I.N. v A.S. et al [Israel 2001] Family Court of Haifa No 34970/01 16 International Abduction [Israel 2001] =========================================================== (TRANSLATION FROM HEBREW) IN THE FAMILY COURT FOR HAIFA JUDGE AVIDAN GLOWINSKY NOVEMBER 28th, 2001 FILE NUMBER 34970/01 IN THE MATTER OF THE MINOR GIRL N.Z. FINNISH PASSPORT No . DATE OF BIRTH 10.15.88 PLAINTIFF: I. N. SWEDISH PASSPORT No . By counsel: A.L. GARB and N. BARKAN DEFENDANTS: 1. A.Z. 2. H.Z. 3. A.Z. JUDGMENT 001 1. The plaintiff filed a claim on November 22nd 2001 for the return of a kidnapped minor under the Hague Treaty Law (The Return of kidnapped children) - 1991. 002 The plaintiff claims, as was stated in the affidavit annexed to the claim, that the minor was taken from Sweden on October 3rd 2001 by trickery and was flown to Israel along with her father's relatives. 003 The father is defendant no. 3. 004 The plaintiff's requests and demands were not met and she had to turn to legal counsel which led to the filing of this claim. 005 The plaintiff further stated that since 1998, the parents who are divorced and live separately, have joint custody. 006 2. On the date of filing the claim, November 22nd 2001, a temporary decision was given by me regarding the prevention of the minor and the defendants from leaving Israel and an order was given to transfer the minor immediately to the welfare authorities. I also ordered a review from the welfare clerk-social worker at the Bismat Tivon village local council, and a hearing was scheduled for today, only 6 days after the claim was filed. 007 3. The review was presented yesterday to court file by the welfare clerk Mr. Nasser Darawshe. It appears that the child is not interested in returning to Sweden, that she speaks Colloquial Arabic and Swedish (and a little English) and that it is hard for her to live in her mother's house due to quarrels with her stepfather, and it is also difficult for her to live in her father's house due to quarrels with her stepmother. 008 4. At the hearing held today appeared both the parents, the father's parents, the minor herself, the welfare clerk and advocate G. Solan on behalf of the Attorney General of Israel, I have brought all parties to an agreement that the claim is to be granted and that this court is obliged to order the return of the child to Sweden as soon as possible. 009 I have spoken with the child alone, without the parties, but in the presence of the welfare clerk Mr. Darawshe and the Swedish translator. The conversation was pleasant and was held in Arabic, English and Swedish, and I was under the impression that the minor fully understood the role of the court under the Hague Treaty Law and that she understood that if she is interested in living in Israel or anywhere else, with the absence of both of her parents' consent or the absence of one of her parents' consent, she needs to apply to the qualified court in Sweden through her father or an appointed lawyer or in any way according to the Swedish law, and that the authority to decide in these matters is given to the Swedish court and not to the Israeli court. 010 5. During the hearing, defendant no. 3 presented an Israeli passport of the minor issued in the Israeli embassy in Stockholm in 1997, and from it appears that the minor visited Israel several times in the years 1998, 1999, 2000 and twice this year, once beginning on June 1st 2001 and the other visit beginning on October 3rd 2001. 011 6. This is the place to note that regarding the child's wish in accordance with section 13(b) to the Hague Treaty annexed to the Law, the court needs to take the utmost care and follow the precedents regarding the narrow interpretation that needs to be given to the exceptions in the Treaty. 012 In this matter see the Israel Supreme Court decisions in Shevach v. Shevach (3052/99) and Gunzberg v. Greenwald (5532/93). 013 The fact that both of the child's parents live in Sweden is an additional fact that brings the court to determine, almost without hesitation, that the return of the child to Sweden must be ordered so that a qualified court there can decide on any matter that shall arise regarding her custody. 014 7. In a conversation not for the protocol, I understood from the father, defendant no. 3, who arrived in Israel this morning, that he plans to stay in Israel for about two weeks, for personal matters, and will return to Sweden only in two weeks. An agreement was reached, that has no legal validity in Israel, that the minor shall fly with her mother to Sweden and stay in her house, until the father's return to Sweden, and then she will move into his house subject to any existing or future decision of a qualified court in Sweden regarding the custody and the visitation rights in her matter. 015 8. The claim is hereby granted. 016 The orders for prevention of departure from Israel which were issued against the minor and against defendants 1 and 2 are hereby canceled. 017 The minor's Israeli passport is given by me to the hands of the plaintiff's advocate so that he will give it to his client and with this passport the minor will leave Israel and return to Sweden. 018 9. The plaintiff's advocate has advised that through the assistance of the Swedish embassy in Israel, a flight has been arranged for the plaintiff and the minor tonight, i.e. November 29th at 1:00 A.M., by the Dutch Royal Airlines, KLM via Amsterdam, and this is the flight that will return the minor to Sweden. 019 The secretariat will send a copy of the protocol and the judgment to Advocate Regina Tapuchi of the attorney general office in Jerusalem for the Central Authority under the Hague Treaty. 020 Due to the circumstances of the matter and due to the fact that the claim ended in the first hearing and in agreement - there is no order for court expenses. 021 Given and announced today, November 28th 2001 in the presence of the parties. Avidan Glowinsky, Judge ================================ Comment by Wm. M. Hilton, CFLS This decision, though brief, is of importance for the following reasons: 1. The matter was filed with the court on 22 Nov 2001 and the child was returned to Sweden on 28 Nov 2001, six days later, thus following the admonition of The Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25 Oct 1980 (The Convention) that these cases be promptly decided. It is also to be noted that not only was the case heard promptly but the order of return was promptly carried out - the decision states that the child was booked on a flight the evening of 28 Nov 2001. 2. The court in Israel deferred all matters dealing with the merits of the case to the court in Sweden following the assumption of the drafters of The Convention that " . . .the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access." No 34 of the Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. III, 1980, p. 426. See also Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, 1068 wherein the court stated: "In thinking about these problems, we acknowledge that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country's courts to respond accordingly." 3. The decision is also significant since it appears that the matter was resolved largely due to settlement discussion that were encouraged by the court. 4. Even though the child here was thirteen the court in Israel ruled (properly in my opinion) that her wishes could be heard and considered by the court in Sweden.