Child Custody

A v. B

Case/docket number: 
CA 447/58
Date Decided: 
Monday, May 25, 1959
Decision Type: 
Appellate
Abstract: 

The appellant claimed an order in the District Court against the  respondents,  who were husband and wife, declaring that he was the natural father of a child born to the wife and registered as that of the respondents. The claim was struck out in limine and the appellant appealed.

 

Held, dismissing the appeal,

 

Per Olshan P. The granting of a declaratory order is in the discretion  of  the court, and having regard  to  the nature of the claim, public interest and  morality,  the prejudice  to the status and interests of the child who was not even a party to the proceedings, and the fact that the appellant had not even told the court for what reason the order was required, the claim was rightly struck out.

 

Per Landau J. An action such as this, in which the court is asked to approve an act which offends against public morality with all the  harm  which  it  involves  for  the welfare of the child and for the adults concerned, and without it being shown that a proper purpose is being served, is a gross abuse of the process of the court and will not be heard.

 

Per Witkon J. An action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained, and as the appellant had not disclosed any legitimate interest worthy  of  judicial  protection  that alone was sufficient to deny him access to the courts.

 

Per Berinson J. (Sussman J. concurring). The relief claimed is in the discretion of the court, and it is inconceivable that any court will grant the appellant's request which en­ dangers the status and future of a minor who is not a party to the action and cannot defend himself, when the appellant has not shown in his claim what benefit he will derive therefrom.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Author
concurrence
Non-writer
majority opinion
Full text of the opinion: 

C.A. 447/58

 

A. v. B. AND ANOTHER

 

In the Supreme Court sitting as a Court of Civil Appeal

 

Olshan P., Sussman J., Landau J., Berinson J. and Witkon J.

 

Judgments and Orders-Declaratory Judgment-Discretion of Court­ No proper purpose shown-Possibility of prejudice to third parties.

 

The appellant claimed an order in the District Court against the  respondents,  who were husband and wife, declaring that he was the natural father of a child born to the wife and registered as that of the respondents. The claim was struck out in limine and the appellant appealed.

 

Held, dismissing the appeal,

 

Per Olshan P. The granting of a declaratory order is in the discretion  of  the court, and having regard  to  the nature of the claim, public interest and  morality,  the prejudice  to the status and interests of the child who was not even a party to the proceedings, and the fact that the appellant had not even told the court for what reason the order was required, the claim was rightly struck out.

 

Per Landau J. An action such as this, in which the court is asked to approve an act which offends against public morality with all the  harm  which  it  involves  for  the welfare of the child and for the adults concerned, and without it being shown that a proper purpose is being served, is a gross abuse of the process of the court and will not be heard.

 

Per Witkon J. An action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained, and as the appellant had not disclosed any legitimate interest worthy  of  judicial  protection  that alone was sufficient to deny him access to the courts.

 

Per Berinson J. (Sussman J. concurring). The relief claimed is in the discretion of the court, and it is inconceivable that any court will grant the appellant's request which en­ dangers the status and future of a minor who is not a party to the action and cannot defend himself, when the appellant has not shown in his claim what benefit he will derive therefrom.

Israel cases referred to :

(1)          C.A. 238/55-Aharon Cohen and Bella Bousslik v. Attorney­ General (1954) 8 P.D. 4; S.J., Vol II, 239.

(2)          C.A. 291/56-Ya'akov Szczupak v. Shmuel Rapaport and 4 others

(1959) 13 P.D. 39.

(3)          C.A. 16/55-Marasha Ltd v. Albert Massri (1957)  11  P.D. 126. 350

(4)          File 226/5714-Husband A. v. Wife B. (1954) Rabbinical District Courts Judgments, Vol. 1, p. 145.

English cases referred to :

(5) Yoo/ v. Ewing (1904] 11. R. 434.

(6)          Holman and others v. Johnson, alias Newland (1775) 98 E.R. 1120.

Trichter for the appellant.

Levitsky for the respondents.

OLSHAN P. By virtue of secs. 38(b) and  40 of  the  Courts Law, 1957, it has been decided to forbid the publication of the names of the parties and of the child involved in these proceedings.

This is an appeal from a judgment given in the District Court of Tel Aviv-Jaffa on  December  4, 1958 by Lamm J. In terms of this judgment a claim filed by the appellant against the respondents for an order declaring that he, is the natural father of a child registered as that of respondents, was struck out.

It is not in dispute between the parties that the respondents, husband and wife, have been lawfully married for more than ten years and that  the child in question was born in December 1953.

The appellant, in his action, bases his claim  on  the allegation that he maintained sexual relations with the second respondent during the above-mentioned period, and also did so nine months before the bi th of the child.             .

The defence is based upon a complete denial of all the appellant's allegations, and includes the averment "that the action was commenced vexatiously and/or for defamatory and denigratory purposes only.

The  plaintiff  himself  requested  the  dismissal  of  a  similar action pre­ ,

viously filed· by him in this Honourable Court in  Civil  File  582/58. The earlier action was dismissed by a decision of the Registrar on 22.4.58."

The judgment, which is the subject of this appeal, states:

"I agree with Mr. Trichter (counsel for the appellant) that an action should not be struck out when there are prospects that the court will decide in favour of the plaintiff. But this is not so in the present case. The action is in fact direc­ ted towards obtaining a declaratory judgment which will de­ termine that the minor is illegitimate. I do not think that the courts of this country are entitled to grant relief to a person so as to injure the rights of a child, even if! were to accept the allegations in the claim as true, although a situation is con­ ceivable in which the interests ofa child may demand such a declaration, especially where an unmarried woman is concerned. I find, therefore, that the claim is misguided and I strike it out as not disclosing a cause of action."

Counsel for the appellant submits that the learned judge was not entitled to strike out the claim without affording the court an opportunity of considering the evidence which the plaintiff could adduce in order to obtain the declaration which he sought.

This would appear, at first sight, to be an argument of substance  and as a rule the courts are not anxious to exercise the power given to them by Rule 21 of the Civil Procedure Rules. In the result, however, I have reached the conclusion that the decision of the  learned  judge should not be disturbed. As he correctly states in his judgment, it is inconceivable that a court considering a claim such as this will exercise its discretion in favour of the plaintiff and agree to grant a declaratory judgment as sought, for the court must apply the utmost care when a minor is likely to be adversely affected.

But it is not this opinion which was expressed by the learned judge that served as the ground for his striking out the claim. From the context it is clear that the decisive reason for his ruling was that which appears in his concluding statement:

"I therefore find that the claim is misguided and I strike it out as not disclosing a cause of action."

This accords with the provisions of Rule 21.

Counsel for the appellant criticizes this conclusion ai:d it would appear, at first glance, that there is substance in this criticism.

The criterion for striking out a claim pursuant to Rule 21 is that the judge who is asked to strike out a claim under this Rule must assume  that the plaintiff will succeed in proving at  the trial all the facts alleged in his statement of claim. Upon this assumption, the judge is to ask himself the question  whether,  in law,  the facts  thus  proved  constitute a basis for the right asserted in the statement of claim. It is only in a case where the judge may properly say that, though the alleged facts are established by the evidence, the right asserted is not legally recognised, that he may exercise the power given him by Rule 21 and strike out the claim. If we are to apply the above criterion in the present case, the strictures of appellant's counsel would appear to be sound.

These are the facts upon which the appellant bases his claim:

(a)          The male and female defendants have been married for more than ten years.

(b)          From July 1952 the plaintiff had maintained intimate relations with the female defendant and cohabited with her.

(c)           At the end of February or early March 1953, i.e. about 9 months before the child was born, the plaintiff and the female defendant  spent six days in Shefayim and had sexual relations there.

(d)          The male defendant was impotent and/or otherwise  incapable of procreation.

- (e) Since July, 1952, the female defendant had cohabited  with no one  except the plaintiff.         ·

(f)           Relying on the facts set out in the statement of claim or some of them the petitioner believes and claims  that he is the natural father  of the child.

(g)          The defendants have never denied the plaintiff's allegations concerning his paternity of the child and the female defendant has not even really rejected his demand that the child be surrendered into his custody.

If it be assumed that the plaintiff will prove all these facts, he will thereby establish that he is the child's natural father. Accordingly appellant's  counsel  questions  the  ,action  of  the  learned   trial  judge in striking out the claim upon the ground that it does not  disclose  a cause of action.

Had this not been an action for a declaratory  judgment-i.e. for an equitable remedy the granting of which lies within the court's dis­ cretion-I would, perhaps, have found more substance in the appeal.

As I have said, the respondents deny most emphatically all and each of the allegations and assert that the claim was filed "vexatiously and/or for defamatory and denigratory purposes only". If there is  only  a scintilla of truth in the respondents' denials, the filing of the claim is singularly scandalous. One appreciates the concern of the respondents about the unsavoury details which the appellant was ready to put to the court together with all the "evidence" and "examinations" and the pernicious effect this will have upon the child. Their concern is under­ standable even if in point of truth they are quite confident that the appellant would ultimately fail. But in the light of the criterion for applying of  Rule  21 we have  to deal with  the appeal  without  regard  to the denials of the respondents.

In as far as granting a declaratory judgment lies within the court's

discretion-and a plaintiff may not demand this remedy as a vested right-then, even if the claim had not  been  struck  out  by  virtue  of  Rule 21 and  the  matter  had  come  to  trial,  the  court,  having  regard to the nature of the claim, would have had the power to dismiss it in limine before hearing the evidence, upon deciding that bearing in mind the nature of the claim, public interest  and  morality  and  the prejudice to the interests and status of the child (who is not even a party to the action) it is not prepared to use its discretion in favour of the plaintiff to grant him the relief he claims.

I have not found in English or  American  law  a single  aase  like the one before us, of a person who purports to  be the father  of a child  by alleging illicit sexual relations with a married woman and seeks a declaratory judgment which necessarily involves proclaiming that the child is illegitimate.

In as far as granting a declaratory judgment is discretionary, the court may consider the plaintiff's conduct even from a moral viewpoint and pose the question whether in equity the plaintiff deserves the relief which the judge is by law competent, but not under a duty, to grant.

It is not to be overlooked that in declining to grant a declaratory judgment at the outset of the trial, the court does not decide the merits of the dispute between the parties. If the case reached the stage of hearing and the court had announced at the commencement that no matter what the evidence will be it is not prepared to grant the relief prayed for, be­ cause in equity the plaintiff does not merit it-the court would not there­ by have decided the paternity question.

The discretionary nature of the relief in granting a declaratory judgment as explained above is to be gathered from the many precedents cited by the Deputy President (Cheshin J.) in his judgment in Cohen and Bousslik v. Attorney-General (1).

After mentioning all the authorities, the Deputy President aid:

 

"The court, in  considering  all  the  circumstances  of the case before it, particularly as we are dealing with relief which originated in the Courts of Equity, cannot, and should not, disregard the behaviour of an applicant and the back­ ground of his actions which, he submits, have created the rights in respect of which he seeks an authoritative declara­ tion from the court."

LikewiseSussmanJ. said (atpp. 36-37):

"Iam not prepared to dispute the principle enunciated          by Justice Cheshin, namely, that in considering whether or not to grant declaratory relief, the court may take into account the behaviour of the parties, as reflected in the actions which constitute the basis which serves for their application to the court."

Silberg J. was also of the same opinion. The two last-named justices only disagreed with the judgment of the Deputy President on the question whether from the point of view of the public interest the relief sought should be granted.

Does the plaintiff come to court with clean hands in the present case-as reflected in the statement of claim itself?

He says: "I maintained sexual relations with  a  married  woman. The child born five years ago and registered as the lawful child of the defendants is illegitimate. He is my son. Please make a declaratory judgment confirming my allegations and proclaim me as the child's father." He does not even trouble to tell  the court why  he requires such a declaration. The question of the appellant's conduct arises  not  just with regard to the female defendant but vis-a-vis the child who was not made a party to the proceedings at all, and particularly with regard to public morality.

To my mind there is no shadow of a doubt as to the reaction.of the court in connection with the exercise of its discretion in favour of a plaintiff such as this.

In Szczupak v. Rapaport (2), also a case of a declaratory judgment, no problem involving public morality arose. Nevertheless, the Coqrt of Appeal declined to deal with the lower court's conclusion regarding the very ght which the appellant had claimed and stated (at p. 40):

"As indicated, the appellant claimed a declaratory judgment. When a plaintiff makes such a claim, the burden  is upon him not merely to prove his right but also tQ convince the court that the circumstances demand this right to be determined by means of a declaratory judgment alone. The appellant here (as well as in the District Court) did not deny that it is possible for him to connect with the municipal sewage system without any difficulty and that the first, second and third respondents have agreed that it be done at their expense. That being so, the plaintiff has not succeeded in con­ vincing the court how he will be aggrieved or prejudiced if the right which he claims will not be established by means of a declaratory judgment. On the contrary, his insistence is likely to arouse a suspicion, or more correctly an impres­ sion-and we wish to emphasize that this has not been proved

-that here the question is one of scoring a triumph or of other motives which are not clear to us. Since on the one hand the appellant has not succeeded in  convincing  the court of the necessity for the relief sought, and since on the other hand his attitude tends to create the impression aforesaid, it follows  that  he  has  not  discharged  his  duty of convincing us that he should be granted a declaratory judgment. We have therefore decided to dismiss the appeal accordingly."

A fortiori when the petitioner comes with unclean hands, as above explained. Pomeroy in Equity Jurisprudence (5th  ed.) Vol.  II,  p. 91, sec. 397, speaking of the principle of clean hands in connection with equitable remedies says:

_    "It    says that  whenever  a  party, who as actor seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of  the court will be shut against him in limine; the court will refuse to interfere on his behalf, to  acknowledge  his right, or to award him any remedy."

At page 117, section 402, he says:

"The principle is thus applied in the  same  manner  when the illegality is  merely  a  ma/um  prohibitum,  being in contravention to  some  positive  statute,  and  when  it  is a ma/um in se, as being contrary to public policy or good morals."

And at page 133, section 402e:

"Even in this situation, however, it has been held that a person who marries another, knowing that the latter has a husband or wife living, is not an 'innocent or injured party', and the courts will refuse a formal decree of nullification."

 

This is very close to the case before us, for there is no doubt that the purported marriage is invalid, although the court will decline to assist him by granting relief which lies in its discretion.

And at page 143, section 404:

"A court of equity acts only when and as conscience commands; and, if the conduct of the plaintiff be offensive t9 the dictates of natural justice, then, whatever may be the rights he possesses, and whatever use he may make of them in a court of law, he will be held remediless in a court of equity. Misconduct which will bar relief in a court of equity need not necessarily  be of such nature as to be punishable as a crime or to constitute the basis of legal action. Under this maxim, any willful act in regard to the matter in litigation, which would be condemened and pronounced wrongful by honest and fairminded men, will be sufficient to make the hands of the applicant unclean."

Courts are particularly circumspect and exercise abundant caution when the relief claimed is likely to affect the status of a child, such as to att h to him the status of an illegitimate person.

In A v. B. (4) a case decided by  the Rabbinical  Court  of Tel Aviv, it was said (at p. 149):

"As for the plaintiff, it is clear that a person is not be­ lieved to say of the child of a woman married to another that the child is his, not the husband's, so long as the latter does not say that the child is not his."

In most instances, this problem arises when a  man  reputed  to be  the  father  or  to  whom  paternity  is  attributed,   endeavours  to  obtain a declaration that he is not the father. Even in such a case, when the plaintiff does not base his claim upon grounds which clash with public morality, his course will encounter many obstacles, if it involves a dec­ laration that the child is illegitimate.

Borchard on Declaratory Jqdgments (2nd ed.) p. 486, writes:

 

"On the other hand while allowing the child  to protect its status through declaratory actions some British Courts have refused to allow a putative father to bastardise  a child by securing a judicial declaration that a child  born  to his wife was not his -on the theory that he was adequately protected by the defence available to him should the child claim maintenance. Yet there seems a good reason why the plaintitrs legal interest in rejecting the imputation of father­ hood should have been judicially protected by declaration.

The Appellate Division in New-York in a recent case  pointed out a distinction between a  declaratory  proceeding to establish illegality of a child, in which the child is a nec­ essary party, and a proceeding in the Domestic Relations Court for an order of support,  which is not an adjudication  of illegality, if the husband is held  not  to  be the father of  the child."

 

An instructive illustration  of  the  matter  under  consideration  is the case of Yoo/ v. Ewing (5). There,  the plaintiff  filed a claim against one defendant who had formerly been his wife and from whom he was divorced and against a second defendant who was the young  female child of his former wife. In this action he asked for a judgment declaring that the child was not his daughter and also as against the first defendant an order prohibiting her from representing the child as his daughter.  They had been married in 1894 and following the marriage a son was born. The parties separated in March 1895 and thereafter no longer cohabited as husband and wife. The wife and the son lived in a town  near which the plaintiff lived. In April 1898  the  plaintiff  sailed  for India and returned in the year 1900. The female infant was born in December 1898 and the mother registered her as the daughter of the plaintiff. She did  not  inform  the  plaintiff  of  his  birth  at  all. In  1900 a divorce decree was granted on grounds of  her  adultery  and  custody of the infant son was given to the mother pursuant to an agreement between them, which recited that the son was the only child of their marriage. When the action was begun, the mother was married to  the man with whom she had committed adultery.

The judgment (at p. 811) reads:

. "It was  sought  to· show  not  alone  that  the  plaintiff was not the father of the child, but that another person was. Now the presumption oflegitimacy in the case of a child born during wedlock is not one juris et de jure.... But the pre­ sumption is of enormous strt:ngth, and will not be rebutted in an ordinary case, where husband and wife live together, by mere evidence, or even proof, that a person or persons other than the husband had improper relations with the wife. In such a case the law on the clearest grounds of public  policy and decency will not allow an enquiry as to who is the father. But it might be otherwise here, for this is not in this respect an ordinary case, as the husband and wife were not living to­ gether under the same roof."

Notwithstanding the admissions of the defendant which were proved, the action was dismissed and (at page 812) it was said, following a suggestion that the result might have been different, had this been a suit for divorce:

"But it is a suit mainly and really not against Mrs. Ewing but against the other defendant, the infant. The decree sought for against her is a decree in rem; that is a decree that would be final, and binding and conclusive."

The judgment later explains that despite the rule (similar to  our rule) concerning the power to make declaratory judgments, even without additional relief, a court will not  render  such  judgments  if  they  are not required in connection with positive rights at the time of the action. And no declaratory judgment will be given if it is only required by the plaintiff in connection with what appears to him as future or possible future rights.

"Nor must anything I have said to be  taken  to  mean that this court has not ample power to decide questions of legitimacy, when necessary, as for instance, when a claim is raised in which legitimacy is a material element in determin­ ing rights. If an action were brought against  the  plaintiff here for the maintenance of  the  defendant  Dorothy,  it would be open to him to contest it on this ground  that though born during  wedlock,  the  defendant  was  not  in fact his child" (at p. 816).

From the foregoing I have no doubt that had the appellant's action come to Lamm J. for trial (and not by way of a motion to strike out pursuant to Rule 21) he would have been entitled even at the outset, relying simply on the statement of claim, to inform the parties that he was not prepared to exercise his discretionary power in favour of the appellant in order to assist him by recognizing his paternity  by means  of granting a declaratory judgment, because he did not regard him meritorious as explained above.

 

The only question then that arises in the appeal before  us is merely a procedural question, namely, was the learned  judge  permitted  to adopt this attitude within the framework of Rule 21, upon  the ground that no cause of action  was  disclosed.  In  other  words,  does  the fact or circumstance showing that a plaintiff is, or is not, deserving of relief which lies within the discretion of the court constitute an element of the cause of action.

In an action of the kind now before us, this fact may form an element in the cause of action in a negative sense. Let me explain. In an ordinary action for a declaratory judgment the burden is upon the plaintiff, as stated in Szczupak v. Rapaport (2), "to convince  the court that the circumstances demand this  right  to  be  determined  by  means of a declaratory judgment alone."  Nevertheless,  if  the  plaintiff  does not expressly set out in the statement of claim the circumstances which entitle him to discretionary relief, it is almost certain that the action cannot be struck out on  the basis of  Rule 21. If  the statement  of claim is silent in the matter, the court will say that since prima facie there is nothing withi'.n the statement of claim itself to indicate that the plaintiff is not entitled to the  assistance  of  the court, such  omission  is  not  to be regarded as a defect in the statement of claim so as to permit the exercise of the power given by Rule 21. In such a case, if the defen ant seeks to strike out in reliance on Rule 21, the court will refuse the application, and will say that the question whether the plaintiff is en­ titled to discretionary relief has to be resolved  in  the course of the trial in the light of the circumstances which unfold themselves and on the evidence adduced by the parties with reference to the right itself claimed by the plaintiff.

Only in a very rare case, such as in the one before us, when the statement of claim itself discloses circumstances which show con­ clusively that the court must refrain from assisting the plaintiff by exercising its discretion in his favour-even on the assumption that the plaintiff can prove  the facts  set  out in  the statement  of  claim-in  such a case there is, in my opinion, a possibility of applying Rule 21, because what is sought by the plaintiff will not be granted him even if he should prove these facts.

Just as in the normaf situation the reason for striking out  the claim is that no purpose will be served by continuing with the proceedings, because even if the plaintiff proves the facts 'the right claimed will not thereby be proved, so here the reason is that there is no purpose in dealing with the action on its merits because even if the plaintiff proves the facts, his right to obtain a declaratory judgment will not thereby be established.

 

In ah action for sp.ecific performance, for example, if the defendant applies to strike out the  action  under  rule  21,  upon  the  contention that the plaintiff has not come with clean hands,  his application  will fail. The court will then say that since there is nothing in  the statement of claim to indicate the absence of "clean hands," but only the defence

alleges this, it is not a matter of. striking out the action and the issue in dispute, like all other issues, must be decided in the course of the trial and after the evidence is heard. But if the statement of claim itself discloses facts which point to the plaintiff's "unclean hands," the defendant can, in my opinion, move to strike out the action. The fact that here the "unclean hands" according to the terms of the claim arises with respect to public morality and not merely to the defendant does not alter the situation.

Moreover, in an instance such as the one before us, it seems to me that equity even compels adoption of the means provided in Rule 21, for not only will no purpose be served by_ leaving the action to go to trial in the usual manner, but definite harm will result therefrom.

If the claim is not struck out, the plaintiff can deliver interrogatories and compel the defendants to answer the questions in accordance with the provisions of the Civil Procedure Rules and this very thing will defeat the reason for which the court will refuse to use its discretion in favour of the plaintiff.

The plaintiff in the present case has already delivered such in­

terrogatories which contain questions such as the following:

To the male defendant:

Do you believe that the child is your natural child and that you are his natural father?

Is it true that you are impotent? Is it true that you are sterile?

Have you been cured of your sterility?

Is it true that Professor Zondek said that you are incurably sterile?

Is it true that various persons have informed you that your wife was having sexual relations with the plaintiff?

 

To the female defendant:

Is it true that from July 1952 onwards you have maintained sexual relations with the plaintiff?

Is it true that the plaintiff is the natural father of the child with whom you were pregnant in the month of Septem­ ber 1952?

Is it true that you have had no sexual relations with anyone except the plaintiff?

Is it true that the plaintiff is the natural  father  of  the  chila with whom you were pregnant in 1953?

Is it true that  the  plaintiff  is  the  natural  father  of  the child to whom you gave birth in December 1953?

Is it true that your husband is sterile?

Is it true that since July 1952, and up to the time that the child was born, you had no sexual relations with anyone  except the plaintiff?

Have you had sexual relations from July 1952 to 1953  with  any person or persons other than the plaintiff and, if so, please state their names and addresses?

It is also to be noted that in reality the plaintiff's adversary in con­ nection with the action  for a declaration  of  paternity  is the child  who is not a party at all in the proceedings, and it is he whom the plaintiff seeks to have declared illegitimate, and this about four years after his birth.

I am of the opinion that the appeal should  be dismissed, and  that the appellant should be ordered to pay the respondents the costs of the appeal (includi g counsel's fees) in the aggregate sum of IL 300.

LANDAU J.  I agree  that  the appeal should  be dismissed.  For  myself, I see no need to rest the decision in this matter on  the discretionary nature of the claim for a declaration in accordance with the rules of equity. It is not the form of the prayer which is decisive here but the sub­ stance of the matter which the appellant is brazen enough to bring before the court. If his allegations are true, he has committed an act which of­ fends against public morality, and now he asks the court to give him its ap­ proval therefor, with all the harm which it involves both for the welfare of the child and for the adults concerned. This is an abuse of the process of the court which can hardly be exceeded, because "no court will lend its aid to a person who bases his cause of action upon an immoral  or illegal act", in the words of Lord  Mansfield  in  Holman  v. Johnson (6), which  I cited in  Marasha  Ltd.  v.  Massri  (3).  It  sometimes  happens  that  in a civil action the court undertakes an examination of matters which are contrary to law or morals, when required  to decide  an action  brought for a proper purpose.  But this appellant  has not shown in his statement of claim that he has any legitimate interest in washing his dirty linen before the court.

I am therefore of the opinion that this action was justly struck  out and my reason is that it is vexatious within the meaning of Rule 21 (d), and therefore not proper to be dealt with by the court.

 

WITKON J. I am also of the opinion  that  there  was justification  for dismissing thw action in limine, and that  because, in my view,  an action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained. The appellant has not disclosed any legitimate interest worthy of judicial protection, and this alone is sufficient to deny him access to the courts. The fact that we are here dealing  with  a  "delicate"  subject,  and  th t the appellant is not morally blameless tends to add weight to the above reason even though by itself it  is not, in my opinion, conclusive.  Had the appellant sought to prove his paternity of the minor for a legitimate purpose-e.g., in connection with a  matter  of  succession-the  court would certainly have been obliged to go into the details. But this is not the case in the present instance, and accordingly the learned judge was right in dismissing the action in limine.

BERINSON J. The plaintiff asks the court to declare that he is the father of the child to whom the female defendant gave birth at a time when she was the wife of another man. The plaintiff does not say why he requires this declaration. It is not to be supposed that a court of equity to whose discretion the granting of such a declaration is given will use its discretion in a case such as the present, in which, as it is possible to judge from the claim •itself, the declaration (if made) is likely seriously to prejudice third parties, without our knowing in what way it can be of advantage to the plaintiff. By "third parties" I do not include the female defendant who, according to the allegation of the plaintiff, maintained sexual relations with him whilst married to another. So far as she is concerned, there is nothing to prevent-either from a moral or any other viewpoint-the disclosure of the truth in court even if the truth is harmful and prejudices her and  her married  life. If  indeed  the allegation of the plaintiff is true, and at this stage we may not say that it is not true, the female defendant is not entitled to any special consideration by the court. Compared to her he is not affected with any more immorality or "unclean hands" than she is. It is therefore im­ possible, in my opinion, to say with certainty, or even to assume at the very outset, before hearing the substance of the case, that from the point of view of the possible harm to the woman the court would not have exercised its discretion in favour of the plaintiff, had he succeeded in proving all the allegations of fact which appear in his statement of claim.

But the matter does not only concern the woman but also and principally the child. What has this child been guilty of that his legal and social status should be allowed to be put into doubt without any  real need therefore? Is it conceivable that  any  court  will  decide  to  grant the plaintiff's  request  which endangers  the status and  future  of a minor who is no party to the actio-n and cannot defend himself, when the plaintiff has not shown in his claim what benefit he will derive therefrom? Had the plaintiff at least disclosed for what purpose he required the declaration and upon such disclosure  had there prima facie been  room  to weigh the possible harm to tJ;ie child against the possible benefit  to t}:le plaintiff, it might then have been proper to permit the action to proceed to judgment in the normal course. But the plaintiff did not do this. He has not disclosed his motives and reasons,  and  the claim  in itself is defective. It is like y to inflict grievous harm upon the child without our knowing that a comparable advantage will accrue to the plaintiff. Not everyone who wishes may come to court and obtain a declaratory judgment. The plaintiff has no right to a declaratory judg­ ment as a matter of course and on the basis of the claim such  as it is, even if it were fully proved, one cannot see that he will succeed in con­ vincing the court firstly that the relief claimed is essential and secondly that he is worthy of it.

I therefore agree that the appeal must be dismissed. SUSSMAN J. I concur in the judgment of Berinson J.

Appeal dismissed. Judgment given on May 25, 1959.

 

 

 

 

 

Full opinion: 

Doe v. Doe

Case/docket number: 
LFA 741/11
Date Decided: 
Tuesday, May 17, 2011
Decision Type: 
Appellate
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

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

 

In the Supreme Court

                                                                          

LFA 741/11

 

 

Before:                                    The Honorable Justice E. Arbel

                                    The Honorable Justice H. Melzer

The Honorable Justice U. Vogelman

 

The Applicant:            Jane Doe

 

 

vs.

The Respondent:         John Doe

Adv. T. Itkin

                                    On behalf of the Applicant

 

                                    Adv. G. Turs

                                    On behalf of the Respondent

 

 

 

 

Hearing of application for leave to appeal on decision of the District Court in Nazareth, on 20 January 2011, in FA 044293-12-10 handed down by Hon. Judges A. Abraham, Y. Abraham, and D. Tzarfati.

 

Date of hearing:        1 Adar B 5771; March 7, 2011

Israeli Legislation Cited

Hague Convention (Return of Abducted Children) Law, 5751-1991

 

Israeli Supreme Court cases cited:

[1]        CA 4391/96 Pol Ro v. Daphna Ro, IsrSC 50(5) 338 (1997).

 

[2]        LFA 1855/08 Jane Doe v. John Doe (not reported, 8.4.08).

 

[3]        CA 7206/93 Gabbai v. Gabbai IsrSC 51 (2) 241 (1997).

 

[4]        LFA 9802/09 Jane Doe v. John Doe (not reported, 17.12.09).

 

[5]        LCA 7994/98 Dagan v. Dagan IsrSC 53(3) 254 (1999).

 

[6]        CFH 10136/09 Jane Doe v. John Doe (not reported, 21.12.09)

 

[7]        LFA 672/06 Abu Arar v. Regozzo (not reported, 15.10.06).

 

[8]        CA 473/93 Leibovitz v. Leibovitz IsrSC 47 (3) 63 (1993).

 

[9]        CApp 1648/92 Torne v. Meshulam IsrSC 46(3) 38 (1992).

 

[10]      CA 5532/93 Gonzburg v. Greenwald IsrSC 49(3) 282 (1995).

.

[11]      LFA 911/07 Jane Doe v. John Doe (not reported, 30.10.07).

 

[12]      FH 40/80 Koenig v. Cohen IsrSC 36 (3) 701 (1982).

 

[13]      CA 692/86 Botkovsky v. Gat IsrSC 44(1) 57 (1989).

 

[14]      CA 1569/93 Maya v. Panfird IsrSC 48(5) 705 (1994).

 

[15]      CA 1912/93 Shaham v. Mones IsrSC 52(1) 119 (1998).

 

[16]      LCA 4575/00 Jane Doe v. John Doe IsrSC 55 (2) 321 (2001).

 

[17]      LCA 8791/00 Shalem v. Twenko (not reported, 13.12.06).

 

[18]      CA 172/89 Sela Insurance Company Ltd. v. Solel Boneh Ltd. IsrSC 47 (1) 311 (1993).

 

English Judgments Cited

 

[19]    In re H and Others (Minors) [1997] UKHL 12.

 

[20]     In re AZ (Minor) [1993] 1 FLR 682.

 

 

 

 

JUDGMENT

 

Justice E. Arbel

This is an application for leave to appeal the decision of the District Court of Nazareth (Hon. Judges A. Abraham, Y. Yonatan, D. Tzarfati) that partially accepted the applicant's appeal against the decision of the Nazareth Family Court (Hon. Judge S.  Giosi) and ordered that the common daughter of the applicant and the Respondent be returned to New Jersey, United States, pursuant to the Hague Convention (Return of Abducted Children) Law, 5751-1991 (hereinafter: The Convention Law).

Factual Background

1. The applicant and the respondent, both of them natives of this country, grew up and met each other in their residential town in Israel. As of 2006 the two lived as a couple in the state of New Jersey in the United States, where they were staying based on a tourist visa. In 2007, the applicant began studying while the respondent continued to work various jobs. By virtue of the applicant’s studies, they both received a student visa. In 2008 the applicant and the respondent were married in Israel, in accordance with the Law of Moses and Israel, and immediately following the celebrations they returned to the United States. In September 2009, their daughter was born in the United States (hereinafter: the daughter). About two months after that, the applicant came to Israel for a visit together with her baby daughter, and later on the respondent joined them. During their visit in Israel, which lasted for about two months, the couple opened a children's clothing store in their native town. Upon completion of the arrangements for the opening of the shop, the three returned to the United States. In March 2010 they came to Israel again for the Passover holiday (hereinafter: the last visit), and the respondent returned to the United States on April 19, 2010; the applicant and their daughter were supposed to have joined him on June 20, 2010, however, the applicant and their daughter remained in Israel, where they have stayed until now.

2.  To complete the picture, as indicated by the decision of the Magistrates Court, at a certain stage of their relationship the respondent began to observe a religious life style, whereas the applicant did not alter her lifestyle.  This triggered disputes between the spouses, and in the course of the applicant's pregnancy, the respondent even considered divorcing her. In their last visit to Israel, the dispute between the couple peaked, with each of them staying in separate residences in their respective family homes.  On April 7, 2010, when the two were in Israel, the applicant filed for divorce in the Rabbinical Court, attaching thereto the subject of their common daughter’s custody. On April 11, 2010, the applicant and respondent met, and, with the help of an accountant who mediated between them, reached an agreement concerning the termination of their relations, titled "Property Agreement" (hereinafter: "the agreement", or "the property agreement"). The agreement established sections intended to regulate the division of property between the couple, as well as sections that regulated the matter of custody of their common daughter, child support, and visitation arrangements.  Ultimately however, the agreement was not signed, in the light of the applicant's refusal to sign it, following the respondent's rejection of one of her demands regarding the property rights of the two. The respondent returned to the United States as planned, after the applicant agreed to remove the stay of exit order that was issued against him at her request. At about the time of the date scheduled for the return of the applicant and their daughter to the United States, the respondent sent out a warning to the applicant, via his attorney, stating that he was expecting their return as planned.  In July 2010, when the applicant and the daughter did not return to the United States, the respondent filed a claim for the return of the daughter in a New Jersey Court. He subsequently filed a similar claim in the Family Court in Nazareth in which he requested an order for the daughter to be returned to the United States in accordance with the Supplement of the Convention Law (namely the Convention on the Civil Aspects of International Child Abduction, 21. 31, 43 (opened for signing in 1980); hereinafter: the Convention).

The Decision of the Family Court

3.    The Nazareth Family Court ruled that failure to return the daughter to the United States constituted an act of abduction as defined in the Convention, and given the non-application of the exceptions thereunder, the daughter must be returned to the United States. The initial determination was that an event of abduction, within the meaning of section 3 of the Convention had occured, while most of the discussion  had focused on the question of whether, at the time of the abduction, the daughter was "habitually resident" in the United States. The Court examined the subject from the perspective of two schools of thought, namely the "factual approach" and the "intention-based approach". The Court's ruling relied primarily on the "factual approach", in accordance with which it ruled that the geographical-physical place of residence of the daughter immediately prior to the act of abduction was in the United States. The Court also discussed the "intention-based approach" in its examination of the parties' intentions with respect to the current and future place of residence. It was held that the renting of an apartment in the United States and hosting of acquaintances in it, as well as the establishment of a business company in the United States attest to the intention of settling in that country. On the other hand, it ruled that the applicant's unilateral decision to discontinue her studies in the United States, the opening of a shop in Israel, the retention of social security rights, real estate and bank accounts in Israel do not attest to an immediate intention to return to Israel, but at the most to an intention to do so in the future.   

After determining that an abduction, within the meaning of section 3 of the Convention, had occurred, the Court discussed the applicant's defence claims. It determined that the exception pertaining to the "abductee" parent's consent to the abduction, prescribed in section 13 (a) of the Convention (hereinafter – "the exception of consent") is not applicable to the case at hand. First, it found that the applicant's fear, as expressed in her application to the Rabbinical Court, that the respondent would abduct the daughter, attests to his refusal to remain in Israel. Second, it ruled that the agreement that crystallized does not attest to consent because it did not become a binding contract, and because the agreement was concluded at a time when the respondent was under tremendous pressure due to stay of exit order that was issued against him. It likewise rejected the claim of applicability of the exception of subsequent acquiescence to the act of abduction, within the meaning of section 13 (a) of the Convention (hereinafter – the "exception of subsequent acquiescence"), given that the respondent sent a warning to the applicant near the time of the scheduled return to the effect that he was awaiting the return of the two to the United States, and also because he actually applied to the state authorities in the United States concerning the abduction of the daughter, about one month after the applicant and the daughter were supposed to have returned to the United States. Finally, it was determined that even the exception regarding a grave concern for harm to the minor, under section 13 (b) of the Convention (hereinafter:  the exception of grave concern for harm) has no application in this case. The court rejected the applicant's claim that illegally staying in the United States on the parents' part was liable to harm the daughter. It clarified that the legal status of the parties was not directly connected to the application of this exception, because it sufficed that the daughter's entry into the United States was possible, given that she was an American citizen.  Accordingly, the court ordered that the daughter be returned to the United States, subject to a deposit for the sum of $6000 to guarantee the child support for the daughter, and subject to the  assurance of living arrangements for the two in the apartment in which they had lived in the United States, or an alternative apartment for a period of 6 months.

The Decision of the District Court

4.    In a majority decision the Nazareth District Court dismissed the applicant's appeal, subject to changes that it introduced into the conditions for the return of the daughter. The majority (Hon. Judges Y. Avraham, and Z. Tzarfati) ruled that there were no grounds for interfering with the factual holdings of the Family Court, both regarding the act of abduction and regarding the non-application of the exceptions to the obligation to return. It stated that the Convention’s purpose of preventing the abducting parent from taking the law into their own hands mandated the presentation of concrete evidence of the applicability of the exceptions by the party claiming their applicability. The applicant failed to discharge that burden, it was therefore determined that the daughter should be returned to the United States, subject to the deposit of $10,000 by the respondent to assure the child support of the daughter and subject to the respondent’s submitting of a confirmation of the filing of a custody suit in the New Jersey court.  The minority view (Dep. President A. Abraham) was that the appeal should be accepted given the applicability of the exception of subsequent acquiescence.  According to this position, the starting point for the discussion was that the daughter was habitually resident in New Jersey and the applicant’s act could therefore be referred to as a “wrongful retention”. However, under the circumstances, the evidence indicates that the exception of subsequent acquiescence is applicable. First, where the agreement did not crystallize into a binding contract, evidentiary weight was ascribed to the proof of the respondent's agreement to the act of retention. Second, the cancellation of the stay of exit order, with the applicant’s consent, immediately after the drafting of the agreement, was interpreted as giving expression to the understandings reached in the agreement and as an attempt to comply with one of its sections. Third, the respondent’s return to the United States was presented as demonstrating the respondent’s waiver of the immediate realization of his right of custody, as well the immediate return of the daughter to the United States.

The permission to appeal this decision is now being requested.

The Applicant’s Claims

5.  In her application to appeal the applicant claims that under the circumstances of the case the conditions prescribed in section 3 of the Convention aren't fulfilled and hence it cannot be held that the failure to return the daughter to the United States was unlawful. The claim was that the parties' stay in the United States was temporary and hence the trial court erred in holding that the habitual residence of the daughter was in the United States. It was further claimed that the respondent had not proved that his custody rights were breached, and that during proceedings in the trial court, no legal proceeding was pending in the competent forum in the United States concerning custody.

Alternatively, the applicant claims that the exceptions to the obligation to return rule are applicable. First, it is claimed that the exceptions of consent and subsequent acquiescence under section 13 (a) are applicable. The claim is that the respondent filed this suit after having accepted the exclusive jurisdiction of the Rabbinical Court over the matter of divorce and the attached matters. In light of his consent, the stay of exit order issued against him was cancelled, and he returned alone to the United States. In addition, in the agreement the respondent consented to his daughter remaining in Israel and to the payments of child support in Shekels and to the consensual visitation arrangements during his visits to Israel. According to the applicant, the respondent was prepared to accept the agreement as it was, while she was the one who refused to sign it, due to a financial dispute between the parties. Second, it was claimed that the exception of grave concern for harm under section 13 (b) was applicable and that the minor’s best interests dictated that she remain in Israel. The argument was that in circumstances where there is no medical insurance for the daughter in the United States and in which her parents have no legal visitors' permit there, the return of the minor to the United States would expose her to real harm. Therefore, the applicant seeks to infer that even assuming the act of a wrongful retention, under the circumstances no order should be given to immediately return the daughter to the United States. In view of all of the above reasons, the applicant has petitioned for leave to appeal the decision of the lower court and to set aside its decision that ordered the return of the daughter to the United States.

The Respondent’s Claims

6.    The respondent, on the other hand, claims that the application for leave to appeal should be dismissed, because the case is not one that raises any principled legal question beyond the particular concern of the parties. On the merits of the matter he claims that the conditions set forth in section 3 of the Convention were fulfilled. The claim is that the respondent’s custody rights were exercised pursuant to the laws of the state of New Jersey, under which both parents have joint custody over the daughter, and that according to the decision of the lower court a custody suit had been filed in the court in New Jersey, meaning that the respondent was already exercising his custody rights, as required by the Convention. The respondent further maintains that there is no justification for interference with the factual holding of the Family Court that the habitual residence of the daughter is in the United States. The respondent attached various items of evidence to his response, which were discussed in the trial court, and which he claims show that his claim that the parties' stay in the United States was neither temporary nor limited to the duration of the applicant’s studies. The evidence presented included, amongst others, the confirmation of the conduct of bank accounts and a document attesting to the extension of a rental contract for the spouses’ residential apartment in the United States.

The respondent further opines that the exceptions to the obligation to return, as argued for by the applicant – have no application in the current case. The claim was that the agreement drafted attests neither to consent nor to acquiescence, both because it was not signed, and because it was the applicant who hand wrote in the attached draft to the agreement, “returning to Israel”. In his view this note proves the absence of a final decision concerning the place of residence. The respondent added that the exception concerning harm is similarly inapplicable to the particular circumstances. He claims that there is no fear of the parties being expelled upon their return to the U.S., given that he had received a worker’s visa in a required profession for a period of two years while the applicant had a visitor's permit for a similar period. He stressed that he had complied with the conditions set by the trial court to assure the safety of the daughter upon her return to the United States. The rent contract had been accordingly extended and the sum required to assure the payment of child support was deposited. He therefore claimed that the application for leave to appeal ought to be rejected and he requested an order for the immediate return of the daughter to the United States.

7.  After our examination of the parties' pleadings and having conducted an oral hearing, we have decided to grant leave to appeal and to hear the application as though it were an appeal in accordance with the permission granted. 

Deliberation and Ruling

8.    The case before us presents two central questions. The first is whether the applicant committed an act of wrongful retention as defined in section 3 of the Convention by not returning the daughter to the United States on the scheduled date. Should the answer be affirmative, the second question arises – whether the circumstances of the case give rise to the conclusion that one of the exceptions to the Convention's obligation of immediate return is applicable, so that no such order for the prompt return of the daughter to the United States, as the treaty dictates, should be given. I will discuss these questions by order.

The Normative Framework

 9.   Over the past few decades, as the world turned into a global village in which transition between countries is easy, and people frequently move between countries, a real need has risen for international cooperation in dealing the phenomena of abduction of children by one of the parents, in violation of the other parent's custodial rights. In most of the cases falling within the scope of the Convention our concern is with parents from different countries of origin, whose separation triggers a dispute concerning the place of residence, with each parent seeking to raise the joint child in that parent's country of birth. Occasionally, one of the parents decides to take the unilateral step of removing the child to another state, without the other parent's consent, and in violation of his custody rights. This kind of act of self-help demands a swift and efficient remedy that can only be given by way of cooperation between the states of the world. This was the background for the signing of the convention. Justice M. Cheshin dwelt on this point, writing:

 

The Hague Convention and the Convention Law were intended to establish an inter-state arrangement for a phenomenon that though observed in the past, has in our time become increasingly frequent. The world we live in today differs from that of yesterday… visits of persons native to one country in other countries have become particularly frequent, and these visits give rise to meetings between young men and women. The meetings often spark love between him and her… the couple, living together and in love, must decide between them: Where will they live – in his or her country?  A decision is made and one spouse follows the other. Time passes, and the spouses discover that they are unable to live together. The spouse who went into exile from his country naturally seeks to return to the country where he was born and raised, and seeks – also naturally – not to be separated from his child. The absent of agreement and understanding between the couple the results with abduction. However, the other spouse, is also unwilling to give up his child, and the issue thus comes before the court. The question is: In whose custody will the child be in, and in which state will he live. Naturally, the Hague Convention was not intended to apply exclusively to cases of this kind, but as we know, cases of this kind are particularly common (CA 4391/96 Pol Ro v Daphna Ro [1] p. 343 (hereinafter:  "the Ro case").

 

The Convention is based on a number of related goals. First – achieving cooperation between states in dealing with child abduction in breach of the custody rights determined in the state of origin. Second, respect for the rule of law not only within the state, but also in the relations between the states of the world. Third, the deterrence against self-help on the part of one of the parents, and finally, preventing harm to the welfare of the minor who was uprooted from his natural environment by the act of abduction (see LFA 1855/08 Jane Doe v. John Doe [2]; (hereinafter: Jane Doe case). To realize these goals the Convention established a remedy defined as “first aid” for the act of abduction, which requires signatory states to order the return of the child to the state from which he was abducted urgently and with all possible speed (see CA 7206/93 Gabbai v. Gabbai [3] (hereinafter: Gabbai case), while leaving a limited margin of discretion for the court hearing the application for return.

The Preliminary Conditions for the Application of the Convention

10.  An instruction for the return of the child to the state from which he was removed, or to which he was not returned can only be given when the preliminary conditions for the application of the Convention are satisfied, as prescribed in section 3 thereof, and which constitute an act of “abduction”. A distinction must be made between two categories of cases dealt with by this section. The first is an act of “active abduction” namely – removal from the habitual residence of the minor, to a contracting state. The second case is that of “abduction by omission”, namely the failure to return a minor from a contracting state to the state in which the minor was habitually resident (see LFA 9802/09 Jane Doe v. John Doe [4] (hereinafter: Jane Doe (1) case.))

11. Section 4 of the Convention establishes the age threshold for the minor in respect of whom there is a request to apply the Convention, setting it as 16. Section 3 of the Convention establishes three preliminary conditions for a removal or retention of a minor to be considered as “wrongful”, enabling the application of the Convention: There is a requirement that the act violated the custody rights of the “abductee” parent; that these rights were actually exercised; and that the state from which the minor was removed, or to which he was not returned was the habitual residence of the minor. The term “habitual residence” is not defined in the Convention, apparently due the aim of its drafters to enable flexibility and the ability to conduct each case according to its circumstances, having consideration for the variety of possible situations. The interpretative tendency is to  give the term “habitual residence” a strict and narrow construction since overly broad interpretation is liable to undermine the realization of the Convention’s objectives, and even to devoid it of all meaning (see ibid., at para, 9 ; Gabbai case[3] pp. 254-255.)

12.  Regarding the question of what constitutes the “habitual residence” of the minor, two schools of thought have developed in the case law, referred to respectively as the “factual approach” and the “intention based approach”. The factual approach is based on an examination of the minor’s geographical-physical place of residence immediately prior to the minor’s removal. This is a factual examination and not a legal one. This is an approach that focuses on the past. In this framework there is no place for examining the parent’s future intentions or plans, whether jointly or individually regarding the place of residence.  The only question to be asked is where did the child reside on a permanent basis just before the act of removal, from his own perspective, or from his parents' perspective if he is not at an age of sufficient maturity to testify regarding his place of residence:

The place of residence is not a technical expression...it expresses an ongoing life reality. It reflects the place in which the child was habitually resident before the abduction. The point of view is that of the child and the place in which he resided. The examination centers on past daily life and not on future plans. When parents are living together, the habitual residence of the minor is generally the place of his parents’ residence (President (Ret.) A. Barak, ibid, [3], p. 254.)

  Alongside the factual approach another approach also developed, known as the intention-based approach. This approach does not limit itself to an examination of the minor’s physical place of residence before his abduction, but also considers the parents’ intention regarding the duration and circumstances of his stay in the state. According to this approach, for example, the fact of parents having immigrated to a particular state on a permanent basis or perhaps only for a limited period would have different significance in the determination of the “habitual residence”. The parental intention is inferred from the  circumstances of the case and the interpretation given to the facts pertaining to their stay in the state (see Jane Doe (1)[4], and references cited).

13.  From the aforementioned it emerges that the intention-based approach focuses on "matters in the heart" and circumstances of debatable interpretation. The factual approach on the other hand, offers a simple and essentially objective approach, which occasionally precludes having consideration for a more complex reality. The question of the relationship between the two approaches and the weight to be ascribed to each has been left for further consideration (see CA 7994/98 Dagan v. Dagan [5] (hereinafter: Dagan case); CFH 10136/09 Jane Doe v. John Doe) [6], although it is generally accepted that the examination should be principally in accordance with the factual approach, for fear that an examination of the parents' intention will undermine the goals of the Convention. In my view, the two approaches should be combined so that the primary focus remain on the factual question of the physical place of residence, but certain weight also be ascribed to the intentions of the parties and their life circumstances. Either way, we are not required to decide this issue in the case before us.  Indeed, both of the approaches were examined by the previous instances in their consideration of the question of the daughter's “habitual place of residence”. The conclusion they reached was that the daughter's “habitual place of residence” prior to the failure to return her was the United States.

Exceptions to the Obligation to Return Rule

14.  The underlying conception of the Convention is that the abduction act harms the child and his welfare, by reason of his being uprooted from his natural environment and from his custodian parent and being brought to a foreign environment, which was forced upon him by the other parent.  While the term "child's best interest" is not mentioned in the Convention, it constitutes its basic principle, for matters concerning children cannot be dealt with without taking their best interest into account (see Gabbai [3]  p. 251; for a discussion of the connection between the Convention and children's rights, see:  Rona Shus "The Rights of Abducted Children: Is the Hague Convention (Return of Abducted Children) Law 5751-1991 Consistent with the Doctrine of Children's Rights" Mechkarei Mishpat 20 (2004) 421).  The question of the child's best interest will determine the decision on the substantive question of child custody. The discussion in proceedings under the Convention Law concerns the forum that should consider this question. Having consideration for the goals of the Convention, and primarily the goal of stressing the importance of upholding the rule of law on the international level, the default rule is that the child's best interest will be adjudicated in the child's habitual residence and not in the state to which he was abducted.

15.  That said, the child's return to his habitual residence is occasionally liable to harm him, making it inimical to his best interest. The exceptions to the obligation of return as anchored in sections 12, 13 and 20 of the convention are intended for cases such as these. According to section 12 of the Convention, the obligation of returning will not apply where the child stayed in the state to which he was abducted for a period exceeding one year, and where it was proven that child has become settled in his new environment. Section 13 establishes 3 exceptions to the obligation of return: the exception of consent and subsequent acquiescence, the exception of grave concern regarding harm, and the exception relating to consideration for the wishes of the minor, when he has reached an appropriate age and level of maturity. Section 20 establishes an additional exception, whereby the return of the child may be refused if it would be inconsistent with the fundamental principles of the state hearing the application, relating to the protection of human rights and fundamental freedoms. The exceptions to the obligation of immediate return are based on the duty of protecting the child's best interest and the need to prevent grave damages that may be caused as a result of his return.

These exceptions to a large degree contravene the other basic goals of the Convention, namely the goals of preventing the abducting parent from taking the law into his own hands, and respect for the rule of law in accordance with universal standards. In striking a balance between these two goals it was held that applying exceptions to the obligation of return must be done with careful and cautious consideration, to prevent the exception from becoming the rule in a manner that undermines the goals of the Convention and empties the undertakings of the contracting states of any content.  It follows therefore that the onus of proving the existence of exceptions is a heavy burden, not easily discharged (see LFA 672/06 Abu Arar v. Regozzo [7] ; Elisa Perez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session 426, 460 (1980) 3; hereinafter: Perez-Vera report). More precisely, discharging the burden of proof does not absolutely prevent any possibility of the minor being returned to the state from which he was removed, or to which he was not returned. Proving the existence of the exceptions only confers the court discretion regarding whether under the circumstances it would be appropriate to leave the minor in the country to which he was abducted or to return him to his residential state, having regard for the provisions of the Convention. Needless to say, in cases such as these the court’s primary concern is the best interest of the minor child, located betwixt his two parents.

16.  The exceptions to be examined for our purposes are set forth in section 13, which reads as follows:

 

Notwithstanding what mentioned in the preceding section, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

  a)  the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

 b) there is a grave concern that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained  the degree of maturity at which it is appropriate to take his views into consideration."

I will discuss the meaning and extent of the relevant exceptions by order.

The Consent and Acquiescence Exceptions

17.  As mentioned, section 13(a) of the Convention establishes two exceptions to the obligation of immediate return: the exception of consent and the exception of subsequent acquiescence. The two exceptions serve two central goals. The first goal is providing an appropriate solution to a situation in which the "abductee" parent actually agreed to or thereafter acquiesced in the act of abduction, in a matter that obviates the need to immediately restore the original situation (see CA 473/93 Leibovitz v. Leibovitz [8] (hereinafter Leibovitz). The second goal is to prevent the cynical abuse of the remedy of immediate return granted in the framework of the Convention, in a manner that would transform the Convention into a bargaining chip in the hands of the abductee parent:         

On the other hand, the guardian's conduct can also alter the characterization of the abductor's action, in cases where he has agreed to, or thereafter acquiesced in, the removal which he now seeks to challenge. This fact allowed the deletion of any reference to the exercise of custody rights 'in good faith', and at the same time prevented the Convention from being used as a vehicle for possible 'bargaining' between the parties" (Perez-Vera report, p. 461)

  18.  The subject of consent or acquiescence is the custody rights. That is to say - the consent or acquiescence of the parent to a factual situation that has emerged concerning the issue of custody rights relating to the minor (see Gabbai [3], at p.257). Unlike the determination of the habitual residence as regards section 3 of the Convention, regarding which it is customary to attribute only minimal significance to the parents' intentions and future plans, in the context of these exceptions consideration should be given to the parents' intentions relating to the minor's place of residence, their expectations and plans for the future (see: Shmuel Moran, Alon Amiran, and Hadara Bar, Immigration and Child Abduction, Legal and Psychological Aspects 88-89 (2003)). If these attest to a consent or acquiescence to the act of removal or retention, then the order to the immediate return of the minor to the habitual residence must not be given. The obligation of immediate return is no longer in the category of a duty and is given to the discretion of the court hearing the case.

19.  The exception of consent or acquiescence are similar in terms of their essence and characteristics, even though case law primarily addresses the exception of acquiescence (see e.g. in Dagan [5]; Leibovitz [8]).  The central difference between the two exceptions is centered in the time dimension – whereas consent is given prior to the act of removal or retention, subsequent acquiescence materializes after the aforementioned act (Gabbai [3], p;. 257; Leibovitz [8], p. 72). Therefore, when deciding which of the two exceptions has application in the case before us, the first thing to consider is whether the case concerns consent given before the act of abduction, or acquiescence, that materialized after the act of abduction. The second stage involves the examination of the central question regarding the application of these exceptions, namely whether the parent whose rights were breached acted as a parent whose goal was the immediate restoration of the original situation would act, or perhaps he acted in a manner that attests to his actual consent or reconciliation with it:

The existence of acquiescence is examined in light of the question: whether the conduct of the "abductee" parent is consistent with his intention to insist on his rights regarding the restoration of the status quo, namely the immediate return of the child to his habitual residence from which he was removed, or perhaps the circumstances and his conduct indicate his reconciliation to the change in the status quo, with the transfer of the child to a new location?" (Deputy President (former title) Justice Elon (ibid. [8] p. 72)

20.  Logic dictates that cases posing questions concerning the applicability of the exceptions should be heard on their merits, each case in accordance with its circumstances. Therefore, strict standards for examining the issue of consent or acquiescence must not be set. However, it is appropriate to demarcate the borders of these exceptions, for as stated, the goals of the Convention compel giving them a narrow interpretation and that they be exercised with caution and restraint. Three central features assist us in determining the applicability of exceptions and in understanding their scope: the nature and essence of the consent or acquiescence; the applicability of contract law; and the weight to be ascribed to the reason for the consent or the acquiescence and the elapsed time (Gabbai [3], pp. 255-259; Leibovitz [8], pp. 71-75).  All of these will assist us in answering the question of whether the applicant parent has waived the remedy of the immediate return of the minor, insofar as he agreed to the act beforehand or reconciled himself to it after the fact, all as explained forthwith.

21.  First, the nature and essence of the consent or acquiescence must be delineated. It was held that there is no need for these to be explicit or to be done by an active act.  Consent to an act of abduction or reconciliation thereto may be inferred from behavior in the form of omission or from implied conduct.  That said, the consent or waiver cannot be inferred from any individual acts of any one of the parties; the examination is a substantive one of the conduct of the abductee parent in the broad sense. Based on a broad perspective of the circumstances in their entirety and the overall picture we should infer that the parent waived the urgent realization of the custody or visitation rights conferred to him by authority of the domestic law of the place of the habitual residence before the act of removal or retention (see Dagan [5] p. 273). This examination is essentially objective. The abductee parent's subjective state of mind will only be considered to the extent that it received expression in his objective, external conduct (Leibovitz p. 74). The existence of consent or acquiescence, may even be inferred from the abductee parent's awareness of the breach of his rights, among other things. The awareness need not be specifically of the rights conferred to the parent by force of the Convention. To infer the existence of awareness it suffices that there is a general awareness that the parent's rights were breached or will be breached as a result of the action of the second parent. So, for example, if the parent knows that a wrongful act was committed, and he failed to receive legal advice regarding the matter, it may attest to his reconciliation with the act of abduction (see Dagan [5], p. 274)

22.  Consent or acquiescence, are contractual, in essence, given that it is a unilateral act by one of the parents, which finds its completion with the other parent,  creating a reliance interest on his part with respect to the change in the status quo. Accordingly, it was ruled that the exceptions of consent or acquiescence are governed by the laws of contracts with all that is implied thereby (see Leibovitz [8], p.73 and references cited; Gabai [3], p. 258). As such, for example, the law applying to consent or acquiescence that originated in a mistake, misleading, coercion or extortion is the same law that would apply to a contract concluded under similar circumstances and would admit of rescission. Similarly, if the abducting parent was aware that the abductee parent had not waived the change in the status quo then a claim presented by him to the effect of the applicability of the exceptions would contravene the principle of good faith. In addition, consideration should be given to the element of reliance on the part of the parent who committed the abduction. If he took measures that led to a change in his position as a result of the consent or acquiescence of the other parent, this should be taken into account as part of the entirety of considerations to be considered as part of the exception, though such consideration for the reliance interest should be exercised carefully, for fear of the abducting parent reaping the fruits of the wrong that he committed (Leibovitz [8] p. 71)

23.  In addition, consideration must be had for the weight to be accorded to the various circumstances in which the consent or the acquiescence was awarded and especially for the weight to be accorded to the time period that has elapsed from the act of removal and until the filing of the claim under the Convention. As such, it was held that reasons leading to the parent’s consent or acquiescence to the act of abduction will not be taken into account when considering the nature of the consent or acquiescence because conceivably he may not have been interested in moving the minor from one state to another or was interested in the custody issue being adjudicated in the state to which he was abducted, which was the parents’ native state. Irrespective of his reasons, if the parent’s conduct attests to consent or acquiescence to the act of abduction, it will be inferred that he has waived the rapid and immediate relief granted under the Convention, and is willing to resolve the conflict in alternative ways (Leibovitz [8], p. 70)

The time factor too is a factor when examining whether a parent’s conduct during the elapsing period is consistent with his later demand to return the minor. Regarding the exception of acquiescence, it has been ruled that consideration must be had for the time period passed from the abduction date and until the filing of the claim under the Convention, and whether it supports the inference, along with additional circumstances, of the parent acquiesced to the situation that transpired. In this context it was held that there is no defined period for crystallization of acquiescence, and that it must be determined on a case by case basis, according to the circumstances (ibid [8], pp. 72-74). In examining the exception of consent, the time element is less significant, and either a long or brief period may elapse from the time of the abduction and until the day of filing the claim, but in most cases it will have no significance, because consent by nature is given in advance, prior to the act of abduction. As such, regarding the consent exception the central question will be one of weight, namely, what were the circumstances that indicates consent and to what extent do they unequivocally attest to the “abductee” parent’s consent to waive the “first aid” provided under the Convention, all this subject to the scope of the exceptions outlined above.

24.  In some cases, perhaps the parent who consented or acquiesced to the act of abduction will ask to retract his consent. The rule is that it is not possible to retract the consent or acquiescence, and to rescind it retroactively. Once the consent or acquiescence have crystallized the parent whose custody rights were violated is deemed to have waived the immediate relief provided in the framework of the convention (ibid [8], p. 73; Dagan [5], p. 275). A change in circumstances does not justify the retraction from advance consent or subsequent acquiescence either.  As noted, the central question that the court should consider is whether the parent’s conduct clearly indicates that the parent waived the remedy of “first aid”. If the answer is in the affirmative, then the minor’s return to the state of habitual residence is not defined as an immediate obligation imposed on the court to order the minor’s return to habitual residence. The time for the immediate remedy has passed and done and the court that heard the matter has discretion to order that the matter be heard in the state of request, or in the state of habitual residence, its guiding consideration being the best interest of the child concerned.

The Grave Concern of Harm Exception

25.  Section 13(b) of the Convention provides that where there is a grave concern that the return of the minor will cause him physical or psychological harm or otherwise place the child in an intolerable situation, the court is not bound to order the return of the child.  The rule is that the child's interest when considered as part of this exception is narrower than when considered in the framework of regular custody proceedings, due to the concern that overly broadening of the exception will undermine the objectives of the Convention (see Jane Doe [2] at paras. 29 – 33). For this reason, the court utilized two tools designed to narrow the application of the exception.  First, it was ruled that the party claiming the applicability of the harm exception bears the onus of proving it beyond any reasonable doubt, which is a particularly heavy burden of proof. Secondly, the application of the exception was significantly narrowed, on an interpretative level, as it was ruled that the controlling principle governing the exception would be as prescribed in the closing section of section 13(b) whereby the child wouldn’t be returned only where there is a grave risk that the return  would place him in an intolerable situation:

The principle governing the provision of section 13(b) of the Convention is the one determined in its conclusion, and which is concerned with placing the child in an intolerable position were he to be returned to his habitual residence . . .  The controlling wording is concerned with the child being placed in an intolerable situation . . . which is to say: that is permitted to refrain from ordering the return of the child if his return would place him in “an intolerable situation”: whether that intolerable situation arises due to the grave concern that the return will expose the child to physical or psychological harm and whether his return will place him in an intolerable position “in any other way” (Ro  [1] p. 347)

In addition, it was held that this exception relates to the damage that will be caused to the minor as a result of his return to the state from which he was removed, and not as a result of his return to the parent from whom he was abducted or his severance from the abducting parent (see Capp 1648/92 Torne v. Meshulam [9]). Accordingly there were many cases which rejected the claim concerning the lack of parental ability of the parent requesting the remedy by force of the Convention, as well as the claim that the abducting parent is liable to be expelled, or to dire economic difficulties as a result of returning with the child to the state he left (see for example: CA 5532/93 Gonzburg v. Greenwald [10]). In this context the court relied solely on the determinations of experts, from whom it emerged clearly that the concern of physical or psychological damage was particularly tangible. As indicated, the exception relating to harm is particularly narrow, being limited to cases in which the return would place the child in an intolerable situation due to his exposure to the exceedingly grave physical or psychological damage, or due to his exposure to an intolerable situation for some other reason.

From the General to the Particular

26.  In the case before me both the applicant and the respondent are natives of this country who went trying their luck in the United States, where they had lived since the beginning of their relationship as a couple. The applicant began her studies, while the respondent was occupied in a variety of jobs, and at a certain stage established a business company in partnership with the applicant. Their first born daughter was born in the United States. For the duration of this period they maintained their connection with Israel, in visiting Israel frequently, retained their social security rights and even opened a store in their native city. By agreement, the applicant and the respondent with their mutual daughter came to Israel for the Pessah vacation. During that vacation they decided to separate. The respondent returned to the United States, as planned, whereas the applicant did not, having decided to stay with the daughter in Israel.  In the wake of the non-return of the daughter to the United States at the scheduled time, the respondent filed a suit for her return under the Hague Convention. 

27.  This is therefore a case of retention and the question that arises is whether it meets the conditions for the application of the Convention. The minor whose return is requested by the respondent is tender in years. On the dates that she was supposedly meant to be returned to the United States she was only nine months old, hence her age satisfies the age threshold prescribed in section 4 of the Convention, which establishes an age threshold of 16 years for a suit for the return of a minor under the Convention. In addition, it was proven in the trial court that the law of the state of New Jersey, where the applicant and respondent lived, is that the custody rights over children are joint rights. Therefore, the first condition prescribed in section 3 of the Convention is satisfied, because the retention was in breach of the respondent's custody rights over his daughter. The trial court subsequently ordered the filing of a proceeding to determine the custody in New Jersey, prior to the child being returned to the United States, and the respondent submitted documentation to his response, attesting to the fact that such a proceeding had indeed been filed. In so doing the respondent actually exercised his custodial rights, thus meeting the second condition of section 3 of the Convention, in which the parent suing for the return of the child under the Convention is obligated to exercise the custody rights that are vested in him. Finally, the Family Court held that the habitual residence of the daughter was in the United States, thus satisfying the third condition of section 3 of the Convention pertaining to proof of the act of abduction. In examination of the subject of the habitual residence from the perspectives of the factual approach and the intention based approach, the Family Court reached at an identical conclusion regarding the habitual residence prior to the act of retention.  The judges of the District Court too adopted this factual determination; I see no reason to intervene in this factual determination of the trial forum. The settled rule is that the appellant forum will not as a rule intervene in the findings of the trial forum (see LFA 911/07 Jane Doe v. John Doe [11].) after two forums have examined the circumstances of the case, reaching identical conclusions, and having examined the parties' pleadings, I see no justification for an additional factual examination of the condition concerning the habitual residence and for deviation from the rule of non-intervention in this context.

Summing up this point – in terms of the preliminary conditions for the application of the Convention, as determined by the District Court, the applicant committed an act of wrongful retention. At this stage it is incumbent upon us to examine whether any of the exceptions to the duty of immediate return are applicable.

28.  In order to determine whether under the circumstances, the exception of consent or of subsequent acquiescence are applicable, we must first examine the time dimension, which is to say: Do the circumstances indicate that the respondent consented in advance to the retention or acquiesced to it after the fact. The point of departure for the Family Court, that was also adopted by the trial court, was that the date of retention of the daughter was on 20 June, 2010, which was the date on which the applicant and the daughter were supposed to have returned to the United State in accordance with the flight tickets that were purchased prior to the parties' arrival in Israel (hereinafter: the "retention date"). The respondent filed the claim under the Hague Convention for the daughter's return to the United States immediately after the retention date. Regarding this point I should clarify that I am aware that the minority opinion in the trial court focused on the application of the acquiescence exception. However, in view of the distinction I elaborated on between the two exceptions it seems that under the circumstances, the immediate action taken by the respondent precludes the possibility of viewing his conduct as amounting to acquiescence to the retention of the daughter. Accordingly, the exception appropriate for our purposes is the exception of consent, which requires us to examine whether having regard for the entirety of circumstances we may infer that the respondent agreed to the act of retention and to the change in the status quo, and in doing so effectively waived the "first aid" remedy conferred in the framework of the Convention.  As I will presently explain, I believe this question must be answered in the affirmative, because the circumstances indicate that prior to the act of retention of the daughter, the respondent agreed that the applicant would have custody over her.

29.  The trial court held that the applicant and the respondent came to Israel by mutual agreement for the Passover vacation. During this vacation, when each of them was staying in their family's home, they agreed to separate from each other. The applicant applied to the Rabbinical Court, and commenced a divorce proceeding, to which she attached the matter of the custody of the daughter. At her request, the Rabbinical Court issued a stay of exit order against the respondent and against the daughter. The respondent applied to the Rabbinical Court with an urgent application to cancel the order. In his application he presented the entire unfolding of events between the spouses, and even declared that he was prepared to divorce the applicant immediately and to conclude a child support agreement with her as required. It should be stressed that this does not suffice to infer his consent to the applicant having the custody of the daughter. 

Subsequently, the parties decided to negotiate and to reach a separation agreement, acceptable to both of them. With the mediation of an accountant who was a mutual friend, an agreement was drafted, titled "Property Agreement". From the sections of the agreement it can be inferred that the parties agreed that the applicant and the daughter would remain living in Israel, whereas the respondent would return to the United States and to his business affairs. In section 1 of the agreement it was likewise determined that the applicant would remove the stay of exit order which was valid against the respondent, at her request.  Section 2 provided that the sum of the monthly child support for the daughter would be paid in shekels; in section 3 the respondent undertook to transfer various contracts into his name, upon which the applicant had previously been signed, in the framework of her partnership in the company in the United States. In section 4 the respondent agreed to convey all of the equipment of the applicant and the daughter to Israel, and in section 7 the parties determined consensual visitation arrangements in the event of the respondent returning to live in Israel. The entirety of the agreements in this agreement clearly evidences the parties' agreement that each of the spouses would go his/her own way – the respondent would return to the United States and the applicant and the daughter would remain in Israel.

At the end of the day however, due to an economic dispute that arose, apparently due to the applicant, the property agreement was not signed. Even so, the applicant adopted measures, which indicate that she had begun to comply with her undertakings under the agreement. This can be learnt from her consent to the removal of the stay of exit order, imposed on the respondent at her request, a consent followed by the respondent did returning to the United States alone.

30.  In other contexts it has been held that "there is no sanctity in a signature" (FH 40/80 Koenig v. Cohen [12] p.724), so that if the agreement fulfills the requirements of resolve and specificity, it will be valid even in the absence of the parties' signatures (see e.g. CA 692/86 Botkovsky v. Gat [13] p.57). Obviously, this rule is not applicable to the case before us, because the parties do not dispute that the property agreement did not become a binding contract. However, in my view the minority judge in the trial court was correct in ruling that this agreement has "quasi evidential" standing in terms of the respondent's consent for applicant to retain custody of the daughter. In the final analysis the agreement was not signed due the applicant's refusal to sign on it whereas the respondent was prepared to accept it as it was, including the sections that attest to his consent for the daughter to stay in Israel, in the applicant's custody. These being the circumstances, I think that the agreement should be considered as principal evidence, which assists in completing the overall picture, from which it may be inferred that the respondent waived the urgent realization of the custody rights that were conferred to him under the law of New Jersey.

It has not escaped me that in his statement of response the respondent attached an additional agreement draft, claiming that it was in the applicant's handwriting, and on which it was written, "returning to Israel" (hereinafter: "the draft"). His claim was that this proves that there was no agreement between the parties concerning the daughter's place of residence, and that accordingly, there was no advance agreement on the matter of the custody. The family court that adjudicated the matter of the draft viewed it as a property agreement draft, whereas the district court did not discuss its significance. From an examination of the draft it is apparent that its contents in no way conformed to the contents of the property agreement, because it dealt with a situation of reconciliation between the parties and not a situation of separation and divorce. There was no clarification – and anyway no proof – regarding when and by whom this draft was written. In the absence of these details, the aforementioned draft cannot teach us that which the respondent seeks to infer and it anyway seems that it is undisputed that the final draft of the property agreement was the one drawn up by the accountant, and that refers to a situation of separation and of the continued staying in Israel of the applicant and her daughter.

31.  Summing up this point, the agreement can be inferred from the entirety of the circumstances and need not be explicit. Indeed, in the case before me the respondent's conduct indicates his agreement that the applicant and their common daughter would not be returning to the United States. He was partner to the drafting of the property agreement in which he agreed inter alia to the matter of custody and the visitation arrangements. Later on he even took the active step of applying to the Rabbinical Court together with the applicant, requesting the removal of the stay of exit order, after which he returned to his business in the United States, as the applicant and the daughter remained in Israel. To be clear, it is quite possible that the respondent hoped that the applicant and the daughter would return to the United States at the time of their non-return, and may even have thought that this is what they would do, especially in view of the fact that the marital connection had not been finally terminated. Nonetheless, the respondent's objective conduct attests to his agreement that the daughter would remain with the applicant, and that the two of them would continue to live in Israel. The  respondent's subjective state of mind, his feelings and expectations do not suffice to enable the conclusion that he had not given his consent to the applicant and the daughter remaining in Israel, when compared with his explicit and overt conduct.   

32.  As mentioned, the act of agreement is essentially a contractual act. After the parties had discussed the subject of custody, and after the applicant agreed to the removal of the stay of exit from order that was in place against the respondent, he left the country and returned to his business in the United States. It is definitely reasonable to assume that the unfolding of events, and particularly his departure from the country with the applicant's consent, after the property agreement had been written and even fulfilled in part, engendered the applicant's reliance on a change in the status quo, the thrust of which its main part was the separation between the spouses and her remaining with the daughter in Israel. When discussing the relevance of the agreement drafted between the parties, the Family Court held that:

“The plaintiff was under pressure with a stay of exit order issued against him, that disrupted his plans which were based on his imminent return to the United States… reading the draft it is hard to escape the impression that it was drawn up under the palling shadow of the stay of exit order and even the plaintiff's consent to the contents of the draft are accepted,  it was given and obtained by reason of the pressure exercised on him in the form of the stay of exit order” (judgment of the Family Court, para. 28, p.14; emphasis mine, E.A)

I am unable to accept the conjecture that the respondent's agreement that the daughter would stay in Israel was exclusively the result of pressure due to the stay of exit order stood against him. In conducting negotiations for concluding a contract, each party is doubtless subject to and influenced by various pressures and influenced by various considerations, and calculates his steps accordingly. It has been ruled that freedom of will is constructed in a broad sense and various kinds of pressure, such as economic, social or political will not impair contractual freedom, provided that the pressures are not heavy to the degree of impairing his minimal free will (see and compare: CA 1569/93 Maya v. Panfird [14] p.705; CA 1912/93 Shaham v. Mones [15] p. 119)). In view of this, I do not accept the holding that the respondent was under tremendous pressure by reason of the stay of exit order, and that his consent was given in the wake of that pressure, without him having had the opportunity of exercising discretion. We must not forget that the pressure on the respondent by reason of his plans was counterbalanced by the matter of the custody of his daughter, which in and of itself is a matter of supreme importance.

33.  Possibly, the later measures taken by the respondent, at around the time of the retention, indicate that he changed his mind regarding the daughter remaining in Israel, or that he was still hoping for a reconciliation with the applicant. The respondent sent a warning letter to the applicant by way of his attorney, at about the time of the retention. He also filed a claim under the Convention, two months later for the return of the daughter to the United States, in the competent forum in Israel; and took steps toward acquiring a United States visitor's visa for himself. He presented documents attesting to the extension of the rental contract and the payment of the daughter’s health insurance in the United States. Later on, he complied with the preliminary conditions for the return of the daughter, as determined by the lower court. These steps attest to his desire for the daughter to return to the United States and for the question of her custody to be decided in his state of residence. However, these later steps cannot negate the consent that the respondent had previously given for the daughter to stay in Israel, prior to the act of retention. As stated, the rule is that one cannot renege on a consent that was given because the respondent’s consent to the non-return of the applicant and the daughter to the United States, indicates his waiver of the immediate remedy provided under the Convention. This being the case, in view of the overall picture emerging from the facts described, the exception of consent applies in this case. As such the question of the daughter’s return to the United States is at the discretion of the court, and the court has no immediate obligation to return the daughter pursuant to the provisions of the Convention.

34.  In light of our holding that the exception of consent is applicable, there's no need to delve into the applicant's claim concerning the application of the exception of the grave concern  for harm, since it is suffice to prove one of the exceptions in order to confer the court discretion whether to order the return of daughter or not. Briefly, I will point out that the burden of proof carried by the party making the claim is particularly heavy and its interpretation has been particularly limited. It would seem that in the absence of an expert opinion on this matter, and in the absence of any extreme circumstances, that attest to the grave concern for harm it cannot be determined that this exception has application in the case before us.

35.  Summing up, the Convention is applicable to the case before us, inasmuch as the preliminary conditions for its application are satisfied, and the applicant committed an act of unlawfully not returning the daughter to the United States. However, in the case before us, the exception of consent applies, because based on the entirety of the circumstances, first and foremost, the separation agreement and the parties' conduct after the writing of the agreement, it may be concluded that the respondent agreed to the mother and the daughter remaining in Israel. Accordingly, there is no obligation for the immediate return under the Convention, and the matter is given to the discretion of the court. I will now address the considerations relevant for this decision.

36.  After giving consideration to the entire complex of circumstances, my view is that no order should be given for the return of the daughter to the United States, and that it would be appropriate for the question of custody to be clarified in the competent forum in Israel.  The applicant and the respondent lived in the United States for four years, from the beginning of their relationship. They are not American citizens; the respondent has a temporary work permit for two years only, and the applicant has a visitors permit in the category of a tourist, which does not enable her to work for a living. The extended family of both parties lives in Israel and they have no permanent home in the United States. While they were living in the United States, they established a business in Israel and continued to conduct bank accounts and maintain their social security rights in Israel. Their entire stay in the United States, even if it lasted a few years, bore the character of a temporary stay. When they decided to separate from each other the respondent wanted to return to his business in the United States, whereas the applicant wanted to remain in Israel, in a supportive family framework, with the common daughter standing between them, a child tender in years, both of whose parents surely seek her best interest. In my view, the minor's best interest demands that the custody proceeding in her matter be conducted here in Israel and not in the United States. The daughter, who is not yet two years old has lived for most of her life with the applicant, who is the dominant parental figure in her life, especially having consideration for the respondent's long stay in the United States, which continues even now, severed from his daughter. In the circumstances of the separation between the spouses, the return of the applicant and the daughter to the United States in order to settle the custody matter may place the applicant in an intolerable situation which will ultimately work against the minor's best interest. First, it cannot be expected that after their separation the spouses will continue to live in the residential home in which they lived as a couple, the rental of which was extended in compliance with the decision of the trial court in order to ensure a residence for the minor. More precisely, given the circumstances in which the applicant only has a tourist permit, and is not permitted to work for a living in the United States, she will not be able to earn a living and support herself and her daughter apart from the respondent and should she do so, she will face the danger of expulsion from the United States. Even if the concern of such an event is not great, I do not think that one can run the risk of the applicant being separated from her baby daughter, in a manner that would contravene the best interest of the daughter at such a tender age (see LCA 4575/00 Jane Doe v. John Doe [16] at p. 331). Alternatively, the applicant might be compelled to return to living with the respondent under the same roof, but having consideration for the continued separation and the alienation that the parties displayed throughout the legal proceedings, it may reasonably be presumed that the joint residence of parents living in a state of disharmony would be detrimental to the minor's best interest. Accordingly, I believe that the considerations I enumerated above, and above all the fact of the daughter still being particularly young, and the applicant's legal position in the United States, indicate that the best interest of the minor requires that the custody matter be resolved in Israel and that therefore there should be no order for her return to the United States for the purpose of resolving this issue.

37. As an aside I have two comments to make regarding the unfolding of the proceedings before me. First, the respondent filed an application to present us with the exhibits file that was before the trial court, and the applicant replied that she would leave the matter for the court's discretion.  I examined the file as requested (by way of “Net Ha-Mishpat” system), but I found nothing there that sheds more light on the matters discussed in this decision. The matters presented there are certainly in the background of my decision, but they do not persuade me to accept the respondent's position.

Another comment pertains to the notification given to the Court by the respondent, informing us that he had been forced to leave Israel and to return to his business in the U.S.A., even before the termination of the legal proceedings before us. The applicant submitted her response to the notification, claiming that the respondent had returned to the U.S.A. in violation of the stay of exit order that was pending against him. In his reply, the respondent rejected this claim. Without addressing the claim on its merits, given that it is unnecessary and given that we do not have sufficient details for making any determination in respect thereof, it is apparent that the divorce dispute has brought the parties into a bitter and acrimonious battle. I fervently hope that with the termination of the current proceeding, the applicant and the respondent sensibly reach an agreement and will solve the disputes between them, with their primary concern being the best interest of their common daughter, who is entitled to the presence of both of her parents in her life.

Therefore, I propose to my colleagues to accept the appeal, and to determine that the decision of the District Court concerning the return of the daughter in accordance with the Convention is hereby overturned. In addition, I would suggest to my colleagues to cancel the applicant's obligation for court expenses, as stipulated by the Family Court. Under the circumstances I do not think it would be appropriate to obligate the respondent to pay the costs of this hearing,

At a later stage I read the opinion of my colleague, Justice Fogelman, and I would like to make two comments. First, I think that there will be cases in which the overlap between the civil law of contracts and the law of contracts in the family framework will not be complete (see for example LCA 8791/00 Shalem v. Twenko [17], para. 7); Shachar Lifshitz "Regulation of the Spousal Contact in Israeli Law – Preliminary Outline" Kiryat ha-Mishpat 4, 271 (5764)). Second, regarding my colleague's concern of the negative implications, in terms of the parties' willingness to conduct substantive negotiations, I think this concern is insignificant, since this case is unique in its circumstances. In this case there was a complete agreement which was not signed in the end only because of the applicant's refusal, whereas the respondent was prepared to realize it. Beyond that, as I stressed, the spouses had begun to act in accordance with the agreement when they consensually cancelled the stay of exit order that was issued against the respondent, and the respondent even left Israel and returned to the United States, while the daughter and the applicant were left in Israel. In my view, these unique circumstances justify viewing the respondent's agreements in the framework of the negotiations between the parties, as being indicative of the application of the exception of consent.

 

                                                                                                                   Justice

 

Justice H. Melzer

1.    I concur with the result reached by my colleague Justice E. Arbel in her opinion and with the main elements of her reasoning. That said, in my view, the justification for the result that she reached in her judgment, should be based more on the "exception of subsequent acquiescence" prescribed in section 13(a) of the Convention, as per its definition in the Hague Convention (Return of Abducted Children) Law, 5751-1991 than on the "exception of consent" included in the same section. My reasons for this position will be presented forthwith.

2.    Based on the circumstances described in my colleague's opinion, as well as in minority opinion, of the Deputy President, Judge A. Abraham of the Nazareth District Court, it seems to me that the respondent, with his final departure to the United States had in fact "acquiesced" at least at that time, to the non-return of the child to the United States and to her remaining together with her mother in Israel at this stage. This can be inferred from the application filed with the Rabbinical Court to cancel the stay of exit order that was issued at the applicant's initiative – a proceeding in which its completion the order was ultimately cancelled by agreement. In this context it should be remembered that the Rabbinical Court has exclusive jurisdiction in a suit for divorce between the parties where they are Israeli citizens who were married in Israel in accordance with the law of the Torah. Furthermore, in the framework of the "property agreement" that was under discussion between the parties (and which finally was not signed specifically by reason of the applicant's reservations), the respondent was prepared to undertake to transfer all of the minor's personal belongings to Israel and to pay for her monthly child support in Shekels. Parallel to this he also wanted to ensure his visiting arrangements with the daughter, whenever he came to Israel.

These data which can be learnt from the evidence in the file, suffice for purposes of being viewed, in the special circumstances of this case before us as a quasi - “acquiescence” and a waiver of the "first aid" remedies by force of the Convention. See CA 7206/93 Gabbai v. Gabbai [3] pp. 256-259; LCA 7994/98 Dagan v. Dagan [5], pp. 273-276.   I make these comments without expressing a view regarding the continuation of the proceedings between the parties.

Furthermore, even were it to be argued that the respondent did not explicitly express his "acquiescence" to the non-return of the girl to the United States at this stage, the applicant could have inferred from the consents obtained in the course of the negotiations with the respondent leading to the signing of the said "property agreement" that he had actually reconciled himself, at this time, to the daughter's transition to Israel, or that he had consented to it. Accordingly, by force of the laws of estoppel the respondent is not entitled to the temporary remedy that he requested. Expression of a similar approach can be found in the reasoning (albeit not in the result) mentioned in the decision of the House of Lords in England in In re H and Others (Minors) [19] 12 (which likewise concerned an Israeli couple) per Lord Browne – Wilkinson, where he stressed that this was the exception to the rule. See also in 1 FLR 682 In re AZ (Minor) [1993] [20].

In France too, case-law recognized this type of exception, which lead to a similar result as the result we delineated in this case. See in the decision in Aubrey v. Aubrey as cited in the book Beaumont & McEleavy The Hague Convention on International Child Abduction (1999), at p. 122) it bears mention that the aforementioned book critiques that decision, and also cites opposing French decisions - Horlander c Horlander. Cass. 1re civ., 1992 Bull. Civ. L. No 91-18177; D.S 1993, 570)

3.  In view of all the above, the appeal should be accepted, as proposed by my colleague, Justice E. Arbel.

                                                                                                       Justice

Justice U. Vogelman

 

1.    I concur with the majority of the determinations set forth in the opinion of my colleague Justice Arbel, and with their accompanying reasons. I also agree with her determination that our case does not enable application of the "exception of acquiescence" in section 13 (a) of the Convention, within the meaning of the Hague Convention Law (Return of Abducted Children) 5751-1991. All the same, unfortunately, I cannot concur with her determination that in the case at hand there is application of the exception of consent prescribed in the same section, which would enable the non-return of the common daughter to the U.S.A, in view of the respondent's consent to the same in the framework of the preliminary draft agreement that was prepared in the course of negotiating the “property agreement”, and which did not finally materialize.

2.    As my colleague notes, the exception of consent is governed by the law of contracts, with all of the conditions implicit therein.  A fundamental principle of contracts law, which also has relevance to our case, is the principle of reciprocity. According to this principle, the advantage of the contract – i.e. the benefit received from the second party, and the disadvantage, i.e. that which must be given to the second party, must be reciprocal (see Daniel Friedman, and Nili Cohen, Contracts 149 (Vol. 1, 1991) (hereinafter: Friedman and Cohen). A situation in which there is a bifurcation in the legal status of the two contracting parties, in which one of them is held by his word and his waiver in the negotiation, and the other party is exempt and free from his consents - places the contracting parties on an unequal footing, and is not consistent with the aforementioned principle.

3.   The draft agreement in our case is the result of negotiations between the parties, in which neither of the parties realized all of their wishes. Analysis of the various components of the contract indicates that each party waived and compromised until finally a draft agreement was reached, in which the various obligations are dependent upon each other, The assumption that the respondent's consent that the applicant and the daughter would remain in Israel was a unilateral and unconditional, in my view, is not consistent with the factual infrastructure that has been presented to us, including the various components of the contract, nor with its purpose, which was to resolve the entirety of subjects that were in dispute in a manner that would enable the termination of the marriage between the parties. In this situation, where at the end of the day no agreement was reached, and the draft did not become a binding agreement, the undertakings included therein did not take effect, their execution being dependent upon reciprocal execution by each one of the parties.

4. Concededly, as noted by my colleague "there is no sanctity in the act of signing" and if the agreement embodies the foundations of resolve and specificity, it will be binding even in the absence of a signature. However, as she herself mentions, these foundations, and primarily the foundation of resolve did not exist in our case, and hence the contract did not materialize. In this situation I do not think that it is possible to severe the respondent's consent which related to one of the components of the draft agreement, from the overall agreement structure, and left alone notwithstanding that the framework of which it was supposed to be a part did not materialize. I will further add that these comments do not preclude the possibility of a legally binding undertaking being created, even if essentially unilateral, even in the framework of a negotiations towards a contract that did not ultimately result in an agreement. This would be the case in situations where there was reasonable reliance of one party to the contract in the wake of undertakings given, or presentations made by his friend in the course of negotiations (Friedman and Cohen, p. 519-648)).  However, in the case before us I do not think that the factual infrastructure that was presented to the trial forum indicates that the respondent made a statement or a presentation that was liable to lead to the applicant to reasonable reliance that would justify the protection of the law.

5.    Apart from all the above, the use of agreements in the framework of negotiations draft towards an agreement, which ultimately did not reach fruition, carries negative consequences in terms of the readiness of the parties to conduct practical negotiations towards an agreement.   More precisely, the parties are liable to avoid making representations, declarations or offers which involve a waiver to the second party, in their fear that such a waiver will serve as evidence to their detriment in a future proceeding that might take place between the parties (see CA 172/89 Sela Insurance Company Ltd. v. Solel Boneh Ltd.  [18] 333.  This could create difficulties in reaching agreements, frustrate settlements, and needlessly lengthen adjudication.

Since the exception of consent has no applicability, there is no escaping, in my view, from the dismissal of the appeal.

 

                                                                                                                   Justice

 

It was decided by a majority of opinions in accordance with the decision of Justice E. Arbel.

 

Handed down today, 13 Iyar 5771 (17.5.11)

 

  JUSTICE                          JUSTICE                     JUSTICE

 

Full opinion: 

Amado v. Director of the Immigrants' Camp, Pardes Hanna

Case/docket number: 
HCJ 125/49
Date Decided: 
Sunday, April 16, 1950
Decision Type: 
Original
Abstract: 

A Civil Court in Paris granted a decree of divorce to the petitioner and second respondent (being respectively the wife and the husband), who were French nationals domiciled in France, and declared that the petitioner was entitled to the custody of the children, a girl aged seven years and a boy aged four and a half years at the time of the application, but ordered that the second respondent have access to them at stated times. On one of these occasions the second respondent smuggled the children out of France and brought them to Israel, where they were living with him in an immigrants' camp. The Paris Court reaffirmed the petitioner's right to custody and annulled the second respondent's right of access. The petitioner applied for an order in the nature of habeas corpus against the second respondent. It was her intention to take the children back to France; the second respondent declared that he would bring up and educate the children in Israel.

               

Held: making absolute an order to deliver the children to the petitioner,

 

                1. If the actual right to custody was the subject of a bona fide dispute, petitioner's claim would be a matter of personal status which must be brought before the District Court or the Rabbinical Court. But here the question of custody had already been determined, and since the application was to enforce a right already judically recognised, the High Court had jurisdiction to grant an order in the nature of habeas corpus.

 

                2. A foreign judgment given by a competent court which determined the right to custody of the children of a marriage as a matter incidental to a decree of divorce, is a judgment in rem binding on all the world, and will be recognized in Israel, subject to the question of the welfare of the children.

               

                3. A foreign judgment validly pronounced is presumed to be free of error both as to fact and as to law, and it is immaterial, from the point of view of its recognition in Israel, that it may be subject to appeal.

               

                4. The fact that the parties, who bad been married in Paris both by civil process and before a Rabbi, had not been divorced in accordance with Rabbinical Law, might render invalid a second marriage contracted by either of them, but it could not affect the question of custody of the children.

               

                5. In the circumstances of this case, and for the reasons set out in the several judgments of the court, the interests of the children were not such as would require the court to decline to give effect to the foreign judgment.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
concurrence
Full text of the opinion: 

H. C. J 125/49 JULIETTE COLETTE AMADO v. 1. DIRECTOR OF THE IMMIGRANTS' CAMP, PARDESS HANNA 2. YOSEF AMADO In the Supreme Court sitting as the High Court of Justice. [April 16, 1950] Before: Smoira P., Dunkelblum J., Assaf J., Cheshin J., and Agranat J. Habeas Corpus - Order for custody of children by foreign court - Enforcement of order by High Court - Recognition of foreign judgment - Family Law - Interests of children paramount consideration. Subject to the paramount consideration of the interests of the children concerned, where a competent foreign court has granted a right of custody to husband or wife, the High Court will issue an order of habeas corpus to enforce that right. Radoyevitch v. Radoyevitch (1930 Sess. Cas. 619) referred to. A Civil Court in Paris granted a decree of divorce to the petitioner and second respondent (being respectively the wife and the husband), who were French nationals domiciled in France, and declared that the petitioner was entitled to the custody of the children, a girl aged seven years and a boy aged four and a half years at the time of the application, but ordered that the second respondent have access to them at stated times. On one of these occasions the second respondent smuggled the children out of France and brought them to Israel, where they were living with him in an immigrants' camp. The Paris Court reaffirmed the petitioner's right to custody and annulled the second respondent's right of access. The petitioner applied for an order in the nature of habeas corpus against the second respondent. It was her intention to take the children back to France; the second respondent declared that he would bring up and educate the children in Israel. Held: making absolute an order to deliver the children to the petitioner, 1. If the actual right to custody was the subject of a bona fide dispute, petitioner's claim would be a matter of personal status which must be brought before the District Court or the Rabbinical Court. But here the question of custody had already been determined, and since the application was to enforce a right already judically recognised, the High Court had jurisdiction to grant an order in the nature of habeas corpus. 2. A foreign judgment given by a competent court which determined the right to custody of the children of a marriage as a matter incidental to a decree of divorce, is a judgment in rem binding on all the world, and will be recognized in Israel, subject to the question of the welfare of the children. 3. A foreign judgment validly pronounced is presumed to be free of error both as to fact and as to law, and it is immaterial, from the point of view of its recognition in Israel, that it may be subject to appeal. 4. The fact that the parties, who bad been married in Paris both by civil process and before a Rabbi, had not been divorced in accordance with Rabbinical Law, might render invalid a second marriage contracted by either of them, but it could not affect the question of custody of the children. 5. In the circumstances of this case, and for the reasons set out in the several judgments of the court, the interests of the children were not such as would require the court to decline to give effect to the foreign judgment. Palestine cases referred to : (1) H.C. 24/40; Morris Louis Silverman (Caspi) v. Pearl Buxenbaum (Harubi), and others; (1940), 1 S.C.J. 95. (2) H.C. 118/43; Joseph Flint v. E. Jones and another; (1944), 1 A.L..R. 4. (3) H.C. 45/43; Levana Bar-Emun v. Moshe Bar-Emun; (1944), 1 A.L.R. 34. (4) C.A. 85/40; Jamil Abyad v. Isaac Ancona and another; (1944), 1 A.L.R. 34. English cases referred to: (5) The Queen v. Maria Clarke; (1857), 119 E.R. 1217. (6) Antoniye M. Radoyevitch v. Florence M. Webb of Radoyevitch; 1930 S.C. 619. (7) Salvesen of Von Lorang v. Administraton of Austrian Property; (1927) A.C. 641. (8) Stuart v. Moore; (1861) 9 H. L. Cas. 439. American cases referred to: (9) Halvey v. Halvey; 67 S. Ct. 903. Stoyanovsky for the petitioner. Michaeli for the second respondent. Glucksmann, Deputy State Attorney, for the Attorney-General. SMOIRA P. The petitioner, the mother of two children, applied to this court for an order in the nature of habeas corpus against their father, the respondent, directing him to deliver their two children into her care. She also asked for an interim order pending a final order. Both the father and the mother are French nationals. An affidavit submitted to us by the petitioner in support of her application contained the following allegations. The petitioner is the mother of the two infants, Jules Regine Amado, born on March 28, 1943, and Gilles Henri Amado, born on July 16, 1945. On June 2, 1949, the Civil Court in Paris granted a decree of divorce in favour of the petitioner against her husband, Yosef Amado. According to the decree, the custody of the children was granted to the petitioner, and their father was ordered to pay the petitioner the sum of 8,000 Francs a month for the maintenance of each of the children. The father was permitted to see the children twice a month and to have them with him during the second half of the school vacations. In accordance therewith, the petitioner handed the children over to the father on September 1, 1949, and the father was to have returned them to the mother on October 2; but the father failed to do so. The father, moreover, did not pay the mother the children's maintenance from June 1949 onwards, and on October 98, 1949, on a charge of "neglect of family" he was sentenced in absentia to four month's imprisonment, and ordered to pay the mother 20,000 Francs and the costs of the case. Since the mother could not find the children, she applied to the court in Paris. and on December 12, 1949, obtained a further judgment putting an end to the father's right to see the children or to have them with him. The petitioner attached to her petition a certified copy of that decision, which may be translated as follows: "Session of the Court (référé) of December 12, 1949, before the Deputy President and his assistant, the Registrar, undersigned, hearing the case in the absence of the President. "Whereas according to the judgment given in the presence of the parties by Tribunal No. 4 of this Court on June 2, 1949, a decree of divorce was made in favour of the wife, "And whereas that judgment granted to Mme. Amado the custody of the two children, Jules Régine, born on March 28, 1948, and Gilles Henri, born on July 16, 1945, and ordered the terms of that judgment to be carried out for the time being (exécution provisoire), ''And whereas it has been proved that Amado was sentenced by Tribunal No. 14 of this Court to four months' imprisonment for neglect of family, "And whereas, on the other hand, it has been proved that Amado, into whose care the children were committed during the second half of the long vacation, has disappeared with them and has not returned to his place of abode, "And whereas in view of the gravity of that act, Mme. Amado ought to be allowed to seize the two children committed to her custody in any place where they may be found and that any right of M. Amado to access to the children ought to be ended completely, "And whereas the matter is urgent, "Therefore, on the grounds aforesaid, we decide in the absence of Amado, who did not appear in the case although he was lawfully summoned, that as regards the substantive matter the parties must apply to the Court, but from now on and for the time being in view of the urgency, we authorise Mme. Amado to seize the infants Jules Régine and Gilles Henri Amado, the custody of whom was granted to her by this Court, in any place where they may be found, with the assistance of the Police Commandant and, if need be, with the assistance of the armed forces; "Finally terminate the right of M. Amado to access to the children, "Order the execution of this order for the time being and immediately, and even before its registration, because of its urgency, "Appoint M. Statte to deliver this order to the defendant who has not appeared and to preserve this order. "Given in Paris on the 12th day of December, 1949." (Signatures and certifications) When the mother discovered that the father had left France with the children and was keeping them in an immigrants' camp in Pardess Hanna in Israel, she, too, left France in the footsteps of the father and the children, and she also is at present in Israel. While she was trying in France to discover the whereabouts of her children, she says that she learned from her friends that the father had threatened to take revenge if they tried to take his children away from him, and for that reason did not turn directly to him and demand the return of the children to her. According to her, she even feared for the lives and safety of her children when the father should find out about her applying to this court. The petitioner is a teacher in a secondary school in Paris, and earns her own and her children's upkeep, and her parents in Paris have supported her whenever her husband has refused to carry out his obligations towards the family. Relying on this affidavit, this court issued an order nisi against the first respondent, the director of the immigrants' camp, Pardess Hanna, and against the father, the second respondent, to appear and show cause why they should not bring the said minor children before this court, and why they should not be delivered to the petitioner, and an interim order was further made directing the father to deliver the children to the first respondent, to remain in his care and control until the final hearing of the matter, and ordering the said director, for the well-being and safety of the children, not to permit the father to be in the company of the children unless a responsible person is also present and in charge. An affidavit in opposition that was filed by the father in reply to the order of habeas corpus did not, in fact, deny the main facts set out by the petitioner in her petition, save that the father states that he has never said that he would kill the children, their mother and himself if they tried to take the children from him. Tie describes this as a pure fabrication and the product of the petitioner's diseased imagination and as an illegitimate means of influencing the courts. As for the decree of divorce made against him on June 2, 1949, he argued that the judgment is not final and absolute, that he, the husband. has lodged an appeal against it, through the offices of his lawyer, to the Court of Appeals in Paris, and that the appeal has not yet reached its turn for hearing. According to him, the petitioner deliberately refrained from producing to this court a copy of the decree of divorce, since from its contents one might learn the nature of the proceedings before the court in Paris, the petitioner's character and the background to the family dispute. Dr. Stoyanovsky, counsel for petitioner, in reply to a question put to him by the court, confirmed that an appeal against the decree of divorce of June 2, 1949, was lodged before the respondent left France. The respondent devoted a large part of his reply to the order nisi to allegations against his wife, the petitioner, allegations that he also brought before the court in Paris in the divorce case. According to him, his wife does not attend to the running of the household or to the care of the children. She left their home because a man of no principles, a trickster from Bulgaria. by the name of Michael Ibenoff, who purported to found a special mystic sect at Sévres in France, introduced his wife into the sect together with many other women. At one time, this matter caused a considerable scandal in France, and Ibenoff was sentenced by a French court to four years' imprisonment and deportation from the country. The respondent sought to prove his allegations in the French court, in particular that his wife was suffering from mental disease as a result of Ibenof's influence, and that she was incapable of looking after the children; and he complains that the French court granted a decree of divorce against him without referring to his defence and found that the substance of his allegations were a ground for a religious divorce. He fears that his children will not receive a Hebrew and Jewish upbringing if they remain in the custody of the petitioner, especially in France or some similar place, and even fears that the mother will convert them to the Christian faith, or to the sect of that same Bulgarian who still has his followers in France amongst the women believers. He says that whenever he met his children, they were very depressed and would tearfully recount to him that their mother was not in fact looking after them, and they besought him to save them. Accordingly, out of concern for the fate of the children and in order to enable them to live traditional Jewish lives, to which he had always been devoted despite his living in the Diaspora, and in order to put at the disposal of his people the benefit of his skill and knowledge as a doctor, he decided to immigrate to Israel with his children. The father states that the children have been happy since they have been with him in Paris and in Israel. He has made endeavours to place the children in a suitable educational institution or in Youth Aliya 1) These are the main outlines of the story which was presented to as in the affidavits of the mother and the father. The examination of the mother and the father by counsel for the parties revealed the following additional facts : Dr. Amado was born in Izmir and went to France at about the age of 14 where he received his education. He is a doctor and is now 43 years of age. His wife, a native of France, is a teacher in a secondary school in Paris, and she is 30 years old. The couple were married in 1942, both according to civil law and Jewish law, before a rabbi in France. According to the petitioner it was her parents, and not her husband, who insisted that the marriage be solemnized before a rabbi. No steps have yet been taken towards obtaining a divorce according to Jewish law. She is ready to receive a religious divorce after the civil decree of divorce becomes final. At first the mother educated the children herself, and later entered them in a kindergarten conducted in accordance with the Montesori system, and if the children are committed into her hands by this court, she will take them to France and bring them up as heretofore. The mother confirmed, in answer to a question by the father's counsel, that the director of the kindergarten is a Jewess who has been converted to the Christian faith, and added that in the institution there are also two Israeli girls who are learning the Montesori system. She denied that the director of the institution asked her to send her children to take lessons in the Catholic catechism and she said that, if the latter were to do so, she would immediately withdraw the children from the institution. She further testified that her hus band had never objected to the children being educated in a Montesori institution. She describes her husband's fear lest she introduce her children into the Christian faith or Ibenoff's sect as a pure fabrication. Her husband contended in the divorce case that she belonged to the Ibenoff sect and that her state of mind had been influenced by Ibenoff. She had, indeed, on the advice of one of her teachers at the University, once taken an interest in Ibenoff's books, but had at no time belonged to that sect. She received a letter from Ibenoff dated March 31, 1945, and a photostat copy of it was produced to the court by counsel for the respondent. In that letter, Ibenoff invited her to go one morning to Sevres in order to participate in the prayers and exercises at break of day. In response to that letter, the petitioner visited Sevres, and on one or two later occasions visited Ibenoff's home together with her husband and children. According to her, Ibenoff's sect appeared to be a philosophical sect. Her husband also went to meetings of the sect, and at no time did he say to her that it was a sect of madmen, and that contact with members should be avoided. The petitioner knows that Ibenoff was sentenced in 1948 to four years' imprisonment for offences of inciting children to acts of indecency and immorality. She had indeed been impressed, at first, by the theories of Ibenoff, the central theme of which was the bringing closer together of the spirit of the East to the spirit of the West, but when she saw that his acts bore no relation to his preaching, she became confused. When she heard of the charges against Ibenoff, she said to one of her acquaintances that she was about to lose a good friend who had guided her with his advice. But the case affected her relationship with Ibenoff and his sect. She had taken an intellectual interest in the sect, and now all that was over for her. She had discovered that his ideas are also to be found in another philosophy, in a less complex form. The petitioner denied in her evidence any connection between the Ibenoff affair and her divorce petition. In reply to the respondent's contention that she is not capable, mentally or emotionally, of looking after the children, the petitioner testified that at the time of her studies she interested herself in the humanities, French literature, Latin, Greek and philology in general. She holds the degree of licencie (agrege) es. letters. At the secondary school in Paris she serves in the dual capacity of French teacher and secretary to the management. The number of pupils at the school is 1,100, between the ages of 11 and 19. There are at least eighty teachers engaged in teaching there; there is an assistant mistress in the school who deals with medico-social problems, and the petitioner has to examine all the social cases and the question of giving scholarships, which calls for the examination of the cases and of the family background of the pupils. As for the children's state of mind, she testified that from time to time, when the children returned from their visits to their father, they related to her what the father had said about her, and were very irritable and upset. The father gave evidence, inter alia, that he received no official notice of the decree of divorce of June 2, 1949. He saw an unconfirmed summary of the divorce decree in July, 1949, in his lawyer's file, and it may be that the decree was also delivered to tile latter. He presumes that an appeal was lodged on September 7, 1949; on September 14 he left France. He has not received to this day any news of the lodging of the appeal. He was present with his wife at the time of the first "reconciliation" hearing on April 14, 1948. In the first "no-reconciliation" order, the custody of the children was provisionally granted to his wife, and he was given access to them once a fortnight. On July 16, 1948, a second hearing took place for the purpose of reconciliation. Then, too, he was present with his wife. The existing order regarding the custody of the children was confirmed. He appealed against both the orders relating to the right to the children's custody. The appeal was heard on February 17, 1949, and he did not succeed in his appeal. On March 28, 1949, he filed a petition with the court known as référés, asked that they return his children to him, and set out his grounds for the petition. As a result of that petition, the court appointed a lawyer to examine the children's condition. According to the witness, the lawyer did not carry out his task properly. Instead of visiting the children at their place of residence with the petitioner's father, they were brought to the lawyer's offices, and the latter stated in his report that the children were in a normal state of health, and that they were being well looked after. The father knew that he had to return the children to their another on October 2, 1949, but, he states, he took them with him in order to save them. He has never said that his wife was out of her mind, but said that she showed signs of mental instability. He is still of that opinion after hearing her in this court. According to him, he did not live specifically in accordance with Jewish tradition, but he has been a Zionist for some time and his family is Zionist. He holds a number of invitations to Zionist meetings from the year 1947. He was a member of the Zionist Doctors' Association in Paris. There are three main legal questions which arise from the petition under consideration. (a) If the petitioner should have filed an action in the district court for custody of the children, is she nevertheless entitled to apply to this court for a. writ in the nature of habeas corpus? (b) If a petition for habeas corpus is a proper remedy, will this court recognise the decisions of the court in France, which granted the petitioner the custody of her children, as a basis for its decision on such a petition? This second question gives rise to two subsidiary questions:- (1) Does the fact that the French decree of divorce is still subject to appeal affect the petitioner's present right to the custody of her children? (2) Does the fact that the couple are not as yet divorced according to Jewish law prevent or delay the recognition of the decisions of the court in France relating to the right of custody? (c) If the answer to the last question is in the negative, does the rule that the benefit of the children is the real test justify this court in the present case in altering the decisions of the court in France regarding the right to the custody of the children? The first of these three questions is one of the jurisdiction of this court in the hierarchy of courts in Israel. The father's counsel, Mr. Michaeli, argued that the matter in question is not in the nature of habeas corpus, which is included within the jurisdiction of the High Court of Justice by section 7(a) of the Courts Ordinance, but is a case between parents over the right to the custody of the children, and is therefore one of the matters of personal status of foreigners and within the jurisdiction of the District Court (Article 64 and Article 51 of the Palestine Order in Council, 1922). On the other hand, the petitioner's counsel, Dr. Stoyanovsky, emphasized at the outset of his argument what he is not asking of this court. He stated that he is not asking for execution of the divorce decree granted by the Tribunal in Paris on June 2, 1949, or of the order made by the same court on December 12, 1949. He is not, moreover, asking for guardianship of the children for the mother. He is not even claiming the right to custody of the children, for he says that the mother is legally entitled to the custody of the children by virtue of the judgment and the orders made in France in favour of the mother. He is no longer in need of a determination of the right of custody in favour of the mother by this court. His application is for recovery of the custody and possession of the children of which the father has deprived the mother in an unlawful manner, and accordingly the children are in the unlawful custody of the father. For that reason, he contends, the matter falls within the scope of section 7 of the Courts Ordinance and the jurisdiction of the High Court. Before I consider the authorities, let me examine the two provisions of the law on which each one of the opposing parties relies. The definition of matters of personal status in Article 51 of the Order in Council speaks of "suits regarding marriage or divorce. . . guardianship" and others. Section 7(a) of the Courts Ordinance, which provides for the exclusive jurisdiction of the High Court of Justice, speaks of "Applications (in nature of habeas corpus proceedings) for orders of release of persons unlawfully detained in custody." In the present case, the divorce proceedings have already taken place in France, and it has been decided in favour of the petitioner that she is entitled to the custody of the children. There is no disputing the fact that the respondent took the children into his custody in breach of what was decided by the courts in France and brought them to Israel. Indeed, he contends that there were grounds and reasons for his doing so. But the fact remains that he is the one who had defied the courts in France. Counsel for the mother once more emphasizes that she is not asking for her right to the custody of the children to be determined. That right has been determined for her abroad, and therefore there is no case here in a matter of personal status. In bringing her petition in the nature of habeas corpus before this court, she relied on decisions made in her favour abroad in order to found her contention, which is the basis of her petition, that the children are in the hands of the father in unlawful custody, and therefore she claims their release. I do not hesitate to say that this contention seems to me to be sound. To start with, I shall consider the question as if the decisions in the mother's favour had been made here in Israel. The question as to what is the binding force of decisions made abroad (the second of the three questions above mentioned) is a problem of private international law, which I shall consider later. In order to make absolutely plain the question of jurisdiction and the definition of the border-line between a claim for custody and a petition for habeas corpus, it would be better to regard the matter separately from any problem of private international law. In this respect, the two parties were right in citing as authorities on the question of jurisdiction the judgments of the Supreme Court (during the period of the Mandate) which were delivered in cases in which no question arose as to the effect of a foreign judgment in this country, for the question of jurisdiction and the definition of the border-line between a case concerning the right to custody and a petition for habeas corpus is a question that arises, as I have already mentioned, from the provisions relating to the jurisdiction of the different courts in Israel. Counsel for the respondent cites as authority Silverman v. Buxenbaum and others (1). The truth of the matter is that that authority is not on all fours with the present case. That judgment contains only a few lines, and one gathers that the case concerned a family dispute which broke out over the question whether a child that was staying with relatives of his deceased mother should remain with them in accordance with his mother's will, as it was alleged, or should return to his father, and the father filed a, petition for habeas corpus. No judgment had been given in that matter before it came before the High Court. During the course of the hearing, the father undertook "to apply to the appropriate court to have these matters settled", and all that the court decided was that the child would remain with the mother's relatives until a decision was given on the part of the competent court. It is difficult to see how counsel for the respondent can rely on that judgment. On the other hand, counsel for the petitioner cited in support of the jurisdiction of this court authority from the following two judgments : Flint v. Jones and another (2); Bar-Emun v. Bar-Emun (3). The first judgment, Flint v. Jones (9), was delivered in a case based on a petition of habeas corpus. The petitioner, the father, demanded the handing-over to himself of his son from his divorced mother and her second husband. The petition was founded on a judgment of the Principal Rabbinical Court of Jaffa and Tel Aviv, according to which the custody of the child had been given to the mother until he reached seven years of age, and thereafter to his father. The mother, apparently, refused to obey the judgment of the Rabbinical Court, although at first the child had been handed over to the father but had been taken away from school after that by the mother's second husband without the knowledge of the father. The court acceded to the father's petition, issued an order nisi in the nature of habeas corpus against the mother and her second husband and, in the absence of an affidavit by the respondents, made it absolute. In the second case, Bar-Emun v. Bar-Emun (8), the petitioner (the mother) obtained a judgment of the Rabbinical Court against her husband, and this ordered the child to be delivered to the mother, but the Execution Office refused to execute the judgment, on the ground that the child was in the hands of her father-in-law, and the latter had not been a party to the case. Later, the mother sought the execution of a second judgment of the Rabbinical Court, which had been given in the absence of the father-in-law, for the delivery of the child to her. The Chief Execution Officer refused to execute that judgment also, since the child's grandfather had never consented to the jurisdiction of the Rabbinical Court, whereupon the mother applied to the High Court of Justice on a petition of habeas corpus, and won her case. The common denominator in the two cases - Clint 6. Jones (2), and Bar-Emun v. Bar-Emun (3) - is that the right to the custody of the children had been considered and determined by a competent court before the matter came before the High Court, and this court, relying in each case upon the decision previously given by such competent court, issued the order of habeas corpus. Admittedly, neither of those two judgments is of much value in deciding the problem that we are considering, for the first one was given without any reply on the part of the respondent, and neither of them defined the borderline between a case based on the right to custody and a petition for habeas corpus. But the judgments were given on the assumption that habeas corpus is the remedy wherever it is preceded by a decision of a competent court as regards the right of custody. That assumption is, indeed, correct. The rule may be expressed in this manner : so long as the right to the custody of the child has not yet been determined by the competent court, and the very right itself is the subject of a bona fide dispute, this right can only be determined by the court. A claim of this kind is a matter of personal status which, in accordance with Articles 47, 51-54, and 64 of the Palestine Order in Council, 1922, is within the jurisdiction of the District Court both as regards Israel nationals and as regards foreigners or, under certain conditions, is within the jurisdiction of the religious courts. Where the right has been determined by a competent court in favour of one of the parents, and the parent acts in breach thereof, and takes the child out of its lawful custody or continues to detain it unlawfully, then the remedy is the filing of a petition in the nature of habeas corpus. If it be said that a petition to take a child out of the hands of a person unlawfully detaining it is indeed a form of petition of habeas corpus, because you are demanding to put an end to the detention, but that the demand to deliver the child to whomsoever is entitled to possession of it is a claim to the right of custody, the judgment in Queen v. Clarke (5), decided in 1857, shows us that the two demands cannot be separated, for they are linked to one another. In that judgment, Lord Campbell C.J. said :- "The question then arises, whether a habeas corpus be the proper remedy for the guardian to recover the custody of the child, of which he has been improperly deprived. Certainly the great use of this writ, the boast of English jurisprudence, is to set at liberty any of the Queen's subjects unlawfully imprisoned; and, when an adult is brought up under a habeas corpus, and found to be unlawfully imprisoned, he is to have his unfettered choice to go where he pleases. But, with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned ashen unlawfully detained from the custody of the guardian; and when delivered to him he child is supposed to be set at liberty." The rule is thus summed up in Halsbury, Hailsham Edition, Vol. 9, page 717, article 1219:- "A parent, guardian, or other person who is legally entitled to the custody of a child can regain such custody when wrongfully deprived of it by means of the writ of habeas corpus. The unlawful detention of a child from the person who is legally entitled to its custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child." (Compare also, Halsbury, Vol. 17, p. 666, article1383.) As is well known, the institution of Habeas corpus is likewise one of the corner-stones of the Constitution of the United States, and therefore it may be worth mentioning that there, too, it serves as an appropriate remedy for carrying into effect a decision which has been given on the question of the right to custody of the children in a previous divorce case. See the Corpus Juris Secundum, Vol. 89, Title "Habeas Corpus", section 46, p. 586, and the judgment of the United States Supreme Court of the 3lst March, 1947, in the case of Halvey v. Halvey (9). As regards the value of American judgments on questions of the kind under discussion here, see Dicey, Conflict of Laws, 6th Edition, pp. 10, 11 (note 16). I have dwelt at some length on the first question although I have no doubt as to the true position. A number of cases have recently come before this court in the form of habeas corpus in matters concerning the right to the custody of children, and this is the first case in which we have been called upon to give judgment upon it : and I hope that my expanding on the subject here at some length will enable future cases to be dealt with more briefly. The second question that arises here is, what is the force of the judgments and orders made in France in relation to the courts of our country? Must this court recognize those decisions as a basis for its decision in the case under consideration? That is, as stated, a problem of private international law. Authority for that may be found in Abyad v. Ancona (4), in which the Supreme Court confirmed what had been decided in the Haifa District Court by Evans, R.P., in these words:- "The defendant argues that the Order in Bankruptcy made in Egypt must come within the Ordinance Cap. 75 or else is of no effect. Similarly he argues that all international law is founded in treaties and that before the Courts could give any effect to this order there must be some agreement or treaty on the matter between the Palestine and Egyptian Governments. We do not agree with either proposition. It is true that agreements have been made regarding reciprocal enforcement of judgments, but these are largely matters of procedure. The Courts had to consider the weight and effect to be attached to foreign judgments long before. The Defendant says we are not bound by what is called Private International Law. We think we are. Those Rules (i.e. the rules of private international law) enforced in the English Courts are part of the English Law to which we must have recourse in the absence, as admittedly here, of any local provisions on the matter in question. Rules 124 and 125 of Dicey's Conflict of Laws show clearly that an order, such as that of the Egyptian Court... would be effective in England... and must therefore be treated as effective here for the same purpose." Now let us examine the English rules of private international law in this field as applied to the present case. A first general principle is to be found in Dicey's book on the Conflict of Laws (6th Edition, 1949, p. 11) :- "Any right which has been acquired under the law of any civilised country which is applicable according to the English rules of the conflict of laws is recognised and, in general, enforced by English courts, and no right which has not been acquired in virtue of an English rule of the conflict of laws is enforced or, in general, recognised by English courts." In explanation of that rule, it is stated there (p. 11) :- "Their object and result is to render effective in one country, e.g., England, rights acquired in every other civilised country, e.g., France or Italy, the law of which (of France or of Italy) is applicable according to the English rules of the conflict of laws." That is the general rule; and what are the particular rules touching the present case ? Rule 71 in Dicey's book (p. 868) says: - "The Courts of a foreign country have jurisdiction to dissolve the marriage of any parties domiciled in such foreign country at the commencement of the proceedings for divorce. This Rule applies to - (1) an English marriage; (2) a foreign marriage." Rule 83 (p. 400):- "Any foreign judgment is presumed to be a valid foreign judgment unless and until it is shown to be invalid. " Rule 84 (p. 401):- "A valid foreign judgment is conclusive as to any matter thereby adjudicated upon, and cannot be impeached for any error either)(1) of fact; or (2) of law " Rule 93 (p. 430):- "A valid foreign judgment... of divorce... has in England the same effect as a decree of divorce...granted by the Court in England, as regards the status of the parties to the marriage which is dissolved..." As to the particular item in the matter under consideration, the right to the custody of the children, an incidental remedy generally given in a divorce case, the following is to be found in the commentary in Dicey to Rule 71, p. 878 :- "There is also a lack of ad hoc authority as to the extent to which English Courts will recognise the power of foreign Courts to exercise control in matters of the property and parental rights of the persons whose marriage is affected by their decrees similar to that exercised by English Courts when granting ancillary relief in matrimonial causes. But the principle that similar authority should be conceded to foreign Courts is implicit in the cases which decide that the ancillary decrees of foreign Courts will not be recognised if the principal decree cannot be recognised in England." In illustration 5 (ibid., p. 878) :- "H and W are divorced by a Court in France, where they are domiciled, and the custody of the child is given to the father. W takes the child to England. He claims the custody of the child, and is entitled to the aid of the English Courts, which will, however, have regard to the welfare of the child." In the commentary to the aforementioned Rule 93 (ibid., p. 431) :- "Subject to the paramount consideration of the welfare of the children, effect would presumably be given in England to a foreign decree dealing with custody of children in connection with matrimonial questions, as a similar power belongs to English Courts." As authority for that, the judgment in Radoyevitch v. Radoyevitch (6), is cited (note 64). The considerable importance attached to that judgment for the problem with which we are dealing immediately becomes apparent, and so I propose to quote at length from the judgment of Lord President Clyde:- "The petitioner was at the date of his marriage to the respondent and is still a domiciled Jugoslavian, resident in Belgrade. The respondent was at the date of the marriage a Scotswoman, and the marriage took place in 1921 in London. The parties lived together in Belgrade until after the birth of their only child, a daughter, in 1922. Thereafter the respondent, taking the child with her, came back to this country, where she and the child have since remained. In 1928 the petitioner raised an action before the Spiritual Court of the Archbishopric of Belgrade against the respondent for divorce on the ground of desertion, and for custody of the child of the marriage... the Spiritual Court granted decree of divorce, and ordered the child to be delivered to the petitioner... The Supreme Spiritual Court (in Jugoslavia) approved of it subject to certain modifications, one of which was to give the respondent right of access... The respondent refuses to obtemper the order of the Spiritual Courts, and the present petition is brought in order to invoke the aid of this Court (in Scotland) in making it effective. "The important point in the case is raised by...the respondent's contention... namely, 'that, it being highly prejudicial to the health, welfare, and interests of the child that her custody should be awarded to the petitioner, the petition should be refused.' It will be - observed that this contention assumes that the question of awarding the custody of the child to one or other of the parties is an open question in this Court, notwithstanding the foreign judgment; and the assumption may be at first sight warranted by the fact that the prayer of the petition includes a crave that the petitioner should be found entitled to the custody. But, as appears from the averments in the petition, the petitioner's real case is that the foreign judgment already entitles him to the custody; and therefore any finding of the kind prayed for can only refer to a finding that the petitioner is - in respect of the foreign judgment - so entitled. Nevertheless, the respondent argued that the circumstances alleged by her provide sufficient grounds on which this Court should refuse its aid in making the foreign judgment effective. The petitioner's answer was two-fold; he maintained that this Court has no jurisdiction to review or alter what has been judicially done by the competent Court of the domicile, but is bound to give effect to its judgment. ...It is to be observed that... none of the allegations made by the respondent... relate to circumstances which were not extant and fully known to the respondent prior to the proceedings in Belgrade, and therefore pleadable by her - quantum valuerint- in those proceedings. It is also to be observed that there is nothing in the proceedings before the foreign Court, as far as appears from the pleadings in the present petition or from the documents before us, which is inconsistent with our Scottish notions of substantial justice. "The unlimited scope attributed in Administrator of Austrian Property v. Von Lorang, (1997) A.C. 641, to the doctrine of the universally binding effect of foreign judgments in rens goes to support the petitioner's argument. The custody of a child, like its tutory (which may or may not include the right of custody), is clearly a question of status; and proceedings for the disposal or regulation of the custody must therefore be regarded as proceedings in rens. The foreign judgment was pronounced in an undefended action, and was thus a decree in absence, although preceded by inquiry. In a case not dealing with status this might perhaps be enough to prevent the judgment from being res judicata between the petitioner and the respondent...; but the specialty of a foreign judgment in rem is that, so long as it is pronounced by the competent Court of the domicile, it is binding (alike as between the parties themselves and in questions with third parties) upon the Courts of this country without further inquiry. Accordingly, the petitioner's argument is that the status rights of the parents to the custody of the child of their marriage (which status rights constitute the res) have been conclusively adjudicated upon by the competent court of their foreign domicile that is, of the husband's domicile, which is also the domicile of the child - and that this Court is precluded from inquiring into any of the matters with which the respondent's answers are concerned. The fact that the child is for the time being resident in this country and within the jurisdiction of this Court has no importance, according to the petitioner's argument, except as calling for the aid of this Court in giving executive effect to a judgment which is conclusively binding upon it. "But, after all, an appeal to this Court for that purpose is an appeal to its jurisdiction for aid in carrying out the foreign judgment, and necessarily assumes that the jurisdiction can be legitimately used for that purpose, in some way or other, over both the respondent and the child, notwithstanding that both the child in particular - are of foreign domicile. The assumption is of course well founded. In the case of Stuart v. Moore (9 H.L.C. 439; 11 E.R. 799), (in which the guardians in England claimed the handing over of an infant who was in Scotland) Lord Chancellor Campbell said this :- 'The Court of Session had undoubted jurisdiction over the case. By their nobile officiunt conferred upon them by their Sovereign as parens patriae it is their duty to take care of all infants who require their protection, whether domiciled in Scotland or not. But I venture to repeat what I laid down for law in this House near twenty years ago, 'that the benefit of the infant is the foundation of the jurisdiction, and the test of its proper exercise'." "In considering the benefit of the child, it must be kept in mind that neither in such a case as Stuart v. Moore, nor in the present case, are we concerned with any question about the choice between two claimants or candidates for the child's tutory or custody. There is already a tutor or custodier duly appointed by the Court of the foreign domicile; and the benefit of the child is relevant only to the question whether we should lend our aid by ordering delivery of the child to that tutor or custodier". Lord Sands, concurring in the judgment of the Lord President, said :- "The question before us is whether this child falls to be handed over to the custody of her father in Belgrade, or to be allowed to remain with her mother in Scotland. We are bound to regard that question in the same impartial manner us would the Court of a third country - say France - if the child were found temporarily there, and a competition arose in a French Court between the father and the mother. When the matter is so regarded, I think the law is clear. "As your Lordship in the chair points out, this application is not in substance an application to us to determine a question of custody. It is an application to us to give effect to a judgment upon that matter which has already been pronounced by a Court of competent jurisdiction." The Court of Session examined only the terms of transfer of the child from Scotland to Belgrade and the terms of her reception there in surroundings that were unfamiliar to her. After tile court had received satisfactory answers it decided that the mother should deliver her daughter to the petitioner. I have quoted that Scottish judgment in detail, because it is the only one which deals exactly with the question before us in this case, and both in the actual facts and in the arguments, there is great similarity between the two cases. In the same way that counsel for the petitioner repeatedly emphasized before us that he is not asking us to determine the mother's right to the custody of her children, but for the recovery of the custody established in her favour by a competent foreign court, so that approach is prominent also in the Radoyevitch case (6) and was accepted there. As for private international law, the principle was unhesitatingly established in that judgment, that a foreign judgment, which determines incidentally to a divorce the right of one of the parents to the custody of the children, will be recognised. The importance of that judgment is the emphasis therein that the decision concerning the right to custody of children is in the nature of a decision in rem, with all the wide implications inherent in such a decision, binding as it does the whole world. We shall have no difficulty in arriving at a conclusion, on the basis of the rules that we have quoted from Dicey's book and of what we have quoted from the judgment in Radoyevitch (6), that we must recognise the decisions of the French Court that determined the right to the custody of the children in favour of the mother, the petitioner. There is no disputing the fact that the court in France was the competent court to try and to decide the question of the divorce between the parties. The father was present at the trial, and was represented by a lawyer. His argument that, since he was no longer in France when the court delivered its further decision of December 12, 1949, the court had no jurisdiction to make it, is an absurd argument. Here is a father who has flouted and defied the court's decision and has smuggled the children away from their mother, and yet argues that he was tried in his absence. In fact, the petitioner was entitled to found her petition to us on the main divorce decree which was granted on June 2, 1949, and which gave her the right to the custody of her children. The respondent had no real argument to raise against the content of the decree and the decisions that came after it, and, furthermore, could hardly have done so, seeing that according to the rules that we quoted above, there can be no appeal here against a foreign judgment, which is presumed to be extant and effective, on account of an error in the facts or the law. In so holding, it must be said at the same time, that the respondent did not succeed in showing us any error whatsoever in the law or on the facts in the proceedings in France. Counsel for the respondent tried indeed to argue even before us that, in any event, we should not recognise the decisions made in France on two grounds : (a) because the divorce decree is still appealable, and the rule is that foreign judgments are recognised only when they are final; (b) this court, he contends, will not regard the divorce decree as binding so long as the husband and wife have not become divorced by a religious divorce according to Jewish law, and if the actual divorce itself cannot be recognised, then the incidental decisions of the question of the right of custody cannot be recognised. Both arguments are untenable. Admittedly, it is right that, according to the rules of private international law, a foreign judgment is recognised only when it is final and conclusive. As regards a judgment in personam, the matter is covered by Rule 86 (see p. 403 in Dicey's Conflict of Laws). Moreover, as regards a decree of divorce, the question of "finality" is mentioned in the commentary to Rule 93 (p. 431). But in the same place, in Rule 86, it is laid down that a foreign judgment can be final and conclusive even when it is subject to appeal and notwithstanding that an appeal against it is pending abroad where it was given. (Compare also Martin Wolff, Private International Law, paragraph 242, p. 266.) In fact, the opposite view for which counsel for the respondent contended before us would put at nought the intention of the foreign court. For the French court held, even before it gave its judgment on the actual divorce, in its previous decisions, where the father himself gave evidence, that the mother was entitled to the custody of the children; and the judgment of June 2, 1949, it held that the orders concerning the handing over of the custody of the children to the mother were to be executed for the time being, notwithstanding any appeal and without giving security. It is clear that the intention of the court there was not to retract from the weight of its decision by the use of the word "provisoire", and to say that the handing-over of the right of custody was only for the time being. On the contrary, it regarded as urgent the arrangement of the right of custody in favour of the mother, and so, as can be seen from the insertion of the words "notwithstanding any appeal and without giving security", it provided for the immediate execution of its orders concerning the right of custody. As for the second argument concerning the absence of a religious divorce according to Jewish law, counsel for the petitioner was right in saying that we are not dealing with the question of the possibility of a second marriage on his part or on hers. It is clear that, according to Jewish law, such second marriage is forbidden, in spite of the civil divorce, unless preceded by a religious divorce. But, as stated, that question does not arise here. We are here dealing with the question of the effect of the decisions in France relating to the right of custody. The divorce decree, as a civil divorce, is effective according to French law, which applies to the parties according to Israel law (Article 64 of the Order in Council, 1922)1), and therefore the same part dealing with the right to the custody of the children is also effective. (Incidentally, the question of the right to the custody of the children can also arise, according to Jewish law, even while the marriage still subsists though the parents are separated.) . The result is that neither the appeal lodged in France nor the absence of a religious divorce, will entitle us to defer the recognition of the decisions made in France concerning the right to the custody of the children. That brings us to the last point, and that is whether the benefit of the children requires us to alter the decision of the French court. It is agreed that the established rule, and the one which most appeals to the intelligence, is that the benefit of the children must be decisive in exercising judicial discretion, even in cases of habeas corpus. But what are the factors to be taken into account in such judicial discretion? The opinion of the children themselves as to whom they want to go to cannot be sought when they are of such a tender age as are the children in the present case, in particular in habeas corpus proceedings. If authority is required for that, it may be found in the above-mentioned judgment of Queen v. Clarke (5), and in Eversley on Domestic Relations, (pp. 418-423). The parents' opinions are completely at variance. The father contends that the children are depressed when they return from a visit to the mother, and the mother contends that they are irritable when they return from their visit to the father. Their views, therefore, are of no assistance. Even taking into account the requirement of the benefit of the children, the court will not readily alter the decision of the court abroad concerning the right of custody. It is clear that each case has to be considered according to its special nature, and no hard and fast rule can be laid down here. But it may generally be assumed that before the court abroad there were more data to assist in weighing the matter than before the tribunal which is called upon afterwards in another country to recognise the former judgment. There is also special significance in the length of time that has elapsed between the decision of the original court and the decision required from the court in the other country on the strength of the judgment given abroad. In the present case, the court in France, before which all the data were available, including an examination of the state of the children, decided a short while ago in favour of the mother. What in essence did the father contend before us in order to move us to alter the decision of the court in France regarding the custody of the children? Mainly the Ibenoff affair, that I mentioned in some detail in setting out the facts. I assume that for a certain period, the mother (petitioner) was influenced by that person and his opinions, until he turned out to be a criminal. But there is no ground for not believing her, that since then, the man and his system mean nothing to her. There is no foundation for assuming, on the basis of what we heard in evidence from the two parties, that that affair influenced or will influence in any way her capacity as educator of her children. Furthermore, there is no argument here that the husband could not have put forward in the French court, and now he comes before us and claims a new factor in deciding the question of the custody of the children. We know from his evidence and from the divorce decree that the respondent certainly argued the matter of Ibenoff, and not only did the court not accept his argument, but viewed the very fact of his making allegations against his wife arising out of the Ibenoff affair as a serious insult and a grave reflection on her, and as a sufficient ground for divorce. If the French court, which was so close to the "atmosphere", held thus, are we here going to differ from it on that point? He further argued, that his wife lacks the necessary mental stability, and therefore her influence is harmful to the children. That argument, too, was submitted to the French court at various stages in the proceedings, was heard and rejected outright. Now the petitioner has given evidence before us, was examined by counsel for the respondent, and by her own counsel. Her replies were completely balanced and she gave the impression of a restrained person, despite the difficulties she has been through. We have heard about her position in the secondary school in Paris in which there are 1100 children. There, she is not only a teacher, but also assistant to the Board of Directors in dealing with medico-social questions. We have no reason for dismissing the petitioner as not being a satisfactory mother and educator, or for departing for that reason from the decisions of the court in France. Lastly, the respondent father appealed to this court saying that the custody and education of the children should be committed into his hands, contrary to what was decided in France, in view of the fact that he wishes to give them here a national-Jewish upbringing that they cannot receive in France. His counsel added that the rule of public policy calls for such a decision by us. I have the feeling that there is a lack of sincerity in the father's statements in this connection. We have not heard that before the divorce he objected to the method of education given to the children in the school in France, or that he did anything in order to give his children a Hebrew or Jewish education. According to the evidence before us, it is to be assumed that if there remained a spark of Jewish tradition in the Amado family, that spark was rather to be found in the mother's family. The suspicion which the husband projected into the atmosphere of the court, that the mother was likely to convert the children to another religion, was rejected by the mother with disgust, and I have no reason to doubt the sincerity of her words. As for public policy, this court and every judge in Israel would obviously be pleased if every Jewish child that immigrates into the country were to receive his education in Israel. But this is not the way to encourage the immigration of Jews to the Land of Israel. Heaven forbid that we should turn our country into a refuge for people who, during the course of quarrels in their married lives, smuggle their children away in contravention of the law and of justice. That way brings no blessing either to the country or to the children. My conclusion is that, from the point of view of the benefit of the children also, there is no ground for altering the decision of the court in France which gave the mother the right to the custody of her children. Accordingly, the order nisi should be made absolute as against the second respondent. DUNKELBLUM J.: I agree with the judgment of the learned President, and with its reasoning and conclusions. AGRANAT J.: I concur in the opinion of the learned President both as to the result at which he arrived and as to the grounds upon which he relied. CHESHIN J.: I concur without hesitation in the learned President's opinion, insofar as it relates to the first two questions raised in his judgment, namely, that the matter in question was rightly brought by way of petition in the nature of "habeas corpus", and that in the light of the principles of private international law, this court is required to regard the decision of the French court, which entitled the mother to the custody of the children, us the basis for its own decision. The third question however - and it is, in the opinion of all the authorities, the decisive question - namely, whether the benefit of the children requires that that decision be maintained or altered - this question, I must confess, gave me much ground for thought both while the parties and their counsel argued their case before us and when examining the great and varied mass of authorities which were brought to our attention. which the learned President dwelt at some length in his judgment, the father demanded, on the strength of a Jugoslav judgment, to have their eight-year-old daughter, born to them in Jugoslavia and taken by the wife to Scotland when she was a few months old, removed from the custody of his wife and handed over to him. Lord Sands, one of the three judges who composed the court, asked himself the question in this form : is the Scottish court bound to commit the child into her father's custody in Belgrade, or to permit her to remain with her mother in Scotland? The learned judge came to the conclusion that the court should examine the matter from an objective point of view, in the way that, say, a French court might have done, if the child had found her way temporarily to France and her father and mother were carrying on a legal battle in the same court over the right to have the child with them. "When the matter is so regarded," concludes Lord Sands, "I think the law is clear." The Lord President of the Court of Session, Lord Clyde, says in the same case :- "It is quite impossible for us to make up our minds on the balance of advantages and disadvantages ...attendant on Jugoslavian or on Scottish nationality, or on the social or educational associations of either country, and I do not conceive that such a balance could be reasonably or fairly applied to the problem of the child's welfare, even if we thought ourselves able to make it." (p. 627). I dare to express a doubt whether those considerations that were in the mind of the Scottish court, and those only, must be in our minds when we come to deal with a problem of the kind that arises in the present case. An Israel court, in determining the fate of a Jewish child within its jurisdiction, is not entitled to ignore the special position of the Jewish people or of the individual Jew among the nations of the world, and to say to itself, in the words of Lord Clyde, or by way of the illustration that Lord Sands brought : "Let us assume that we are sitting as an English Court in England or an American Court in America." This court and its members are not sitting in vacuo, cut off from reality and from the people among whom they work and create, sharing their ambitions, experiences and desires, and they are not always required to confine themselves within the four corners of a rule and to see everything from the aspect of the letter of the law applicable in other countries. In this respect, one might say that Israel is not like all other nations, and a Jugoslav child whose Scottish mother has brought him with her from Belgrade to Scotland is not the same us a Jewish child whose Jewish father has brought him to Israel from the lands of the Diaspora. The vast majority of the Scottish people resides in its own homeland, and the dangers of becoming assimilated and vanishing do not face them. In the last war, it was not bereaved of a third of its people on account of their being Scottish, and the people of Scotland living in other parts of the world are not subject to perpetual persecution and discrimination on account of their race, and the stock from which they spring. The same applies to the English, to Americans and to Jugoslavs. The Israel nation, alone of all the nations, during all the long years of its exile and through all the lands of the dispersion, almost without exception, has been wantonly persecuted for its religion, its race, its customs, its culture. Whole communities of Jews have been condemned to physical and spiritual destruction and have been utterly destroyed, and others are fighting a desperate struggle for their religion, their culture and their very existence. So well known is it that it requires no proof, that millions of our brethren, among them children of tender years, and youngsters who had hardly left their nurseries and whose parents had at one time taken them with them from the Land of Israel and brought them to the lands of the Diaspora, have been wiped out in our days and before our very eyes and the eyes of the whole world, by one of the "advanced" nations of civilisation, thinking up methods of killing which the Devil himself could scarcely have conceived, contrary to the law of nations and humanity. Can a court in Israel forget this story of annihilation, when it comes to consider the question of removing one of its children from Israel? And are we required to shut our eyes to the reestablishment of Israel in its own land, and the consequences involved for every Jew because of his being a Jew in the achievement of the hope of generations for the return of its people to its own country? The ingathering of the exiles is not just an empty phrase, and each one of us here today, and each one who is not with us today, is fully and clearly cognisant of the fact, that every Jew who immigrates to Israel aids not only the restoration of the nation and the building of the land, but also ensures his own security and future and the security and future of his children and family. A child from Israel who becomes rooted in the land of his forefathers has been freed from the dangers of assimilation and annihilation. The benefit and security of the children whose fate this court has been called upon to settle have to be seen in the light of these and similar considerations. Furthermore, in the case of Radoyevitch (6), the Scottish mother objected to the handing over of her daughter to the Jugoslav father, and gave her reasons for so doing in a long series of arguments and replies; but it was apparent there - and the Lord President, Clyde, comments thereon - that none of the mother's arguments were new, and that she could have submitted them to the Spiritual Court in Jugoslavia before the latter decided on the matter of the right of custody. She did not do so, and was therefore out of time. That, however, is not the position in the present case. Here there has been a change, an enormous change, since the day on which the French court gave its judgment. The father has opened a new chapter in his life. He has decided to settle among his own people, and to bring his children up in the spirit of Israel. I was not particularly impressed with the argument of counsel for the mother, that the father immigrated to Israel because he had kidnapped his children from their mother's home, and because he could find no other place to which to take them. The opposite is true : he took his children with him because he had made up his mind to abandon the life of exile and to live a Jewish life in his own land. It is true that he grew up and was educated in foreign surroundings, and that national values were not of particular importance to him, and that his children have been brought up in that spirit, too. But his intentions are not to be dismissed on account of his past. An enormous change of values has taken place in the outlook and inclinations of many Jews of the Diaspora since the last World War, and in particular after the establishment of the State of Israel. The fact is that he has immigrated to Israel and has brought his children with him. The fact is that, in court, he expressed his desire once more to live with his wife a normal family life, forgetting the past, should she desire to settle in Israel, but she persists in her refusal and she is content with life in the Diaspora. The fact is that, when the children were transferred to a hospital at the commencement of the Festival of Passover, he would not rest until he had succeeded in moving this court to order the children's transfer to a Jewish institution until after the Festival had ended. On the other hand, although she gave her consent to that transfer, the actual entering of the children into a non-Jewish institution was done at the mother's request, and she was not troubled by the fact that the children would be during the Festival and the intermediate days in non-Jewish surroundings. In those circumstances, I am prepared to believe the father when he declares on oath that "out of concern for the fate of the children and a desire to give them traditional Jewish lives... I decided to immigrate to Israel and to live here a quiet, Jewish life, to devote my life to bringing up my children and together with that to put my skill and knowledge in the science of medicine at my people's disposal." I weigh against that the personality of the petitioner - the mother - with her emotional tendencies, to the extent that they were revealed to us in these proceedings. I stated at the outset of my remarks that I am in full agreement with the learned President, that since the French court has committed into her hands the custody of the children, the right to custody is hers. But since the benefit of the children as at today is the true test which must apply, in view of the above stated considerations, me are not free to overlook any of the facts. The words of Lord Sands in the Radoyevitch case (6) are enlightening, when he declares in this connection :- "It is the duty of this Court to extend protection to every child found within its jurisdiction, and it may in certain cases be our duty to extend such protection even against a claim based upon a legal award of custody. The Court will not de plano in every case order delivery to the legal custodian." (p. 628). In other words, it is one thing to treat a judgment of a foreign court with the respect which is its due, and in certain cases also to recognise it, particularly in the light of the principles of private international law, it is quite another matter to consider the benefit of the child. The latter is settled according to the outlook and discretion of the judges who are called upon to determine it in each and every case according to its particular circumstances. There they are not tied to universal principles. You cannot draw an analogy in this type of case from the rules of private international law, nor will such rules be in any way affected even if the court does not uphold to the letter the judgment of the foreign court. From that point of view, considerable importance attaches to the character and capabilities of the mother, who demands for herself the upbringing of her children and the whole of their future. It must be mentioned at the outset that she gave me the impression of being a somewhat fanciful spirit, who has not yet found the way of life suitable to her. In her adolescent years, she engaged in the science of philosophy, and under the guidance of one of her teachers at the University, the Greek teacher, a near and enchanting world was opened before her in the theory of a certain Bulgarian named Michael Ibenoff. For a number of years she studied this theory, and even began to correspond, after her marriage, with Ibenoff, the creator of this theory. I did not succeed in understanding the niceties of this theory, but I heard from the petitioner that it discloses the ways of the East to the peoples of the West, that is to say, a sort of harmonious intermingling of the two differing worlds. While she is engaged in this study, Ibenoff invites her to his home, and somewhat surprisingly she becomes involved, at her very first meeting, in a conversation about her marriage to her husband. Afterwards, Ibenoff invites her - and she accepts his invitation to be present at a ceremony of "breathing exercises of the Yogi kind", "accompanied by beautiful Bulgarian songs", conducted at the first rays of dawn by men and women in the fields near the town of Sevres in France. We were given no explanation, and we do not know to this day, how this idolatry, carried on at an hour which is neither day nor night and when the whole world is fast asleep, is designed to bring the East closer to the West, but we do know that Ibenoff also founded a mystic sect, and that it was his wont to work up women and virgins from among the female followers of his sect into a frenzy, and to incite youngsters to acts of indecency and immorality. We further know that this Ibenoff, who was once given the name of the Bulgarian Rasputin by the French press, was finally caught red-handed and sentenced by a French court to four years' imprisonment. The petitioner served as a disciple to this charlatan, she participated several times in meetings of members of his mystic sect (according to her, together with her husband), and the petitioner was invited to send her children to the school that was about to be founded by the followers of that same sect. In this school, the petitioner explains and declares, it was proposed to introduce the theories of Ibenoff. When Ibenoff was put on trial, the petitioner was at a complete loss and said to one of her acquaintances, as she herself admits in her evidence : "I am utterly confused because I am about to lose a dear friend who has guided me with his advice and led me in the paths of life." In her evidence, she indeed declares that she has drawn away from Ibenoff's sect and today she no longer interests herself in it, "because it is possible to find it (that is, the philosophy of life that Ibenoff preached) in any other philosophy without complications", and she sends her children to a State school, of which by coincidence - or perhaps not by a coincidence - the headmistress, as teacher and principal, is a converted Jewess. The story of the petitioner's relations with Ibenoff and his mystic sect was indeed recounted to the French court, and from the fact that the children were eventually placed in the hands of the petitioner, it is plain that that court found nothing objectionable in her and her character; but the Ibenoff affair is not at an end, since the second respondent - the husband - has lodged an appeal against the judgment, and we do not know what will be the result of that appeal. However, more important than that is that there were not before the French court - nor could there be - the facts that came into existence, as stated, after the giving of the judgment; and it is all the more obvious that it did not take into account those considerations with which we are faced. That court regarded the children as it would regard French children, whereas we regard them as we would regard Israel children, whose father seeks to have them regarded as attached to the body of their resurrected nation. The revival of a nation in its land means the revival of every member of the House of Israel, and the benefit of an Israel child requires that he be formed in the likeness of his people, on the soil of his homeland, and that he should grow and be educated a free person among his brothers, the children of his people, without the marks of a bowed head and an inferiority complex so characteristic of the Jew in the Diaspora in his relations with the people among whom he lives, even though he be born there. From that point of view, that is, from the long-term and final point of view, I do not hesitate to express the opinion that the benefit of the children requires a decision that their place is here in Israel, amongst their people, and by the side of their father. We have, however, still not exhausted the problem, for there is another side to the coin which is no less important : that is the short-term aspect of the matter, the prosaic question as to what the children will eat today and what they will wear tomorrow. The petitioner, in her affidavit, speaks of herself as being a secondary school teacher in France, and earning enough for her own and her children's upkeep. Moreover, she says, her parents have supported her in the past, whenever the second respondent has refused to carry out his obligations towards his family. It seems that those parents are good Jews, and at least in their home they carry on the tradition and customs of Israel. The petitioner even mentioned in her evidence that her mother bad at the time objected to her grandchildren, the children of the petitioner and the second respondent, learning Christian religious studies in the school in which they were being educated, and this objection fell on willing ears so far as the petitioner was concerned. Those statements, whether in writing or made orally, were not denied by the second respondent. On the other hand, it appears that the material position of the second respondent is by no means bright. In his affidavit, he speaks of "prospects of getting settled in his profession in Israel" (paragraph 19), of prospects "of entering my children into a suitable educational institution or into Youth Aliya ...with the assistance of one of the social workers ...in Pardess Hanna" (paragraph 13). But all that is, at the very best, no more than a sort of good hope for the future, and it has not got beyond the stage of prospects. There is nothing positive. At the moment, the children are running around in an immigrants' camp, without supervision and without the presence of relatives which are so necessary to children of tender age (the girl is about seven and the boy about four-and-a-half), subject to the kindness of good people and living on a pittance. When the children became ill on the eve of Passover (and it turns out that their illness was not so dangerous), they had to be transferred to hospital, where they could receive the necessary treatment. We do not know what will happen to them tomorrow, or how the father proposes to supply his children with their most vital needs. At the moment, their sustenance is poor. They have no corner of their own, and even the roof above their heads is not permanent. In the Radoyetvitch case (6) also, in which the Court of Session held that, from the legal point of view, the father was entitled to have the child in his possession, the court was not in a hurry to hold in favour of the father, but demanded satisfactory guarantees to ensure that the child would take root in the land to which the father proposed to take her, taking into account her age, her sex and the fact that she had grown up without any knowledge of her country's language. In this respect, the words of the Lord President, Clyde, are enlightening. The learned judge puts it this way :- "We must in the first place, be fully informed of the petitioner's plans for taking delivery of the child and for its safe conduct to Belgrade, ...and we must be satisfied that he is at the present time in a position to carry those plans out. In the second place, we must be fully informed of the arrangements made by him for the proper reception in Belgrade (with a view to education and upbringing) of this girl of eight years of age, who when she first comes under his care) will be unable to communicate her needs or wishes to those around her, unless they have some knowledge of English. We must also be satisfied that he is at the present time in a position to carry out whatever arrangements for these purposes he may have made." If such is the position of a father, claiming his right on the decision of a court which has already decided in the matter, how much more so in the case of a father whose actual right is still in dispute. When I weigh that short-term view in my mind, it seems to me - and not without considerable hesitation - that despite the long-term view, and notwithstanding the father's good intentions, it would not be right to leave the children's fate hanging on a thread. For that reason, and that reason alone, I, too, think that the order should be made absolute. ASSAF J.: I concur with the learned President on the question of this court's jurisdiction to try the matter before us, brought by way of a petition in the nature of habeas corpus, and also on the question of giving recognition to the judgment of the court in France. In relation to the question whether the benefit of the children requires us to alter the decision of the French court, I admit to considerable hesitation and heartsearchings, similar to those which my learned colleague, Cheshin J., has discussed at some length, although I do not feel the same certainty that he has as to the sincerity of the respondent's statements in relation to the upbringing of the children - that he wants to educate them in a traditional Jewish spirit - seeing that they were made after domestic peace had been shattered, and strife had come in its stead. Further, from the evidence of the respondent in court, it is clear that he was not one of those people who maintain the Jewish tradition, and before the divorce case did not object to the method of education that the children received in France. In his affidavit, the respondent states that, in order that domestic peace be restored, he is prepared to forgive his wife her past offences and to live with her a normal family life, but the serious allegations he has made against her throw doubt on whether he feels the same way as he declares. Counsel for the respondent contended that, if the petitioner were to decide to remain in Israel and leave the children, who are still very young and in need of a mother's care, with her, he would have nothing left to argue; but since she does not propose to do so, and since she is still not divorced from her husband according to Jewish law, he relies on the express passage in the Mishnah 1) that "a man may compel all his household to go up with him to the Land of Israel, but none may be compelled to leave it" (Ketuboth, 110b; Shulhan Aruh, Even Ha'Ezer, 75), and accordingly a husband is entitled to demand of his wife that she, too, immigrate to the Land of Israel. But it seems to me that that rule cannot be relied upon in the present instance. It is obvious that the rule was intended for normal cases, where the husband and wife are living together in the customary way and in the manner of Jewish people, and the husband proposes to immigrate to the Land of Israel while the wife is opposed to immigration, on the ground that it involves the giving up of their established home, the ardours of travel and the liky, or out of lack of desire to leave their former place of residence, where her father's household, her relatives and friends live; but in the present case, where the couple are living separately as the result of a serious quarrel that has already lasted a number of years and where a divorce petition was filed more than two years ago, the better view is that a husband cannot demand that his wife leave her father and mother in the land of her birth and the place where she is earning her living and go after him to the Land of Israel, without being certain that she will lead there a happy life. That can only be done by way of request and compromise and not by compelling her to do so and deeming her a rebel for that reason alone, if she refuses. That being so, we return once more to the question of giving effect and recognition to the French court's decision as it stands, according to which the custody of the children has been accorded to the petitioner. After consideration I, too, agree with the opinion of the learned President and my other learned colleagues, that the former situation should be restored by making the order nisi absolute. SMOIRA P. Accordingly, we make the order nisi absolute as against the second respondent. In doing so, we express the hope that the petitioner will not enforce her legal rights to their full extent, but will see her way clear to make some arrangement which will enable the father to see his children from time to time. Order nisi made absolute against the second respondent. Judgement given on April 16, 1950.

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