Ben Said vs Leboeuf [France 2002] Marseilles Regional Court Registration no. 02/06691 09 International Abduction [FRANCE 2002] =========================================================== EXTRACT FROM THE ORIGINAL RECORDS OF THE CLERK OF THE MARSEILLES REGIONAL COURT DEPARTMENT OF BOUCHES-RHONE FRENCH REPUBLIC ON BEHALF OF THE FRENCH PEOPLE MARSEILLES REGIONAL COURT 6 rue Joseph AUTRAN 13006 Marseilles Stamp: Case: [illegible] Versus: LEBOEUF et al Decision dated: July 19, 2002 001 The President of the Marseilles Regional Court, Department of Bouches-du-Rhone, has handed down a decision, the terms of which are as follows: WHEREFORE: THE FRENCH REPUBLIC summons and orders 002 All the Bailiffs of the Court, in connection with this requirement, to enforce this decision. 003 The Public Prosecutors employed in the Courts of Appeals and the state Prosecutors employed in the Regional Courts to deal with the matter. 004 All the Commanders and Officers of the Police Force to render assistance when legally required to do so. 005 In witness whereof this decision, certified pursuant to the official records, has been sIgned, sealed and delivered by the undersigned clerk of the court. 006 For a certified true copy of the original bearing a writ of execution delivered to: Mater, RUIN MARSEILLES, on July 19, 2002 CHIEF CLERK OF THE COURT Stamp: MARSEILLES REGIONAL COURT MARSEILLES REGIONAL COURT Registration no. 02/06691 Case: STATE PROSECUTOR/BEN SAID/LEBOEUF FOURTH DIVISION JUDGMENT NO. 1218 COMPOSITION OF THE COURT: Judge GHIGO, FAMILY LAW JUDGE Mrs. AYVAZIJAN,. Clerk of the Court HEARINGS IN THE JUDGE'S CHAMBERS ON: July 16, 2002. Before Judge GHIGO, FAMILY LAW JUDGE 007 Upon conclusion of which the date of the deliberations was notified. 008 JUDGMENT given in court on: July 19, 2002 009 By judge GHIGO, FAMILY LAW JUDGE 010 Assisted by Mrs. AYVAZIAN, Clerk of the Court NATURE OF THE JUDGMENT 011 In the presence of both parties and in the first instance. NAME OF THE PARTIES APPLICANT: 012 THE STATE PROSECUTOR, residing at 6 rue Joseph Autran, 13006, MARSEILLES 013 Represented by Mrs. PAUTROT, Deputy Public Prosecutor RESPONDENT: 014 Mr. Jean Marc LEBOEUF, born on April 6, 1964 in LYONS (69293), of French and Israeli nationality, residing at the house of Mrs. Veronique FARROUZ 36 rue Leon d'Arrros 13013 MARSEILLES. 015 Assisted by Mater Pierre BELLALS. Adv. INTERVENING PARTY: 015 Mrs. Ruth Judith Anne BEN SAID wife of ZENOU, of French and Israeli nationality, residing at 17715 Na'halat Har Habad St Qiryat (ISRAEL) 016 Represented by Mater Martine RUIN, Adv. (MARSEILLES) and Mater Veronique CHAUVEAU, Adv. (PARIS). 017 Mr. Jean-Marc LEBOEUF and Mrs. Ruth BEN-SAID were married on June 10, 1986 in the presence of the register of the town of EPINAY SOLTS SENART with no previous contract. 018 Six children resulted from this marriage: Haya-Mouchka LEBOEUF, born on April 4, 1989 in Montfernei (Seine, Sainit-Deriis) Devorah Leah LEBOEUF, born on February 10, 1992 in Gonesse (Val d'Oise) Berachah LEBOEUF, born on September 22, 1993 in Gonesse (Val d'Oise) Menou'hah Ra'hel LEBOEUF, born on February 18, 1995 in Gonese (Val d'Oise) Sim'ha LEBOEUF, born on February 10, 1997 in Antwerp (Belgium) Hadassah LEBOEUF, born on February 25, 1999 in Gonesse (Val d'Oise). 019 By order of the Vice President of this Court dated July 4, 2002, the Department of the Public Prosecutor has been authorized to summons Mr. Jean-Marc LEBOEUF to appear at fixed-date proceedings in court on July 16. 2002. 020 As a result, and by act of bailiff dated July 4, 2002, the State Prosecutor employed by this Court summonsed Mr. Jean-Marc LEBOEUF to appear before the Family Law Judge so that an order could be given, based on Article 12 of the Hague Convention of October 25, 1980 relating to the civil aspects of international child abduction, for the immediate return of the children: Haya-Mouchka LEBOEUF Devorah Leah LEBOEUF Berachah LEBOEUF Menou'hah Ra'hel Sim'ha LEBOEUF 021 To the habitual residence of their mother in Israel, after recognition of the wrongful nature of the removal by the father of the minors to France. That Mr. Jean-Marc LEBOEUF be ordered to pay all the legal costs of the proceeding, as well as the charges incurred by Mrs. Ruth BEN-SAID, pursuant to Article 26 of the above-mentioned Convention. 022 In support of his application, the State Prosecutor of Marseilles explains the following facts: 023 By virtue of a decision delivered on January 29, 2002, the ASHKELON Rabbinical Court confirmed the divorce agreement concluded that day between the spouses, who accepted the principle of the divorce and the temporary custody of the girls granted to the mother until the Rabbinical Court issued a definitive ruling in May 2002. 024 Taking advantage of a walk with five of his six children, Mr. Jean-Marc LEBOEUF took the children with him to France without the knowledge of the mother, on April 7, 2002, in violation of the temporary custody decision. 025 Emphasizing the wrongful nature of the removal of the five minor children, the Israeli Central Authority instituting this proceeding sought their return to Israel based on Article 12 of the Hague Convention. 026 Mr. Jean-Marc LEBOEUF explains that the divorce, which did not make a ruling regarding the custody of the girls, does not comply With French law since it was issued under pressure from religious authorities. He adds that the children are in the effective custody not of the mother, but of an institution of strict religious persuasion. 027 He declares that he deliberately took his girls back to France, with the exception of the youngest since he did not have her passport in his possession, without the consent of the mother, primarily because he wished to protect his children and keep them safe from the multiplicity of attacks on Israeli territory. 028 He claims that his behavior is not unlawful since immediately upon his arrival in France, he hoped to regularize his situation by applying to the French courts for the right of custody of the children. 029 He believes thai the return of the children to Israel, a country in a state of war, exposes them to indisputable moral and physical danger owing to the indiscriminate attacks taking place there. 030 Mrs. Ruth BEN-SAID, intentional intervening party in the proceedings, argues that the conditions for application of the Hague Convention have been met, since the father has removed the the oldest girls to France without her authorization. 031 She emphasizes that the couple, with their six children, had settled in Israel with full knowledge of the circumstances, in 1999, a date when terrorist attacks were already happening and had been happening for a long time. 032 She stresses that the father fails to prove that the situation in ASHKELON exposes the children to grave and immediate physical or mental danger. 033 She is seeking the return of the children to Israel with a daily penalty for failure to comply in respect of a deLay exceeding 96 hours, and is seeking the amount of 5000 euros by virtue of Article 26 of the Hague Convention of October 25, 1980. GROUNDS FOR THE DECISION 034 Whereas an examination of this application in practice falls within the purview of the Family Law Judge in the place to which the children have been moved, pursuant to the provisions of Articles 247 of the Civil Code and I. 312-1 at the Code of the Judicial Authority, whereas Article 11 of the Hague Convention of October 25, 1980 pertaining to the civil aspects of international child abduction provides that a judgment must be handed down within a period of ~ weeks from referral of the case to the central authority; in this case, the referral took place on June 19, 2002; 035 Whereas under the terms of Article 3 of the aforementioned Hague Convention, the removal or non-return of a child is deemed to be wrongful when it takes place in violation of a right of custody exercised either alone or jointly, granted by the law of the State in which the child had his or her habitual residence immediately before his or her removal or non-return, this right of custody may result not only from a legal or administrative decision but also from operation of the law; 036 Whereas this article obliges the Judge In the requested state to analyze the removal from the perspective of the applicable law of the applicant state to determine whether the removal is wrongful; 037 Whereas in this case, the LEBOEUF/BEN SAID couple, of the Jewish faith, had their habitual residence with their children in Israel since 1999; 038 Whereas by a decision of January 29, 2002, the ASHKELON Rabbinical Court confirmed an agreement by the parties who accepted the principle of the divorce and entrusted the six girls to the temporary custody of the mother while waiting for a definitive decision from the said Court in May 2002; 039 Whereas Mr. LEBOEUF is dIsputing the validity of this judicial decision, citing the absence of his consent, i.e. the pressure; 040 Whereas if it is not the responsibility of this jurisdiction to assess the validity of the divorce proceeding in progress pursuant to Israeli law, on the other hand, it is indisputable that, as with French law the law of the State of Israel as it arises from documents produced in hearings, attributes the custody of the children by law, in the sense of the Hague Convention, jointly to the two married parents; 041 Whereas on the assumption supported by the father whereby the right of custody has not been attributed to the mother by the decision of the Rabbinical Court, the two parents should make a joint decision, in the absence of an opposing decision from the qualified judge regarding an alteration in the habitual residence of the children; 042 Whereas, as a result, in any event, notwithstanding the challenge by the husband of the decision of the ASHKELON Rabbinical Court of January 20, 2002. the removal of five of the six children as of April 7, 2002 on the sole initiative of the father, without the consent of the mother remaining in Israel, to establish the residence of the children outside the territory of Israel in a unilateral and authoritarian manner, must be considered to be wrongful in the sense of Article 3 of the Hague Convention. 043 Whereas a Judge dealing with the return proceeding within the framework of the application of the Hague Convention, does not have to assess the appropriateness of the measures to be taken in relation to custody of a chiLd, since the merits of the contentious proceedings are not at issue, but only to bring a halt to the act of violence constituted by the deprival of possession of the guardian parent by restoring the previous situation and ordering the return of the child to the original State until judgments are handed down; 044 Whereas Article 13 of said Convention stipulates on the other hand that the judicial authority dealing with the matter is not bound to order the return when the abducting party establishes that the person who bad care of the person of the child was not actually exercIsing the custody right at the time of the removal, or that there is a grave risk that the return of the child would expose him or her to physical or mental danger or otherwise place him or her in an intolerable situation; 045 Whereas, at the time of their removal, the education of the children in a religious boarding school controlled by the rabbinical authorities, a fact which is not disputed by the mother, would not, contrary to the declarations of Mr. LEBOEUF have resulted in effectively transferring custody of the children, in the sense of the Hague Convention, to the religious educational institution. 046 Whereas with regard to the grave risk, documents have been produced in hearings that the political situation in Israel has always been tense since the creation of that State in 1948, that this permanently tense climate did not dissuade Mr. LEBOEUF and Mrs. BEN-SAID from taking up residence there with their six children in 1999; 047 Whereas, in contrast, the crisis situation known as the second Intifada, which began in September 2000. did not prevent Mr. LEBOEUF from waiting until April 2002 to remove five of his daughters, thereby separating the siblings, on the grounds of an intolerable lack of security 048 Whereas if it is indisputable that random and unpredictable suicide attacks are perpetrated in that country, necessarily entaIling an obvious risk, on the other hand, the idea of risk must be strictly assessed; 049 Whereas no document has been flied by the respondent to demonstrate the current exact situation of Qiryat Malachi, the habitual place of residence of the children; that in contrast, the deputy mayor of this town states that this area has never been the victim of an act of terror, that the religious educational institution attended by the children, before their removal has never been attacked; 050 Whereas the cited general state of danger, while businesses, schools, adminIstrations, means of transport continue to function, since the father could have left the country and taken his children, would not constitute a grave risk exposing the children of Mr. LEBOEUF to physical or mental danger; 051 Whereas Mr. LEBOEUF consequently fails to prove that his five daughters who would thus rejoin their youngest sister, would be especially and personally exposed to physical danger were they to return to Israel; 052 Whereas there are grounds for granting the application presented by the Public Prosecutor's Office based on the Hague Convention of October 25, 1980 and ordering that the five children be returned immediately to Israel to the residence of their mother; 053 Whereas the application of the mother for the return of the children with a penalty for failure to compLy is unsuccessful; 054 Whereas this decision will be added to an order making the judgment immediateLy enforceable notwithstanding the lodging of an appeal, since this measure proves to be necessary and compatible with the nature of the case; 055 Whereas the applIcation of Mrs. BEN SAiD for payment of 5,000 euros is rejected owing to the absence of supporting evidence; 056 Whereas Mr. LEBOEUF will bear legal costs as well as the expenses incurred by the French central authority specified in Article 26 of the Hague Convention. ON THESE GROUNDS 057 Judge C. GHIGO, FamiLy Law Judge, issuing a public ruling after bearings in the Judge's Chambers, in a judgment after bearing bath parties, and in the first instance. 058 In view of the Hague Convention of October 25, 198O regarding the civil aspects of international child abduction, 058 States that Mr. Jean-Marc LEBOEUF is WrongfulLy retaining his five daughters in France: Haya-Mouchka LEBOEUF, born on April 4, 1989 in Montfernei (Seine, Sainit-Deriis) Devorah Leah LEBOEUF, born on February 10, 1992 in Gonesse (Val d'Oise) Berachah LEBOEUF, born on September 22, 1993 in Gonesse (Val d'Oise) Menou'hah Ra'hel LEBOEUF, born on February 18, 1995 in Gonese (Val d'Oise) Sim'ha LEBOEUF, born on February 10, 1997 in Antwerp (Belgium) 059 Orders the immediate return of the five children to the residence of their mother in israel, 060 Dismisses the remainder of the applications of the parties, 061 Orders this judgment to be immediately enforceable notwithstanding the lodging of an appeal. 062 Order Mr. Jean-Marc LEBOEUF to pay all legal costs as well as the expenses incurred by the French central authority specified in Article 26 of the above-mentioned Convention; 063 DONE AND DELIVERED IN THE LAW COURTS OF MARSEILLES, ON JULY 19, 2002. Signed: Clerk of the Court Signed: Family Law Judge