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This case concerned a child born on 5 April 2012 in Nahariyya, Israel, whose parents were married. On 5 August 2012, the mother went to France with the child, who was 4 months old at the time, to visit her family. The father had agreed to those holidays. However, at the end of the holidays, the mother refused to return to Israel, despite the father’s objections to extending their stay in France.

On 13 September 2012, the Court of Kfar Saba in Israel ordered a ban on leaving the territory for the child. On 4 November 2012, the father referred the case to the Central Authority of Israel to obtain the return of the child under the 1980 Convention. On 15 January 2013, the French public prosecutor (procureur de la République) initiated proceedings before the competent court.

The case went before the Court of Appeal (cour d’appel) of Aix-en-Provence, which ordered the return of the child in a decision dated 30 January 2014. The mother appealed this decision before the Supreme Court (Cour de Cassation).

Appeal dismissed, return ordered. The Supreme Court upheld the Court of Appeal’s decision, ruling that the retention of the child in France was wrongful and that there was no grave risk of harm in case of a return of the child to Israel.

Removal and Retention - Arts 3 and 12

The mother challenged the Court of Appeal‘s finding that the retention of the child in France was wrongful, claiming that she did not intend to breach the father’s rights of custody and that their stay in France was for a limited time.

The Supreme Court took note of the Court of Appeal’s finding that the child’s habitual residence was in Israel, noting that the child lived there since his birth and until he went to France on 5 August 2012, and that both parents had rights of custody over the child according to Israeli law. The Supreme Court acknowledged that the mother did not deny that the father had not consented to the child remaining in France.

The Supreme Court upheld the Court of Appeal’s reasoning, finding that the modification of the place of habitual residence of the child was a unilateral decision from the mother and that the child’s retention in France was wrongful.

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

The mother disputed the Court of Appeal’s decision that there was no grave risk of harm for the child in case of a return to Israel. In particular, she claimed before the Supreme Court that the Court of Appeal’s decision had failed to consider whether the child’s return would be more harmful to him due to the fact that he spent more time in France than in Israel.

The Supreme Court upheld the Court of Appeal‘s reasoning, finding that there was no grave risk of harm for the child in case of return, within the meaning of Article 13(1)(b) of the 1980 Convention, and concluded that the Court of Appeal had examined the practical implications of a return on the child’s situation and rightfully ordered the return of the child to Israel.

Issues Relating to Return

The mother challenged the part of the decision of the Court of Appeal which organised the concrete return of the child to Israel stating that the mother had to bring the child back within 15 days from the notification of the decision, otherwise the father would be authorised to come pick up the child in France.

The Supreme Court rejected this motion, recalling that the Court of Appeal did not exceed its authority in determining the terms for enforcing the decision of return as the judge ruling on the return request is competent for arranging the details of the return.

Author: Camille Druilhet