Divorce proceedings sometimes develop in a very complicated manner.
When a child of the couple is abducted by one of his parents, abroad to a country where one of the parents intend to live, away from the child’s natural habitat, in an attempt to disconnect the child from the other parent.
Our office has also dealt with and is dealing with complex cases of this type.
This issue has been recognized as an international and regulated issue in the Hague Convention, which is an international treaty.
The purpose of the Convention is to impose a duty, to return a abducted child to the country from which he was abducted, Israel is bound by the Hague Convention (Return of Kidnapped Children) Law, 1991.
The objectives of this Convention are to ensure the immediate return of children, who have been unlawfully deported to or not returned to a State, which is a signatory to the Convention and to ensure that the rights of custody and visit, under the law of a Contracting State are effectively respected in the other Contracting States.
The language of the Convention in this regard is unequivocal (quote from Journey 12 of the Convention).
A child who has been unlawfully deported or not returned as provided in “section 3, and on the day of commencement of proceedings before the judicial or administrative authority of the Contracting State in which the child is located, less than one year after the date of unlawful removal or non-return, the relevant authority shall order the immediate return of the child.”
The uniqueness of this Convention lies in the fact that it imposes an obligation on the court to order the return of the abducted child. The court has no discretion in the matter.
Today, the best way to combat abduction is to return the child immediately, by appealing to the Family Court to implement the Hague Convention.
In the case of abduction of a child by one of his parents abroad, the parent may apply to the family court in the country where the child was abducted, which will be obliged to give an immediate order to return the child to the country in which he lived.
Article 11 of the Convention requires urgent action.
This matter is also regulated::
Regulation 295 H: “The hearing of the claim shall take place no later than 15 days from the filing of the claim.”
It is quite common for the abductor to claim in his/her defense, that the child himself does not want to return to the country from which he/she was abducted, or that the child will be harmed if he/she returns to the country from which he/she was abducted.
Despite the fact that Article 13 of the Convention provides an opening for such an argument(as it is stipulated)
“There is a serious concern that the return of the child will expose him to physical or psychological harm or place the child in another way in an intolerable situation.”
It was determined that this section should be interpreted very narrowly and that almost no consideration should be given to the court.
According to practice, the court is obliged to order the child to be returned immediately.
Thus, in a judgment given several years ago: , the kidnapper’s argument that will harm the children in that the father wants to convert them to Islam, was rejected by the court.
As well as the claim that the children aged 10 and 12 said they did not want to return to Italy, this claim to, was rejected by the court.
The court in Israel rejected these claims and ordered the children to be returned to their country of origin Italy.
A similar case came to our office:
A child of parents of Israeli origin was kidnapped from South Africa by the mother who claimed that the father was violent. Our firm, represented the father who feared that the mother who was of Russian origin intended to transfer the child to Russia and grow up there as a Christian child. The court fully accepted the father claim and determined that the child must be returned to his country of origin in full confidence in the authorities in South Africa will deal with this issue according to their authority.
In another case handled by our office a child from an ultra orthodox hasidic family residing in the UK was abducted to Israel by her mother. The father contect us from England and requested our representaion in Israel. The court dismissed the claim of the mother that the child will recieve bad education and anti zionist values in the UK and ordered the child’s imidate return to England, according to the father’s claim. Upon the father’s request, Mr. Gork personally escorted the child and her mother during the flight (to prevent an attempt to flee to a third side country) to the the meeting with British law enforcement representatives and the heart warming reunion of the child with her father.
The main idea of the Hague Convention, is to instruct the law enforcement authorities to return the child to the country from which he was kidnapped, immediately, when we fully trust the discretion of the state from which he was abducted and the authorities there, to deal with the child’s complex problems and needs.
What about countries that are not signatory to the Convention?
For example, kidnapping a child to Russia or another country that is not signed the convention..
In this case, the court uses its authority to issue a writ of” habeas corpus” (Article 15d of the Judiciary Law), according to which the court is authorized to issue orders to release people who were illegally arrested.
The High Court of Justice used this order to release the abducted child and return him to the country from which he was abducted.
It is important to emphasize that contrary to the Hague Convention, in these cases, the court has broad discretion in implementing and implementing this order.
Therefore a procedure with regard to the abduction of a child from a country that is not a signatory to the Convention is much more complex.
Only a decisive and effective action will result in the court also ordering the return of the minor to his country of origin.
It is important to note that in such cases the problem arises mainly in the abduction of a child from Israel to a country that is not a signatory, since if the child is abducted to Israel, then in our country there will be a relatively enlightened judicial system that will respect the sovereignty of the state from which the child was kidnapped.
But in the case of kidnaping a child to Russia and many other countries that are not signatories, the situation is much more difficult.
For example in a case occurring currently, The Russian court has refused to issue a habeas corpus order and the abducted child has not seen his father for 10 years.
In cases where there is such a concern, it is recommended to issue an order preventing the departure of the child from Israel in order to prevent this phenomenon, which can be disastrous.
In many of these cases there is a very narrow window of time for action and therefore, in every fear of child abduction, I invite you to contact me at any time directly to my personal phone: 052-483234
For more information, see Child Abduction Initiatives.
