In situations of cross-border child abduction, Canadian immigrant Leslie Kaufman is on the case.
By DAN IZENBERGkaufman 298.88(photo credit: Ariel Jerozolimski)
Attorney Leslie Kaufman, a senior deputy to the state attorney, was one of only 12 international officials selected a few months ago by the Permanent Bureau in The Hague to assist in drafting the latest in a series of "Good Practice Guides" for the implementation of the Convention on the Civil Aspects of International Child Abduction.
Every four years, the bureau, which is responsible for more than 30 Hague Conventions, convenes a meeting of representative of all 78 signatories to the convention to discuss ways of improving and standardizing implementation of its various facets.
The bureau's last meeting was held in October and the participants decided to publish a "Good Practice Guide" on how best to enforce the convention's provisions - in other words, how best to make sure that the abducting parent returns the child to his place of "habitual residence" if so ordered by the court. "It is a crucial element in the convention, since its goal is not declaratory but meant to bring the child back home," Kaufman said.
Justice Ministry officials said it was a signal honor for Kaufman to have been chosen among the 12 experts.
The Canadian-born attorney, who graduated from the University of Manitoba and had been practicing family law in Winnipeg, came to Israel at the end of 1991 and began working as a volunteer in the Justice Ministry's international private law section under Haim Goldwater. After deciding to remain here, she continued to work at the ministry as an articled clerk and received her license to practice in May 1994. Two months later, she joined the ministry's international department and was given responsibility for the discharge of Israel's responsibilities as a signatory to the charter.
In 1980, the Hague Conference on Private International Law established the Convention on the Civil Aspects of International Child Abduction, aimed at combating the growing phenomenon of unlawful seizure or retention of a child to or in a foreign country by one estranged parent in violation of the custody arrangements with the other.
Israel is one of the 78 signatories to the convention. In 1991, it passed The Hague Convention (Return of Abducted Children) Law, turning the international convention into domestic law.
According to the convention, each signatory state must appoint a "central authority" to carry out the duties imposed upon it. In Israel, the attorney-general is the "central authority." He, in turn, delegated his authority to the ministry's department of international affairs.
FROM THE TIME she obtained her license to practice law, Kaufman has been responsible for the convention.
"Child abduction has become an international phenomenon as the cost of travel diminishes and the world becomes a global village," Kaufman told The Jerusalem Post during an interview in the crowded office she shares with two other attorneys.
In Israel, the problem arises, for example, when a couple goes abroad on sabbatical or as emissaries and one of them decides to stay there. Another common scenario involves a marriage between an Israeli and a new immigrant, when the immigrant subsequently decides that he or she prefers to live in his or her country of origin and returns there with the children who had been born and raised in Israel.
The fundamental aim of the convention is to secure the prompt return of the child to his "habitual residence" - that is, to his permanent home. Once the child has been returned home, the parents (or, in some cases, the parent and the child's guardian) can fight out the issue of custodial rights in the appropriate domestic court.
This procedure applies only in cases where both countries, the country of habitual residence and the country to which the child has been abducted, are convention signatories.
When a child is abducted from Israel, or when one parent refuses to bring the child back from abroad, the Israeli parent comes to Kaufman for help. Kaufman explains the procedures of the Hague Convention. The parent must sign an affidavit and fill out an application for the return of the child. The application is then forwarded to Kaufman's counterpart in the foreign country.
It is Kaufman's job to inform the parent whether he or she meets the criteria of the convention. If the requesting parent does not, Kaufman will explain why and will not forward the application. In these cases, however, she might try to obtain visiting rights to the child in the foreign country to which the abducting spouse has moved.
Kaufman said she also receives calls for help from Israeli parents whose children have been abducted to countries that are not signatories to the convention, such as Russia, Thailand and the Philippines. In such cases, the Justice Ministry, through a liaison in Interpol, may try to at least locate the abducted child or suggest to the parent to hire a lawyer or take any necessary action.
When Kaufman is satisfied that the case meets the criteria of the convention, she will forward the documents to the "central authority" in the foreign country. It is the authority's job to facilitate the commencement of legal proceedings for the return of the child. In some countries, the central authority may press the claim in court using its own lawyers. In others, it may retain a private lawyer. In still others, the parent may have to hire his or her own lawyer. Kaufman fulfills the same role in Israel for foreigners applying to have their children returned in accordance with the convention.
Israel has enacted or amended legislation to speed up and facilitate the procedure, since the longer a child remains away from his home under the care of the abducting parent, the more traumatic it may be to uproot him and send him back to his place of "habitual residence." In general, the convention gives the court little discretion in deciding whether or not to send a child back to the country where he was living before the abduction. The parent seeking the return of the child must prove "habitual residence" - that is, that the child's "real" home was where the seeking parent lived.
KAUFMAN TOLD of a case in which an Israeli father and American-born mother moved from Israel to the US. After two years, the father decided to return to Israel and demanded that the children come back with him. In this case, however, the wife was able to show that the couple had decided to move to the US permanently and had even purchased a home, thus proving that the child's "habitual residence" was now there.
The seeking parent must also prove that he or she is a legal guardian of the child. As such, he or she is entitled to have a say in determining the child's place of residence. Even if the child lives with the other parent, that parent cannot take the child and move to another country without the other parent's consent.
These are the hard rock criteria included in the convention for determining whether a child must be returned or not. However, it also includes exceptional circumstances which the court has the right to consider. These include whether or not the seeking parent was actually exercising his custodial rights at the time of the abduction, or originally consented to the child's move or did not take prompt action to have the child returned. Another involves situations in which "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
This exception has left Israel vulnerable to the claim that because of the security situation here, returning a child would meet the criteria and justify leaving him with the abducting parent. The claim has been raised in many cases, but almost consistently defeated. In one case, a US district court accepted the argument and ruled that the child should remain in the US. The decision not only affected the Israeli parent in a personal and intimate way, but had potentially harmful implications for the state in terms of its consequences regarding the application of the convention to abducted Israeli children as well as Israel's overall diplomatic status.
In this particular case, the Israeli parent appealed the lower court decision. The Justice Ministry, in coordination with the Foreign Ministry and the National Council for the Child, drafted a brief on the facts and submitted it to the appellant court. The brief explained that violence in Israel comes in cycles and that despite the security situation, Israelis lead normal lives and new immigrants keep coming to live in the country.
A majority of the judges were convinced. The court ruled that "the district court found that the current situation in Israel constitutes a war zone... In so finding, the court determined that the fighting was 15 to 90 minutes from the children's homes, no schools were closed, businesses were open and the mother was able to travel to and from the country."
No subsequent case has found that Israel is a "zone of war" under the convention. In fact, there does not appear to be another case that finds any country a "zone of war." Nor did the district court cite any evidence that these children were in any more specific danger living in Israel than they were when their mother voluntarily moved them there in 1969. Rather, the evidence centered on general regional violence, such as suicide bombers, that threaten everyone in Israel. This is not sufficient to establish a "zone of war" which puts the children in "grave risk of physical or psychological harm."
Kaufman said that Israel enjoys at least a 70-percent success rate in the number of abducted children who are brought home. As for the other 30 percent, many are settled by negotiation without need for a court order.
"We don't represent parents, but they should contact us immediately, because it is critical to begin the process as soon as possible," she added.
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