International Child Abduction and the 1980 Hague Convention in Practice: The Biran Case

Abstract

Abstract With its Decision of 29 November 2021 (No. 7918/21), the Supreme Court of Tel Aviv has ruled on the case of Eitan Biran, the child who survived the crash disaster of the “Mottarone” cable car in Italy. After the accident, the child was entrusted to his aunt, appointed as legal guardian. However, a few months later, the child was unexpectedly conducted to Israel by his paternal grandfather. The Israeli Family Court and District Court, appointed for the return of the child according to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, have ordered the immediate repatriation in Italy. The decision of the District Court was upheld by the Supreme Court, whose decision represents a good example of correct application of the 1980 Hague Convention. Acknowledging that the guiding principle of the Convention is “zero tolerance for child abductions”, the Court has established that the habitual residence of the child was in Italy and that the transfer to Israel was in breach of the custody rights of the legal guardian according to Articles 3 and 5 of the Convention: in fact, the institute of tutore legale in Italy attributes to a person the responsibility of a child, a circumstance that in this case derived from a judicial decision. Moreover, the Israeli Supreme Court has adhered to a strict interpretation of the exceptions stated in Articles 12(2), 13 and 20, none of which resulted applicable to the case at hand.