Parental Abduction of Children- Israeli Case Law
-3- Fam. Ct. (Kfar Saba) 30600/04 S.H. v. G.G.H. A couple and their children arrived in Israel from New York with the stated intention of making Aliya. Within 2 weeks of having arrived, however, the mother had secretly purchased plane tickets for herself and the children (ages 5,8 and 10) to return to the United States. The father learned of the mother's plans, of her having had an extensive adulterous relationship with another man while in the United States and of her intention to return to the arms of that man. He filed a claim for divorce and obtained stay of exit orders preventing the mother and the children from leaving Israel from the Israeli courts. At this point the mother filed a Hague petition in Family Court under the Hague Convention on the Civil Aspects of International Child Abduction, alleging that the children were being wrongfully retained in Israel and that her agreement to come to Israel had been obtained by the father's threats to break up the family if she wouldn't come. The court concluded that her agreement to make Aliya had been freely given, was unconditional, and was not the result of inappropriate threats. Having found that the parties' intention was to permanently relocate to Israel, the court found that the element of "wrongfulness" was lacking. Of interest here (though diminished by the fact that this is a Family Court decision and not an appellate court decision) is the court's focus on the parties' last shared intention regarding their place of residence, without specifying how far back in time this shared intention may have been held, or what may have transpired since. This concept is not related to determining what the place of habitual residence of a child is, but is relevant to questions of agreement and acquiesence.
Dist. Ct. (Jerusalem) C.A. 575/04 Y.M. v. A.M.
The parents moved to England so that the father could engage in a two year foreign study program to which he had been accepted at Oxford University. The couple had two children, the first of whiom was born in Israel prior to their trip to England, and the second of whom was born in England. The marriage began suffering difficulties while the family lived in England, and during what a intended to be a temporary visit to Israel the pair began participating in a mediation process. While this was taking place the mother submitted divorce and custody petitions to the rabbininc court in Israel, together with a request for stay of exit orders to prevent the children from leaving the country. The father then submitted a petition in the Family Court under the Hague Convention on the Civil Aspects of International Child Abduction. The Family Court concluded that while the children's place of habitual residence had been England, and while the father had not agreed to the relocation to Israel, he had acquiesced to this relocation and the father's petition was therefore denied. The father appealed, and his appeal was denied as well. The appeal is interesting primarily because of the minority opinion which included drastic and incorrect interpretations of the relevant law regarding the determination of what the place of habitual residence of a child is, asserting that the criteria for determining Israel's jurisdiction over the marriage and divorce of the parent's are essentially the same. This opinion was clearly rejected by the majority but nonetheless constitutes an interesting footnote in Israeli jurisprudence on these issues. The case is also interesting for its lengthly analysis of the facts surrounding a foreign residence for the purposes of studying abroad, applicable in many similar contexts such as a sabbatical or foreign job posting, whch raise questions in the context of making determinations as to place of habitual residence, as well as the defenses of agreement, and acquiescence that might be raised under the Hague Convention.
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