Case Number

LFA 741/11

Date Decided

5-17-2011

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This is an application for leave to appeal the decision of the Nazareth District Court, which rejected by a majority the applicant’s appeal challenging the decision of the Nazareth Family Court. The Family Court ordered the return of the applicant’s and the respondent’s daughter to New Jersey, in the United States, under the Hague Convention Act (Returning Abducted Children), subject to amendments it set in the conditions to returning the daughter. The District Court’s majority held that there was no place to intervene in the factual findings made by the family court, both in regard to the abduction act and in regard to the lack of any exceptions to the duty to return which may have applied. It was decided that the daughter must be returned to the United States, subject to depositing $10,000 by the respondent, to ensure the daughter’s child support and subject to providing confirmation of his filing for custody in a New Jersey court. The minority believed that the appeal must be granted due to the exception of acceptance. This gave rise to the application for leave to appeal here, which was granted and thus adjudicated as an appeal.

The Supreme Court, by a majority (Justice E. Arbel, with a concurrence by Justice H. Melcer and against the dissenting opinion of Justice U. Vogelman) granted the appeal for the following reasons:

The Convention is founded upon several related purposes. First, achieving cooperation between states in addressing abduction of children, which violate the custody rights established in the country of origin. Second, respect for the rule of law not only within a state but also in the relationships between countries around the world. Third, deterrence from taking the law into a parent’s own hands. And finally, preventing harm to the best interest of a child who is uprooted from her natural environment due to the abduction. In order to realize these purposes, the Convention sets a remedy defined as “first aid” to the abduction act, and which requires the party states to order the return of the child to the country from which she was taken with urgency and expediency while granting a very limited discretion to the court considering the return petition.

After an extensive review of the preconditions for the Convention’s applicability, the Court reached the conclusion (which was acceptable to all members of the panel) that in our case the preconditions for the Convention’s applicability do exist, and as the district court held, the applicant committed an act of failing to return the child in violation of the law.

However, there are exceptions to the duty of immediate return – which are established in sections 12, 13 and 20 of the Conventions – which are based on the duty to protect the child’s best interest and the need to prevent grave harm that may be caused as a result from the child’s return. Under the circumstances, the Court expanded its discussion of the consent and acceptance exceptions and of the exception regarding a concern for grave harm as established in section 13 of the Convention.

Among others, it was noted that the subject of consent or acceptance is the custody rights. That is, consent or acceptance by a parent of the factual situation crated in relation to the rights to the minor’s custody. As opposed to establishing a usual place of residence under section 3 of the Convention, where it is customary to attribute little weight to the parents’ intentions and future plans, under these exceptions the parents’ intentions as to the minor’s place of residence, their expectations and their future plans must be taken into consideration. Whether these indicate consent or acceptance with the act of removing or the failure to return the child, the minor’s return to the country of usual residence should not be immediately ordered. The duty of immediate return is no longer an obligation and it becomes subject to the discretion of the adjudicating court.

The consent exception and the acceptance exception are similar in their substance and characteristics, though the case law primarily addressed the acceptance exception. The central difference between the two exceptions is in the temporal aspect – while consent is given in advance of the act of removal or of the failure to return, acceptance is created retroactively, after such acts have taken place. Therefore, when coming to determine which of the two exceptions applies in the circumstances of the case before us, we must first examine whether it is consent granted before the abduction or whether it is acceptance, which followed the act of abduction. At the second stage, we must examine the main question asked as to the applicability of these exceptions and it is whether the parent whose rights were violated acted as a parent whose purpose is to immediately restore the situation to its previous circumstances would, or whether the parent acted in a way that indicates consent to or acceptance of the act.

Common sense requires that in cases where the issue of the exceptions’ application comes up be considered on their merits – each case and its own circumstances. Therefore we should not establish narrow standards to examining the question of consent or acceptance. However, we should define the boundaries of these exceptions, which as noted must be interpreted narrowly and exercised with caution and restraint as the purposes of the Convention demand. Three primary characteristics are useful in examining the application of the exceptions and in understanding the limits to their scope: the nature and character of the consent or acceptance – in this regard it was already held that it is unnecessary that these are explicit or are expressed through positive action; the application of contract law; and the weight that must be attributed to the reasons of consent or acceptance and the amount of time that had elapsed. All these help us to answer whether the petitioning parent relinquished the remedy of the minor’s immediate return in that the parent agreed to the act in advance or accepted it after the fact.

Applying this to our matter, Justice Arbel concluded that in this case the consent exception was met. To her approach, given the totality of the circumstances, and primarily the separation agreement which reveals that the parties agreed that the applicant and her daughter remain residing in Israel, whereas the respondent would return to his business in the United States, as well as the parties’ conduct after the agreement was written, one must conclude that the respondent consented to the mother and daughter remaining in Israel. Therefore the immediate duty to return under the Convention does not exist and the matter is subject to the Court’s discretion.

As to the “quasi evidentiary” meaning attributed to the agreement, though it is an agreement that no one disputes did not materialize into a binding contract, the Justice emphasized that these are extraordinary circumstances of a final and complete agreement that was ultimately unsigned only because of the applicant’s refusal whereas the respondent was ready to realize it. Beyond this, the couple began to act according to the agreement when they voided by mutual consent the restraining order against the respondent barring him from leaving Israel, and the respondent did indeed leave the country to return to the United States, with the daughter and applicant remain in Israel. Such unique circumstances warrant viewing the respondent’s concessions during the negotiation between the parties as indication that the consent exception applies.

Considering the totality of the circumstances, primarily the daughter’s very young age, and the applicant’s legal status in the United States, point to the child’s best interest as requiring that the issue of custody be adjudicated in Israel, and thus the return of the child to the United State for such purposes should not be ordered.

Justice H. Melcer joins the outcome, though to his approach the justification supporting it must rely more on the “acceptance exception” than on the “consent exception.” Indeed to the contrary: even were we to find that the respondent did not explicitly express his “acceptance” of the failure to return the child to the United States at this time, then the respondent could have concluded from the agreements achieved during the negotiations with the respondent toward signing the financial settlement discussed above, that he in effect accepted for the child’s relocation to Israel at this point, or that he had agreed to it. Therefore, under the laws of estoppel – the respondent is not entitled to the provisional remedy he seeks.

Justice Vogelmen (in a dissenting opinion) believes that the appeal must by rejected. In his view, neither the consent exception nor the acceptance exception that would allow not returning the daughter to the United States were proven in this case. He believes the respondent’s consent cannot be inferred from the separation agreement, as this was merely a draft of an agreement that ultimately did not materialize. Furthermore, the Justice raises concerns that using agreements reached at the draft phase of a negotiation toward an agreement, which ultimately failed, may carry negative consequences insofar that parties are willing to hold negotiations toward reaching agreements.v m

Keywords

Family Law -- Child Custody, International Law

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