Return order to Israel, no Grave Risk
Appellate Court Stuttgart, Germany, 23 May 2024
Family lived in Israel
The German man and Greek woman moved to Israel in 2020 and their child was born in Isreal in 2023. Later, they seperated, but continued to live in Israel.
The mother flew to Germany with the child in February 2024, without permission fo the father. The father submitted an application for return. The German local court ordered the return of the child to Israel on 26 March 2024.
Grave risk exception?
The mother appealed. She stated that due to the formal state of war in Israel and an existing risk of massacres and assassinations, the provision of Article 13(1)(b) would preclude a return of the child. Especially the attack on 7 October 2023 was a turning point. There had been constant warnings of potential attacks and a rocket fired from Lebanon had landed in her suburb.
The father claimed that the security situation in Israel does not prevent the return of the child as the situation continues to be stable and that the clashes are concentrated on the Gaza Strip and the border with Lebanon.
The court had to decide if the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The court decided that the current situation in Israel does not preclude the return of a minor child based on the provision of Article 13(1)(b):
Travel warning
The requirements for an exemption of return based on Article 13(1)(b) are not met. The provision is to be interpreted restrictively in order to obtain a fast decision on custody of the state in which the child has had its habitual residence before the abduction. Article 13(1)(b) can only apply in a case of a serious concrete impairment of the child’s best interest. The current situation in Israel cannot justify this assumption. A serious and concrete risk cannot be based on a travel warning issued by the Federal Foreign Office, rather other aspects must be considered in an overall view. The attack on 7 October 2023 is also not a sole indicator for a concrete risk as due to the precautions of Israel there is no real risk for repetition of such a tragic event. The impaired sense of security of people living in Israel, increased vigilance and precautionary measures also do not justify a concrete risk. It has also be taken into consideration that both parents decided to live in Israel despite the tense situation that existed there beforehand.
Source: INCADAT
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