ISRAEL – A V B – 1992


Before Justices Barak, Matza and Heshin

A v. B
[Summary of Decision WMHFN-1]

24 May 1992

Habeas corpus petition by father for the return of his daughter
aged seven who had been taken to the United States by her mother
in July of 1991 with the father’s consent, but retained there
subsequently against his wishes.

The Court held that, prima facie a habeas corpus order could be
issued in such circumstances, i.e. where the mother’s custody
became illegal even though the original taking of the child to the
U.S. was within her rights. There was no genuine dispute between
the parties with respect to custody of the child and it was
clearly the duty of the mother to return the child to lsrael where
the question of the child’s welfare, including the parents’
custody rights, could be considered on the merits of the case.

The mother argued that the only court having jurisdiction in the
matter was the District Court under the provisions of the lsraeli
statute implementing the Hague Convention.

The Court held, however, that the statute was not intended to
deprive the High Court of Justice of its jurisdiction to grant
habeas corpus ordering the return of a child from abroad. Thus, in
the case of abduction from lsrael to other countries both remedies
are available concurrently, i.e. an order for habeas corpus by the
High Court and a request under the Hague Convention directed to
the Central Authority in the foreign country concerned. WMHFN-2

The Court stressed that there was no obligation on the mother
herself to return to lsrael, but only to bring about the return of
the child to lsrael.

Footnotes by William M. Hilton, CFLS
1. This summary was graciously supplied by Dr. Chaim I.
Goldwater, Director of Legal Advice in Private International
Law, Ministry of Justice, State of Israel

2. Per Article 18, The Convention is not the exclusive means
available to cause the return of the child. As a matter of
practice, if a court order for the custody of a child is also
available, such an order could be plead in the alternative in
the courts of the requsted state. See Uniform Child Custody
Jurisdiction Act, Sec. 23: International Applications