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CASO

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Nombre del caso

Family Application 8743/07 Y.D.G. v T.G.

Referencia INCADAT

HC/E/IL 983

Tribunal

País

Israel

Instancia

Primera Instancia

Estados involucrados

Estado requirente

Estados Unidos de América

Estado requerido

Israel

Fallo

Fecha

1 November 2007

Estado

Definitiva

Fundamentos

Grave riesgo - art. 13(1)(b)

Fallo

Restitución ordenada

Artículo(s) del Convenio considerados

13(1)(b)

Artículo(s) del Convenio invocados en la decisión

13(1)(b)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

Publicado en

-

INCADAT comentario

Excepciones a la restitución

Cuestiones generales
Carácter limitado de las excepciones

Dificultades en la implementación & aplicación

Medidas para facilitar la restitución del menor
Restitución segura / órdenes espejo

SUMARIO

Sumario disponible en EN | FR

Facts

The application related to children abducted from the United States to Israel. At trial the mother's argument that a return would expose the children to a grave risk of harm was rejected. She appealed, but before the hearing the parents concluded an agreement whereby the children would stay in the custody of the maternal grandmother before going back.

Nevertheless, shortly before the scheduled return date the mother filed additional motions claiming that new evidence showed the children had been physically and sexually abused by the father.

The motions were denied by the Family Court, but a subsequent appeal was allowed by the District Court which ordered a stay of execution of the return order on the basis that the children's situation had not been examined and there had not been a social work report. The case was remitted to the Family Court.

Ruling

Return ordered; a grave risk of harm pursuant to Art 13(1)(b) had not been established to the level required under the Convention.

Grounds

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

court appointed expert found that there had not been any abuse by the father. consequently there was no basis on which the grave risk of harm exception could be established. Whilst the principle of return and the exceptions were based on the desire to protect children, the ‘best interests of the child’ was not a principle to be considered independently in Convention cases (in contrast to custody cases). The Convention exceptions listed in the convention were to be interpreted narrowly and would only be upheld in exceptional cases in which the force of the child's interests and needs took precedence over the gravity of the abduction. Furthermore, as the accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts particularly since the delay in so doing would harm the children.

INCADAT comment

Limited Nature of the Exceptions

Preparation of INCADAT case law analysis in progress.

Safe Return / Mirror Orders

A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.

Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:

Australia
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane), [INCADAT cite: HC/E/AU 294];

United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499  [INCADAT cite: HC/E/ UKe 599];

Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:

Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].

A request that a return order be made subject to the implementation of mirror orders was turned down in:

Israel 
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].

The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.