CASE

No full text available

Case Name

S. v. S., 'ir'ur mehozi (Family Appeal) 128/99 (nyr)

INCADAT reference

HC/E/IL 94

Court

Country

ISRAEL

Name

'ir'ur mehozi (Family Appeal)

Level

Appellate Court

Judge(s)
Y. Ya'akobi-Shvili (Deputy President, Haifa District Court), M. Neeman, O. Gershon

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

ISRAEL

Decision

Date

2 May 1999

Status

Overturned on appeal

Grounds

Objections of the Child to a Return - Art. 13(2)

Order

Appeal allowed, return refused

HC article(s) Considered

12 13(2)

HC article(s) Relied Upon

12 13(2)

Other provisions

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Authorities | Cases referred to
C.A. (Civil Appeal) 4391/96 R. v. R., 50(5) PD 338 [P.D. - Piskei Din - Collection of Decisions of the Israel Supreme Court]; C.A. 740/87, 113/89 P., 43(1) P.D. 661; C.A. 433/67 T., 22(1) PD 162, at 166-7; HCJ [High Court of Justice] [name missing] 40(1) PD 516, 520; C.A. 503/60 W., 15 PD 760, at 766; F.A. (Family Appeal) P. (nyr); C.A. 6056/93, HCJ 6860/93 E. (nyr).
Published in

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INCADAT comment

Exceptions to Return

Child's Objection
Nature and Strength of Objection

Inter-Relationship with International / Regional Instruments and National Law

UN Convention on the Rights of the Child (UNCRC)
UN Convention on the Rights of the Child (UNCRC)

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a boy, was 12 1/2 at the date of the alleged wrongful removal. The parents, both orthodox Jews, were married. The child lived in the United States but had made frequent and extended visits to Israel. The parents had been planning to emigrate to Israel. The father took the child to Israel without the consent of the mother.

On 15 April 1999 the Haifa Family Court ordered the return of the child. The court found that the boy's objections were not sufficient to fall within the standard required under Article 13(2).

The father appealed.

Ruling

Appeal allowed and return refused; the standard required under Article 13(2) had been met.

Grounds

Objections of the Child to a Return - Art. 13(2)

The court found that no danger was posed by accepting the boy's choice, which it held was formed with wisdom and maturity. In light of the proposed emigration of the family the boy had developed an expectation of moving to Israel. He made it clear that he preferred living in Israel, to the extent that he would rather have stayed with his paternal grandfather in Israel, than return to the United States. The court affirmed that special attention should be paid to the psychological damage that may be caused by "breaking" the will of a determined boy of this age. The court drew attention to the importance of Article 12(1) of the UN Convention on the Rights of the Child, 1989, in that the views of a child must be given due weight in accordance with his age and maturity.

INCADAT comment

The mother appealed this first appellate judgment to the Israeli Supreme Court. The latter court upheld the interpretation given by the trial court, see: reshut ir'ur ezrachi (leave for civil appeal) 3052/99 (Israel)(Supreme Court) S v S [Reference INCADAT: HC/E/IL 581].

However an amicable agreement was subsequently reached which led to the boy remaining in Israel.

For academic commentary of this case see R. Schuz, The Hague Child Abduction Convention and Children's Rights, Transnational Law and Contemporary Problems, Vol. 12, No. 2 (2002) 396 at 425-6 and 427-430.

Nature and Strength of Objection

Australia
De L. v. Director-General, NSW Department of Community Services (1996) FLC 92-706 [INCADAT cite: HC/E/AU 93].

The supreme Australian jurisdiction, the High Court, advocated a literal interpretation of the term ‘objection'.  However, this was subsequently reversed by a legislative amendment, see:

s.111B(1B) of the Family Law Act 1975 inserted by the Family Law Amendment Act 2000.

Article 13(2), as implemented into Australian law by reg. 16(3) of the Family Law (Child Abduction) Regulations 1989, now provides not only that the child must object to a return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

See for example:

Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/UKs 904].

The issue as to whether a child must specifically object to the State of habitual residence has not been settled, see:

Re F. (Hague Convention: Child's Objections) [2006] FamCA 685 [INCADAT cite: HC/E/AU 864].

Austria
9Ob102/03w, Oberster Gerichtshof (Austrian Supreme Court), 8/10/2003 [INCADAT: cite HC/E/AT 549].

A mere preference for the State of refuge is not enough to amount to an objection.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003 [INCADAT cite: HC/E/BE 546].

A mere preference for the State of refuge is not enough to amount to an objection.

Canada
Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008, [INCADAT cite: HC/E/CA 1028].

To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence. He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".

United Kingdom - England & Wales
In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKs 87] the Court of Appeal held that the return to which a child objects must be an immediate return to the country from which it was wrongfully removed. There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

In Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKs 56] it was, however, accepted that an objection to life with the applicant parent may be distinguishable from an objection to life in the former home country.

In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. set down a series of questions to assist in determining whether it was appropriate to take a child's objections into account.

These questions where endorsed by the Court of Appeal in Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].

For academic commentary see: P. McEleavy ‘Evaluating the Views of Abducted Children: Trends in Appellate Case Law' [2008] Child and Family Law Quarterly, pp. 230-254.

France
Objections based solely on a preference for life in France or life with the abducting parent have not been upheld, see:

CA Grenoble 29/03/2000 M. v. F. [INCADAT cite: HC/E/FR 274];

TGI Niort 09/01/1995, Procureur de la République c. Y. [INCADAT cite: HC/E/FR 63].

United Kingdom - Scotland
In Urness v. Minto 1994 SC 249 [INCADAT cite: HC/E/UKs 79] a broad interpretation was adopted, with the Inner House accepting that a strong preference for remaining with the abducting parent and for life in Scotland implicitly meant an objection to returning to the United States of America.

In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House, which accepted the Re T. [INCADAT cite: HC/E/UKe 270] gateway test, held that objections relating to welfare matters were only to be dealt with by the authorities in the child's State of habitual residence.

In the subsequent first instance case: M. Petitioner 2005 S.L.T. 2 OH [INCADAT cite: HC/E/UKs 804], Lady Smith noted the division in appellate case law and decided to follow the earlier line of authority as exemplified in Urness v. Minto.  She explicitly rejected the Re T. gateway tests.

The judge recorded in her judgment that there would have been an attempt to challenge the Inner House judgment in W. v. W. before the House of Lords but the case had been resolved amicably.

More recently a stricter approach to the objections has been followed, see:  C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]; upheld on appeal: C v. C. [2008] CSIH 34, [INCADAT cite: HC/E/UKs 996].

Switzerland
The highest Swiss court has stressed the importance of children being able to distinguish between issues relating to custody and issues relating to return, see:

5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 795];

5P.3/2007 /bnm; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 894].

A mere preference for life in the State of refuge, even if reasoned, will not satisfy the terms of Article 13(2):

5A.582/2007 Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 986].

For general academic commentary see: R. Schuz ‘Protection or Autonomy -The Child Abduction Experience' in  Y. Ronen et al. (eds), The Case for the Child- Towards the Construction of a New Agenda,  271-310 (Intersentia,  2008).

UN Convention on the Rights of the Child (UNCRC)

Preparation of INCADAT commentary in progress.