Israel Matzav

Romanian court: 'Israel is too dangerous'

In a ruling handed down in January, the Bucharest Court of Appeal overturned an earlier order from October 2007 for the children, aged three and four, to be immediately returned to Israel and to their father's custody, under the terms of the International Hague Convention on the Civil Aspects of Child Abduction.

The treaty, which has been signed by 77 states - including Israel and Romania - was designed to "insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence."

An initial judgment accepted the argument that the children - who lived in Israel until April 2006 - had been kept in Romania by their mother unlawfully. However, on appeal, two out of three Romanian judges in the case accepted the convention's clause regarding returning a child to a country at war or one that is considered a "serious risk" to the child's safety.

"[T]he judiciary authority of the requested state is not held to order the return of the child if the person opposing such return establishes that there is a serious risk that the return of the child would expose him/her to a physical or psychic danger or, in any other manner, would put the child in an intolerable situation," the two judges wrote in their January 7 verdict, a translated copy of which the Post has obtained.

"It is true that the globalization phenomenon entailed the globalization of the terrorism but, in the pending case, the Court analyzed the official reports on the area [to which the two children would have to return]."

"Taking into account the situation of armed conflicts existing in the area where the underage children lived [in Israel] with their mother," the Romanian judges decided, the children did not have to be returned to their father. The court document also referred to a January 2008 warning from the US State Department about clashes between Palestinians and the Israelis that could result in a [security] threat to the region. However, the third and presiding judge in the case disagreed with the danger argument, pointing out that terrorism was prevalent in many other countries today, too.

"This is a dangerous precedent," commented attorney Edwin Freedman, who has represented many clients in cases of international child abduction that fall under the Hague Convention and is currently acting as the father's local lawyer and adviser.

Freedman said that while the decision of the Bucharest Appeals Court could not be overturned and the case would not be reheard in Romania, it is possible that the European Court of Human Rights in Strasbourg would put pressure on the Eastern European nation to reconsider its final ruling.

"In several other cases [worldwide] the argument [of being a country at war] has been raised, but immediately shot down," he said. "Only where Israel is concerned has this argument been accepted to date. I believe that Israel has become a target for this defense."

posted by Carl in Jerusalem @ 1:08 AM