Wednesday, July 16, 2014

The Hague Abduction Convention in Israel

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Israel

By Judge Benzion GREENBERGER, District Court of Jerusalem, Israel

The concept of “Concentration” as it applies to the Hague Convention posits that there is an obvious advantage for each Member State to “concentrate” the judicial jurisdiction to hear Hague cases in a particular, specialised, court or courts within its country-wide judiciary, thus developing a cadre of judges with mastery of Hague Convention jurisprudence, and thereby improving, if not guaranteeing, the professionalism and the quality of the Hague decisions emanating from that country. Of equal importance, a specialised bench will be more sensitive to and aware of Hague jurisprudence developments in other countries as well as its own, and this will in turn contribute to increasing uniformity in the corpus of Hague judgments worldwide.

In Israel, the above advantages of concentration have long been recognised in the field of Family Law generally, as expressed in the adoption of the Family Courts Act of 1995, which established the Family Courts in the various districts of the country. Prior to the passage of this important legislation, judicial jurisdiction regarding the various aspects of family law litigation was bifurcated among various courts: cases regarding the various aspects of family law, including, of course, cases involving children, were heard in the Juvenile Court, Magistrate’s Court, District Courts, and even the Supreme Court (habeus corpus motions), depending on the particular subject matter of the case; and alongside all of the above, the Rabbinical Courts possess concurrent jurisdiction in many matters relating to family law disputes.

The establishment of the Family Courts in Israel concentrates the original jurisdiction relating to all family law matters in specialised courts, empanelled in each district in the country, thereby adopting the principle “one family one judge” as the appropriate judicial approach to all family law matters. Of particular importance is the statutory requirement, unique to Family Courts, that in addition to the general requirements for eligibility to appointment to the bench, judges appointed to the Family Courts must have acquired professional experience and knowledge in the particular field of Family Law as a prerequisite to their appointment.

Regarding Hague Convention cases, these are heard in Family Court, and all Family Court judges are qualified to hear them. Thus, while there is no specific concentration vis-à-vis Hague cases, these are heard by a relatively limited number of judges in the country who specialise in family law, and who are therefore better qualified to be involved in this complex area of the law.

A recent development worthy of note in this regard is the administrative decision of the Chief Judge of Jerusalem District Court, in which three-judge panels hear appeals from the Jerusalem Family Court, to empanel a specialized three judge panel for Hague Convention appeals specifically, and on which panel will sit the judge representing Israel in the Hague Convention Judges Network. This model has yet to be adopted in other districts in the country, but this promising development is a further indication of the trend toward concentration in Israel to date.