Among the pointers given to couples about to divorce, or in the midst of divorce proceedings, is one piece of advice which is actually more of an entreaty: Don’t involve the children in your divorce struggle! Although it sounds like wise and suitable advice, unfortunately there are far too many cases in which children become pawns in the parents’ divorce battle; or they become grounds for a war in which all is fair. In extreme cases we encounter instances of child abduction including moving the child from one country to another.
The Hague Convention, to which Israel is a signatory nation, is meant to arrange for the swift treatment of cases in which a child is abducted to another country. In this article we delve into this topic: What cases constitute abduction and what cases involve a lawful action? What can be done? How does the Convention work in practice? We will focus on the Hague Convention (or its official name: Hague Convention on the Civil Aspects of International Child Abduction – 1991) as well as instances in which the Convention applies.
From lateness to abduction: definitions
In the cinema, abduction often includes black masks, a windowless vehicle, perhaps even gunfire and a police chase. In reality, however, abduction is much more common than that and doesn’t include violence and police chases. In this article we deal with the abduction of a child to another country during or after a divorce. Abduction can occur with parents who have not yet opened divorce proceedings, or are in the midst of divorcing, or in cases where agreements have already been drawn up and the divorce ruled upon by a court in compliance with law.
In the eyes of the law, in order for an abduction to have occurred, a number of conditions must exist:
- The child was taken by a person to another country. There are countries that have not signed the Convention, therefore the relevant law concerns only signatory countries. If the child was taken to a non-signatory country, the handling of the case is different and will be discussed separately and in brief.
- The taking of the child was contrary to the custody arrangement determined by the court and prevents its fulfillment. It’s important to note that such cases don’t necessarily involve custody rights granted to a parent. Sometimes custody is given to an institution or other guardian, based on a court ruling.
Another important point is that abduction can occur only if custody rights have been set in motion—in other words the party receiving custody indeed has acted in accordance to the court ruling. For example, a parent who has received certain rights pertaining to custody—for instance specific days in which the child is with that parent—but has not utilized those rights cannot claim that the child was taken from him/her. Custody must be actually fulfilled before one can talk about abduction.
- The child is below the age of 16.
It is important to stress that abduction occurs not only when one parent has received full custody and the other parent has taken the child away. Abduction also occurs when custody is divided between the parents based on legal visitation arrangements. Even if one parent is entitled to see the child one day a week and the other parent takes the child to another country without the first parent’s agreement—thus preventing him/her from seeing the child—the Convention protects the offended parent.
Another point that’s important to bear in mind: The law concerns both abduction and non-return of the child as one. A parent who takes the child to another country with the consent of the other parent but has not returned the child is in violation of law if consent was conditional on returning with the child.
Nevertheless, as we shall see, there are also limits on enforcing the Convention.
The Convention in action
When a child is abducted to another country, the parent who has been offended needs to contact the authority responsible for handling such cases. According to the Convention, each signatory country must establish a body responsible for handing international abduction. In Israel, the body authorized to deal with child abduction matters is the Department of International Affairs at the State Attorney’s Office. It is recommended immediately contacting a family attorney who possesses knowledge and experience in this area. Doing so guarantees taking correct and efficient action vis-à-vis the Israeli authorities as well as authorities in the country to which the child was abducted.
The Convention states that the country to which the child was abducted is obliged to return the child immediately to the country from which he/she was taken. The country must do everything in its power to locate the child and assist in the child’s return. In cases where the child has been abducted to Israel, the court is obliged to rule on his/her return. Only in exceptional cases will the court rule otherwise.
The Convention is meant to shorten the return process: Deliberations over custody and visitation arrangements will take place in the country from which the child was taken; moreover, the child must be returned swiftly and without delay. It is important to act quickly because the more time that elapses, the more difficult it is to rectify the situation.
The child isn’t always returned – limits to the Convention
Along with determining that the abducting parent must return the child to the country from which he/she was taken, the Convention also defines limitations—instances in which the child should not be returned to the country from which he/she was taken. The Convention recognizes that there exist ‘justifiable’ abductions or those that are accepted retroactively for various reasons, mainly if the child would harmed to a greater extent through his/her return than the harm done by the abduction. Such limits include:
- Time: If one year has elapsed from the time of the abduction and no action has been taken by the parent from whom the child was taken, it shall be construed as if the parent consented to the abduction and no grounds will exist for returning the child.
- Human rights: If returning the child arouses a real concern that that his/her human rights would be violated—for example the country from which the child was taken is in clear breach of the child’s human rights—the child must not be returned to the country from which he/she was taken.
- Consent: The person from whom the child was taken has not opposed the act, has agreed to it or has come to terms with it.
- Harm to the child’s welfare: returning the child to the location from which he/she was taken would harm the child and threaten his/her well-being. Some key examples:
- When the parent from whom the child was taken has abused the child in any way.
- The child has integrated into his/her new place of residence and removing the child would harm him/her.
- The transition from the country in which the child is located would harm him/her psychologically.
- The child’s wishes: When a child is sufficiently mature to express an opinion and wishes to remain in the location to which he/she was taken.
Naturally, sufficient proof is needed for the court to determine that one of the above limitations indeed exists. This is one of the important roles of an attorney in handling such a case—whether representing the parent suing for the child’s return, or the parent who has taken the child: to present the correct claims to the court and to appeal claims brought against the client. In any case, the ‘abducting’ parent is the one who needs to prove the existence of one these limits, not a simple matter because the court is disposed to a narrow interpretation of these limits. Thus, in most cases, it is difficult to prove that one of these limits indeed exists.
Abduction to a non-signatory country to the Hague Convention
Since not every world country is a signatory to the Convention, one must also address instances in which the child has been taken to one such country. In these cases the matter is more complicated, however there are still actions that can and should be taken. This topic ought to be expanded upon, but let us remark that the most common solution is to appeal to the Supreme Court—with a request for an order obliging the child’s return followed by applying to the relevant courts in the country to which the child was abducted. It is extremely important to immediately obtain the assistance of a family attorney who possesses knowledge and experience in the necessary international proceedings.
Cases in which the parents don’t succeed at arriving at an agreement over child custody or visitation arrangements do not always descend into accusations of abduction, with all that implies. However when the situation does deteriorate and matters become complicated, it is important to act quickly. One should hire the services of a suitable attorney in order to achieve a swift result and reduce as much as possible the impact to the child’s well-being as well as the parents’ rights.
Need help in bringing your child back home? Want to hear more about the subject? The legal firm of Avivit Moskovich possesses numerous years’ experience in this sensitive area.
Call us today and we’ll be happy to be of assistance.