iQUESTION PRESENTED
The Hague Convention on Civil Aspects ofInternational Child Abduction (the “Convention”),
which the United States implemented by enacting theInternational Child Abduction Remedies Act (ICARA),
provides in Article 12 that the courts of a requested
state must order the return of a child who has been
wrongfully removed or retained where a period of lessthan one year has elapsed from the date of thewrongful act. When return proceedings are commenced
after the expiration of the one year period, Article 12
provides that the courts shall also order the return ofthe child, “unless it is demonstrated that the child is
now settled in its new environment”. Where a child has
been unlawfully removed or retained and concealed
from the left behind parent in a country other than thechild’s habitual residence, does the implementation of
the Convention’s declared goals require that equitable
tolling be applied for the period during which the child
was concealed?

ii
TABLE OF CONTENTSQUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . 1
INTEREST OF THE IAML . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.

THE ONE YEAR FILING PERIOD OFARTICLE 12 OF THE CONVENTION IS
EQUIVALENT TO A STATUTE OF
LIMITATIONS . . . . . . . . . . . . . . . . . . . . . 7

II.

THE BRIEF OF THE UNITEDSTATES . . . . . . . . . . . . . . . . . . . . . . . . . 11

III.

PERIODS OF ONE YEAR OR MORE
DUE TO COURT DELAYS DO NOTINVOKE THE WELL SETTLED
DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii
APPENDIX
Appendix A:

David Lee v. Lilly Ezra, Motion
for Leave to Appeal (Family
Matters) 5690/10, Supreme Courtof Israel (English Version)(August 10, 2010) . . . . . . . . . App. 1

Appendix B:

David Lee v. Lilly Ezra, Motion
for Leave to Appeal (Family
Matters) 5690/10, Supreme Courtof Israel (Original in Hebrew)(August 10, 2010) . . . . . . . . App. 15

iv
TABLE OF AUTHORITIESCASES
Abbott v. Abbott,
130 S.Ct. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CA Paris,
8 Aout 2008, Nos de RG 08/05791 et 08/07826 . 8, 9Cannon v. Cannon,[2005] 1 W.L.R. 32, (England) . . . . . . . . . . . . . . 10David Lee v. Lilly Ezra, Motion for Leave to Appeal(Family Matters)
5690/10, August 10, 2010, Supreme Court ofIsrael, (English translation and original decisionin Hebrew). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Dietz v. Dietz,
349 Fed. Appx. 930, 933 (5th Cir. 2009) . . . . . . . 10
In re B. Del C.S.B.,
559 F.3d 999 (9th Cir. 2009) . . . . . . . . . . . . . . . 10
Furness v. Reeves,362 F.3d 702,723(11th Cir. 2004) . . . . . . . . . . . 10
P. v. B. (No. 2), (Child Abduction: Delay)[1999] 4 IR 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Re C (Abduction Settlement),[2005] 1 FLR 938 . . . . . . . . . . . . . . . . . . . . . . 9, 10

v
Re M. (Children) (Abduction: Rights of Custody),[2007] UKHL 55, House of Lords, minority
opinion of Lord Rodger . . . . . . . . . . . . . . . . . . . . 7
Secretary for Justice (NZCA) v. H.J.
[2007] 2 NZLR 289 . . . . . . . . . . . . . . . . . . . . . . . . 9
RULES
Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . 1
OTHER AUTHORITIESActes et documents de la Quartorzieme session,
Tome III, Child Abduction, Hague Conference on
Private International Law, Imprimerie
Nationale/La Haye/1982 . . . . . . . . . . . . . . . 12, 13
1996 Hague Convention on Jurisdiction andProtection of Children . . . . . . . . . . . . . . . . . . 6, 17
1996 Hague Convention on Jurisdiction andProtection of Children, Article 7(b) . . . . . 6, 18, 19
Civil Law Rules of Procedure, 1984-5744,
Regulations 295(b), 258 (c), Israel . . . . . . . . . . . 15
Civil Law Rules of Procedure 1984-5744, Regulation
295 (13)a, Israel . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Comments of the Canadian Government, Actes etDocuments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hague Convention on the Civil Aspects ofInternational Child Abduction . . . . . . . . . . . . i, 1

viHague Convention on the Civil Aspects ofInternational Child Abduction, Article 6 . . . . . . 3
Hague Convention on the Civil Aspects ofInternational Child Abduction, Article 11 . . . . . 3
Hague Convention on the Civil Aspects ofInternational Child Abduction, Article 12 . passim
Hague Convention on the Civil Aspects ofInternational Child Abduction, Article 13(b) . . . 7
Preliminary Document No. 7 of September, 1980,
Comments of the Governments deliberating theConvention draft . . . . . . . . . . . . . . . . . . . . . . . . 11
Public Notice 957, Fed. Reg. 1094 of March 26,
1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1
STATEMENT OF FACTS
The International Academy of Matrimonial Lawyers(IAML)1 adopts the facts as they are stated in the
Petitioner’s brief.
INTEREST OF THE IAMLThe IAML was formed in 1986 to improve thepractice of law and the administration of justice in thearea of divorce and family law throughout the world.
The IAML currently has some 620 “Fellows” in 45
countries, each of whom is recognized by the bench andbar in his or her country as an experienced and skilledfamily law lawyer.2 It is a worldwide association ofpracticing lawyers who are experienced and skilledfamily law specialists in their respective countries.
IAML has made presentations in the US and inother Fellows’ States in relation to legal reforms. The
IAML has sent its representatives to participate inrelevant international conferences, often as nongovernmental experts, including the six Special
Commissions on the Hague Convention on the Civil
Aspects of International Child Abduction( hereinafter;
the Convention). Its Fellows have also written and1

Pursuant to Supreme Court Rule 37.6 counsel for the amici
certify that no counsel for a party authored any part of this brief
and no person or entity other than counsel for the amici has madea monetary contribution to the preparation or submission of thisbrief. The parties’ consents have been filed.

2

The IAML website, www.iaml.org, contains, among other items,
a listing of its Fellows.

2
lectured widely on the Convention and related topics,
such as proceedings to obtain court approved relocationof children to another country.
IAML’s interest in the instant case relates to its
concern that the implementation of the Convention,
which has significantly reduced the harmful effects ofinternational child abduction, will be severely
undermined if the judgment of the Second Circuit inthis matter is affirmed. Many Convention cases arebrought to court in the signatory States by IAML
Fellows. The IAML, therefore, has a strong
professional interest in preserving the deterrent effectof the Convention and ensuring the prompt return ofwrongfully removed or retained children to theirhabitual residence.
The IAML is acting pro bono in submitting thisbrief.
SUMMARY OF ARGUMENT
The purpose of the Convention is to return a child
who has been wrongfully removed or retained to its
country of habitual residence as swiftly as possible.
The Convention does not permit the litigation ofcustody matters within its parameters. It is an
instrument to determine the appropriate forum tolitigate matters of custody and the best interests of thechild. Determinations of legal and physical custody,

3parenting time, and child support are intentionallybeyond the scope of the Convention.3
Article 6 of the Convention establishes a system ofCentral Authorities in each contracting State. EachCentral Authority is charged with carrying out theduties imposed on the states and their politicalsubdivisions in order to implement the Convention.
Among those duties are the obligation to discover thewhereabouts of a child who has been wrongfully
removed or retained; to provide information of ageneral character as to the law of the their State inconnection with the application of the Convention; andto initiate or facilitate the judicial or administrative
proceedings needed to consider the return of the child.
Article 11 of the Convention provides that if the
judicial or administrative body has not reached adecision within 6 weeks from the date of thecommencement of the proceedings, the Central
Authority of the requesting State shall have the rightto request a statement of the reasons for the delay fromthe requested State. Some contracting States, in its
implementing legislation, mandate their courts todecide such cases within the six week period, (See forexample, Civil Law Rules of Procedure of 1984-5744,
Regulation 295 (13)a, Israel). The Convention does notdefine what precisely constitutes the commencement of
the proceedings. It avoids the term “filing of action”,
3

When ratification of the Convention was being considered by the
U.S. Senate and implementing legislation was being considered by
the U.S. Congress, the Federal Court made it clear it did not want
any such legislation to permit parties to litigate their family law
issues in the U.S. District Courts.

4thus leaving it to the interpretation of the courts ineach jurisdiction.
The courts in most jurisdictions have interpreted“commencement of proceedings” as filing an action ina court. However, a minority of courts have held thatfiling a petition with the Central Authority constitutes
the commencement of proceedings. Some of theminority view jurisdictions, such as California andAustralia, commence the legal action on behalf of thepetitioner. Thus, once a petition has been filed with theCentral Authority in those jurisdictions, the left behindparent has commenced proceedings to the extent which
he/she can.
The first paragraph of Article 12 provides that whena period of less than one year has elapsed from the dateof the wrongful removal or retention at the time of thecommencement of the proceedings, the authority
concerned shall order the return of the child forthwith,barring the proof of a recognized defense. Where theproceedings have been commenced after the expirationof the one year period, the authorities shall also order
the return of the child unless it is demonstrated thatthe child is now settled in its new environment. The
significance of the one year period thus has enormous
consequences on the nature of the proceeding and its
likely outcome. Determining whether the child has
acclimated to its new surroundings necessarily entails
precisely the kind of inquiry which Convention
proceedings are not meant to undertake; an evaluationof the best interests of the child. While the one year
period does not constitute a bar on commencing anaction, it does fundamentally change the scope of theproceedings, significantly altering their nature, length

5of time and reduces the probability that a return will
be ordered. Therefore, the argument that the one year
period is not a statute of limitations is thus wholly
unresponsive to the consequences of Article 12. Since
Article 12 has been treated as a statute of limitations,
equitable tolling should apply as it would to any
Federal law containing a statute of limitations.
If by concealing the location of the wrongfully
removed or retained child, the abducting parent
succeeds in preventing the timely commencement of aproceeding, they are given an enormous advantage inan action for return of the child. If the time during
which the abducted child is concealed is not tolled, thepurpose of the Convention is severely undermined. Not
only would the deterrent factor be vitiated, it would infact encourage parents who contemplate abduction toalso conceal the child in order to insure a successful
defense to a return petition. Thus, the failure to
implement a tolling of the one year period would be theequivalent of telling the abducting parent that theirunlawful actions will likely be successful if they
commit yet another wrongful and heinous act:
concealment of the child.
The consequences of invoking Article 12 relate only
to the date proceedings are commenced. There are no
legal consequences where the proceedings do notconclude within a year. Thus, when the left behindparent has acted in a timely fashion, but the court, forno reason which is attributable to the petitioner, does
not render a judgment within a year, as unfortunately
is often the case, there is no invocation of the settled
into its environment test. The courts focus is not aprincipled belief that after a certain length of time,

6
broader factors should be weighed before making a
return order. Rather the emphasis is on the timely
action of the left behind parent. Courts do not permit
the abducting parent who deliberately delays
proceedings for more than a year to invoke the settled
into the new environment defense. Why then, should
the abducting parent be able to invoke that defense by
preventing the left behind parent from discovering thechild’s whereabouts?
The IAML believes that the destructive
consequences of child abduction, which is a form ofchild abuse, are compounded by not tolling the period
during which the whereabouts of the child are
unknown. A reasonable solution can be adopted fromthe more recent 1996 Hague Convention on
Jurisdiction and Protection of Children (Child
Protection Convention) which provides a rational andsimple formula in establishing jurisdiction in childcustody disputes. Article 7(b) of the Child Protection
Convention provides that in the case of wrongful
removal or retention, jurisdiction passes to the new
State where the child resided in that new state for atleast one year after the left behind parent has orshould have had knowledge of the whereabouts of thechild and no request was timely filed and the child is
now settled in the new State.
A further simplification of this issue can be made byadopting the position that where the child’s
whereabouts are unknown, the filing of an application
with the Central Authority of the child’s habitualresidence will be considered the commencement ofproceedings for purposes of Article 12. This will enable
the left behind parent to take action within the7specified period if he/she wishes to bring about thereturn of the child and it will simultaneously
discourage the abducting parent to seek an advantage
by concealing the child.
ARGUMENT
I. THE ONE YEAR FILING PERIOD OFARTICLE 12 OF THE CONVENTION IS
EQUIVALENT TO A STATUTE OF
LIMITATIONS.
Article 12 provides that the child may be returnedeven if the petition is filed after one year, unless(emphasis not in original), the settled in its newenvironment defense is established. Unlike theprovisions of Article 13b of the Convention, there is noexpress discretion to order a return if the child is now
settled in its new environment. The discretion to
return provision precedes the settled in its newenvironment exception in the article. Thus, there is noexpress discretion to order the return if the child is
now settled in its new environment where the petition
was filed after the one year period. While most courts
have inferred a discretion to return, there is no clear
mandate to do so in the Convention. See Re M.
(Children) (Abduction: Rights of Custody) [2007] UKHL
55, House of Lords, minority opinion of Lord Rodger.
Even where such discretion is inferred, the one year
period severely limits the left behind parent’s chancesof succeeding in the petition for return and often
becomes a de facto statute of limitations.
The opinion of the Second Circuit in this matter,reported at 697 F.3d 41, holds that “Unlike a statute of

8limitations prohibiting a parent from filing a return
petition after a year has expired, the settled defense
merely permits courts to consider the interests of achild who has been in a new environment for morethan a year before ordering the child to be returned toher country of habitual residency”, (page 14 of thejudgment). It is not the court’s authority to order areturn after the one year period which should
considered. What must be considered is the likelihoodof successful implementation of the substantive rightof return when a well settled defense is permitted.
In addition to the argument that the Convention
does not provide the courts with a clear mandate ofdiscretion, in practice, the possibility that an order ofreturn will be made in such cases is significantly
diminished. As stated in the petition for certiorari, only
two courts in published decisions have ever ordered thereturn of a child after making a well-settled finding.
See p. 22 of the Petition for Writ of Certiorari. The
courts in other signatory States have taken a similar
approach. In addition to the above cited Re M., courts
in member States routinely refuse the return of
unlawfully removed children when the petition is filed
more than one year after the removal or unlawful
retention. In practice, the failure to toll the one year
period is most often outcome determinative.
By way of one example, the Appellate Court ofParis, France denied a return where a petition was
filed sixteen months after an unlawful removal. The
court held that in a conflict between the Convention’s
purpose and the greater interest of the child, theConvention’s purpose takes second place. See CA Paris,

9
8 Aout 2008, Nos de RG 08/05791 et 08/07826.4 The
Supreme Court of Ireland issued a judgment not toreturn where the petition was filed by the publicprosecutor 20 months after the unlawful removal but
within one year after discovery of the child’s location.
Although the removal was unlawful, the child had
become settled in its new environment. P. v. B. (No. 2),
The(Child Abduction: Delay)[1999] 4 IR 185.5
Supreme Court of New Zealand ruled in a case where
the children were unilaterally removed from Australia
by the mother in February, 2002. The father was
notified of the children’s location in May, 2003 andcommenced return proceedings in December of thatyear. The Supreme Court upheld the lower court’srefusal to order their return, accepting the argumentthat they were now settled in their new environment.
Secretary for Justice (NZCA) v. H.J. [2007] 2 NZLR
289.6 In a case where a child was abducted to Englandfrom the U.S., the parents reached an agreement in1999 to return the child to its habitual residence.
However, the abducting mother then removed thechild, who was only located in 2003. The court refused
the petition for return based on its finding that thechild was settled in her new environment. The court
noted that her emotional life was not complete, beingout of contact with her father, but that did not meanthat she was not settled in her new environment. Re C

4

Case cited at www.incadat.com.

5

Case cited at www.incadat.com.

6

Case cited at www.incadat.com.

10(Abduction Settlement) [2005] 1 FLR 938.7 Although it
is beyond the scope of the Convention, one cannot
completely ignore the consequences of the failure to
apply equitable tolling for the future relationshipbetween the left behind parent and the child. The postjudgment prospects in a case such as Re C for the left
behind parent to re-establish contact with the child arevery slim. An abducting parent, who is permitted toconceal the child without suffering any legal
consequences, will have no incentive to abide by any
court ordered visitation schedule. As noted by the U.S.
Supreme Court, “Abductions may prevent the childfrom forming a relationship with the left-behindparent, impairing the child’s ability to mature”. Abbott
v. Abbott , 130 S.Ct. 1983, 1996.
While courts in other signatory states have not
adopted equitable tolling, some have fashioned other
responses to concealment, such as a heightened burdenof proof where the settled in defense is claimed. See forexample, Cannon v. Cannon, [2005] 1 W.L.R. 32,(England). In the United States, the overwhelming
majority of federal appellate and district courts haveapplied equitable tolling in cases where the abducting
parent concealed the child’s location, as in the present
case. See, e.g. Furness v. Reeves, 362 F.3d 702,723(11thCir. 2004), Dietz v. Dietz, 349 Fed. Appx. 930, 933 (5thCir. 2009), In re B. Del C.S.B., 559 F.3d 999, 1014-15(9th Cir. 2009).

7

Case cited at www.incadat.com.

11
II. THE BRIEF OF THE UNITED STATESThe amicus curiae brief submitted by the UnitedStates represents a 180 degree reversal of its previous
position on equitable tolling prior to the present
petition. Petitioner’s writ clearly cites the position heldby the United States commencing in 1980 until thepresent case. The United States supported equitable
tolling in the 1980 deliberations on drafting of theConvention. In Preliminary Document No. 7 ofSeptember, 1980 in Comments of the Governments
deliberating the Convention draft, the United States
made the following comment on Article 11, which later
became Article 12 in the final version of theConvention:
The United States is perturbed about thisarticle’s extremely restrictive time limits. As apractical matter, it may not be possible to locatea child and to bring proceedings in an
appropriate court within these limits. This isparticularly true in large federated States suchas the United States, which also has norequirement for persons to register uponestablishing or changing their residence. A
statute of limitations (emphasis added) of six
months from the date of abduction to theinstitution of legal proceedings, or a maximumof one year in the case of the child’sconcealment, will cut of many deserving
applicants and their children. Rather thandeterring abductions this article may benefit
those abductors who have the financial means
and friends to arrange for life underground,perhaps moving from place to place to avoid

12
detection. The child in the meantime issubjected to the life of a fugitive.
It has been said that the time limits arenecessary because children will be integrated
into a new social environment within 6 months
to a year, and that it would be contrary to theirinterests to be returned thereafter. Discussions
with mental health professionals in the UnitedStates indicate that there is serious doubt about
the correctness of such a general assumption. It
is recognized that there comes a point in time
when it could be harmful to uproot children
after an abduction. However, as the Rapporteur
points out, it is impossible to come up with anobjective criterion concerning the child’s
integration into a social environment so that any
time period adopted ‘will always be of anarbitrary nature’ (Report, paragraph 89).
It is true that possible harm to the child throughrenewed change of environment after a lengthy
stay with the abductor should be considered. But
this must be weighed against the Convention’s
principal objective of deterring kidnappings,
which are themselves traumatic experiences forchildren. In such a weighing process theunproved assumption of harm to children after
an absence of six months to one year is clearly
outweighed by the necessity to curb abductions.
If the time limits of this article remain as
written, they may promote rather than deter
abductions. The United States urges that at thevery least 1-year and 2-year limits besubstituted for the present deadlines. (Actes et13documents de la Quartorzieme session, Tome
III, Child Abduction, Hague Conference on
Private International Law, p. 242, Imprimerie
Nationale/La Haye/1982).
In addition to calling for a minimum of a two year
limit before the settled in defense can be invoked incases of concealment, the United States, contrary to its
present position, refers to the time limit as a statute oflimitation. The United States’ brief before this court
also fails to explain how a child whose left behindparent has been suddenly and inexplicitly removed
from its life, who is often told by the abducting parent
that the left behind parent is no longer interested inmaintaining contact, or is indoctrinated with fabricatedtales of horror from which the child has allegedly beensaved, can possibly be well settled in any environment.
In Public Notice 957, Fed. Reg. 1094 of March 26,
1984, the U.S. Department of State made the following
point regarding Article 12. “If the alleged wrongdoer
concealed the child’s whereabouts from the custodiannecessitating a long search for the child and thereby
delayed the commencement of a return proceeding by
the applicant, it is highly questionable whether the
respondent should be permitted to benefit from suchconduct absent strong countervailing considerations.”
P. 10509.

14
III.

PERIODS OF ONE YEAR OR MORE
DUE TO COURT DELAYS DO NOTINVOKE THE WELL SETTLED
DEFENSE.

In a significant number of cases that were filed
within the one year period, the final judgment was
rendered two or more years after commencing theaction. Those delays, whether due to crowded court
calendars or the use of delay tactics by the abducting
parent, do not constitute grounds to raise the wellsettled defense.8 Once the petition is filed in within the
one year period, it would be inequitable to negatively
impact petitioner’s chance of success due to delays
beyond his control. It would certainly be an injustice topermit delays caused by the abductor to change theultimate decision of the court as result of allowing thewell settled defense. If that were the case law, delay
tactics would be used in every case in order toundermine, if not nullify, the purpose of theConvention.
Concealment of the child is simply another form of
delay tactic. As long as the period of concealment istolled, the purpose of the Convention is preserved andthe abducting parent does not profit by this harmful
conduct. From the child’s perspective, there is nodifference whether the time elapsed is due toconcealment, delay tactics of the abductor, orovercrowded court calendars. If the time is tolled once

8

“It will be noted once again that this time limit does not affect thelength of the proceedings in court”. Comments of the CanadianGovernment, Actes et Documents, id. p. 231, under Art. 11.

15
the petition is filed in a timely manner, than there isno justification for not tolling the period during whicha child is concealed. Counsel for these amici know of
not one learned article published in leading journals
that conclude the settled in defense serves the bestinterests of children.
A case which illustrates this point, Lee v. Ezra,9wasdecided by the Supreme Court of Israel. The motherunlawfully removed the child to Israel from Nevada.
She did not inform the father where she and the childwere located. Several months subsequent to theabduction, the father was able to obtain information
which led him to believe that the child was in Israel,
where the mother had family members. Although her
precise location was unknown, the father was able tocommence action as Israel’s civil law regulations10
permit the filing of Convention cases in the Tel Aviv
court in such instances. His action was filed fivemonths after the abduction. The Family Court granted
substituted service and a default judgment was
rendered ten months after the abduction, ordering thereturn of the child.
The judgment was not executed as the child could
not be found. Just over three years subsequent to the
judgment, the mother was located during a random
police check. After being personally served with the9David Lee v. Lilly Ezra, Motion for Leave to Appeal (Family
Matters) 5690/10, August 10, 2010, Supreme Court of Israel,(English translation and original decision in Hebrew).

10

Civil Law Rules of Procedure, 1984-5744, Regulations 295(b),258 (c), Israel.

16
return order, the mother filed for a stay and for an
order to set aside the default judgment. The Family
Court granted both motions and a new trial was held.
The court made its new decision three months
subsequently, 38 months after the abduction. It heldthat the removal was unlawful but ruled that thecommencement of proceedings for purposes of Article
12 was the time of the actual trial and not the date offiling. The court then held that it was entitled toconsider whether the child was settled in to his newenvironment. The court found that the removal was
wrongful but return was denied as the court held thatthe child was now settled in.
The father appealed the decision to the District
Court of Tel Aviv sitting as an appellate court. The
District Court reversed the trial court, holding that thelanguage of the Convention is clear and that the one
year period runs until an action is commenced. In thiscase, the date on which the father filed his petition
with the trial court is determinative. Therefore, thetrial court erred in considering the settled in defense.
In August of 2010, four and a half years after theabduction, the Supreme Court of Israel affirmed theruling of the District Court. The child was thenreturned to the United States by the father, as themother chose to remain in Israel, despite her
allegations of the grave risk of intolerable physical andpsychological harm to the child should he be returned.
The simple fact that a petition was filed with the court
within five months of the abduction, even though theactual trial took place three years subsequent to theabduction and the return occurred over four years
later, meant that the settled in argument was not
relevant. Certainly, none of the procedural matters are17of concern to the child. Yet due to the fact that the US
has no jurisdictional regulation parallel to that ofIsrael, a US court would consider the settled inargument in the same fact pattern simply because theleft behind parent would have no place to file thepetition in a timely manner. The results would most
likely be completely opposite in the two countries dueto the technicality of a filing provision or lack thereof.
The IAML seeks to have the Convention
implemented in good faith. It should not be a weaponthat a left behind parent can threaten to invoke for an
undetermined period in order to gain tacticaladvantages in negotiating with the other party. In
order to counter that possibility while not encouraging
the concealment of abducted children, a simple solution
is suggested. Whenever the whereabouts of the child isunknown to the left behind parent and the Central
Authority of the requesting State is unable to ascertain
the child’s location, filing an application with theCentral Authority should be considered as thecommencement of the proceedings for purposes of
Article 12. There is nothing in the Convention that
contradicts such an interpretation. In fact, as discussed
above, some courts have held that the actioncommences when the application is filed with theCentral Authority. If the application is filed within the
one year period, then the settled in defense should not
be considered. This enables the left behind parent totake action within the specified period while
simultaneously discouraging the abducting parent toseek an advantage by concealing the child.
A further solution can be found in the 1996 Hague
Convention on Jurisdiction and Protection of Children.

18
Article 7(b) of that Convention provides that in the caseof wrongful removal or retention, jurisdiction passes tothe new State if the child resided in that new State forat least one year after the left behind parent has orshould have had knowledge of the child’s whereabouts
and did make a timely request. We believe that the
adoption of this principle to the Abduction Convention,
along with the solution of filing with the Central
Authority as stated above, provides an equitable
resolution for the implementation of the well settled
defense in cases where the child is concealed.
CONCLUSIONThe IAML concludes that equitable tolling must beread into the Convention in cases where the child has
been concealed by the abductor. A decision to thecontrary would undermine the goals of the Convention
and enable its own undoing. Failure to apply tolling not
only encourages parents who consider abducting theirchildren to carry out the abduction, it would cause
further damage by encouraging those abductors toconceal their child. Consideration of the well settled
defense significantly reduces the chances for a returnorder. It turns the Convention proceedings from adeliberation on the choice of forum to a hearing on thebest interests of the child. This is contrary to the goalsof the Convention, which are to discourage childabduction and to bring about the swift return ofabducted children.
The IAML’s proposed solution of tolling the period
in the case of a concealed child from the date of filing apetition with the Central Authority or adopting theprovisions of Article 7(b) of the 1996 Convention on

19
Jurisdiction and Protection of Children presents areasonable and equitable resolution of the issue before
this court.
Respectfully submitted,
Cheryl Hepfer
Counsel of Record
Offit Kurman
4800 Montgomery Lane
Suite 900
Bethesda, Maryland 20814(240) 507-1700
chepfer@offitkurman.com
Counsel for Amicus Curiae International
Academy of Matrimonial Lawyers
Edwin A. Freedman
154 Menachem Begin Rd.
Tel-Aviv, Israel 64921
972-3-6966611
edwin@edfreedman.com
Gerald L. Nissenbaum
Anne-Marie Hutchinson
Charlotte Butruille-Cardew
Daniel Trachsel
Tim Amos
Timothy Scott
2 Yew Tree Close
Hatfield Peverel
Chelmsford
Essex CM3 2SG
Englandi
APPENDIXTABLE OF CONTENTS
Appendix A:

David Lee v. Lilly Ezra, Motion
for Leave to Appeal (Family
Matters) 5690/10, Supreme Courtof Israel (English Version)(August 10, 2010) . . . . . . . . . App. 1

Appendix B:

David Lee v. Lilly Ezra, Motion
for Leave to Appeal (Family
Matters) 5690/10, Supreme Courtof Israel (Original in Hebrew)(August 10, 2010) . . . . . . . . App. 15

App. 1APPENDIX A
State of Israel
At the Supreme Court
Motion for Leave to Appeal (Family
Matters) 5690/10
Before:The Honorable Judge E. Rubinstein
The Honorable Judge N. Hendel
The Honorable Judge U. Fogelman

Petitioner:A
VersusRespondent: B
Hearing on a Motion for Leave to Appeal
upon the ruling of the Tel Aviv District
Court dated 8.7.10 in Misc. Family
Matters 18359 rendered by Judges I.
Stufman, T. Shapira and S. Shohat
Hearing Date: 30 Av 5770 (10.8.10)
On behalf of the Petitioner: Adv. Nehama Zibin
Adv. Bernard Alfasi
On behalf of the Respondent: Adv. Edwin Friedman
Adv. Ela Rudnik

App. 2
RulingJudge N. Hendel
1. Before us is a Motion for Leave to Appeal upon theruling of the Tel Aviv District Court (Misc. Family
Matters 18359-05-10, dated 8.7.10), which
instructed the return of a abducted child – the sonof the Parties, born 3.1.03 – to the United Statesaccording to the Hague Convention Law (Return of
Abducted Children), 5751-1991 (hereinafter: “theTreaty”). Thus, the District Court accepted the
Respondent’s appeal on the ruling of the Family
Matters Court in Ramat Gan (Family File
34860/06), which had rejected his claim according to
the Treaty.
Procedural Background
2. The Respondent is of Chinese origin and a residentof the United States. The Petitioner was born inIsrael and has American and Israeli citizenships.
The Parties are not married. They met around theyear 2002 and their son was born, as aforesaid,
about one year afterwards.
Even though we are dealing with a proceedingadministered according to the Treaty, and thus
should have been heard urgently, its administration
spread over several years. The legal proceedings
regarding the child began in 2005, when an order
was rendered by the Court in the State of Nevada in
the United States, according to which both parents
were provided with joint custody over the child.
According to this order, the child was to be underApp. 3
physical custody with the Petitioner and the
Respondent was to be provided with visitationrights. About seven months afterwards, on 1.2.06,
the mother arrived in Israel with the child without
the father’s knowledge. After about five months, on
12.7.06, the Respondent submitted to the Family
Matters Court a claim for return of his son,pursuant to the Treaty. On 6.12.06, the Family
Matters Court ruled in favor of the Respondent in
the absence of a statement of defense andappearance by the Petitioner. The ruling was not
implemented until 18.1.09. On this date, thePetitioner was located randomly as part of a routine
inspection by the traffic police. About a week later,
the Petitioner submitted a motion to abolish theruling, which was accepted. Evidence was heard
and an expert was appointed.
The Family Matters Court ruled that the child has
been unlawfully removed by the Petitioner.
Nevertheless, the Family Matters Court rejected
the Respondent’s claim, on the basis of thedetermination that he had settled in his new
surroundings. The Respondent emphasized that
Article 12 of the Treaty allows for examination of
the minor’s settlement only if one year elapsed fromthe date of removal of the minor untilcommencement of the proceeding. Recall that theclaim was submitted several years before then.
However, the Court rejected the Respondent’s claim
and determined that the period of one year should
be counted from the date on which actual treatmentof the proceeding commenced. Moreover, the Family
Matters Court determined that the defense of
acquiescence of the parent regarding abduction of

App. 4the child, as set forth in Article 13(A) of the Treaty,
applied in this case. This was also set forth as to theapplication of Article 13(B) of the Treaty on thiscase, regarding psychological damage to the child.
The District Court abolished the ruling of the
Family Matters Court, and instead ruled that the
Respondent’s claim was to be accepted. As to Article
12, it was emphasized that the period of one year
should be counted from the date of removal until
the claim submission date and not beyond. Thus,
the test of settlement per Article 12 of the Treaty
could not be applied to the case. Also, it was ruledthat the Respondent never acquiesced with theabduction pursuant to Article 13(A) of the Treaty.
Finally, it was set forth the according to an expert
opinion, there was no basis for the determinationthat it had been proven that damage would becaused to the minor, pursuant to Article 13(B) of theTreaty, in a manner justifying rejection of the
Respondent’s claim. The basis for the claim
regarding cause of psychological damage was anarrest warrant issued against the Petitioner
without her knowledge and the implications of thematter on the child. However, during the hearing at
the District Court it was discovered that the arrest
warrant had been abolished on 16.4.10.
The Parties’ Arguments
3. The Motion for Leave to Appeal was set for ahearing before three judges. The Parties argued inwriting and an oral discussion was also
administered. As indicated, the Respondent placesemphasis on two main arguments: first, the District

App. 5Court erred in rejecting the position of the Family
Matters Court according to which the period of one
year, pursuant to Article 12 of the Treaty, ought tobe counted according to the date on which actual
treatment of the proceeding began. Second, severe
damage may be caused to the minor if the Petitioner
traveled to the United States in order to participate
in a proceeding to be held there – if the District
Court’s ruling prevailed. The reason is that there issubstantial risk that the Petitioner would bearrested by the police due to the abduction of the
Respondent thus requested. The severance caused
between the Petitioner and her son if such scenario
materialized would impose great hardship on thechild. Accordingly, there is basis for the conclusionthat the Respondent would involve the authorities
in order to bring about the Petitioner’s arrest. On
the other hand, the Respondent holds that there isno error in the ruling of the District Court and nobasis to the argument that he would act in order tobring about the Petitioner’s arrest.
Discussion
4. I shall refer to the arguments according to theirorder. Article 12 of the Treaty sets forth:
Where a child has been wrongfully removed orretained in terms of Article 3 and, at the date of thecommencement of the proceedings before thejudicial or administrative authority of theContracting State where the child is, a period of lessthan one year has elapsed from the date of thewrongful removal or retention, the authority
concerned shall order the return of the childforthwith. The judicial or administrative authority,

App. 6even where the proceedings have been commenced
after the expiration of the period of one year
referred to in the preceding paragraph, shall alsoorder the return of the child, unless it isdemonstrated that the child is now settled in its
new environment…”
As we can see, the Treaty allows for examination of
the child’s settlement in his new surroundings only
if one year elapsed from the date of removal until
the date of the proceeding commencement. The
examination is found between two checkpoints: theremoval date and commencement of theproceedings. In our case, the proceeding was
initiated at the Family Matters Court on 12.7.06,
that is, only five months after the removal date. As
aforesaid, the Family Matters Court afforded
weight to the fact that “treatment of the claim” had
not begun until 2½ years following the date of its
submission or three years following the date of theremoval (pg. 7 of the ruling of the Family Matters
Court). This approach ought to be rejected. The
term “commencement of the proceeding” is selfexplaining. There is no room to determine thatcommencement of the proceeding is from the stage
at which the case reaches actual treatment. It
seems that this is certainly a different stage than“commencement of the proceeding”. Theinterpretation offered by the Family Matters Court
has no basis in the rulings of the District Court, thisCourt or foreign countries that also engage ininterpretation of the Treaty. Although terms in theTreaty may not be interpreted according to theinterpretation of a similar term in the internal law,
it is interesting to refer to Regulation 7A of the Civil

App. 7
Procedure Regulations, 5744-1984, entitled“Commencement of the Proceeding”. Regulation
7A(A) defines the term as follows: “A proceeding at
Court shall commence with the submission of aclaim”. Beyond the fact that the language of the law
is clear in the sense that the intension is not, forexample, initiation of the evidence proceeding, thepurpose of the law is not compatible with theinterpretation suggested by the Family Matters
Court.
If commencement of the proceeding means actual
treatment of the claim, then this may encourage theabducting parent to prolong the proceeding andprevent commencement of actual treatment of theproceeding, so that he may better substantiate anargument according to which the child involved
settled better in the environment to which hebrought the child since he had stayed there longer.
For this reason, the relatively short period of one
year was set forth in the Treaty. The result would
be that the abducting parent benefited fromprolonging the proceeding. As written in Section
108 of the Perez-Vera Report, which constitutes anofficial interpretation of the Treaty:“The article as retained the date of which
proceeding were commenced, instead of the dateof decree, so that potential delays in acting on
the part of the competent authorities will notharm the interest of parties protected by theConvention”.
(Elisa Perez-Vera, Explanatory Report on the1980 Hague Child Abduction Convention, Hague

App. 8
Conference on Private International Law, Acts
and Documents of the Fourteenth Session (Vol.
III, 1980), p. 459).
That is, the aim in setting the date at thecommencement of the proceeding and not therendering of the ruling was to protect the parent
worthy of protection according to the Treaty – theparent from which the child was abducted.
The Petitioner’s Counsel, Adv. N. Zibin, was awarethat a new interpretation for term “commencementof the proceeding” was involved, but noted that thetrend today was to interpret the Treaty in a mannercompatible with the best interests of the child. My
response is that the matter depends on the termthat is the subject of the interpretative process.
There are terms that naturally requireinterpretation and cannot be defined by pointing toa certain point on the time axis. So, for instance,
regarding interpretation of the term “regular placeof residence” of the child. I accept that uponinterpretation of this term, there is room to
examine the matter from the child’s perspective, butthere are other possibilities in Court rulings (see,for instance, Family Matters (Beer Sheva) 130/08 A
v. B (31.8.08), in which different approaches appear
as to definition of the term “the child’s place ofresidence”). However, “commencement of theproceeding” is not such a term. If the enactor of theTreaty had desired to define the term in the manner
proposed, he could have written terms such as “fromthe date of hearing of the evidence”, “from the dateof rendering of the ruling” or “from the date ofactual treatment of the proceeding”. The Treaty is

App. 9built upon gentle balances in order to fightagainst the harsh phenomenon of abduction ofchildren from one country to another andthere is no room for provision ofinterpretation to the Treaty that is
incompatible with its words and purpose.
5. An additional argument of the Petitioner that cameup at the hearing was the concern that upon arrivalof the Petitioner at the United States in order totake part in the proceeding that was supposed to beadministered there, she may be arrested as a resultof application by the Respondent to the authorities.
While the arrest warrant issued against thePetitioner was abolished, there was no prevention,
so it was argued, from the Respondent turning to
the authorities upon the Petitioner’s arrival at theUnited States in order to participate in the trial. In
response, the Respondent’s Counsel, Adv. E.
Friedman, announced that he would be willing tosubmit a letter on behalf of his client, to be sent to
the local district attorney in the US, according towhich he was not interested in the Petitioner beingarrested as aforesaid. A copy of such letter, dated
10.8.10, addressed to the Deputy Attorney Generalof the State of Nevada, was recently submitted tous. The letter received is clear and explicitly
specifies that the Respondent is not interested andhas no intention of effecting the administration of
criminal proceedings against the Petitioner. The
Respondent also requested that substantial weight
be afforded to his position on the matter. It seems
that this letter obviates the concern raised by the
Petitioner’s Counsel regarding the probability forher client’s arrest. It is true that the Respondent’s

App. 10position does not bind the DA in the State of
Nevada. However, experience indicates that except
for extraordinary cases such as abduction of a childthrough violence or repeated abductions – thechance that the Petitioner will be arrested is nothigh. It is certainly not higher than for any parent
returning to the country from which the child was
abducted in order to participate in the legal
proceeding. If we accepted the argument, the result
would be that the abducting parent would beentitled to argue that the child ought to be left at
the country to which he was taken due to theconcern regarding his arrest at the country fromwhich the abduction was performed. Of course, thisis not the position of the Court rulings.
A final point that is noteworthy is that there was noroom to set forth that the Respondent has
acquiesced with abduction of the child after he had
been brought to the State of Israel. To the contrary–
it seems that the Respondent’s actions speak loudly
and sharply and indicate that he is acquiescent as
to the abduction at all.
6. Therefore, whereas it is agreed that the Petitioner
performed abduction towards her son, and theexception appearing in Articles 12-13 of the Treaty
do not apply, the District Court was correct indeciding, in practice, to instruct that the trial beheld in the United States, while abolishing theruling of the Family Matters Court.
It shall be noted that the implication of rejection of
the Motion is that the last section in the District
Court’s decision is in effect. According to thisApp. 11
Section, the Family Matters Court must discuss“the arrangements for return of the child to the US,
arrangement of the flights, guarantee of childsupport and housing for the child as pertain to
relocation of the minor from Israel to the US”, inorder to safeguard the child’s best interests during
the period until the decision by the Court in the US.
It may be assumed that the Family Matters Court
will act promptly in order to determine thearrangements required in order to transfer theminor to the US. Hopefully, the Parties will
understand that their son is common to them andthat they have the power to impose hardship on himor, on the other hand, alleviate his hardship, during
the upcoming period of relocation to the US.
Assumingly, the difference between the two
possibilities may be very significant for the child at
the junction where he is found.
7. I did not find that the District Court erred in its
conclusion. There was no room to affirm the rulingof the Family Matters Court. I would propose to
reject the Motion and for the Petitioner to incur the
Respondent’s expenses at the sum of NIS30,000 asof today.
Judge
Judge E. Rubinstein:
A. I agree with the opinion of my colleague, Judge
Hendel. Hague Treaty cases, certainly once several
years have passed since the abduction, often raisea difficult humane question, since the cost of thesituation formed is often paid by the minor that isApp. 12the subject of the proceedings and he is essentiallythe subject of the abducting parent’s wrongdoing. In
Motion for Leave to Appeal (Family Matters)
2338/09 A v. B (unpublished), I had the chance tosay:“Hague Treaty cases naturally represent humantragedies, war between parents, who may beessentially be normative parents, though wish toreside in different countries. The international
order at the ‘global village’ and the simple mobility
that is characteristic of the same resulted in theHague Treaty which aims at ensuring theimmediate return of children unlawfully removed toanother country (Judge Procaccia in Motion for
Leave to Appeal (Family Matters) 672/06 A v. B
(unpublished), par. 8). As she noted, in such cases
the best interests of the child is decisive only
‘whereupon its weight prevails over the central
purpose of the Treaty’. Each of these cases
represents human worlds above which there is theworld of the minor that is taken from one place toanother.”
B. Unfortunately, this is the case here as well: themother acted unlawfully and as described by mycolleague, Judge Hendel, all roads lead to thedirection instructed by the District Court, return ofthe minor. Possibly, the sadness over the minor’s
relocation was in the conscience of the Family
Matters Court, which even treated (according to theexpert opinion) the concern of severance of theminor from his mother. We do not believe that thisconcern regarding severance will materialize, andmy colleague referred to the matter of concern

App. 13regarding criminal proceedings against the motherand limitation thereof, in light of the father’s clear
letter of the DA in Nevada. Also, the mother is not
estranged to the US, judging by her life history andcitizenship, and this is significant for the mother’sability to cope with the return thereto.
C. Matters regarding the paternal capability of thefather (who already placed a child in adoption, an
issue that must be addressed) may be heard in theirproper forum before the Court in the US, which willassumingly adjudicate according to the principle ofbest interests of the child.
D. In conclusion, I shall express the hope that theParties will find ways, which may be diverse, for the
maintenance of appropriate connection with thefather as part of maternal custody, and will allow
the minor to grow in a reasonable manner underconditions that are naturally complex, thoughpossible. The father’s Counsel affirmed during thehearing, in this respect, the his client wasinterested in being “an active father in the child’slife, to visit him regularly, to have a good and warm
connection with him, and without undermining the
aspect of the relations between the child and themother”. I do hope so.
E. As aforesaid, I join the opinion of my colleague. I
hope and assume that our ruling will be translated
to English for the convenience of the Court in the
US.
Judge

App. 14
Judge U. Fogelman:
I agree with the opinion of my colleague, Judge N.
Hendel, and the comments of my colleague, Judge E.
Rubinstein.
Judge
Decided as aforesaid in Judge N. Hendel’s ruling.
Rendered today, 8 Elul 5770 (18.8.10).
Judge

Judge

Judge

___________
The copy is subject to editing and wording changes.
Information Center, tel. 02-6593666; internet site:www.court.gov.il

App. 15APPENDIX B
State of Israel
At the Supreme Court
Motion for Leave to Appeal (Family
Matters) 5690/10
Before:The Honorable Judge E. Rubinstein
The Honorable Judge N. Hendel
The Honorable Judge U. Fogelman

Petitioner:A
VersusRespondent: B
Hearing on a Motion for Leave to Appeal
upon the ruling of the Tel Aviv District
Court dated 8.7.10 in Misc. Family
Matters 18359 rendered by Judges I.
Stufman, T. Shapira and S. Shohat
Hearing Date: 30 Av 5770 (10.8.10)
ORIGINAL IN HEBREWApp. 16

App. 18

App. 19

App. 20

App. 21

App. 22

App. 23