ISRAEL – IN V AS – 2001 (2001) (Return Ordered) I.N. v A.S. The father took the child from Sweden to Israel. The mother files for the return. The court ordered the return. Case was handled in six days. (See comments by Mr. Hilton)
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I.N. v A.S. et al [Israel 2001]Family Court of Haifa No 34970/01
16 International Abduction [Israel 2001]
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(TRANSLATION FROM HEBREW)
IN THE FAMILY COURT FOR HAIFA
JUDGE AVIDAN GLOWINSKY
NOVEMBER 28th, 2001
FILE NUMBER 34970/01
IN THE MATTER OF THE MINOR GIRL N.Z.
FINNISH PASSPORT No .
DATE OF BIRTH 10.15.88
PLAINTIFF:
I. N. SWEDISH PASSPORT No .
By counsel: A.L. GARB and N. BARKAN
DEFENDANTS:
1. A.Z.
2. H.Z.
3. A.Z.
JUDGMENT
001 1. The plaintiff filed a claim on November 22nd 2001
for the return of a kidnapped minor under the Hague Treaty
Law (The Return of kidnapped children) – 1991.
002 The plaintiff claims, as was stated in the affidavit
annexed to the claim, that the minor was taken from Sweden
on October 3rd 2001 by trickery and was flown to Israel
along with her father’s relatives.
003 The father is defendant no. 3.
004 The plaintiff’s requests and demands were not met and
she had to turn to legal counsel which led to the filing of
this claim.
005 The plaintiff further stated that since 1998, the
parents who are divorced and live separately, have joint
custody.
006 2. On the date of filing the claim, November 22nd
2001, a temporary decision was given by me regarding the
prevention of the minor and the defendants from leaving
Israel and an order was given to transfer the minor
immediately to the welfare authorities. I also ordered a
review from the welfare clerk-social worker at the Bismat
Tivon village local council, and a hearing was scheduled for
today, only 6 days after the claim was filed.
007 3. The review was presented yesterday to court file
by the welfare clerk Mr. Nasser Darawshe. It appears that
the child is not interested in returning to Sweden, that she
speaks Colloquial Arabic and Swedish (and a little English)
and that it is hard for her to live in her mother’s house
due to quarrels with her stepfather, and it is also
difficult for her to live in her father’s house due to
quarrels with her stepmother.
008 4. At the hearing held today appeared both the
parents, the father’s parents, the minor herself, the
welfare clerk and advocate G. Solan on behalf of the
Attorney General of Israel, I have brought all parties to an
agreement that the claim is to be granted and that this
court is obliged to order the return of the child to Sweden
as soon as possible.
009 I have spoken with the child alone, without the
parties, but in the presence of the welfare clerk Mr.
Darawshe and the Swedish translator. The conversation was
pleasant and was held in Arabic, English and Swedish, and I
was under the impression that the minor fully understood the
role of the court under the Hague Treaty Law and that she
understood that if she is interested in living in Israel or
anywhere else, with the absence of both of her parents’
consent or the absence of one of her parents’ consent, she
needs to apply to the qualified court in Sweden through her
father or an appointed lawyer or in any way according to the
Swedish law, and that the authority to decide in these
matters is given to the Swedish court and not to the Israeli
court.
010 5. During the hearing, defendant no. 3 presented an
Israeli passport of the minor issued in the Israeli embassy
in Stockholm in 1997, and from it appears that the minor
visited Israel several times in the years 1998, 1999, 2000
and twice this year, once beginning on June 1st 2001 and the
other visit beginning on October 3rd 2001.
011 6. This is the place to note that regarding the
child’s wish in accordance with section 13(b) to the Hague
Treaty annexed to the Law, the court needs to take the
utmost care and follow the precedents regarding the narrow
interpretation that needs to be given to the exceptions in
the Treaty.
012 In this matter see the Israel Supreme Court decisions
in Shevach v. Shevach (3052/99) and Gunzberg v. Greenwald
(5532/93).
013 The fact that both of the child’s parents live in
Sweden is an additional fact that brings the court to
determine, almost without hesitation, that the return of the
child to Sweden must be ordered so that a qualified court
there can decide on any matter that shall arise regarding
her custody.
014 7. In a conversation not for the protocol, I
understood from the father, defendant no. 3, who arrived in
Israel this morning, that he plans to stay in Israel for
about two weeks, for personal matters, and will return to
Sweden only in two weeks. An agreement was reached, that has
no legal validity in Israel, that the minor shall fly with
her mother to Sweden and stay in her house, until the
father’s return to Sweden, and then she will move into his
house subject to any existing or future decision of a
qualified court in Sweden regarding the custody and the
visitation rights in her matter.
015 8. The claim is hereby granted.
016 The orders for prevention of departure from Israel
which were issued against the minor and against defendants 1
and 2 are hereby canceled.
017 The minor’s Israeli passport is given by me to the
hands of the plaintiff’s advocate so that he will give it to
his client and with this passport the minor will leave
Israel and return to Sweden.
018 9. The plaintiff’s advocate has advised that through
the assistance of the Swedish embassy in Israel, a flight
has been arranged for the plaintiff and the minor tonight,
i.e. November 29th at 1:00 A.M., by the Dutch Royal
Airlines, KLM via Amsterdam, and this is the flight that
will return the minor to Sweden.
019 The secretariat will send a copy of the protocol and
the judgment to Advocate Regina Tapuchi of the attorney
general office in Jerusalem for the Central Authority under
the Hague Treaty.
020 Due to the circumstances of the matter and due to the
fact that the claim ended in the first hearing and in
agreement – there is no order for court expenses.
021 Given and announced today, November 28th 2001 in the
presence of the parties.
Avidan Glowinsky, Judge
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Comment by Wm. M. Hilton, CFLS
This decision, though brief, is of importance for the
following reasons:
1. The matter was filed with the court on 22 Nov 2001
and the child was returned to Sweden on 28 Nov 2001,
six days later, thus following the admonition of The
Convention on the Civil Aspects of International
Child Abduction, done at The Hague on 25 Oct 1980
(The Convention) that these cases be promptly
decided. It is also to be noted that not only was
the case heard promptly but the order of return was
promptly carried out – the decision states that the
child was booked on a flight the evening of 28 Nov
2001.
2. The court in Israel deferred all matters dealing with
the merits of the case to the court in Sweden
following the assumption of the drafters of The
Convention that ” . . .the signatory States be
convinced that they belong, despite their
differences, to the same legal community within which
the authorities of each State acknowledge that the
authorities of one of them – those of the child’s
habitual residence – are in principle best placed to
decide upon questions of custody and access.” No 34
of the Explanatory Report by E. Perez-Vera, Hague
Conference on Private International Law, Actes et
documents de la Quatorzieme session, vol. III, 1980,
p. 426. See also Friedrich v Friedrich (6th Cir.
1996) 78 F.3d 1060, 1068 wherein the court stated:
“In thinking about these problems, we acknowledge
that courts in the abducted-from country are as ready
and able as we are to protect children. If return to
a country, or to the custody of a parent in that
country, is dangerous, we can expect that country’s
courts to respond accordingly.”
3. The decision is also significant since it appears
that the matter was resolved largely due to
settlement discussion that were encouraged by the
court.
4. Even though the child here was thirteen the court in
Israel ruled (properly in my opinion) that her wishes
could be heard and considered by the court in Sweden.