Israel is a member of the Hague Conference on Private International Law. It ratified the 1980 Convention on the Civil Aspects of International Child Abduction, which went into effect in Israel on December 1, 1991.
Legal proceedings under the Convention are within the exclusive jurisdiction of the family courts. Specific procedural regulations have been adopted which apply to Hague Convention proceedings, (Regulations of Civil Procedure-1984, Rule 295(a-z),). A time framework is established which attempts to comply with the Convention’s objectives.
Proceedings in the count of first instance are to be completed within six weeks of the date of filing (Rule 295(13)). No count filing fees are imposed nor are bonds or guarantees permitted (Rule 295(15)). The petitioner is not required to testify in court. They may submit an affidavit which cannot be voided even though the petitioner did not appear for cross examination.
1.1.Judgments of the Family Court are appealable by right. Appeals must be filed within seven days of the judgment. The District Court, which has jurisdiction to hear appeals, must make its decision within 30 days of filing of the appeal (Rule 295(14)). Appeals from the District Court can only be made by leave to the Supreme Court. Requests for leave to appeal must be made within seven days of the District Court’s judgment.
1.2 Family Courts have recently become more permissive in the use of testimony by video conference in Hague Convention cases. Its use is permitted where the petitioner, or a key witness, is unable to appear in Israel due to complications which are likely to occur as a result, for example, loss of legal status in the requesting state.
1.3. Actual Hague Convention proceedings are rarely completed within the time periods set by the Regulations. It is not unusual for proceedings to take more than a year before a final judgment is issued. There are no designated Hague Convention judges in Israel although most of the Family Court jurisdictions tend to concentrate the Hague Convention cases amongst a few unofficially designated judges.
1.4. As the Convention applies to the inhabitants of the signatory states, the question has arisen regarding the application of the Convention to abductions to the territories occupied by Israel since 1967 but not incorporated into the state. Israeli courts have implemented the Convention to instances where the abduction is an area under its administrative rule (Bork v. Stegman, 49 P.D.(2) 431). The Supreme Court has ruled that areas under Israeli administrative control will not be used as a hiding place for abducted children, even though there is no formal provision subjecting such territory to the Convention, (Eden v. Eden, 51 P.D.(4) 197).
1.5. Israeli courts have held that the defenses under the Hague Convention are to be narrowly interpreted (Gabai v. Gabai, 51 P.D.(2)241).
1.7. To prove the defense of consent, the evidence must be unequivocal, (Issak v Issak, Personal Status File 5097/92, Tel Aviv District Court, Judge H. Porat). Consent given in the heat of an argument does not meet the required standard. The case law has also adopted the position that negotiations conducted to resolve the conflict, including the option that the abducted children remain in the requested state, are not held to constitute consent (Gabai, id).
1.8. Consent requires both objective poof of the intent of the left behind parent and the subjective belief of the abducting parent that permission to relocate has been granted.
1.9.Acquiescence can be proven by either active or passive behavior. The case law holds that acquiescence, once given, cannot be retracted (Leibowitz v. Leibowitz, 47 P.D.(3) 254). This is a comparatively harsh holding in view of the more demanding requirements to prove consent. Whereas the abductor may change their situation in reliance upon consent, an act of acquiescence, which occurs subsequent to abduction, will generally not cause a change of circumstances. This is an issue that would appear to require further deliberation.
1.10.The Israeli Civil Rules of Procedure have adopted the American standard of proof for this defence, that of clear and combing evidence. A leading case which has applied this standard is (Roe v Roe, 50 P.D.338). The respondent mother raised an Article 13b defence, claiming that the petitioner was a violent, abusive alcoholic who had never held a job. It was argued that a return to the habitual residence in England would be to deny the child even minimal living conditions, as the mother had no ability to support herself. The Supreme Court held that this did not meet the standard of grave risk. The court and social service agencies in England were capable of addressing the issues raised by the mother. Abduction of the child was not the way to resolve the problems.
1.11. It has also been held that the abducting parent cannot create an Article 13b defense by claiming that their refusal to return with the child places them in grave risk of insufferable psychological harm. (Foxman v Foxman, Personal Status File 2898/92 Tel Aviv District Court, October 28th, 1992, C.A. 5271/92 Supreme Court, November 19th, 1992).
1.12. Israeli Courts have been inconsistent in their interpretation of the meaning of habitual residence. Some courts hold that there is a dichotomy between two approaches; that which is based solely on the perspective of the child (Dagan v Dagan, 53 P.D.(2) 241); and that which is based on parental intent (Alon v Alon, Family Appeal Request 2967/05, Supreme Court, July 12, 2005). Courts which have followed the parental intent model have created further confusion by disagreeing as to the point in time when parental intent is determined.
1.13. Other courts have taken a more comprehensive approach, recognizing that habitual residence is a consequence of two elements; the physical location of the child prior to the removal and parental intent. The balance between these two elements is determined according to the fact pattern of each case. Where the relocation of a family to another country has been for an extended, undefined period, the parent’s intent will carry less weight. Where relocation was for a specific purpose for a defined period, (e.g. a visiting professor on a year’s sabbatical) the physical presence of the child have far less significance.