The Hague Convention on the Civil Aspects of Child Abduction- Special Notes on Israel and the United States
Prepared by Neil J. Saltzman [2]
January 2006
The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty intended to secure the prompt return of children wrongfully removed to or retained in any contracting state, and to ensure that rights of custody and access under the law of one contracting state are respected in other contracting states. The Convention is not designed to determine what the rights of custody or access in relation to a child ought to be, but rather to return the child to his place of habitual residence, where those rights can then be adjudicated and enforced. The Convention applies to children under the age of 16. The United States and Israel are two of more than fifty countries that have accepted the Convention’s terms [4A]. To see the Israeli law ratifying and incorporating the Convention, click here.
Removal or retention are considered wrongful under the Convention where it breaches rights of custody under the law of the contracting state in which the child was habitually resident immediately prior to the removal or retention, and the rights so breached were actually exercised, or would have been exercised were it not for the removal or retention. In this context, rights of custody include the right to care for the person of the child and, in particular, the right to determine the child’s place of residence. The rights may have been established by court order, function of law or a legally effective agreement between the parties. The existence of these rights under the laws of the country of habitual residence, as well as their exercise, needs to be proved by the party petitioning for the child’s return under the Convention.
The term “habitual residence” is not defined in the Convention. The determination of whether a particular place constitutes the habitual residence of a child is fact sensitive and often litigated. Among the fluid principles that have evolved in this context is the one that habitual residence is where a child "has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective”. [ Also, “In the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered.”
The question of whose intention is relevant is a somewhat problematic one where a great deal of time has passed, such as where the child was abducted at a young age and his return is requested when he is older and more mature. Consider the case of Isaac v. Rice, in which a father wrongfully removed his two year-old child to Israel and concealed his whereabouts from the mother for 13 years. Upon discovering his location the mother brought the 15 year-old son back to Mississipi where the father’s Hague petition request was denied. The Court ruled that Israel had not become the habitual residence of the child, a conclusion at which it arrived on the basis of two arguments: (1) the intention necessary to change the habitual residence can be interpreted as the shared intention of parent and child, (2) ruling that Israel had become the new habitual residence of the child in the footsteps of his wrongful removal from the United States would constitute an open invitation to parents to abduct their children. It seems that the second argument informed the first in this case.
Relevant intention in determining “habitual residence” has also been described this way: "the first step toward acquiring a new habitual residence is forming a settled intention to leave the one left behind." At the same time, the physical geographic change that accompanies the intention is of ultimate importance, and the court focuses on “past experience, not future intentions”.
Under the Convention each signatory country is to designate a “Central Authority” for the purpose of coordinating efforts with other governments in relation to the Convention. The duties of the Central Authority are varied and include the extension of aid in locating children wrongfully removed to or retained, providing information about the legal application of the Convention in that state, facilitating the physical return of a child, or aiding in the amicable resolution of the dispute. The Office of Children’s Issues, a part of the US Department of State, has been designated as the Central Authority in the United States; in Israel the Attorney General’s office has been designated as the Central Authority under the Convention.
A person who believes his rights of custody or access have been breached by the wrongful removal or retention of a child may apply to either the Central Authority of the country of habitual residence or the Central Authority of any other contracting state for assistance. An aggrieved party may apply to the courts of the contracting state in which the child is located, and this is in addition to, or instead of, applying to the Central Authority. The Central Authority has not been assigned a direct role in these judicial proceedings in either Israel or the United States.
In the United States, federal and state courts have been granted concurrent jurisdiction to deal with claims based on the Hague Convention. The court authorized to deal with claims based on the Convention in Israel is Family Court. The venue is determined by the location of the child whose return is sought. If the child’s location within Israel is unknown, application is to be made in Tel Aviv.
Timing plays a crucial role in connection with the prosecution of rights under the Convention. Article 12 of the Convention establishes that where less than one year has elapsed between the initiation of the wrongful removal or retention and the submission of a claim to the appropriate judicial or administrative body in the country of the contracting state where the child is located, that authority is required to order the return of the child to his country of habitual residence “forthwith”. If more than one year has elapsed, the immediate return of the child is also required, “unless it is demonstrated that the child is now settled in its new environment,” in which case the court has discretion. This proviso is an extremely important one and if fulfilled opens up an entirely new front upon which the legal battle may be waged. Because the concepts involved are so fluid, such a battle is best avoided by the would-be petitioner.
Notwithstanding the seemingly absolute language of Article 12, a number of exceptions apply which allow the adjudicating body to reject a request to order the return of the child to the country of habitual residence even if submitted within a year of the wrongful removal or retention. The following affirmative defenses, if proved by the party opposed to such return, allow for the rejection of a Hague petition despite the wrongful removal or retention: (1) the petitioning party having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, (2) or had consented to or subsequently acquiesced in the removal of retention; or (3) 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. The judicial or administrative authority may also refuse to order the return of the child if it finds that (4) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.[14] In addition there is (5) the aforementioned passage of more than one year from the wrongful removal, if the court determines that the child is settled in its new location, and (6) the possibility that he return of the child may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
In the United States, a party’s attempt to invoke exceptions number (3) or (6), as numbered above, must be proved by “clear and convincing” evidence. Application of the other exceptions requires only “a preponderance of the evidence” though they are nonetheless narrowly construed.
There are two types of “grave risk” that are appropriate under Article 13(b): sending a child to a "zone of war, famine, or disease," or in cases of serious abuse or neglect. The grave risk exception has been unsuccessfully invoked numerous times in the context of US – Israel Hague cases, where it has been claimed that Israel is a “zone of war”.
In Silverman v. Silverman , 2002 U.S. Dist. LEXIS 8313, the US District Court for Minnesota rejected the father’s Hague petition for the return of his children to Israel, ruling that even if Israel was the child’s habitual place of residence from which they were wrongly removed, their return to Israel would pose a grave risk of physical harm and would place them in an intolerable situation due to the level of violence taking place there, thus triggering the exception rooted in Article 13(b) of the Convention. Israel, the court decided, was a “zone of war” to which the children should not be returned. The US Court of Appeals for the Eighth Circuit overturned this decision finding that the evidence of general regional violence, such as suicide bombers, which was presented, was “not sufficient to establish a ‘zone of war’ which puts the children in ‘grave risk of physical or psychological harm" under the Convention’.” The court ruled that to reach the conclusion of the District Court, specific evidence of potential harm to the individual children would need to be shown.
The same issue arose earlier in Freier v. Freier, a 1996 decision of the US District Court for the Eastern District of Michigan. The events took place shortly after the opening of the tunnel by the Temple Mount in Jerusalem, near the Al Aqsa mosque, in the wake of which there was rioting. In that case too the “grave risk of harm” defense was rejected after the court considered that no schools were closed, businesses were open and that the petitioner was able to leave the country, and failed to find clear and convincing evidence that the specific child in question was in grave risk of physical injury. More recent cases ended with similar result and the defense has also been unsuccessfully invoked in relation to Israel before the courts of Australia, Argentina, Germany, the United Kingdom and Canada.
The hurdle for proving the “grave risk” and “human rights” defenses is, as noted, very high, and Hague petitions are much more frequently rejected on the basis of one of the other affirmative defenses mentioned.
In both Israel and the United States the petitioner may request provisional remedies pending the adjudication of his claim, including stay of exit orders, orders for the deposit of passports with the court, orders directed toward other courts not to address particular issues in reference to the child, or other orders designed to effectuate the goal of ensuring that proceeding is not frustrated. In both the US and Israel courts may order the respondent to pay the petitioner’s costs if the return of the child is ordered. Both countries also have rules in place to ensure that Hague Convention claims are handled expeditiously.
International Parental Kidnapping Crime Act (IPKCA)
IPKCA makes it a federal felony under the laws of the United States to remove or retain a child under the age of 16 outside the United States with the intent to obstruct the lawful exercise of parental rights. Extradition requests may be pursued through the US Attorney’s office under IPKCA from both Hague Convention and non-Hague Convention countries such as Russia. Among other considerations, the US Attorney will take into account how such a proceeding will affect a pending or possible Hague application in the other country, or how practical extradition and criminal prosecution from a non Hague Convention will be. More information is available in our article on child abduction to non- Hague Convention countries.
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