Buscador de jurisprudencia

The mother was an Israeli citizen and the father a US citizen. The parents married in Israel in 2011 and moved to the USA in 2012 and had two children there, born in 2014 and 2015. The family lived exclusively in New York until they moved to Israel in 2019, after the death of the maternal grandmother. The father argues this move was done on a trial basis and that he refused Israeli citizenship as he did not intend to live there permanently.

The parent’s marriage began to break down. They travelled between New York and Israel and attended submitted their marital issues to arbitration before the Rabbinical Court.

The mother accused the father of abusive and controlling behaviour. The father claimed that the mother’s behaviour grew increasingly erratic and was neglectful and abusive towards the children.

In April 2023 the father brought the children to New York with round trip tickets from Israel, but they never returned. 

In November 2023 the mother made an application under the 1980 Hague Abduction Convention for the return of the children to Israel. 

Return refused. 

Habitual Residence - Art. 3

The Court carefully reviewed the evidence, including where the Children had lived, the length of time in each location, their acclimatisation, and the parents’ last shared intention regarding the trial nature of their residences. The Court concluded that mother failed to establish that the Children’s habitual residence was Israel. 

Because the Children spoke primarily in Yiddish, they struggled in school in Israel where they were forced to speak Hebrew. They maintained strong and continuous ties to New York, with valid passports and ID cards. 

The proof provided to the Court also indicated that the children’s time in Israel was marked by instability and fear of the mother and her family.

The parents’ last shared intention regarding the family’s residence was to move to Israel only for a trial period, and Israel was not the habitual residence of the children. 

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

Even though the mother had not established a prima facie case for return to Israel, the Court went on to assess the exceptions to return raised by the father.

The Court found that the children had been exposed to significant psychological trauma and that there was a very real and serious risk that such psychological trauma would continue and increase if they were returned to Israel. This included proof from two expert witnesses that the children had PTSD, that returning the children to Israel would likely exacerbate their PTSD symptoms and returning them to the mother would expose them to physical and emotional abuse, creating an intolerable and damaging environment.

There was a grave risk of harm within the meaning of Article 13(1)(b) and no ameliorative measures could reduce this risk.

Objections of the Child to a Return - Art. 13(2)

Both children were interviewed during the hearing and coherently articulated their objections to living in Israel, their reasons for wanting to stay in the United States, and presented as thoughtful and mature children for their ages.

Though some of their testimony seemed exaggerated, this did not detract from their overall credibility.

Accordingly, the Court found that the Children were of sufficient age and maturity for their views to be taken into account.