Israel - Failure to Obey a Return Order Constitutes Criminal Abduction under the Israeli Penal Law
In a decision handed down last week, the Israeli Supreme Court convicted a mother of the criminal offence of ‘removing a child from custody of his lawful guardian' for failing to return her son to his father in accordance with a court order given under the Hague Child Abduction Convention. This decision, overturning the acquittal of the mother by the District Court, appears to bring an end to the legal proceedings in the tragic saga of R.B. v V.G.,  the facts of which will be set out below, and to have wider implications which will also be examined.
The Hague Convention proceedings
This case concerned a boy who was brought to Israel by his Jewish mother in January 2006 from France, where they had been living for 2 years with the permission of the Belgian court. After arriving in Israel, the mother and son adopted an ultra-orthodox religious way of life and the child acclimatized well. Ten months after the removal, the non-Jewish Belgian father issued Hague Convention proceedings and the mother pleaded inter alia the grave risk of harm and child objection defences. The psychological report, commissioned by the court, stated clearly that return of the 9 year old child to Belgium alone would be a catastrophe for him both because of the separation from the mother, who had always been his primary carer, and because of the great disparity between the religious and cultural environment to which he was accustomed in Israel and that in which his father lived in Belgium. The report even suggested that the child, who was vehemently opposed to return, would become depressed and perhaps even suicidal. On the other hand, the report expressed the view that if the child stayed in Israel, he would lose all contact with his father and that this would cause long-term harm to his psychological and emotional development. Thus, the report concluded that the least detrimental alternative was for the child to return to Belgium with the mother.
Adopting this conclusion, the Family Court ordered return, subject to a number of conditions (which will be discussed below), and its decision was upheld by a majority in the District Court and unanimously by the Supreme Court in April 2008. Aware of the potential harm to the child from immediate return, the Supreme Court delayed the return for a period of 7 weeks, during which time the child would receive counselling and would meet with his father in preparation for the return. In addition, the Supreme Court adopted the conditions formulated by the Family Court, which would apply if the mother agreed to return with the child. These were: (a) that the child should remain in her temporary custody until such time as the Belgian courts had reassessed the situation; (b) that the father should obtain a decision from the Belgian court approving this arrangement; and (c) that the father bring assurances from the Belgian and French authorities that criminal charges would not be pursued against the mother.
Unfortunately, the attempts to prepare the child were not started immediately and the child refused to co-operate. Two weeks before the return date, the social worker reported to court, ‘I see the child a moment before collapse and he is in very severe distress and it breaks the heart. The child is paying a terrible price. He will arrive in Belgium damaged and the process of rebuilding his relationship with his father is very long.' The Supreme Court delayed the return by 2 weeks to allow for further preparation. However, 5 days before the date of return, when assurances had still not been received from the French authorities, the Family Court postponed the return. Three weeks later, when he had still not managed to obtain the necessary assurances from France, the father applied to the Supreme Court for directions and that court, after an ex parte hearing, ordered that the child be returned immediately, since the conditions set by the court were not intended to delay enforcement of the return decision.
The father then informed the mother that he had booked a flight for the next day and that she should bring the child to the airport. The child, aged nine and a half, disappeared and has not been seen since. The father later brought contempt of court proceedings and the mother was fined and subsequently imprisoned for a month in 2012, even though she has consistently claimed that she did not know the whereabouts of the child.
The criminal proceedings
After the boy's disappearance in July 2008, the mother was arrested and, after a period in prison, released to house arrest. She was charged with child abduction (removing the child from the custody of the father) and disobeying a court order. She pleaded not guilty to both offences, contending that the boy had run away by himself and that she did not know where he was. In April 2011, the District Court acquitted the mother on the first charge and convicted her on the second. Whilst the Court did not accept the mother's version of events and found that she had been involved in the child's disappearance, it took the view that the offence of removal from custody required an active physical act and thus the mother's omission to return the child to the father was not sufficient. Both the mother and the State appealed and the execution of the prison sentence was stayed until the hearing of the appeal.
The Supreme Court, in a decision handed down on 26 February 2013, held that custody referred to legal custody, not physical custody, and that ‘removal from custody' meant removing the child from the framework in which he was meant to be, even where this did not involve any active physical action. Thus, the mother by failing to return the child to the father, as ordered by the court, was guilty of the offence of ‘removal from custody of a lawful guardian', even though physically the child had not been in the father's custody prior to the child's disappearance. The case was remitted to the District Court for sentencing.
The implications of the decision
The mother's lawyer argued that interpreting removal from custody as any interference with the legal custody of the other parent would mean that every unilateral change of visitation arrangements would become a serious criminal offence. However, Justice Barak-Erez explained that the offence would only be committed where the violation of custody rights was of a permanent nature. Nonetheless, it seems clear that the offence will be committed in the relatively common situation in which a custodial parent retains a child in Israel after a holiday, instead of returning to the place of habitual residence, where the other parent still lives. To the best of the current author's knowledge, it had not previously been envisaged that a criminal offence would be committed in such a situation, although of course the Hague Abduction Convention would apply. It is unlikely that this change in the understanding of the provision will lead to a wave of prosecutions, since the policy of the Israeli authorities is not to bring criminal charges against abducting parents unless there are exceptional circumstances. However, the widening of the scope of the criminal offence it is still of significance.
In this respect, it should be pointed out that whilst there are a number of countries whose statutes define criminal abduction in such a way to include retention of a child, in none of them is the penalty for this offence anywhere the 20 years provided for in the Israeli statute. Indeed, it seems unlikely that the Israeli legislator did indeed intend that such a serious offence could be committed by a parent by an omission. This view is strengthened by the fact that the arguably equally, if not more serious offence, of stealing a child by force or enticement, proscribed by s.367 of the Penal Code, carries a maximum penalty of only 7 years.
Welfare of the child
With all due respect, it is difficult not to balk at the Supreme Court's reliance on the principle of the welfare of the child as supporting use of the criminal law in this case. In particular, in commenting that abduction causes harm to children because it removes them from their natural environment and their family, the court seems oblivious to the fact that in this case return of the child alone would have done just that. Return would have removed the child from his mother, maternal family and the social and cultural milieu in which he had lived for the previous two and a half years and sent him to an alien cultural and social environment to live with a father with whom he had not had any real contact for two and a half years.
Furthermore, the situation arose because the Israeli courts were not sufficiently sensitive to the child's welfare. Firstly, from the outset the psychological report provided a concrete basis to invoke the grave risk exception. Secondly, the Supreme Court ignored the social worker's report which showed that their conditions had not succeeded in mitigating the harm to which return would expose the child. Thirdly, the Supreme Court ordered immediate return without warning, overruling a previous decision that return would be delayed until all the conditions were met, even though the criminal proceedings in France presented a genuine obstacle to the mother returning with the child. Is expecting a child of 9 to get on a plane and fly to a foreign country with a man, in relation to whom he has bad memories, with 24-hours notice, without time for farewells or even to pack properly, showing concern for his welfare or is it treating him like a chattel to be moved around in order to ensure that court orders are upheld?
In summary, it is difficult to resist the conclusion that the tragic outcome in this case would have been avoided if the Israeli courts had heeded Baroness Hale's warning that ‘No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm'  Whilst disobedience of court orders cannot be condoned, imposing a prolonged sentence of imprisonment on the mother can only cause further harm to the child, when he becomes aware of it. Furthermore, in the light of the unusual circumstances of this case, it is highly unlikely that such a sentence will be of any real deterrent value.
 PhD, Senior Lecturer (Assistant Professor) and Co-Director of the Center for the Rights of the Child and the Family at Sha'arei Mishpat Law School, Israel (formerly lecturer in law at Bar Ilan University and at the London School of Economics). The author has written and lectured extensively on the subject of International Child Abduction. Her book, ‘The Hague Child Abduction Convention: A Critical Analysis', will be published by Hart in 2013.
 Penal Law 1977, s 373.
 RFamA 1855/08 RB v VG http://elyon1.court.gov.il/verdictssearch/HebrewVerdictsSearch.aspx, 8/4/08 (Isr) [INCADAT cite HC/E/IL 923].
 The trigger for the removal was a decision of the Belgian court ordering that custody be transferred to the father.
 The child objection defence was rejected because the child was not considered mature enough and his views were not considered to be independent.
 With a very strong dissent by Justice Biton, holding that the grave risk exception had been clearly established.
 The delay was caused by appeals, remittance back to hear the child and the commissioning of a second psychological report because the first one was inadequate.
 Justice Arbel said, ‘I consider that in the special and complex circumstances which exist in this case, there is justification, which can even be seen as an obligation, to order delay of return of the child for a short and defined period, in order to ensure his safety and welfare.'
 Criminal proceedings had already been started in France.
 The relevant assurances had been received from the Belgian authorities.
 Guidelines of Israeli State Attorney referred to in Israeli response to 2006 questionnaire, www.hcch.net/upload/wop/abd_pd02efs2006.pdf, 259.
 But note that in the UK, a parent (as opposed to a person not connected to the child) does not commit an offence where he retains the child, Child Abduction Act 1984, ss 1-2.
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