ISRAEL – GUNSBURG – 1993(2)

ISRAEL – GUNSBURG – 1993(2) (Return ordered on appeal) (One year filing deadline) GUNSBURG v E. GREENWALD and Dr. A. GREENWALD. After failing to appear before the court in New York several times, the court issued Warrant of Arrest against the mother. The custody of the child was given to the father. The father learned that the mother and child had gone to Israel. The father applied in Israel for the child’s return pursuant to the Hague Convention Law (1991-5751) which gives validity to the Hague Convention in Israel. The District court denied the fathers petition to return the child. The father appeals. The child is ordered returned to New York, USA.

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In the Supreme Court (Of Israel)Sitting as a Court of Civil Appeals
Civil Appeal No: 5532/93

Before: Justice S. Levine
Justice Y. Kedmi
Justice D. Dorner

The Appellant: Dr. David Gunsburg

vs.

The Respondents: 1. Elana Gayle Greenwald
2. Dr. Alan Greenwald

An appeal on the judgment rendered by
Judge Z. A. Tal in the Jerusalem District
Court on August 31,1993 in Civil Case
No. 543/93.

For the appellant: Attorney E. Freedman
For the respondents: Attorney Prof. D. Frimer

Judgment

Justice D. Dorner:

1. The appellant (hereinafter: the Father) and respondent 1
(hereinafter: the Mother) are religiously observant Jews,
who were born in the USA and are American citizens. They
were married in the State of New York in 1986. In 1987,
their son (hereinafter: the Child) was born. The marriage
did not work out. The couple petitioned the New York
Rabbinical Court for a divorce according to Jewish law. They
granted the Rabbinical court arbitrative authority. On
January 3, 1988 the Rabbinical Court rendered its decision
(hereinafter: the Rabbinical Decision) in which it
determined, based on mutual agreement, the terms of the
divorce, regarding the division of property, custody of the
Child and child support payments. The Rabbinical Decision
determined that the Child would remain in his mother’s
custody until he reached the age of six at which time the
Father could raise the subject for renewed discussion
(Section 3), and that the Father would have visitation
rights (Section 4). The settlement also determined that
decisions made on important matters in the Child’s life must
receive the Father’s agreement (Section 10).

After the Rabbinical Decision was rendered, the parties
applied to the civil courts to be divorced according to the
laws of the State of New York. Within the context of these
proceedings they presented a divorce agreement (hereinafter:
the Civil Agreement) to the court which was validated as a
judgment. On February 18, 1992 the civil court granted them
a civil divorce. Section 1 of the Civil Agreement
determines:

“The parties hereto at all times shall live
separate and apart from each other and shall
have the right to reside from time to time at
such place or places as each of the parties
may see fit, and to contract, carry on and
engage in any employment, profession, or
business of trade which either may deem fit,
free from control, restraint or interference,
direct or indirect, by the other, in all
respects as if such parties were sole and
unmarried, subject to the terms and conditions
contained herein.”

This agreement also stipulated that each of the parties must
notify the other party of any change of address (Section 7).

The disputes between the couple continued even after the
rabbinical and civil divorces were granted. In 1991 the
Mother lodged a complaint against the Father in civil court
for having violated the Rabbinical Decision.

2. In 1991, the Mother married respondent 2. Six months later
the Father discovered that respondent 1 intended to emigrate
to Israel. In a meeting held between the Father and the
respondents, the Father voiced his unequivocal objection to
the Child’s emigrating to Israel, as such a move would
reduce his rights of visitation. Since the Father feared
that the Mother was likely to take the Child with her to
Israel, despite his objections, he applied to the New York
Court on July 31, 1992, and based on his request the Judge
issued a temporary stay of exit order which prohibited the
Mother from removing the Child from the State of New York.
The Judge also scheduled a hearing, in the parent’s
presence, for August 6, 1992. The Mother’s representative,
Attorney Greenwald appeared at the hearing and requested
that the hearing be continued until August 10, 1992. The
father, who feared that the Mother was likely to abduct the
Child before the hearing, applied to the court on August 7,
1992 and requested and received a Writ of Habeas Corpus
ordering that the Child be brought to the court. On August
10, 1992 Attorney Greenwald once again appeared before the
court, but did not bring the Child with him as required by
the injunction. He once again requested that the hearing be
continued, this time to August 19, 1992. The judge acceded
to the request for continuance and once again ordered that
the Child be brought before the court.

On August 19, 1992, Attorney Greenwald did not appear for
the hearing. The judge ordered the stay of exit order
extended and for the third time directed that the Child be
brought to court The hearing was continued until August 24,
1992. Attorney Greenwald then filed a written request to
continue the hearing until August 31, 1992. When neither
Attorney Greenwald nor the Mother appeared on this date and
the Child was not brought to court, the court decided, based
on the evidence presented to it, that the stay of exit
injunction and release had been served on the Mother and
therefore it issued a warrant for her arrest and on
September 23,1992 ordered that custody be transferred to the
Father and it was so written, inter alia, in the Judgment

“Written and oral proof having been presented
in court, by Jonathan Jacobs, presumptively
proving to the dissatisfaction of the court
that the writ of Habeas corpus and the order
to show cause, duly served upon said ELANA
GAYLE GUNSBURG, A/K/A ELANA GAYLE GREENWALD at
20 Amherst Street, Brooklyn, New York, and
upon said ELANA GAYLE GUNSBURG/GREENWALD at
the Pine Hill Estates, Green Point, New York,
on the 18th day of August, 1992, and the
matter of the Petition of Habeas Corpus having
duly come on to be heard before me on the 19th
day of August, 1992, and the Petitioner having
presented written and oral proof of service of
the Habeas Corpus Petition on ELANA GAYLE
GUNSBURG/GREENWALD, and such Affidavit of
Service being duly filed in Court, and the
Court having issued its written Order on the
l9th day of August, 1992, …..

ORDERED that the custody of the infant …..
transferred to the Petitioner …..

4 ORDERED that a Warrant of Arrest is issued
by this Court in accordance with the annexed
Warrant of Arrest, directing that the
‘Respondent ELANA GAYLE GUNSBURG, A/K/A ELANA
GAYLE GREENWALD, shall be apprehended and
brought before this court …”.

3. The Father began to search for his son immediately after
this decision was given. He filed a complaint with the
police, reported to the authorities that his son was
missing, turned to organizations who engage in searching for
missing children and to the relevant New York State
authority (New York State Division of Criminal Justice
Services Missing Childrens Clearinghouse), until he learned
from friends that the respondents had emigrated to Israel
with the Child and were living in Jerusalem.

On March 3, 1993, the Father filed a petition with the
Central Authority in the United States for help pursuant to
the Hague Convention Law (Return of Abducted Children). On
May 23, 1993 the Father filed a petition with the Jerusalem
District Court pursuant to the Hague Convention Law (Return
of Abducted Children), 1991-5751 (hereinafter: the
Convention Law), which gave the validity of law to the
Convention On the Civil Aspects of International Abduction
of Children, done in The Hague October 25, 1980
(hereinafter: the Convention). To this petition he added,
among other documents, the Opinion of the psychiatrist Dr.
Yehudah Nir, who had met with the Child and the Father
before the abduction. This opinion states that the Child is
very attached to the Father and moving to Israel without the
Father would likely cause him psychological harm. The
respondents defended themselves by arguing that the
Convention does not apply to the petition, and that, in any
case, returning the Child to the US, after he had been well
settled in Israel would cause him harm. In support of this
argument they attached the opinion of Dr. Israel Perlmutter,
Psychologist.

4. The District Court (Judge Z. A. Tal) found that the Child
had been absorbed in Israel and his removal from the country
would be likely to cause him harm. In these circumstances –
so the court reasoned – The Hague Convention does not apply
to the Father’s petition because he only has rights of
visitation: custody was determined by the law of the state
from which the Child was removed. The law in New York State
differentiates between before the fact and after the fact.
Before the fact, a custodial parent who wishes to remove the
Child from the limits of jurisdiction, must show that
special circumstances do exist and ask permission of the
court. However, after the fact, the deciding factor is the
Child’s best interests and the court will not order his
return if his best interests will be harmed. The mother
denied that she had been served with the court’s stay of
exit order and, at any rate, according to the laws of the
State of New York, here too the principal applies that the
court does not return a child if its best interests require
that it should remain. Section 10 of the Rabbinical Decision
that granted the Father the right to participate in
important decisions pertaining to the Child, which would
certainly include changing the country in which the Child
lives, was nullified by the Civil Agreement, wherein each of
the parties was allowed unlimited choice of place of
residence. The boy was removed due to the “special
circumstances” of fulfilling the commandments to emigrate to
Israel. And so Judge Tal wrote, inter alia, in his decision:

“In the matter under discussion, Section 10 of
the Divorce Agreement grants the Father the
right to participate in decisions on
‘important matters,’ and the Child’s country
of residence is no less important than his
being hospitalized. However, a later agreement
which received the validity of a court
decision in New York makes specific
stipulation in Section 1 regarding the
couple’s place of residence. According to this
stipulation, the parties ‘have the right to
reside from time to time at such place or
places as each of the parties may see fit,’
without any limitations whatsoever …. It
must be emphasized that this stipulation in
the divorce Agreement is later and unique in
relation to the stipulation in the first
Divorce Agreement …. Without going deeply
into the matter of New York State law, the
discernment made by Judge Gartenstein (the
respondent’s expert) appears to me to be an
appropriate way of presenting a balanced and
harmonious picture of the rulings which at
first glance do not agree and may even be
contradictory. The essence of this discernment
lies in the differentiation between before the
fact and after the fact. Before the fact, the
custodial parent who wishes to remove the
child to outside the residential boundaries of
jurisdiction of the non-custodial parent must
show ‘special circumstances’ to explain such a
move. However, after the fact, the court would
rather pardon being held in contempt, even if
it issued a stay of exit order for the Child,
because acting in the Child’s best interests
will be preferable to upholding the honor of
the court. In the circumstances before us, it
would seem that ‘special circumstances’ do
indeed exist. Shmuel was not removed from the
State of New York for insubstantial reasons.
His mother and her husband chose to emigrate
to israel because they saw it as a duty and a
mission … indeed, the Mother did not ask the
court’s permission because of these ‘special
circumstances,’ nor did she notify the Child’s
father as to the date of their leaving for
israel or of their address or home phone
number however, after the fact, the Child
should not be ordered returned only because of
the court being held in contempt. It must be
noted that in our matter, contempt of court
only exists under the assumption that the
Mother was indeed legally summoned to the
hearings on the matter of the stay of exit
order for the Child. As has been stated, this
fact is in dispute, and since such a such a
doubt exists, even if remote, we will not
remove the Child from his mother’s custody and
from the place where he is growing up. As
stated, I have accepted Judge Gartenstein’s
testimony, that, after the fact, according to
the laws of New York State, the deciding
consideration whether to return the Child or
not, is the consideration of the Child’s best
interests … returning him temporarily to his
father (who has not as yet remarried and
devotes his time to his specialization) with a
reasonable possibility that after the hearing
the New York court will return the Child to
his mother – such a removal would certainly
not be in the Child’s best interests.”

5. An appeal was filed on this judgment.

The Father’s main claim is that the Convention Law applies
to our matter, both according to the laws of New York State
and the court order, and according to the Rabbinical
Decision. In reply to the appeal the respondents defended
the District Court’s judgment and argued that, in any event,
the protections of Article 13(a) and (b) of the Convention
are applicable: (a) It is proven that the Father had
acquiesced to the Child’s living in Israel, since he only
filed his petition after a long delay – 10 months after the
Child had left the US; (b) The opinion of the psychologist,
Dr. Perlmutter, proves that the Child will suffer
psychological harm if he is returned to the US.

6. The proceedings in this court continued on for a long time
because of our efforts to help the parties reach a
compromise agreement. We therefore raised the question of
whether the time that passed is of consequence in
implementing the stipulations of the Convention and
requested an opinion on this matter from the State’s
Attorney.

The State’s Attorney filed with us an opinion that the
length of time which had passed, in the matter before us,
was not to be taken into account. The Convention Law gives
literal validity to the Convention and thereby adopts its
principals; the principal of the Child’s best interests has
its expression in returning the Child to its country of
residence, subject to the defined exceptions; the
establishment of new exceptions, in particular a exception
based on the length of the proceedings would undermine the
purposes of the Convention. The respondents argued that it
was incumbent on the State’s Attorney to relate to the best
interests of the Child whose return was demanded, and not to
focus on the length of time which the proceedings had
lasted, and this the State’s Attorney did not do.

7. In my opinion this appeal is founded in law.

We are here discussing a clear instance of kidnapping. The
mother knew that the Father emphatically objected to the
Child’s removal from the US, which would, in effect, sever
their ties. According to the New York State court the Mother
was also served with the stay of exit orders for the Child
and the orders obligating 11er to bring him before the
court. One way or another, the Mother separated the Child
from his father and did not reveal the Child’s address in
Israel to his father. The boy lives with the new family she
established, in her sole custody, with no connection
whatsoever to his father. Had the Father not discovered the
address, the severance would have been complete. The mother
thereby damaged both the Father’s parental rights and harmed
the Child whose best interests require that he be educated
by both his mother and his father, and that he not be
removed from one of his parents, even if they are living
apart.

8. The Convention is the international community’s answer to
the cruel phenomenon of children being abducted by one of
their parents and being removed to another country to
separate them from the other parent. As a result of the rise
in the divorce rate and the ease of mobility from country to
country in the modern era, abduction has become a frequent
occurrence. Many studies have shown that abduction severely
harms children and quite often causes them psychological
damage. ”Child-Snatching Called Threat to Children’s
Psyches,” [Lawyer’s Survival, 8 Fam. L. Rep. (BNA) 2702,
(1982)].

Legal proceedings in countries to which children have been
removed did not help to reduce the dimensions of the
phenomenon. In fact, the opposite is true. By courts
agreeing to rule on the actual matter of the custody
dispute, parents who wished to alter custody arrangements
were encouraged to abduct their children and disappear with
them to a country with more convenient laws. Since, by the
nature of things, in such a hearing importance is attached
to the fact that the children have become settled in their
new environment and the standards of the child’s best
interests will be applied as they are understood in that
same country. In Israel, for example, it is assumed that
emigrating to Israel and living there are in the best
interests of a Jewish child (Bagatz 125/49 Emdo vs. Emdo,
Piskei Din (D)4, 23; Civil Appeal 503/60 Wolf vs. Wolf,
Piskei Din 15, 760, 764). Professor Frank has addressed the
issue:

“… courts have contributed to this problem
(child snatching) in the past by taking
jurisdiction in custody disputes …
Noncustodial parents are thus encouraged to
snatch the child and move to a more favorable
forum, often ‘disappearing’ in the process;
… and while many nations theoretically use a
standard which promotes the best interests of
the child, each country has a different idea
as to what ‘best interests’ means. Each
country prefers to use its own substantive
standards in adjudicating custody disputes
….”
(R.J. Frank “American and International
Responses to International Child Abduction”
Int’l. L. And Pol. (1984) vol 16, 415, 417,
423).

9. The Convention provides an answer to the understandable
difficulties involved in a discussion of a child’s best
interests in the country to which the child has been
abducted. It does this by determining a rapid process for
returning children to the country from which they have been
unlawfully removed. The Convention is based on reciprocity
and cooperation between the signatory states and makes it
easier for all the states to protect their children from
being abducted and removed to other countries.

The convention is founded on the concept that children’s
best interests are served by their immediate return to the
country from which they have been abducted. This objective
is attained by obligating the authorities in the country to
which children have been abducted to return them to the
country from which they have been unlawfully removed, and to
let the authorized court of the original country decide on
the question of the child’s best interests. (See L.
Silberman, “Hague International Child Abduction Convention:
A Progress Report,” Law and Contemporary Problems (1994)
210, 257).

In this way the Convention realizes a double purpose. First
and most importantly, it protects abducted children.
Secondly, by the prompt return of the child it transforms
abduction into a futile act and thereby deters parents from
doing so.

The purpose of the Convention and the obligation of return
are determined in Articles 1-3 of the Convention. These
Articles state the following:

Article 1
The objects of the present Convention are – to
secure the prompt return of children
wrongfully removed to or retained in any
Contracting State; and … to ensure that
rights of custody and of access under the law
of one Contracting State are effectively
respected in other Contracting States.

Article 2
Contracting States shall take all appropriate
measures to secure within their territories
the implementation of the objects of the
Convention. For this purpose they shall use
the most expeditious procedures available.

Article 3
The removal or the retention of a child is to
be considered wrongful where – 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 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.”

10. At the same time, the obligation to return the child is not
absolute. First, the obligation is subject to preliminary
conditions: (1) The Convention only applies to children up
to the age of 16 (Article 4); (2) The obligation of return
only applies if the petition for return is filed within a
year of the abduction (Article 12). Secondly, the
formulators of the Convention took into account the
exceptions itemized in Articles 13 and 20, in which cases
the court has the discretion to decide not to return the
child. These Articles state the following:

Article 13

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) the person, institution or other body
having the care of the person of the child was
not actually exercising the custody rights at
the time of removal or retention, or had
consented to or subsequently acquiesced in the
removal or retention; or

(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.

The judicial or administrative authority may
also refuse to order the return of the child
if it finds that the child objects to being
returned and has attained an age and degree of
maturity at which it is appropriate to take
account of its views.

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.

Article 20
The return of the child under the provision of
Article 12 may be refused if this would not be
permitted by the fundamental principles of the
requested State relating to the protection of
human rights and fundamental freedoms.

It is clear that a broad interpretation of these exceptions
– especially Article 13(b), that enables children not to be
returned out of consideration of their best interests – is
likely to frustrate the Convention’s purpose and turn it
into a dead letter, The Convention reporter, Prof. Eliza
Perez-Vera related to this issue:

” . . . it would seem necessary to underline the fact that
the three types of exception to the rule concerning the
return of the child must be applied only so far as they go
and no further. This implies above all that they are to be
interpreted in a restrictive fashion if the Convention is
not to become a dead letter …”
(E. Perez-Vera, “Explanatory Report,” Hague Conference of
Private International Law. Acts and Documents, (1980, vol
3), 434).

And truly, the formulators of the Convention tried to give
expression to the correct interpretation by drawing up the
exceptions in the most narrow way. Prof. Perez-Vera speaks
of this (Ibid):

“In drafting article 13 and 20, the
representatives of countries participating in
negotiations the Convention were aware that
any exceptions had to be drawn very narrowly
lest their application undermine the express
purposes of the Convention to effect the
prompt return of abducted children. Further,
it was generally believed that courts would
understand and fulfill the objectives of the
Convention by narrowly interpreting the
exceptions and allowing their use only in
clearly meritorious cases, and only when the
person opposing return had met the burden of
proof.”

11. Fulfillment of the Convention’s objectives obligates courts in
the various countries to deviate from the principles accepted in
custody disputes which are based on consideration of the child’s
best interest according to the standards accepted in each of those
countries, and to view the children’s best interests in its
broader perspective which is anchored on the assumption that the
best interest is for children not to be abducted from their
habitual residence by one parent and thereby also be separated
from the other parent. The specific examination of the best
interests of children who have been abducted remains in the hands
of the State from which the children were unlawfully removed. This
change brings certain difficulties along with it. Prof. Dyer makes
reference to the question:

“The Hague Convention intrudes upon the
jurisdiction of the courts in the country to which
the child has been taken, even if that is the
country of the child’s nationality, and insists
that the child be returned (usually to the place of
the child’s habitual residence immediately before
the abduction) so that the courts of another
country may exercise jurisdiction over the merits
of custody. The execution of this obligation
requires discipline on the part of the courts and a
willingness to let the best interests of the child
be framed, not merely within the context of the
judge’s own culture, but also in a
three-dimensional, multicultural setting, including
the child’s interest in not being abruptly
jump-started from one culture to another.”
(A. Dyer “The Hague Convention on the Civil Aspects
of International Child Abduction – towards global
cooperation,” The International Journal of
Children’s Rights 1 273, 274).1

12. Despite these difficulties, according to reports of
international committees that reviewed the Convention’s
implementation, the decisions handed down in the courts of
the member countries have, in general, fulfilled the
Convention’s objectives. The obligation to return the child
is broadly interpreted, while exceptions to this obligation
receive a narrow interpretation. At times, lower courts have
tended to judge the substantive aspects of the child’s best
interest by giving a broad interpretation to Article 13(b)
of the Convention, but these judgments have been remedied by
the appellate courts. The proceedings may have taken longer,
as a result, but standards have been set which will allow
for fulfilling the Convention’s objectives in the future.
Prof. Dyer explained it thus (Ibid, 279):

One of the important successes of the
Convention has been that the courts in the
countries Parties to the Convention have in
general handed down decisions which follow
closely its purpose and spirit …
Occasionally … local trial courts have
reacted against the new concept of the
Convention, based on allocation of
jurisdiction to decide on the merits, and have
proceeded to render decisions under Article
13(b) which have involved practically speaking
an examination and a determination of custody
on the merits. Fortunately, in a number of
countries, appellate courts have corrected
this tendency on the part of lower courts and
maintained the integrity of the Convention’s
basic principles. These appeals have, in some
cases, taken an inordinate amount of time and
therefore have failed to achieve the purpose
of the Convention, rapid return of the
abducted child in the particular case. The
appellate decisions, however have set the
standard for subsequent decisions by the trial
courts and therefore should lead to much more
rapid return of abducted children thereafter.”

It has also been accepted that achieving the purpose of the
Convention which is based on reciprocity – obligates a
uniform interpretation in all countries.

See P.H. Pfund, “The Hague Convention on International Child
Abduction, the International Child Abduction Remedies Act,
and the Need for Availability of Counsel for all
Petitioners,” 24 (1) Fam. L.Q. (1990) 36, 43; Report of the
Second Special Commission Meeting to Review the Operation of
the Hague Convention on the Civil Aspects of International
Child Abduction (18-21 Jan. 1993, Hague Conference on
Private International Law) p. 60; C vs. C. [1989] 1 WLR 654,
663 (C.A.) In Re A (Minors) [1992] 2 FLR 14;

In citation Basha 1648/92 Tourne vs. Meshulam Piskei Din 46
(3) 38, 45.2

The majority of the proceedings relevant to our matter were
on the question of the exception Article 13(b) in the matter
of psychological harm to the child.

13. In the United Stales, for example, in a case where children
who were abducted by their mother from Spain to California,
and lived there for over a year, in the natural course of
events found new friends and become attached to their new
home, it was determined that they should still be returned
to Spain, despite their unwillingness to return to the
Father they had not seen for this entire period; and despite
the fact that according to the opinion of the court
appointed psychologist the children would be caused
irrevocable damage if they were taken from their mother and
returned to Spain. The court determined that although a
child who was abducted and moved from country to country
would clearly suffer some degree of trauma; Article 13(b)
should still be interpreted in the most narrow and literal
manner, and therefore the condition for non-return of the
children exists only if there is grave risk that the
children will be exposed to harm. The burden of proof is on
the mother and its extent clear and convincing evidence. It
was determined that in this case the Mother did not bear the
burden of proof and it was doubtful if the children being
returned to their native country would expose them to the
stated risk. The Spanish court is the one that would
determine the child’s best interests. Any other way would
have allowed the Mother to benefit from the prohibited act
which she committed. See Navarro vs. Bullock, Calif. Super.
Ct. Placer Cty., 15 Fam L. Rep 1576 (1989).3

In the judgment in the matter of Renovales vs. Roosa, No. 91
0392232 (Conn.Super. Ct. (mem) Sept. 27, 1991) the court
noted the great weight of the burden of proof required in
order to enter within the exception under, Article 13(b):

“Clear and convincing proof is a standard
frequently imposed in civil cases where the
wisdom of experience has demonstrated the need
for greater certainty, as where this high
standard is required to sustain claims which
have serious consequences or harsh or far
reaching effects on individuals, to prove
willful, wrongful and unlawful acts, to
justify an exceptional judicial remedy, or to
circumvent established legal safeguards.”

See also Shaffer vs. Lindy, 8 Conn.App. 96, 104 (1986).

14. In England, the amount of harm required to refrain from
returning an abducted child according to Article 13(b) of
the Convention has been interpreted as being “an intolerable
situation.” Therefore, even if the parent petitioning for
the child’s return is a drug user, homeless or living on
welfare, it is not enough to prevent the child’s return. The
same is true regarding a parent who, in the past, has
neglected the child. See: Re Arthur (a minor), High Court
of Justice, Family Division (January, 13 1988); Re A (a
minor), Court of Appeal, Civil Division (June 10, 1987); Re
Duncan (a minor), High Court of Justice, Family Division
(January 29, 1988); All of them were published in: Case Law
Decided Under the Convention of October 25, 1980 On the
Civil Aspects of International Child Abduction, (Hague
Convention On Private International Law, Preliminary
Document No.2 of September 1989 for Attention of the Special
Commission of October 1989).

15. In the Australian case law the emphasis is placed on the
requirement of an “intolerable situation.” It was held that
the risk of ordinary psychological harm is not sufficient.
The condition for returning the child is severe (or
physical) harm of substantial nature. See: Ottens vs.
Ottens, Family Court of Australia (Melbourne) No. M. 9653/88
(Dec. 2 1988).

The characteristic mark of all the above proceedings is that
the best interests of the child are not determined in the
court which decides on the child’s return, but in the court
in the place of the child’s habitual residence after the
child has returned.

16. In Israel, Article 2 of the Convention Law determines that
the Articles of the Convention whose formulation is stated
in the addendum to the Law — will receive the validity of
law, and they will apply, despite what is stated in any
other law. In this way the provisions of the Convention
became incorporated in Israel’s internal law and changed the
legal situation.

Before the Convention Law was passed the only recourse for a
parent whose child was kidnapped by the other parent was to
apply to the Supreme Court under the authority granted it by
Section 15 (D) (1) of the Basic Law: the ruling, which
authorizes the Supreme Court Sitting as a High Court of
Justice (Bagatz) “to issue orders on the release of persons
have been unlawfully arrested or imprisoned” (Writs of
Habeas Corpus). This proceeding is still available in
situations where the Convention Law does not provide the
parent with a remedy, whether it be because the country from
which the child was abducted is not a party to the
Convention or for any other reason. We are not here
required to determine the question of whether the Supreme
Court will provide a remedy in a situation where it is
possible to resort to a proceeding under the authority of
Convention Law. Applying the authority according to Section
15 (D) (1) of the Basic Law: the ruling is based on the
assumption that the child was unlawfully removed by one
parent from the custody of the other parent (Bagatz 125/49,
Ibid, 13). Like the proceeding according to the Convention,
the proceeding in the High Court of Justice is only
temporary. It does not include awarding custody and the
question of the child’s best interests is not discussed in
all its aspects. The presumption is that foreign judgments
in the matter of child custody should be honored, and the
situation should be returned to its previous condition. See
the opinion of Justice Vitkin in Bagatz 76/71 Landror v,
Landror, Piskei Din 25 (2) 258, 274; President Agronat in
Bagatz 330/72 Goldstein vs. Goldstein, Piskei Din 26 (2)
634, 649.

At the same time, the Supreme Court sitting as a High Court
of Justice (Bagatz), left itself the discretion to not apply
its authority if it were proven that the return of the child
would cause substantial harm of a nature that would be more
serious than the harm caused as a result of severing the tie
with the custodial parent. See the opinion of Justice
Berenzon in Bagatz 40/63 Lawrence vs. Chairman of the
Execution of Judgment Office Haifa, Piskei Din 17 1709,
1716; Justice Zussmall in Bagatz 391/71 Jane Doe vs. John
Doe, Piskei Din 26 (1) 85, 92; Justice Shamgar in Bagatz
71/80 Saliach vs. Arshid (Saliach), Piskei Din 35 (1) 108,
109; Justice Barak in Bagatz 405/83 Cabelli vs. Cabelli,
Piskei Din 37 (4) 705, 718.

The main consideration in refraining from applying the
authority is the Child’s establishing roots in Israel during
the period of the abduction and turning it into the “center
of his life.” See the Opinion of Justice Beisky in Bagatz
268/80 Jansell-Zohar et al vs. Zohar et al, Piskei Din 35
(1) 1, 37; Justice Barak in Bagatz 405/83 Ibid, Ibid.

17. Regarding this point, the Convention Law has a different
approach. “The child’s best interest,” as an independent
consideration separate from the protection determined by
Article 13(b) of the Convention, is no longer open to the
decision of the court in the country to which the Child has
been removed. If the conditions determined by the Convention
exist, the court is obligated to order the Child’s return to
the State from which he was abducted, subject to those
exceptions determined by the Convention, which exceptions
must be narrowly and literally interpreted. Judge Netanyanu
refers to this in citation Basha 1648/92, Ibid 45-46;

“Here, the objective of the Convention is to
bring about the prompt return of the
‘snatched’ child. Article 13(b) should be
limited to exceptional instances from the
aspect of the intolerable situation and the
grave risk of its coming about as a result of
the return so . . . in a proceeding according
to the law, such as a Bagatz, the child’s
best interests are only relevant as a
consideration, if the court should decide to
refrain from ordering the situation returned
to its previous condition, until the question
of custody is clarified by the authorized
court … the difference between the law and a
ruling by the High Court in everything related
to the child’s best interests, in this limited
context, lies in the amount of actual harm to
the child; harm which justifies refraining
from returning him to his original country.
From what has been said above, there is no
doubt that Article 13(b) of the law is much
more stringent on this point than is a ruling
by the Supreme Court Sitting as a High Court
of Justice….”

In Civil Appeal 1372/95 Stegemann vs. Burke, (unpublished) this
court, reversed the lower court’s judgment which stated that the
child be allowed to stay in Israel, and ordered that the situation
be returned to its previous condition, even though the lower
court’s reason for deferring the petition was the best interests
of the child who had settled into his new environment. See also
Civil Appeal 5271/92 Foxman vs. Foxman (unpublished).4

This way maintains the primary principle of the child’s best
interests, according to which the custody dispute must be decided.
Except that authority for deciding what is the child’s best
interests is transferred to the courts in the country from which
the child was abducted. Those courts will hear the arguments and
decide as to the degree of harm likely to be caused the child by
severing him from the surroundings to which he has become
accustomed during the period of the abduction.

This arrangement fulfills the principle of the child’s best
interests in its broader sense. As previously stated, it deters
abduction, which in itself is the primary cause of harm to the
child, and it allows for holding a full and comprehensive hearing
as to what the child’s best interests require. This, in a forum
before which both parents — who, in the nature of things, are
familiar with the country from which the child was abducted — may
present their evidence and make their arguments on an equal basis.
See the opinion of President Agrausat in Bagatz 330/72, Ibid,
Ibid; Justice Barak in Bagatz 405/83, Ibid 713.

18. In our matter, the District Court’s decision is based on the
determination that the Child’s best interests require that
he not be uprooted from the surroundings in Israel in which
he is living today. However, we read it thus, that in a
proceeding according to the Convention Law the decision as
to what the Child’s best interests require is not in the
hands of the Israeli court.

There are only two questions which arise from the above
normative framework: First, does the Father have the right,
according to the laws of New York State, to determine the
Child’s place of residence (hereinafter: Custodial Right).
And second, was one of the defenses specified in the
Convention proven.

19. From the evidence presented before the District Court it
arises that the Father received custodial rights from three
authorities – any one of which is enough to vest him with
that right: The Rabbinical Decision, the laws of the State
of New York and the orders of the New York Court.

20. Section 10 of the Rabbinical Decision, which was rendered by
agreement of both parties, determines that the Father must
participate in decisions on important matters. There is no
argument — and thus it was also determined in the District
Court’s decision — that the Child’s country of residence is
an important matter. The civil divorce agreement does not
state that it nullifies the Rabbinical Decision. Witness
that after the decision validating the Civil Agreement, the
Mother herself even filed a claim against the Father for
violating the Rabbinical Decision. t,

The question which arises is therefore, what is the
relationship between Section 10 of the Rabbinical Decision
and Section 2 of the civil divorce agreement, wherein, as it
may be recalled, it is written that each party is permitted
to select their place of residence.

As is known, an agreement should be interpreted according to
the parties mutual intentions, which may first and foremost
be drawn from the agreement’s language. However, when the
text does not suffice it is also possible to make use of
external sources which can prove “circumstances” that when
combined with the text are an indication of the parties
intentions (Section 25 (A) of the Law of Contracts (General
Section), 5735-1973).

In the matter before us the parties reached two agreements.
As stated, the Civil Agreement did not nullify the
Rabbinical Decision but came in addition to it, so that the
later agreement does not stand alone, but is a part of a
general agreement between the parties, as drawn up within
the framework of both agreements. Both agreements, must
therefore, be seen as a single unit, and all the conditions
must be interpreted according to the purpose of the entire
unit; the relationship between each condition and the other
conditions and the internal logic.

See Civil Appeal 554/83 Ata Textile Company Ltd. vs. The
Estate of the Deceased Zolotov, Piskei Din 41 (1) 282, 305;
Civil Appeal 5597/90; Cohen vs. C.B.S. Records, Piskei Din
47 (3) 218, 219; Civil Appeal 5559/91 Gas & Energy
Industries vs. Maxima – Air Separation Center, Piskei Din 47
(2) 642, 647.

From the text of both documents it follows that Section 2 of
the Civil Agreement — a general stipulation that permits
both parties to act as they see fit in all matters,
including the selection of a place to live and a place of
work, with no interference on the part of the other party —
is subject to the specific stipulation in Section 10 of the
Rabbinical Decision. The mother’s execution of the right to
select a place to live includes transferring the Child from
the US to Israel — which is an important matter in his life
— and transforms the moving of the Child’s residence into a
decision which requires the Father’s agreement, according to
Section 10 of the Rabbinical Decision.

This result also fits the general interpretive principle
according to which a specific provision takes precedence
over a general provision, and this applies even if the
general provision is the later of the two. See A. Barak
Interpretations in Law – The Theory of General
Interpretations (Vol. A, 5742 – 1982) 540.

The Same conclusion also follows from the agreement the
parties reached regarding custody of the Child. According to
this agreement the Mother’s custodial rights were subject to
the Father’s right to maintain a continuous connection with
his son and to participate in all important decisions in the
Child’s life. It is unthinkable that the parties’ mutual
intention in Section 2 of the Civil Agreement was the
implied nullification of this right of the Father which is
integral to the custody agreement.

It is held that the Rabbinical Decision — whose base is, as
stated, an agreement — vests custodial rights in the
Father.

21. Custodial rights were also vested in the Father by the
authority of New York State Law. In their arguments the
parties’ attorneys enlarged upon the law in New York State
which applies to our matter, and each of them brought case
decisions which supported their positions. Even according to
the opinion of the respondents’ expert, which was accepted
by the District Court, the custodial parent may not remove
the Child from the boundaries of jurisdiction without
receiving the court’s permission, which will only be given
when special circumstances exist to doing so. Indeed,
according to the same opinion, once the Child has been
removed without permission, the court will not order him
returned if his best interests demand that he not be
returned. However, as explained above, the question of
whether the child’s best interests obligate letting him stay
in the country to which he has been abducted, is not a
question to be decided by a court in that same country, but
must be decided upon by a court in the country from which
the Child was unlawfully removed. According to the
Convention, it is enough if custodial rights have been
violated.

22. Custodial rights are also vested in the Father according to
the orders of the court in New York State. As stated, the
court in New York State decreed that the orders it had
issued regarding stay of exit from the boundaries of
jurisdiction and bringing the Child before the court had
been served on the respondent. The mother denies that she
received these orders. But, even if the foreign court is
mistaken, it is not the Israeli court’s business to correct
that mistake. Not only does the principle of honoring the
decisions of foreign courts also apply in this matter
(Bagatz 330/73, Ibid, 643; Bagatz 510/75 Liponsky vs.
Liponsky, Piskei Din 30 (1) 619, 625), but according to to
Article 3 of the Convention the injunctions of the court in
the country from which the child was removed are one of the
sources for the determination of custodial rights.

The District Court noted that the New York courts are
willing to forego their honor, and that even if injunctions
they issued have been violated it is not possible to return
the Child if his best interests dictate that this not be
done. But, here as well, the principle applies that the
question of whether returning the Child will harm the
child’s best interests must be determined by the court in
the country from which the child was removed.

23. I also did not find an evidential basis for the existence of
the defenses claimed by the respondents.

(1) The harm which, according to Article 13(b) of the
Convention, is enough to refrain from returning the
Child can only be the most serious harm. The opinion of
the psychologist, Dr. Perlmutter, does not indicate
harm of the type which would justify refraining from
returning the Child. Not only this but opposed to Dr.
Perlmutter’s opinion is the opinion of Dr. Yehudah Nir,
that the Child’s separation from his father is likely
to cause him psychological damage. One way or another,
seeing that there is no unequivocal proof that serious
harm is likely to occur, it is up to the court in New
York to clarify the issue of with which parent the
Child’s best interests will be served.

(2) The defense according to Article 13(a) of the
Convention in the matter of the Father’s acquiescence
to the Child’s remaining in Israel, is based on the
fact that the Father’s petition was presented ten
months after the Child was removed from the USA.

Article 12 of the Convention gives the parent a year’s time
to petition for the return of the child to his place. The
defense of acquiescence enables us to conclude that the
parent acquiesced to the Child’s removal in the sense that
he waived his right to the immediate return of the situation
to its former condition, because he did not react to the
removal during a reasonable time, which is less than a year.
However, this defense does not apply when there is an
acceptable reason for the delay. See Civil Appeal 473/93
Leibowitz vs. Leibowitz, Piskei Din 47 (3) 63, 72.

In the instance before us, it may be recalled, the delay
stemmed from the Mother’s abduction of the Child. She did
not notify the Father of the Child’s address in Israel and a
long time passed until the Father succeeded in locating the
address. Only then was he able to submit a petition to the
court in Israel, which is what he did. Since the petition
was submitted to the court the Father has been working
persistently, through his Attorney, for the Child’s return.
As stated, his petition was denied in the District Court and
the appeal proceeding was drawn out, not because of the
Father’s wishes, but because of this court’s attempts at
reaching a compromise — which attempts were made at a time
when the previous decision which rejected his petition was
still valid, and we had not as yet reached a decision on the
matter. Among these efforts at compromise we suggested that
the Father come to Israel to meet with the Child, and we
therefore continued the hearing. During this entire period,
the Father’s representative, Attorney Freedman, continued to
emphasize the Father’s insistence on his right to have the
minor returned to his place of residence. The length of the
proceedings cannot therefore be blamed On the Father nor can
it be concluded from this length of time that the Father
ever waived his right to return the situation to its former
condition.

As stated, the convention itself does not recognize the
length of the proceedings as being a defense. The position
of American case law in this matter is unequivocal, and
states that the length of proceedings is irrelevant. See,
for example, Rexford vs. Rexford (Alaska 1980) 631 P. 2d
475, 478; Plas vs. Superior Court (1984) 155 Cal.App. 3d
1008, 1015, [202 Cal.Rptr. 490, 494]; Bull vs. Bull (Mich.
App. 19881) 311 N.W. 2d 768, 744; Boyd vs. Boyd (Tenn. App.
1983) 653 S.W. 2d 732, 738; Irving vs. lrving (Tex. App.
1985) 682 S.W. 2d 718, 721.5

This is an approach which I can accept. It follows from the
Convention’s language and objectives. Still, it is
understood that when the authorized court in the country
from which the abduction took place makes its determination
regarding custody, according to the Child’s best interests,
it will take into account the influence of the time which
has passed.

My conclusion is therefore, that since the Father’s
custodial rights have been proven and since none of the
defenses specified in the Convention have been proven, the
Child should be returned to the State of New York in the
United States of America.

24. As stated, a considerable amount of time has passed since
the abduction. The boy has settled into his new
surroundings. These facts and his connection to his mother
are important considerations in the determination of his
custody. However, the decision in this matter is in the
hands of the court in the State of New York, and it is
incumbent upon it to take account of these considerations
and decide according to the best interests of the Child.

25. On the basis of what has been said above, I recommend that
the appeal be accepted and that the District Court’s
decision be overturned. I order the Mother to return the
Child to the USA no later than August 21, 1995. We recommend
that the Mother, whose devotion to the child is not denied,
will make every effort to do this and to return the child to
New York by herself. Should she not do so, she must deliver
the Child to his father, in Israel, on August 22, 1995, so
that he may be returned with him to the State of New York in
the USA and act in accordance with the instructions of the
court in that state.

I also recommend that the respondents pay the Father’s
costs, including travel expenses to Israel and accommodation
while in the country, as determined by this court’s
registrar, and that they be obligated to pay the petitioners
attorney’s fees in the amount of NIS 15,000.

Justice

Justice S. Levine:
I concur.

Justice

Justice Y. Kedmi:
I concur.

Justice

Decided as stated in the judgment of Justice Dorner.

Given on this day, the 18th of Av 5755 (14 August 1995)

Judge Judge Judge

Copy authentic to the original
Shmaryahu Cohen – Chef Clerk
gimel-het/553293

——————–
1. Available on Hilton House BBS as GLOBAL.AD

2. A summary of this decision is available on Hilton House BBS
as TOURNAI.ISR.

3. Available on Hilton House BBS as NAVARRO.CA

4. Available on Hilton House BBS as FOXMAN.ISR

5. See also The Effect of Judicial Delay in International Child
Abduction Convention Proceedings; Published in American
Journal of Family Law, Vol. 9, No. 3, Fall 1995. 9
Am.J.Fam.L. 155 (1995).