her statement in assessing
damages caused to the girls fit partially into a debate on
a custody case involving one or the other of the parents.
But this is not the subject of discussion here. On the
other hand, those considerations are intended to maintain
the mother’s image for the girls, which could be hurt if
the mother is found to be unjustified in the abduction,
and the girls are thus returned to Canada.
These considerations have no place in a proceeding
according to The Hague Treaty, which totally condemns
abductions and deems them to be very damaging. Such damage
must be corrected as soon as possible through the return
of those abducted, without seeking any justification or
basis to support the defense.
The defense has to relate to the damages of return and to
the damages to trust, which the mother caused by her
actions.
Even though the girls feel, with their mother’s influence,
that in Safed they had arrived in paradise, it is still no
justification for leaving them there. Using the same
metaphor, it was not proven that returning to Canada was
returning to hell.
Order
42. After deliberating over the father’s plea, it was ruled as
follows:
a. I order the respondent to return the three daughters
to Montreal, Quebec, Canada within 14 days.
b. Should the mother not act accordingly, the father has
the right to take the girls with him, and to maintain
them, as determined by the court in Montreal.
c. The social worker has to prepare the girls for the
return and do her utmost to ensure that the transfer
will be executed with the minimum of obstacles and
difficulties.
d. The respondent will pay the applicant’s court
expenses, including the various travel expenses to
Israel since the filing of this a plication and also
for the purpose of receiving the girls, as well as
flying the girls back to Canada, all in accordance
with confirmation from travel agencies, including
taxes, and also for the appellant’s stay in Israel
during the court hearings, in the sum of 7,000. N.I.S.
The respondent will also pay the appellant’s lawyer’s
fees in the amount of 25,000. N.I.S. plus taxes and
interest on the total amount as well differences
related to the index right up to the moment payment is
made.
e. Copies of the verdict will be sent to the Central
Authority in Israel (in the office of the Solicitor
General), the Social Services clerk in Safed and the
head social worker as the authorized administrative
bodies to assist in implementing the return of the
girls to Canada, soon and in accordance with the
ruling.
Handed down and announced on the 28th day of October
1992.
In the presence of attorney Freedman, representing the
appellant and attorney Ben-Menashe, representing the
respondent
____________________
H. Porat, Judge
Left corner stamp of approval, being true to the
original, checked and approved by Avner Bar-Oz of the
district court of Tel Aviv-Jaffo. Two rubber stamps
from the district court, Tel Aviv-Jaffo.
All Foot Notes were added by Wm. M. Hilton, Hilton House BBS.
——————–
1. This decision was contributed and translated from Hebrew by
Edwin Freedman, Attorney At Law, 40 Enzo Sereni Street,
Givatayim, Israel 53446. Mr Freedman is a member of the
Israeli and New York Bar.
2. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980. Available on
Hilton House BBS as HAGUE.TXT.
3. Compare to the official English Language Text of Article 3
as set forth in the Hague Conference on Private
International Law, Actes et documents de la Quatorzieme
session, vol. Ill, 1980, pp 413-422:
“The removal or the retention of a child is to be considered
wrongful where–
(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or
retention; and
(b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above,
may arise in particular by operation of law or by reason of
a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State.”
4. Compare to Art. 5:
“For the purposes of this Convention–
(a) ‘rights of custody’ shall include rights relating to
the care of the person of the child and, in particular, the
right to determine the child’s place of residence;
(b) ‘rights of access’ shall include the right to take a
child for a limited period of time to a place other than the
child’s habitual residence.”
5. Compare to Art. 13(b):
“Notwithstanding the provisions of the preceding Article,
the judicial or administrative authority of the requested
State is not bound to order the return of the child if the
person, institution or other body which opposes its return
establishes that–
(a) – – – – – – –
(b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.”
6. Compare to the last section of Art. 13:
“In considering the circumstances referred to in this
Article, the judicial and administrative authorities shall
take into account the information relating to the social
background of the child provided by the Central Authority or
other competent authority of the child’s habitual
residence.”
7. The full text of this decision may be downloaded from Hilton
House BBS as TOURNAI.ISR.
8. Available on Hilton House BBS as INREC.UK
9. 259 N.J. Super. 328 [613 A.2d 486]. Available on Hilton
House BBS as TAHAN3.NJ.
10. Available on Hilton House BBS as INREJ.UK
11. Available on Hilton House BBS as GSPONER.AUS
12. Available on Hilton House BBS as BARLOW.SWZ
13. Available on Hilton House BBS as KOROWIN.SWZ
14. Available on Hilton House BBS as NAVARRO.CA
15. Available on Hilton House BBS as EVANS.UK.