ISRAEL – TOURNAI V MECHOULAM (Return ordered) TOURNAL v MECHOULAM. Mother takes child to Israel. Court orders the child returned to France, but places a stay for 7 days to allow the mother to appeal to the Supreme Court. The Supreme Court up held the District courts order and dismissed the mother’s application for a further stay.
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STATE OF ISRAEL
IN THE SUPREME COURT OF ISRAEL
Before the Honorable Justice Shoshana Netanyahu
Penina Tournai v. David Mechoulam
[Summary of Decision WMHFN-1]
15 Apr 1992
A child, aged 6 years, was abducted by his mother from France, and
brought by her to lsrael. On the 26th March, 1992 the District
Court of Tel Aviv gave judgment on a Hague application ordering
immediate return of the child to his father in France, but
granting stay of execution for 7 days to enable the mother to
appeal to the Supreme Court. On appeal, the Supreme Court upheld
the order of the District Court and dismissed the mother’s
application for a further stay of execution.
The parents of the child were divorced by judgment of a French
court in May, 1988, which also made provision for custody of the
child, in the following terms:
“les deux parents exerceront en commun l’autorite parentale sur
l’enfant mineur qui aura residence habituelle chez la mere.”
This was somewhat modified in a later judgment of the same court
as follows:
“. . . exercerant conjointement l’autorite parentale sur leur fils
David avec residence de ce dernier en domicil maternal.”
The second French judgment also ordered the passports of the
mother and the child to be deposited in court with a view to
forestalling any possible abduction.
The lsrael Supreme Court held that when the mother came to lsrael
in January, 1991 with the child, she committed a breach of the
father’s joint right of custody and right of access in the sense
of the Hague Convention. At any rate, the father certainly had a
joint right to determine the child’s custody under Art. 5 of the
Convention, and this was infringed by the mother.
The Supreme Court dealt first with the applicant’s argument that
the Hague Abduction Convention did not apply to the case, in view
of the fact that the implementing statute requires a notice to be
published in the Official Gazette by the Minister of Foreign
Affairs as to the states with which lsrael has relations under the
Convention, whereas, it was alleged, first, that the notice was
formally defective and secondly, that the abduction took place
before the notice was published. The Court held that there was no
formal defect in the notice, and that publication of the notice
was not constitutive but purely declaratory, the purpose being to
provide information to the public. The Convention, said the Court,
was in effect between lsrael and France at the time of the
abduction. WMHFN-2
The Supreme Court upheld the conclusion of the Court below,
dismissing the mother’s contentions as to the unsuitability of the
father as custodian in view of his alleged violent nature and
unstable personality as baseless, and refusing to initiate an
investigation by a social worker into the psychological state of
the child and the suitability of the father as custodian. This was
regarded by the District Court as superfluous and a waste of
valuable time. The Supreme Court underlined this by referring to
the provisions of the Convention which emphasize the importance of
preventing delaying tactics and expediting of proceedings. This,
the court said, is underscored by the following provisions:
Article 1: “to secure the prompt return of children wrongfully
removed…”
Article 2: “they [Contracting States] shall use the most
expeditious procedures available. ”
Article 11: “The judicial and administrative authorities…shall
act expeditiously.
Article 12: “Where…a period of less than one year has
elapsed…the authority concerned shall order the return of the
child forthwith.”
If the case were one in which the provisions of Article 13(b) of
the Convention, as to grave risk to the child, were applicable,
then such a social investigation would be justified even despite
the above provisions of the Convention, but this was not such a
case, and indeed the “grave risk” provision only applied to the
most extreme cases. WMHFN-3
The Supreme Court referred to the report of the deliberations at
the Hague Abduction Convention Review Conference in 1989, which
pointed out, inter alia, that the provisions of Article 13(a) and
(b) of the convention could serve as a basis for delaying tactics
on the part of the abducting parent. WMHFN-4 In this context, it
was pointed out that in Contracting States, while the order for
return was generally subject to appeal, the time allowed for
appeal was very short and/or the first instance judgment was
immediately enforceable despite an appeal. WMHFN-5 Moreover,
procedures at first instance gave only limited room to the
abductor for calling witnesses.
The reference to the Review Conference Report by the Court was
intended to underline the necessity for expeditious procedure and
prevention of abuse of appeal procedures and also to underline the
importance of uniform interpretation and application of
multilateral conventions by all parties thereto.
The Court stressed that on a Hague application the court applied
to is not required to consider permanent custody arrangements or
undertake a full scale investigation into the child’s welfare. It
is merely called on to restore the status quo prior to the
abduction, and to consider the question of the child’s welfare in
the narrow context of whether or not an exception to return under
Article 13 of the Convention is applicable in the particular case.
WMHFN-6
[FULL TEXT OF THE ABOVE DECISION]
IN THE SUPREME COURT IN JERUSALEM
VARIOUS CIVIL APPLICATIONS FILE 1648/92
WMH – FN7
APPLICANT: Penina Tournai
-vs-
RESPONDENT: Daniel Charles Mechoulam
BEFORE: The Hon. Judge S. Netanyahu
DATE OF SESSION: 11 Nissan 5752 (14 Apr 1992)
COUNSEL FOR APPLICANT: Adv. Dr. Ben-Or
COUNSEL FOR RESPONDENT: Adv. Welner
Appeal against the decision of the Tel Aviv District Court on 26
Mar 1992 in Civil Status File 1367/92 given by the Hon. Judge S.
Porat.
DECISION
1. The Tel Aviv-Yafo District Court (Hon. Judge S. Porat)
ordered the Applicant, in its judgment of 26 Mar 1992, to return
immediately her minor son David Michael Mechoulam to France and
place him in the custody of his father, the Respondent. Upon her
request to defer the execution of judgment, the Court decided on
a deferment of one week only, to enable her to appeal to this
Court and here apply for an additional deferment. The Applicant
did so. On 15 Apr 1992, I decided to deny the application for
deferment. Due to the urgency of the matter, I did not give
reason for my decision and they are presented hereinafter. But
first the facts.
The Facts
2. Both of the parents are Jews. The father is a citizen and
resident of France. The mother is a citizen of Israel, who,
while visiting France, was married there to the father, in 1984.
From this marriage was born the minor child, in May 1985, and he
is now some six and a half years old. He holds dual citizenship,
Israeli and French. The marriage did not work out well and ended
in divorce, in France, in 1988. The Paris District Court, which
declared the divorce in May 1988, ruled that both parents would
have joint parental authority over the minor child, who would
live with the mother:
“. . . les deux parents exerceront en commun
l’autorite parentale sur l’enfant mineur qui aura
residence habituelle chez la mere . . .”
Meanwhile, both parents have remarried other partners. Each
of them has one child from the second marriage: The father has a
son and the mother, a daughter.
In December 1991, the same Court in paris issued an order
amending the original judgment of May 1988. The order legalized
an agreement reached between the two parents, following
examination by a social worker and the provision of expert
opinions by psychologists as instructed by the Court. The order
repeats that stated in the original judgment concerning the joint
parental authority and the residence with the mother. The
parents, according to the order:
“. . . exerceront conjointement l’autorite parentale
sur leur fils David avec residence de ce dernier en
domicile maternel.”
The change in the amending order constituted a certain
reduction in the father’s visiting arrangements and an
instruction to deposit the passports of the mother and son, for
fear of his abduction. This, following the psychological expert
opinion which stated that the child was terrified of being
abducted to Israel. It was there recorded that they mother
notified the father that she would be visiting Israel in Jan
1992, on the occasion of her sister’s wedding. For this purpose,
an instruction was given to release the passports.
It is therefore obvious that the instruction that the child
would live with his mother, included in the judgment and in the
amending order, did not give her permission to remove the child
from France and from the joint parental authority with the
father, who also has the right of visitation, without the
father’s consent.
In January 1992, the mother arrived in Israel and the minor
child was with her. By so doing, she performed an “abduction” of
the minor, in the sense of the ruling of this Court (see High
Court of Justice 405/83 and Various Applications 1050, 958/83,
Cabelli vs Cabelli, Rulings 37(4)705; Further Hearing 23/72,
Goldstein vs Goldstein Rulings 27(2)197; High Court of Justice
836/86, Bechar vs Gale Rulings 41(3)701). It also appears that
she injured the father’s rights of joint custody and visitation
in the sense of the Hague Convention on the Civil Aspects of
International Child Abduction, 1980 (hereinafter: “The
Convention”), WMH – FN8 which has here been legalized as the
Hague Convention Law (Return of Abducted Children), 5751-1991
(hereinafter: “the Law”).
3. Soon after her arrival in Israel, the Applicant filed suit
with the Tel Aviv District Court for custody of the child and
there received a temporary custody order. The father approached
the Paris Court, in which, on 04 Mar 1992, the same judge who had
issued the original judgment and the first amending order issued
an additional amending order, in the absence of the mother. The
order ruled that the father alone would realize the right of
parenthood of the child, that the child would live with him and
that it was inappropriate to grant the mother the right to visit
the child or to take him to sleep at her home. It was there
stated that the mother did not appear and was not represented,
although she had been summoned. The mother claims that she did
not receive a summons.
The father subsequently approached the Tel Aviv-Yafo
District Court, asking it to instruct that the child be returned
to France by virtue of the Hague Convention. The Court, as
stated, acceded to his request and, in so deciding, canceled the
temporary custody order which had been given in the mother’s suit
and struck out the custody suit in limine.
Applicable Law
4. “The object of the hearing is a proceeding in accordance
with the Hague Convention Law (Return of Abducted Children),
5751-1991.” This is the opening sentence of the judgment and the
matter was so treated there. However, in the appeal and
application for stay, it was claimed that the said Law does not
apply to the case at all. I shall not discuss the procedural
aspect of this claim’s having been raised for the first time in
the appeal and the application for stay of execution submitted
therewith, as I do not consider the claim as acceptable from the
substantive aspect.
The claim is based on Section 3 of the law, which states
that:
“the Minister of Foreign Affairs shall publish in
Reshumot [the official gazette of the Israel
Government] a notice of the states with which the State
of Israel is engaged by The Convention . . . ”
and on the fact that the notice, which was published in the
Official Announcements and Advertisements Gazette (#39990, 1
April 1992, p. 2644), bears the name of the Government Secretary
and not of the Minister of Foreign Affairs. It appears that the
publication in the Official Announcements and Advertisements
Gazette was erroneous. The Minister of Foreign Affairs certainly
did sign the notice, on 9 March 1992 (the original notice,
bearing his signature, was presented and submitted to the file).
This, perhaps, did not remedy the flaw, as Section 3 does not
content itself with the Minister’s signature, but calls for
publication by the minister and such publication was not made.
In any event, even had the publication been properly executed, it
does not give the Law retroactive effect concerning the return of
the child to France due to infringement of the custody rights, as
the child was brought to Israel as early as January 1992, before
the publication.
Admittedly, the Law does not have retroactive effect (cf.
the English case of B v B 1988 1.W.L.R. 526); however, it became
valid as of the day of its publication, on 29 May 1991, before
the child was removed from France. The publication required by
Section 3 is not constitutive; it does not determine the initial
validity of the Law. The publication is declarative only; it is
the method which the Law determined for informing the public of
the states with which Israel is engaged WMH-FN9 by The
Convention. It is an undisputed fact that Israel was engaged
with France by The Convention even before the child was brought
to Israel.
Let us, then, return to the Law. Only as a parenthetical
remark, I shall first note that, due to the reasons which will be
explained later, the result would have been no different in this
case, even had the matter been heard in accordance with the legal
situation which prevailed in Israel before the signature of The
Convention and the enactment of the Law.
Application of the Hague Convention Law (Return of Abducted
Children, 5751-1991) and the Provisions of The Convention.
5. Section 2 of the Law instructs that “the articles of The
Convention . . . shall have legal validity as a Law and shall
apply despite that stated in any law . . . “.
The purposes of The Convention, as declared in Article 1 WMH
– FN10 thereto, are two:
a. to ensure “the immediate return” (emphasis in the
original) of children unlawfully removed to a state
engaged by The Convention (“an engaged state”) or not
returned therefrom;
b. to ensure that the right of custody and visitation,
in accordance with the law of an engaged state, shall
be effectively honored in the other engaged states.
The operative provision in the case of the removal of a
child is that in Article 12, stating that in the case of a child
who was removed and not returned, unlawfully, and if a year has
not elapsed from that time to the date of opening proceedings in
the engaged state in which the child is located, “the relevant
authority shall order that the child be immediately returned”.
This provision has a few exceptions, detailed in The Convention.
The one which interests us is that listed in Article 13(b), on
which the mother basis her claim, in which:
” . . . there is a grave risk that the return of the
child will expose him to physical or psychological
damage or will place the child, in some other manner,
in an intolerable situation” (emphases not in the
original).
When considering the existence of these circumstances, the
authorities must take into account the information concerning the
child’s social background, as produced by the authorities of the
child’s ordinary place of residence. This is also provided in
Article 13.
6. The mother’s factual claim in the lower court was that the
father is a violent man who frequently hit her and also attacked
his stepson Guillaume, the son of his second wife (and, for that
reason, the father of that child had lodge a complaint with the
police and a file was opened); the child is afraid of his father
and of his violent outbursts and refuses to meet him and visit
his home.
Such claims were also made in the affidavit supporting the
application for stay. In that document, the mother describes the
father as an unstable person, who practices physical violence and
endangers the child’s physical and mental health. Out of ear,
the child refuses to visit him or even to speak with him on the
telephone. The mother also emphasizes that the child is very
much attached to her and to his stepsister from her second
marriage and is not willing to be separated from them.
The mother complains that the French Court revoked her
custody — after she unlawfully removed the child from France —
without even considering the welfare of the child. This is not
so. Before the French Court was a psychiatric expert opinion on
this subject, prepared on the instructions of that Court. WMH –
FN11 In her appeal to this Court, the mother claims that the
Hon. Judge Porat did not enable investigation and clarification
of the child’s situation and of the effect that separation from
her and from her stepsister and return to his father in France
would have on him.
7. The learned Judge attests that he debated, given the
mother’s claim, whether there was justification to hold an
investigation and request an expert opinion. He reached the
conclusion that this was unnecessary, as the mother’s factual
claims appeared groundless to him.
His considerations were detailed in the judgment and there
is no need for me to repeat them. He shows, on the basis of the
material which he had before him, that the Applicant’s behavior
is not in line with the truth of her claims; this is especially
shown by the fact that the amending order of December 1991 was
given with her consent, after the incident with the stepson
Guillaume.
It should be noted that the psychological expert opinion
before the French Court stated that the child loves both parents
and feels good and at ease with both of them. His relationship
with each of them is close and good and he meets his father
gladly. The psychiatrist did not ignore the child’s relationship
with his stepsister. He expressed the opinion that the
arrangement (which, as stated, was reached with the consent of
both Parties) was satisfactory when both parents were living in
France; yet the suspicion of abduction to Israel was also
expressed there, which, as stated, led to the decision to deposit
the passports.
The learned Judge drew his conclusions also from the letter
written by Guillume’s natural father, stating that the incident
with him was marginal and that the Respondent and Guillaume get
along well and on the certificate given by the clerk of the Paris
Court on 27 Apr 1991. That clerk went, as stated therein, to the
mother’s house in order to cause the realization of the father’s
right of visitation, which he claimed to have been prevented from
realizing. According to that certificate, the child agreed
willingly to go with the father.
All this showed that not only was there no support of the
mother’s version concerning the father’s terrible violence which
led the child to fear not only his presence, but also his voice
on the phone; on the contrary, there are facts and circumstances
which indicate that her complaint is not true. In this
situation, and in view of the provisions of The Convention
concerning the urgency with which action is to be taken the
learned Judge reached the decision that it would be a waste of
valuable time, particularly in the circumstances of the case, to
delegate a welfare clerk to investigate the matter of the child
and submit an opinion, especially that the welfare clerks are
woefully overburdened and this would lead to a protracted delay.
8. This conclusion does not appear to me to have been
erroneous, for two reasons:
a. The urgency of handling the return of a child unlawfully
removed and not returned, in a manner involving the breach of the
right of custody or visitation, is the basis of The Convention.
It is woven into The Convention and runs through the entire
document as a principal motif. This is not only indicated in
Article 1, which has already been quoted above, instructing the
immediate return. This urgency is also expressed in other
provisions of The Convention. Thus, Article 2, which instructs
the engaged states to take all proper measures to ensure the
objectives of The Convention and “. . . for that purpose to
activate the most urgent proceedings at their disposal.”. Thus
also Article 11, in accordance with which “. . . the judicial or
administrative authorities shall act urgently in proceedings for
the return of children . . .”, so much so that, if a decision is
not reached within six weeks of the opening of the proceedings,
the Applicant is entitled to demand an explanation for the delay.
Also Article 12, in accordance with which, in a fresh case, in
which a year has not elapsed between the date of the child’s
removal and the opening of proceedings (and this is the case
before me), “. . . the . . . authority shall order that the
child be immediately returned”. (All emphases not in the
original).
b. Of course, if the situation at hand appeared to be a
severe one, in which the return of the child would injure his
welfare, the judicial authority would have to investigate the
matter, even though the investigation would take time. I agree
with the learned Judge’s statement that the State of Israel,
which has joined The Convention and adopted it into its own laws,
must ensure the appointment of welfare clerks who will be able to
devote themselves to the rapid handling of the matters dealt with
by the Hague Convention. This, however, does not appear to me to
be the case before me. The relevant section of The Convention in
this case is, as stated, Article 13(b), which speaks of ” . . .
a grave risk that the return of the child will expose him to
physical or psychological damage or will place the child, in some
other manner, in an intolerable situation”.
The law adopting The Convention is a new law and has not yet
accumulated sufficient experience in its implementation and
interpretation. A certain amouint of experience has already been
acquired in other engaged states, which adopted The convention
earlier. With the intention of exchanging opinions and drawing
conclusions as to the manner of activation of The Convention, a
special Commission was established for this purpose in 1989 and
its conclusions were published by the Permanent Offices of the
Council. WMH – FN12 Among the questions discussed was the use
made of the provision of Articles 13(a) and 13(b). In its
conclusion, the Commission calls attention to the fact that these
provisions are likely to bring about delaying tactics on the part
of the defendant, whereas it is obvious that this was not their
intention and that the authorities operating by law have the
mission of instructing the parties and the courts as to the
proper role of these provisions. WMH – FN13 In the same
context, the question was raised as to whether the return order
is subject to appeal in the engaged states. The conclusion was
that, as a rule, it is indeed subject to appeal, but that,
generally speaking, the delay granted for the submission of an
appeal is brief and the order of the first instance is
implemented immediately or could have been implemented
immediately following the Applicant’s application and/or the
procedure in the first instance allowed only a brief interval for
the “abductor” to have his/her witnesses heard. Questions were
also asked about the extent of the “grave risk” of an
“intolerable situation” in the sense of the section under
discussion; the impression obtained was that the interpretation
of the various courts is stringent. On this question, see also
Federal Register, Vol. 51, No. 58, March 1986, p. 36: WMH-FN14
“The person opposing the child’s return must show that
the risk to the child is grave, not merely serious. . .
An example of an “intolerable situation” is one in
which a custodial parent sexually abuses the child.
Here, then, the trend of The Convention is to bring about the
immediate return of any “abducted” child and Article 13(b) must
be limited to exceptional cases from the standpoint of the
intolerable situation and the gravity of the risk of its arising
as a result of the return.
When the matter at hand is an international convention which
creates mutuality among the engaged states, great importance is
ascribed to uniformity of interpretation (unless and as noted
otherwise in internal legislation). See the English case of C. v
C., p. 663; WMH – FN15 and of my statement in Further Hearing
36/84, Teichner vs. Air France, Rulings 41(1)589, 639-641.
Adv. Goldwasser of the Government Legal Advisor’s Office has
noted that applications from Israel to return children “abducted”
here are handled by the authorities of engaged states abroad in a
manner appropriate to this trend.
The factual circumstances raised in the case at hand do not
meet the criteria for implementing the exception in Article
13(b). To them should be added the report by the welfare clerk
date 08 Apr 1992, which details the behavior of the child and
those around him, on both sides, when she came to fulfill the
duty which had been imposed on her, to return the child to his
father in accordance with the judgment of the Hon. Judge Porat.
Her impression was that the child was in a state of anxiety
because of the tension of the adults surrounding him on his
mother’s side before his transfer to his father. But he had no
fear of his father. He went with him entirely calmly and also in
the course of the clerk’s visit to the father the next day, in
the mother’s presence, the child behaved freely, with no sign of
anxiety or tension involving either of the parents.
The impression is that the child is sensitive and attached
to his mother and thus the mother managed to project and to
transfer to him, her own anxieties regarding the separation from
him. This is also apparently the explanation for the situation
in which the family doctor found the child before his delivery to
his father. But there was no fear of his father in the child.
9. It should be clarified here that, in the proceedings
according to the Law, the court is not considering the question
of the permanent custody of the child, WMH – FN16 nor even that
of the welfare of the child in the full sense of the word. The
framework of the session is not intended for, and does not
enable, such a comprehensive discussion. The role of the court
in the proceedings according to the Law, similarly to the role of
the Israel High Court of Justice in this question of abducted
children, is simply “putting out a fire” or “first aid” in order
to restore the former situation — returning the child unlawfully
taken from the custody of the other parent or the joint custody
determined by a competent court or in an agreement between the
parents (see the said High Court of Justice 405/83; the said High
Court of Justice 836/86, p. 705). The question of custody, when
it is disputed, is ordinarily settled in the competent court and
the welfare of the child is fully and thoroughly examined in that
framework. However, in proceedings according to the Law, such as
those in the High Court of Justice, the welfare of the child is
relevant only as a consideration whether to refrain from ordering
the restoration of the former situation, until the question of
custody has been examined by a competent court (see High Court of
Justice 836/86, p. 706 and references therein). As stated there,
“only real damage to the child will justify rejecting the appeal,
which rejection could eventually perpetuate the minor’s remaining
in the hands of the parent who unlawfully took him.”
The difference between the Law and the High Court of Justice
rulings in all matters concerning the welfare of the child, in
this limited context, is in the extent of real damage to the
child justifying the refraining from returning him to his former
place. From all that stated above, there can be no doubt that
Section 13(b) of the Law is much more stringent than the High
Court of Justice rulings in this matter, as may be seen from the
judgments mentioned above and from those referred to therein.
10. Adv. Maimon, who was also present on behalf of the
Government Legal Division, on her own initiative raised the
question as to whether this case concerned a breach of custody
rights as defined in Article 59a) of The Convention, that is,
removal or non-return of a child in the sense of Article 3, as in
that case, the provisions of Article 12 ordering that child’s
immediate return would apply; or whether this was no more than a
breach of visitation rights as defined in Article 5(b) of The
Convention, in which case it would not be necessary to return the
child, but only to make arrangements to ensure the effective
activation of visitation rights, in accordance with Article 21 of
The Convention. The answer was that this was a case of breach of
custody rights.
When the question arose, the mother’s counsel seized it in
order to claim that this was precisely a breach of visitation
rights. This claim first arose at the very end of the session;
not only was it not brought up before, but, in fact, both in the
lower court and in the arguments before me, up to that point,
there had been no dispute that this was an “abduction” from
custody. Yet here too, as in the claim that the Law does not
apply to the case, I shall not take pains to discuss the
procedural aspect, as the substantive aspect is enough to reject
it. As stated in Section 2 above, the French judgment of 1988
and the amending order of 1991 gave both parents joint custody of
the child. Even if we ignore (based on the mother’s claim that
she was not summoned to court) the second amending order of Mar
1992, which ordered the realization of parental authority by the
father alone, the joint right held by both parents has been
breached; this is enough to justify Article 3, which refers to
custody rights granted “whether jointly or separately”.
Until the raising of the question by Adv. Maimon, all of the
parties appeared to consider parental authority as custody. Now,
Adv. Dr. Ben-Or claims that this is not the case. I do not know
how the term “parental authority” (authorite parentale) is
interpreted in accordance with French law, nor whether it is
parallel to guardianship as defined by our law or to custody.
However, this question is not to be judged by French law, but by
the Law, which refers to The Convention. The definition of
custody in Article 5(a) of The Convention is:
‘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;
Whether or not the definition remains unclear, one thing is
clear — the right to determine the child’s place of residence is
a custody right. The mother did not have such an exclusive
right; and I have already shown above that she required the
permission of the Court, no only to change her place of residence
to Israel without the husband’s consent, but even to leave for a
visit to Israel. The statement, included in the court judgment,
that the child’s residence would be with her did not give her the
exclusive right to determine the place of residence. The father
held that right jointly with her. He was entitled to refuse to
give his agreement to the child’s place of residence or to any
change therein, whether within or outside France; this was
reflected in his custody right.
This interpretation is in line with the purpose of The
Convention. Any other interpretation would mean that there could
be no rapid relief provided by The Convention for the return of
the child removed or abducted by one of the parents from his
agreed place of residence, without the agreement of the other
party. For this matter, cf. the said English ruling C. v. C.,
pp. 658, 662, 663-664
11. For these reasons, on 15 Apr 1992, I rejected the
application to delay the child’s return as ordered by the
District Court.
Given this day, 26 Nissan 5752 (29 Apr 1992), in the absence
of the litigants. The Secretariat is requested to notify them.
/s/ S. Netanyahu, Judge
Shmaryahu Cohen, Chief Secretary.
——————–
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. The full text of
the decision is set forth below.
2. Israel became a contracting state on 01 Dec 1991. Article 35
of The Convention holds that The Convention only applies to
wrongful removals or wrongful retentions occurring after its
entry into force. Article 36, however, permits contracting
states to waive the effect of Article 35. In any event it
has been held by a California court that, in an interstate
application, abduction is an “ongoing” offense. People v
Love (Cal.App. 4 Dist. 1988) 203 Cal.App.3d 1505 [251
Cal.Rptr. 6], Review Denied 28 Sep 1988. But see the opinion
of Lord Prosser in Kilgour vs Kilgour 24 Dec 1986.
Available on this BBS as KILGOUR.UK.
3. While it has been implicit that these matter are to be heard
expepditiously, this is the first case that has cited all of
the provisions of the convention and states flat out that
these cases are to be heard promptly, including any appeal
that may follow. This case is in accord with the vast
majority of decisions that permit a defense under Article
13(b) only upon a showing of extreme and immediate danger.
See, for example, the requirement in the United States for
“clear and convincing” evidence. 42 U.S.C. 11603(e)(2)(A).
4. OFFICIAL CONCLUSIONS OF THE SPECIAL COMMISSION OF OCTOBER
1989 ON THE OPERATION OF THE HAGUE CONVENTION OF 25 OCTOBER
1980 ON THE CIVIL ASPECTS OP INTERNATIONAL CHILD ABDUCTION.
Available on this BBS as 23OCT89.SCM. See also BRIEFING ON
THE HAGUE INTERNATIONAL CHILD ABDUCTION CONVENTION AND
RELATED FEDERAL LEGISLATION (6-7 Jan 1989), available on this
BBS as RPTJAN89.GFD and REMARKS OF MR ADAIR DYER TO BE
OFFERED AT THE BRIEFING ON THE HAGUE INTERNATIONAL CHILD
ABDUCTION CONVENTION AND THE INTERNATIONAL CHILD ABDUCTION
REMEDIES ACT (P.L. 100-300), WASHINGTON, D.C., JANUARY 6-7,
1989, available on this BBS as REMJAN89.AD.
5. See 9 Uniform Laws Annotated (ULA) Section 14, Priority
6. See also Article 19: “A decision under this Convention
concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue.” The
United States has also codified this at 42 U.S.C.
11601(b((4).
7. The full text of this decision in English was graciously
provided by Zeeve Welner, Advocate, Tel-Aviv, Israel. The
footnotes and comments are exclusively by Wm. M. Hilton.
8. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention]
9. The term “engaged” in this decision is synonymous with
“Contracting State” in The Convetion. See Articles 35 and
36.
10. The copy of the decision as originally received used the term
“Section” rather than “Article”. To keep the language
consistent with the generally accepted terms of other
decision, the term “Article” has replaced the term “Section”
when The Convention is referred to.
11. As a practice tip, one should heed this paragraph with care.
While it may seem reasoanble and logical to obtain an
immediate order for return, with out notice and without a
hearing, this may not be the best approach. Here the father
at least had the benefit of input from a Mental Health
Professional. One should always obtain orders from the court
of the Habitual Residence that can stand alone in the
Responding Contracting State.
12. The Special Commission met again on 18-21 Jan 1993. A
similar report has been or will be made.
13. Similar findings were made in the 1993 meeting of the Sepcial
Commision.
14. The quoted language is from page 36 of International Child
Abductions A Guide to Applying the 1988 Hague Convention,
With Forms. (1989 American Bar Association). This
publication prints, in its entirety, 51 Fed.Reg. 10,494 (26
Mar 1986), United States of America.
15. In Hilton House BBS as INREC.UK
16. Article 19; See also 42 U.S.C. 11601(b)(4).