Acquiescence – Art. 13(1)(a)
The fact that the father had not seen the girls for the past year and a half, even though he had had the opportunity to do so, was held to be acquiescence within Article 13(1)(a) of the Convention.
Grave Risk – Art. 13(1)(b)
The Court distinguished the present case from that of Ro v Ro, in which a very high threshold had been set for the exception in Article 13(1)(b). In the latter case the applicant father had undertaken not to have any contact with the child and it was accepted that the authorities in England could be relied on to protect the child. In the present case the potential harm to the girls derived from their being in the United States and not just from contact with the father. Justice Drori, delivering the opinion of the court, further suggested that he did not agree with the narrow approach adopted Ro v Ro, which preferred the objectives of the Convention over the welfare of the child, even in extreme circumstances.
Objections of the Child to a Return – Art. 13(2)
In determining the age at which it was appropriate to take into account a child’s wishes, Justice Drori referred to sources of Jewish law in relation to the age at which a minor’s oath was valid ? 12 for girls and 13 for boys. Thus, and in accordance with the impression of the judges and the psychologist, the older two girls’ objections should be respected. The Court then ruled that separating the girls would cause the younger ones psychological damage, consequently none of the girls should be returned.
Issues Relating to Return
The Court held that under Israeli law the doctrine of good faith applied to all legal activities including proceedings under the Hague Convention, even though the doctrine was not mentioned in the text of the instrument. In accordance with the doctrine, in exceptional cases a court which finds an applicant has acted in bad faith, can decide to refuse assistance. In the present case the court found the father’s denial of paternity, which it was not possible to determine under Israeli law within a return application, was an act of gross bad faith. Consequently he should not receive the assistance of the court. The father’s non-payment of maintenance and his previous abduction of two of the girls was not however bad faith.
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