Buscador de jurisprudencia

The applicant, a German national, married a Greek national in 2019 in Germany. In October and November 2020, respectively, they moved to Israel. They both worked in Israel and their child was born there in 2023. The child has Greek nationality. Sometime after birth, the couple separated but continued to live in Israel with the father seeing the child on a regular basis. On 6 February 2024, the applicant requested the passport of the child from the father, claiming, that it was needed for a doctor’s appointment. The same day, she flew to Germany with the Child without the father’s consent. On 7 February 2024, the father submitted an application for return to the Central Authority in Israel.

The German Local Court discussed the matter with the parties involved at a hearing on 19 March 2024 and ordered the return of the child to Israel by an order on 26 March 2024.  

The applicant lodged an appeal against this order. She is of the opinion that due to the formal state of war in Israel and an existing risk of massacres and assassinations, the provision of Article 13(1)(b) would preclude a return of the child. Especially the attack on 7 October 2023 was a turning point. There had been constant warnings of potential attacks and a rocket fired from Lebanon had landed in her suburb. 

The father is of the opinion that the respondent should return the child to Israel. He claims that the security situation in Israel does not prevent the return of the child as the situation continues to be stable and that the clashes are concentrated on the Gaza Strip and the border with Lebanon. 

The current situation in Israel does not preclude the return of a minor child based on the provision of Article 13(1)(b).

Grave Risk - Art. 13(1)(b)

The requirements for an exemption of return based on Article 13(1)(b) are not met. The provision is to be interpreted restrictively in order to obtain a fast decision on custody of the state in which the child has had its habitual residence before the abduction. Article 13(1)(b) can only apply in a case of a serious concrete impairment of the child’s best interest. The current situation in Israel cannot justify this assumption. A serious and concrete risk cannot be based on a travel warning issued by the Federal Foreign Office, rather other aspects must be considered in an overall view. The attack on 7 October 2023 is also not a sole indicator for a concrete risk as due to the precautions of Israel there is no real risk for repetition of such a tragic event. The impaired sense of security of people living in Israel, increased vigilance and precautionary measures also do not justify a concrete risk. It has also be taken into consideration that both parents decided to live in Israel despite the tense situation that existed there beforehand.