NORWAY – EL-HATEEB – 1998

NORWAY – EL-HATEEB – 1998 (Return denied) (Age of maturity) (In Utero) EL-HATEEB v EL-HATEEB. This case involves the mother retaining the four children in Norway. The father files for their return to Israel. The court rules that the two oldest children, 14 and10, indicated they did not want to return to their father. The court felt it would do harm to separate the youngest children from their mother. W. M. Hilton: There was no showing that the Israeli courts could not or would not provide the protection that the mother and the children may have needed and there was no showing that, given the facts of the case, the Israeli courts would not reach a similar conclusion, that is, that the children would be better off with the mother and that suitable protective orders could be made by the Israeli courts.

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El-Hateeb v El-Hateeb (Norway 1998)Case No. 98-00308 D, Tvedestrand, Norway.
27 International Abduction [NORWAY 1998]
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In the Holt Court of Execution and Enforcement

COURT RECORDS
of
HOLT Court of Execution and Enforcement

PRE-TRIAL HEARING

In the Year 1998 on the 18th Day of December the Court held
session in the court premises at Donnestadgarden, N-4900
Tvedestrand, Norway.

Judge: Chief Local Judge Anne Katrine Andreassen

Keeper of the Records: The Judge

Case No. 98-00308 D

Plaintiff: Salah El-Hateeb
Counsel for the plaintiff: Advocate Mie Reiersen

Defendant: Hilde Elisabeth El-Hateeb
Counsel for the defendant: Advocate Snorre Torgrimsby

In the matter of: Application for the return of
children under
The Hague Convention.

Present: The defendant and counsel for
both parties.

001 The Judge told the Court that the two eldest children
bad had a conversation with Mr. Hans Christian Lunder, a
psychologist appointed by the Court, who would thereafter
interview the children in the Judge’s presence.

002 Advocate Reiersen was granted leave to present a
statement of case on behalf of the plaintiff

003 Advocate Torgrimsby was granted leave to present a
statement of case on behalf of his client.

004 He produced five (5) photographs, and the following
documentary evidence: Doc. No.2, annex 4; Doc. No. 2, annex
3.

005 A marriage certificate dated 05 Feb 1985 was also
produced.

006 The Judge then bad a conversation with the children,
Muna and Adam, outside the courtroom, together with the
psychologist, Mr. Lunder. The children were interviewed
separately and the entire interview lasted from 12.00 to
12.30 hrs.

007 The Judge then gave an account in court of what the
children had said.

008 Advocate Torgrimsby continued his presentation of the
statement of case on behalf of the defendant. He produced
diary entries dated 14th September 1989, 9th October 1989
and 20th July 1990 written by the defendant.

009 The defendant stood before the Court:

Hilde Elisabeth Holden El-Hateeb, born 23 Jun 1961
Address: c/o Thorill Holden, 4900 Tvedestrand
Occupation: Housewife

010 The defendant was exhorted to tell the truth,
solemnly affirmed the truth of her testimony and gave
evidence.

011 Following this, the plaintiff gave evidence over the
telephone:

Plaintiff:

Salah [sic] El-Hateeb, P0 Box 1132, Kfar Manda 17907, Israel
Self-employed

012 The plaintiff was exhorted to tell the truth,
solemnly affirmed the truth of his testimony and gave
evidence.

013 Kari Kadab was present in Israel to provide
linguistic assistance to the plaintiff during the giving of
evidence.

014 Salab E1-Hateeb was advised of the statements made by
the defendant and the two children before giving his own
evidence.

015 Advocate Reiersen was granted leave to make a closing
statement.

016 Before counsel concluded her closing statement the
following witness appeared before the Court:

Elin Haugstoga, born 24 Jun 1960
Address: 4916 Boroy
Occupation: Insurance Advisor

017 The witness was exhorted to tell the truth, solemnly
affirmed the truth of her testimony and gave evidence.

018 Advocate Reiersen continued her closing statement
after the witness had been examined.

019 Advocate Reiersen entered the following

Statement of claim:

1. [That] the application for the return of the children
be allowed.

2. [That] the defendant be ordered to reimburse the
plaintiff’s costs.

020 Advocate Torgrimsby was granted leave to make a
closing statement. He entered the following

Statement of claim:

1. [That] the application for the return of the children
be dismissed

2. [That] the plaintiff be ordered to reimburse the
defendant or the public purse for costs and the plaintiffs
own fee.

021 Advocate Reiersen did not wish to reply on behalf of
the plaintiff

022 The Judge then declared that the hearing was
concluded and that the case would be decided.

023 The Judge advised the parties of what the result of
the case would be. The application would not be allowed
Advocate Reiersen would notify the plaintiff of the Court’s
decision on the following Monday.

The Court hearing was concluded at 17.45 hrs.

The Court rose.

Anne Kristine Andreassen (sign.)

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In the Holt Court of Execution and Enforcement

Case No. 308/98 D

024 In the Year 1998 on the 21st Day of December, the
Court was again convened in the Office of the Chief Local
Judge with the same Judge presiding in proceedings in
respect of the same case. The Judge only was present.

The Judge delivered the following

ORDER

025 The matter concerns an application for the return of
children under the Hague Convention of 25 October 1980 on
the Civil Aspects of International Child Abduction.

026 The plaintiff, Salah El-Hateeb, has presented an
application for the return of the children of the parties’
marriage, Muna Hateeb, Adam Hateeb, Nura Hateeb and Edvin
Hateeb, from Norway to Israel The application was presented
via the Ministry of Justice in the State of Israel and
thereafter addressed to The Royal Ministry of Justice and
Police in Norway.

027 The application was received by the Norwegian
Ministry of Justice on 03 Dec 1998, and thence forwarded to
the Office of the Chief Local Judge in Holt, Tvedestrand, by
sending dated 04 Dec 1998 and received at that Office on 09
Dec 1998.

028 The application with a summons to appear before the
Court on 18 Dec 1998 was served on the defendant, RUde
Elisabeth Holden El-Hateeb, on 11 Dec 1998. The two eldest
children, Muna and Adam Hateeb, were also called in to be
interviewed by the Judge and an expert witness at the same
time, on 18 Dec 1998.

029 The Judge then contacted Advocate Mie Reiersen, who
had been appointed as counsel for the plaintiff in
consultation with the County Governor of Aust-Agder.

030 Advocate Reiersen advised the plaintiff of the
summons to the court hearing and he submitted a request via
the Israeli authorities to the Norwegian Ministry of Justice
for permission to be present at the hearing. Advocate
Reiersen contacted him concerning this request, and it
emerged then that he could not attend before the New Year.
He was asked if he would instead give his consent to a
statement being taken from him over the telephone, and be
consented to this.

031 At the hearing on 18 Dec 1998, Advocate Mie Reiersen
appeared for the plaintiff, and the defendant appeared in
court in person accompanied by her counsel, Advocate Snorre
Torgrimsby.

032 Mr. Hans Christian Lunder, a psychologist, was
appointed to assist as an expert witness in connection with
the Judge’s interviews of the children Muna and Adam Hateeb.
At the start of the hearing, Mr. Lunder spoke with the
children alone for about one hour. There was then a pause
in the proceedings whilst the Judge spoke with the children
one at a time, with Mr. Lunder present on both occasions. No
other persons were present during these interviews.

033 The children were advised that what they said would
be relayed to their parents, and that their statements would
be read out in court after the interviews were concluded.
After the defendant bad given her testimony, the plaintiff
was examined over the telephone, the plaintiff first being
advised of the statements of the two children and the
defendant. The telephone interview was conducted in
Norwegian and a Norwegian lady was present to assist the
plaintiff in Israel, translating into Arabic when the
plaintiff had trouble understanding what was being said.

034 One witness, whom it had not been possible to contact
before the plaintiff gave evidence, was subsequently
examined in court.

035 The facts that have emerged in the case are in all
essentials as follows:

036 The parties first met in Oslo in 1983 and
subsequently moved to Copenhagen, where they were married on
05 Feb 1985.

037 They lived in Copenhagen until they moved to Israel
in 1992.

038 The parties’ children are Muna Hateeb, born 18 Feb
1985 WMH FN01 in Denmark; Adam Hateeb, born 30 May 1988 WMH
FN02 in Denmark; Nura Hateeb, born 17 Sep 1994 WMH FNO3 in
Israel; and Edvin Hateeb, born 15 Jan 1998 FN04 in Norway.

039 The parties went to Norway at Christmas 1997 on a
holiday to visit the defendant’s family. The defendant was
at that time pregnant with the parties’ fourth child.

040 On 2nd January 1998, the defendant was admitted with
her children to a refuge for battered women in Aust-Agder,
and stayed there until 7th January.

041 The plaintiff tried for some days to find his family,
and also tried to enlist the help of the police. He was
however unable to locate them, and returned alone to Israel
on 12th January 1998.

042 The defendant then rang the plaintiff and told him
that she wanted to stay in Norway until May 1998, because
her father was seriously ill. The plaintiff agreed to this,
and reserved tickets for the family to fly out to Israel on
22nd May 1998.

043 The defendant did not however return with the
children as agreed, but remained in Norway, where she is
still living.

044 The plaintiff tried to make contact with his family,
both by direct communication with them and via
acquaintances. These attempts at contact were however
problematic, and the plaintiff now has no contact with his
children.

045 The parties have joint parental responsibility for
the four children. WMH FN05 The parents lived together in
Israel before they went to Norway.

046 The defendant has now begun the process to obtain a
separation and has applied for a separation via the County
Governor in Aust-Agder. The application was served on the
plaintiff via the Norwegian Embassy, but the plaintiff has
refused to accept the service of documents.

047 The defendant also filed a formal complaint against
the plaintiff to the police in Arendal Police District on 12
May 1998 for having physically abused the defendant, Muna
and Adam.

048 When interviewed by the Judge, the two children said
that they had both been hit by their father several times.
Neither of them wished to return to their Father. The
appointed expert, Mr. Hans Christian Lunder, found that the
children had made their statements clearly and
straightforwardly and that there was nothing in any way
remarkable about they way they gave their evidence.

049 The plaintiff, Salab E1-Hateeb, has in all essentials
argued as follows:

050 The plaintiff demands that the children be returned
to Israel under the Child Abduction Act, section 11.

051 The parents were exercising joint parental
responsibility for the three eldest children when the
wrongful retention of the children took place. With respect
to the youngest child, joint parental responsibility would
have been exercised but for the retention, cf. section 11
(2b).

052 The retention was wrongful from the start as Salah
had at first not consented to the children being withheld
from him.

053 The question is whether the conditions exist for
making an exception from the duty to return the children set
out in section 12 of the Act.

054 The onus of proof to show that the conditions in
section 12 b), c) or d) exist is on the defendant.

055 The defendant has argued that the plaintiff exerted
violence against her and the children, and it appears to
have been a turbulent marriage.

056 The plaintiff admitted in the telephone interview
that he had hit the defendant some times, but not many, and
that the children had never witnessed these incidents.

057 He also admitted having exerted violence against Muna
on one occasion in the autumn of 1997, when he pushed her
down onto a chair. He went on to explain that he his asked
forgiveness for this many times and had also been to the
police with the defendant in Israel. He had said the same to
them as he told the Court now, and the police had said that
he should see a psychologist. This he said he bad done, and
was now a good man. He wants to start anew with his family,
and also wants his wife to come back He firmly denies having
hit Adam or Nura. He may perhaps have yelled at Adam once,
but they are good friends.

058 He thinks the reason that Muna and Adam are now
saying that he hit them is because they have been
manipulated by their mother and grandmother.

059 The pages from the defendant’s diary that have been
produced in court do not show any violence having taken
place against the children.

060 The defendant has not presented any evidence to show
that Muna was exposed to violence, except for the incident
in October 1997. The mother has also not been very specific
about what kind of harm was said to have been done to Adam,
and she has not presented any evidence to show that he was
exposed to physical violence.

061 The decisive issue here is not what has happened
previously, however, but whether there is a grave risk of
the plaintiff behaving violently again if the children are
returned to him.

062 The plaintiff has stated that he has now seen a
psychologist, and has become a good man. It is also hard to
say whether the plaintiff’s aggression has been caused by a
difficult marriage.

063 If the children should return alone, the situation
will be different to what it was before, and there would
then be no grave risk of violence being done to the
children.

064 The question is whether there is a grave risk of
psychological harm. The children may possibly be marked by
the situation they have experienced with their parents, and
may have become somewhat emotionally dulled in that they no
longer react very much to violence.

065 That is not however relevant to the situation that is
being dealt with here, that is to say the question of what
harm the children may perhaps suffer by being returned to
their native country. In that case there cannot be deemed to
be a grave risk of them suffering psychological harm.

066 The conclusion is that no evidence has been presented
to show that the conditions exist for refusing the return of
the children under section 12 b)

067 Under Section 12 c) the return of the children may
also be refused if the children themselves object to being
returned and have attained an age and degree of maturity at
which it is appropriate to take account of their views.

068 Muna objects to being returned to her father, and the
Court must then decide on the matter in relation to Muna’s
degree of maturity.

069 Adam has also said that he does not want to go back
to his father, but be has not attained such an age and
degree of maturity to enable him to understand fully what
this means. The Court cannot therefore take account of the
fact that he objects to being returned.

070 Under section 12 d) the return of children can also
be refused if doing so would be inconsistent with basic
principles here in Norway for the protection of human
rights.

071 The children have stated that they were hit at
school, and the defendant has argued that they will
experience social condemnation if they go back to Israel
now.

072 These arguments have not been made specific, nor are
such situations regarded as a violation of human rights.

073 There are thus no grounds for refusing the return of
the children under section 12 d). The plaintiff has endorsed
his application with the following

Statement of claim:

1. [That] the application for the return of the children
be allowed.

2. [That] the defendant be ordered to reimburse the
plaintiff’s costs

074 The defendant, Hilde Elisabeth Holden El-Hateeb has
argued in all essentials as follows:

075 There are grounds for refusing the return of all four
children.

076 The grounds for demanding their return are different
for the four children. Under Article 4 of the Hague
Convention, return can be ordered in the case of children
who were resident in a Contracting State immediately before
a breach of custody or parental responsibility. Where Edvin
is concerned, this is not the case. He was born in Norway,
is registered with a Norwegian national identity number, and
has always lived in Norway. No order can therefore be made
for his return under the Convention or the Child Abduction
Act, section 11. WMH FN06

077 Where the three other children are concerned, the
conditions exist for exceptions under section 12 b), c) and
4) of the Child Abduction Act.

078 The conditions under section 12 b) exist inasmuch as
there is a grave risk that returning the children will
expose them to physical or psychological harm.

079 In assessing whether the conditions in section 12 b)
exist, the crucial issue is what will happen in the future.
The events of the past do not however elucidate the
situation.

080 The facts that have emerged in the case show that the
plaintiff exhibits personality traits that are well outside
the accepted norm. The plaintiff has used physical violence
in setting limits for his family in order to get things the
way he wants them, and in a pretty arbitrary fashion The
plaintiff’s testimony over the telephone also shows that he
has a very particular attitude to his family The telephone
interview did not show a person who had improved to any
significant degree after being treated by a psychologist.

081 In assessing the evidence the Court finds that it can
base its decision on the testimony of the children and the
defendant. Evidence has been presented showing extensive
physical abuse of Hilde and Muna, some physical abuse of
Adam, and also to a somewhat lesser extent of Nura. Where
Nura is concerned, psychological abuse has taken place
inasmuch as she has seen violence being exerted against
other members of the family. Muna and Adam must also have
suffered psychological harm as a result of what they have
experienced.

082 The plaintiff exhibits certain personality traits,
which indicate that physical abuse will also continue if the
children are returned to him. The telephone interview of the
plaintiff during the court hearing was also elucidating for
the presentation of the evidence.

083 As regards the question of whether all the children
should be returned, consideration must be shown in respect
of the most vulnerable of the children, so that the
consequence is that none of the children will be sent to
Israel. Muna is the one who has been most exposed to
physical abuse, and who will again be so if she is returned
to her father.

084 The conditions exist for refusing the return of the
children under section 12 c) also.

085 Here, the Court must give decisive weight to the
statements made by Muna and Adam themselves. The age of the
children, and the clarity with which they have made their
statements, indicates that due weight should be given to
their evidence.

086 The Ministry of Justice has stated in its guidelines
that children from the age of seven should be allowed to
make their views known before an application for return is
decided.

087 It is certain that the children’s mother will not
return to Israel and continue her marriage to the plaintiff.
Even if some of the violence inflicted may derive from
marital problems, there is no reason to assume that the
plaintiff will refrain from hitting his children if they
return alone without their mother That would be a totally
unreasonable burden to place on the children.

088 Reference is made inter alia to Adam’s statement FN
07 that “now Papa has nobody to hit at and decide over any
more” as a description of his father’s conduct.

089 The conditions under Section 12 b), second sentence
and section 12 d) for refusing the return of the children
exist also.

090 Muna must be deemed to be the most vulnerable of the
children as regards exposure to physical abuse on the part
of the father. She herself has also firmly objected to
returning to her father. In Edvin’s case, there is no
question of sending bun to his father in Israel. Adam also
has been exposed to violence from his father and objects to
being returned.

091 If only those of the children who today are least
exposed to violence from the plaintiff were to be returned,
it would mean the children being split up and an
unreasonable burden being placed on the child or children
who is/are sent back alone.

092 If no order can be made for the return of Edvin, and
both Muna and Adam have been and will be exposed to physical
violence and object personally to being returned, the
alternative is to sent Nura alone to her father.

093 Splitting up a family of children in this way would
mean both that they would be placed in an intolerable
situation, and that it would be in violation of their basic
human rights The conditions under both section 12 b) second
sentence and section 12 d) therefore exist.

094 The defendant has endorsed her statement with the
following

Statement of claim:

1. [That] the application for the return of the children
be dismissed.

2. [That] the plaintiff be ordered to reimburse the
defendant or the public purse for costs and the plaintiff’s
own fee.

095 The Court notes as follows:

096 The Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction was implemented in
Norwegian law in the Child Abduction Act of 8 July 1988, cf.
section 1 (2) of the Act.

097 Under section 11 of the Act, any child who is
wrongfully retained in Norway shall be returned promptly if
the child was resident in a Contracting State immediately
before the retention. Israel is a signatory to the Hague
Convention.

098 Under section 11(2), retention is wrongful if it is
in breach of rights of custody attributed to a person under
the law of the State in which the child was resident
immediately before the removal or retention; and at the time
of removal or retention those rights were actually
exercised, or would have been so exercised but for the
removal or retention.

099 From the factual information pertaining to the case
received from the Israeli authorities, it appears that under
Israeli law the parents were the “joint guardians” of their
underage children, and that this includes parental authority
and custody and the right to decide where the children are
to live. WMH FN08

100 The Court therefore bases its decision on the fact
that the parents had joint parental responsibility, and that
this was actually being exercised in the case of the three
eldest children before the defendant took the children with
her to the women’s refuge in Aust-Agder on 2nd January 1998.

101 In the case of the youngest child, Edvin, joint
parental responsibility would have been exercised but for
the retention. It is however more doubtful whether the
condition in section 11(1) exists, that is to say whether
Edvin was resident in Israel immediately before the
retention. Edvin was born in Norway and has always lived
here, but the family’s residence before going to Norway at
Christmas 1997 was in Israel.

102 The concept of residence is equivalent to the term
“habitual residence” adopted in the Convention, and this
concept has been subject to interpretation in the case law
of different countries.

103 The Court refers in particular to a judgment
pronounced by Lansretten (the county administrative court)
in Malmehus in Sweden on 16 Oct 1990 upheld by Kammarretten
(the administrative court of appeal) in Gothenburg on 14 Nov
1990, in a case in which a mother took her children with her
to the Netherlands with the intention of remaining there.
The conclusion of the Court was that, since the children’s
father bad brought them back to Sweden after 12 days, they
had already in that time established a new habitual
residence in the Netherlands because it was their intention
to settle there. WMH FN09

104 The situation in this case is unusual, inasmuch as
Edvin has never lived in Israel at all. It was not the
intention of the parties to remain in Norway when they came
here on holiday at Christmas 1997, although at the time the
defendant moved into the women’s refuge it must be assumed
that she had decided to stay in Norway. She told the Court
that, before moving to the refuge, she had asked the two
eldest children whether they wanted to stay in Norway, and
they had said that they wanted to do so. Edvin was born
alter this, and has always lived in Norway.

105 The conclusion of the Court is accordingly that Edvin
has never been habitually resident in Israel, and no order
can therefore be made to return him there under the Hague
Convention.

106 Where the three other children are concerned, the
point of departure is that they are to be returned to their
father immediately, unless the conditions exist for refusing
their return under section 12 of the Act.

Section 12 b):

107 Under section 12 b) of the Child Abduction Act, the
return of a child can be refused if there is a grave risk
that returning the child will expose him or her to physical
or psychological harm or otherwise place the child in an
intolerable position.

108 The onus of proof rests on the defendant to show that
this is the case.

109 The defendant and the children Muna and Adam have
stated that the plaintiff exerted a significant degree of
violence against both the plaintiff [sic] and the two
children, and that Nura was a witness to these incidents.

110 The plaintiff has for his part firmly denied their
presentation of the circumstances within the family.

111 The defendant has told the Court that the violence
against her had been going on for most of the couple’s
married life, and that Muna in particular had gradually been
exposed to a lot violence from the plaintiff as well. This
was explained inter alia by the fact that the plaintiff was
over-anxious that Muna should not have any contact with
boys. This anxiety manifested itself inter alia in the
plaintiff hitting her when boys passed on the street,
because he thought they were only there to look at her. The
defendant promised Muna each time this happened that it
would be the last time, and that they would go to the
police. She did not dare go to the police, however. The
plaintiff threatened that if she did so, everything would be
worse and she would not be allowed to go out with her
children any more.

112 Muna also spoke in her interview with the Judge of
the plaintiff’s extensive use of violence against her. She
said that she had been hit by her father since she was about
six years old. She also said that Papa hit them with any
object that came to band, such as a chair, broomstick,
vacuum cleaner, etc. She showed scars on her arm and said
that she also had scars on her leg from wounds inflicted on
her by the plaintiff.

113 Adam said in his interview with the Judge that now
Papa had nobody to hit at and decide over. He said that Papa
got angry about everything, that he yelled and hit, and that
they had bruises from the blows.

114 The defendant made a formal complaint against the
plaintiff to the Israeli police in October 1997, after a
more serious incidence of violence against the daughter. The
defendant alleges the plaintiff hit Muna with a chair. The
plaintiff has admitted that he was reported to the police,
but gives a different version of what happened than that
given by the defendant. He says that be only pushed Muna
down onto a chair.

115 When the defendant reported the plaintiff to the
Israeli police after the incident of violence against Muna
in October 1997, the defendant [sic] was told to contact a
psychologist. He did so, but the defendant states that this
meant that she also had to accompany him to the
psychologist, and that she had said to the psychologist that
the complaint she had made to the police was something she
had just made up. She was afraid that the plaintiff would
not otherwise allow her to come to Norway.

116 The defendant has since made a formal complaint
against the plaintiff to the police in Norway, and produced
photographs for the Court that had also been annexed to the
complaint. There are two photographs of arms and fingers
with grazes and two small cuts, which the defendant said
were photographs of Muna after the violent incident in
October 1997. The defendant [sic] said in the telephone
interview that he and the defendant had taken the
photographs together. Other photographs showed the defendant
with a black eye, and she stated that this photograph had
been taken by Muna in 1990, when they were living in
Denmark. The defendant said that the plaintiff had on that
occasion bit her with a brass candlestick.

117 Muna also said that she thought the plaintiff would
not admit anything that they had said about him, and would
say that everything she said was a lie. She says that her
father makes many promises but keeps few. The defendant
stated in her testimony that the plaintiff never takes any
responsibility himself, but always blames other people when
things go wrong.

118 The defendant and Muna both told the Court of an
incident that took place at Christmas 1997. Muna had
forgotten a handbag containing a bunch of keys on the bus
from Oslo to Tvedestrand. The plaintiff was very angry at
this and acted threateningly towards Muna. She was
frightened and went very quiet as a result, and her
behaviour was also observed by other people close by. The
witness Haugstoga told the Court that she had observed Muna
sitting curled up into a ball at one end of the sofa, and
that it seemed the child was trying to avoid her father. The
reason was that Muna expected to be hit as soon as the
plaintiff got the opportunity.

119 Family and friends who observed the behaviour of both
Muna and the defendant when in the plaintiffs presence
during their Christmas holiday in Norway in 1997, advised
the defendant to move into the women’s refuge in Aust-Agder,
and helped her to do so.

120 The defendant has stated that she had always
previously had it in mind to stay behind in Norway, but had
never dared to go through with it,

121 The defendant’s presentation of the facts in Court
agrees with the account she gave to the police when she
filed a formal complaint against her husband on 12 May 1998.
Regarding her statement in the complaint that the plaintiff
had begun hitting her after they had been married for about
one year, she says however that this must be wrong. They
married just before Muna was born, so that this is not
correct.

122 Her testimony also agrees with the contents of
letters she wrote to the Norwegian Embassy in Israel in
August 1997. The letters and police complaint were produced
in court.

123 In a covering letter dated 17 Dec 1998 from the
Norwegian Embassy in Tel Aviv, it appears that she also
contacted the Embassy by telephone on several occasions and
told them about her problems. It also appears that the
plaintiff refused to sign separation papers that were sent
to him by the Embassy, and that since then he has contacted
the Embassy by telephone several times. He has asked for
assistance, accused the Embassy of being instrumental in him
not seeing his children, and has on occasion appeared
threatening.

124 In the entries from the defendant’s diaries for
September and October 1989, it also appears that the
plaintiff was violent and threatening.

125 The witness Elm Haugstoga told the Court that she had
been in touch with the plaintiff by telephone after he went
back to Israel, and that in these conversations he had not
denied her statements that he had behaved violently towards
his family. The plaintiff also made threats against this
witness and her daughter in these telephone conversations.

126 After the presentation of the evidence to the Court,
the testimonies of the defendant and their two children,
Muna and Adam, are accepted as being a substantively correct
description of the situation within the family. The
children’s statements were specific and agreed in all
essentials with the mother’s testimony. That the children’s
statements should be solely the result of influence exerted
by their mother and her family after they came to Norway, is
not very likely. The Court refers to the other facts in the
case, which strengthen the testimony of the defendant and
the children.

127 The Court finds therefore that it cannot give any
substantive weight to the plaintiffs testimony, which is
characterised by an unwillingness to acknowledge his conduct
towards his family.

128 The Court finds it proven that the children,
particularly Muna, have suffered physical harm at the hands
of their father, and that they have all suffered
psychological harm because of his behaviour. Their mother
stated inter alia that Adam was a bed-wetter in Israel, but
not in Norway; and that the children were jumpy if anyone
spoke harshly or loudly to them. She also stated that the
children had not reacted so much to their father’s behaviour
at the end, as they had been used to it ever since they were
small. Both the defendant and Muna stated that Nura sat with
her hands over her ears and screamed when she saw her father
hitting the others.

129 The question is, however, whether there is
consequently a grave risk of the children suffering physical
or psychological harm if they are now returned to their
father.

130 It does not appear likely that the plaintiff has
changed to any significant degree since being treated by a
psychologist. The Court appreciates that he must be finding
the present situation both diffIcult and desperate, but that
does not alter the lack of credibility in his testimony. His
unwillingness to admit his behaviour towards his family
shows a lack of recognition of his own conduct that gives
grounds to fear that he will continue along the same path if
the children come back to him.

131 If the children are returned, it will also mean that
they can no longer be with their mother, and even if the
father’s conduct has mostly been directed at the mother,
they will not have her to support them in situations where
the father is unable to control his temper.

132 He demanded in the telephone interview to speak to
his children, and when the Judge explained that Muna would
not speak to him, he insisted that she must because she was
his daughter. The Court appreciates that he wished to speak
to his children before Christmas. The manner in which he
spoke, however, showed little appreciation that the
situation could be difficult for the children.

133 The Court therefore bases it decision on the fact
that the condition in section 12 b) exists for not allowing
an application for the return of children, in that there is
a grave risk that returning the children will expose them to
physical and psychological harm. Under this provision the
return of the three eldest children is therefore refused.

Section 12 c).

134 The Court also deems that the condition in section 12
c) exists in the case of both Muna and Adam. Both have
clearly stated that they do not want to go back, and in the
case of Muna significant weight must be given to her wishes
because of her age. Where Adam is concerned, the fact that
he is only 10 years old means that somewhat less weight must
be given to his views; but he is also of sufficient age and
degree of maturity to mean that his views must be taken into
account as well.

135 The motive for the views held by the children is also
of importance. In this case, it is their relationship with
their father. Even if the father’s conduct had actually been
somewhat better than as described by the defendant and the
two children, it would in any case have been so problematic
that there would have been grounds to give significant
weight to the children’s views.

136 The time aspect must also be taken into account. Both
children have settled down well in their present environment
in Norway, where they have been living for nearly a year.

137 Both children were clear and unambiguous in their
statements, it is appropriate to take account of their
statements, and the return of both Adam arid Muna is refused
under section 12 c) also.

138 Section 12 b), second sentence: If there are no
grounds to allow the application for the return of Muna and
Adam under section 12 c), it would also put Nura into a
completely intolerable position if she alone were to be sent
back to her father. In Muna’s, the condition in section 12
b), second sentence also exists if section 12 c) is applied
as a ground for refusing the return of Muna and Adam.

139 The Court finds no grounds for assessing whether the
condition in section 12 d) also exists.

140 The application for the return of the children is
accordingly dismissed.

Costs:

141 The application has not been successful and under the
principal rule in section 172, first subsection of the Civil
Procedure Act (Norway), the plaintiff shall be ordered to
pay the defendant’s costs.

142 However, under the second subsection of the
provision, exception may be made from this principal rule if
the losing party had adequate grounds for bringing the
matter to court, or if the winning party can be shown to
have been wholly or partly responsible for the case coming
to court.

143 The Court finds that this excepting provision should
be applied. The plaintiff has been in a very difficult
situation, inasmuch as he has had no contact with his family
for a long period after the defendant retained the children
in Norway. Even if the Court finds that the plaintiff
himself must be blamed for the situation that has arisen
within the family, there are adequate grounds for him to
have had the matter of the return of the children examined
in court. The defendant must also be held to blame to a
certain extent for the fact that she failed to arrange any
form of communication with the plaintiff that could have
made the situation less acute.

144 In consequence of the above, each party shall cover
his or her own costs.

Rendition of Judgment:

1. The application for the return of the children is
dismissed.

2. Each party shall cover his or her own costs.

The Court rose.

Anne Kristine Andreassen (sign.)

———————————-
Footnotes by Wm. M. Hilton

01 Muna would be 13 years and 10 months of age on 18 Dec
1998.

02 Adam would be 10 years and 6 months of age on 18 Dec
1998.

03 Nura would be 4 years 3 months of age on 18 Dec 1998.

04 Edvin would be 11 months of age on 18 Dec 1998.

05 See the Israeli CAPACITY AND GUARDIANSHIP LAW 5722 –
1963.

06 Since, under this argument, Norway (and not Israel)
is the Habitual Residence of the Child, then the
Norwegian court does not have jurisdiction over the
matter.

07 Adam is 10, see footnote 03.

08 See footnote 05.

09 It is presumed that both parents moved to the
Netherlands from Sweden with the dual intent of
staying permanently in the Netherlands.

————————————
Comments by Wm. M. Hilton
28 May 2000

There are several interesting points in this decision.

The first is the taking of testimony by telephone which the
court not only permitted but found very useful. In this
case the Plaintiff Father was in Israel with a translator
and the Defendant Mother in Norway.

A second point was the discussion of whether or not Habitual
Residence (H/R) can be obtained for a child in utero. The
court does a brief analysis about this and concludes that it
cannot and that since the child was born in Norway and had
lived all of his life (eleven months at the time of the
hearing) in Norway, then the child’s H/R was Norway and not
Israel. Accordingly Norway did not have jurisdiction over
the youngest child.

For further discussion on this point see the following file:

http://www.hiltonhouse.com/articles/in_utero_jurisdiction.t-
xt

The above file goes over the cases in the United States on
this point and shows that in utero time cannot be used for
jurisdictional purposes. Further research is being done on
this issue and will be posted when and if located. Search
within the page for utero.

A further point was the desires of the two older children
and their age and maturity. While there is no problem with
the 14 year old, there is and should be a problem with the
10 year old. Further there was no objection to their return
to Israel but only to their return to the father.

The Court also found that there was an adequate defense
under Art. 13(b), both as to domestic violence and the
separation of the children, e.g., the two older ones and the
youngest stay in Norway and the third child is sent back.

As to dividing the children, an interesting case on this
point is In re Marriage of Schwartz (Cal.App. 2 Dist. 1980)
104 Cal.App.3d 92, where the court of appeal reversed a
trial court that had refused to separate the child, without
a showing that the separation would not be in the best
interests of the child.

In disallowing the return under Art. 12 no consideration was
given to the use of undertakings and/or safe harbour orders.

The Norwegian court found that there had been ongoing
domestic violence and that it would likely continue.

In the opinion of the writer, the decision of the Norwegian
court was more of a best interests solution than an action
under The Convention.

There was no showing that the Israeli courts could not or
would not provide the protection that the mother and the
children may have needed and there was no showing that,
given the facts of the case, the Israeli courts would not
reach a similar conclusion, that is, that the children would
be better off with the mother and that suitable protective
orders could be made by the Israeli courts.

Two decisions on this issue are Friedrich v Friedrich (6th
Cir. 1996) 78 F.3d 1060 and Blondin v Dubois (2nd Cir 1999)
189 Fed.App.3d 240; 10 International Abduction [USA 1999].

These two case state that a child should be returned unless
it can be shown that the courts of the H/R cannot or will
not provide protection (Friedrich) and that every effort
must be made to provide for a safe return even where there
is substantial domestic violence (Blondin).

This, of course, requires that the Norwegian court trust the
Israeli court to “do the right thing” which is in accord
with the Explanatory Report by E. Perez-Vera, Hague
Conference on Private International Law, Actes et documents
de la Quatorzieme session, vol. Ill, 1980, p. 426, Paragraph
No. 34.

Finally the court discusses fees and concludes that as the
action was brought in good faith and as the mother was
partially responsible for the action that each party would
pay their own fees and costs.