For a removal of a child from one country to another or a retention to be “child abduction” under the Hague Convention the following conditions have to apply:
- The child has to be habitually resident in the country from where he/she is taken. Therefore returning from holiday to the country of habitual residence is not abduction. Sometimes the issues on this are not clear.
- The move has to be in breach of someone else’s “rights of custody”.The term is not the same as a similar term in national laws. In Israel that is generally “parental responsibility”, but some other orders made can also fall into this. If in doubt, you should get legal advice from an expert on your specific situation. Importantly, if there is a court case about the child that has started and not finished, the court is regarded as having “rights of custody” for the purposes of the Hague Convention.
- Therefore if, for example, a father without parental responsibility is worried about a move abroad, making an urgent application for parental responsibility to the court and getting it issued, can mean that any move will then be in breach of the court’s rights of custody and count as child abduction under the Hague Convention.
The “rights of custody” have to be exercised at the time of the move. This can, of course, be fairly low involvement.
“Defenses” – When a Court does not need to order a return:
The Hague Convention provides that the court has the power not to order a return in the following cases:
- If more than a year has passed since the removal or retention of the child and the child is settled in its new environment.
- If the person or body (e.g. the court) with “rights of custody” agreed to the removal or retention either beforehand or afterwards.
- If “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”. This risk must arise out of the proposed return to the other country. So, for example, if there has been domestic violence by the father on the mother witnessed by the child and the mother took the child to her home country, the court may find that the laws of the other country will protect her and the child sufficiently so that no further violence is likely to take place. Generally in relation to other EU countries the courts in Israel are very likely to find that the laws of the other countries provide sufficient protection.
- If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his/her views.”
It is very rare that the court would find a child under the age of about 12 to be mature enough. These defences are interpreted very narrowly, at least by the courts in ISRAEL, and you should not rely on the court finding in favour of them unless the case is very strong and no other defenses are possible. If you think a defence applies, you must obtain expert legal advice on your particular circumstances.
If you are the parent left behind and the child has already left the country, you must act fast.
You should immediately get in touch with the central authority in your country.
The central authority in your country should then check the details and immediately fax them to the central authority in the country where the child is.
What happens then depends on each country. The matter should come before a court to decide on the issue expeditiously. In Israel child abduction will only be dealt with by the Family Court, which means that the small number of judges who preside there have been able to build up a great deal of expertise in this area.It is our duty as lawyers in this case to start the proceedings immediately and we will usually see a duty judge the same day to get an order for some emergency measures, including obtaining an injunction that the child must not be taken to a third country, for the passport to be surrendered, etc.
The court would then also list a short hearing where the other parent can be represented and attend and where the court will consider which directions are necessary for a final hearing. Usually both parents must provide witness statements in writing. A final hearing will then be held a few weeks later. Since the proceedings are very fast, the solicitor and the client must be very vigilant and deal with matters expeditiously.
It helps if communication can be by email and/or fax. Usually, each parent will only be able to provide one witness statement, so you may need to anticipate what the other parent will say (for example as a defense). The detailed provisions are complicated and in any case of child abduction you should get specialist advice from an expert solicitor.
For advice on your specific circumstances please contact our offices.
For more information, see Child Abduction Initiatives.