Analyzing the Hague Convention on the Civil Aspects of International Child Abduction through the case of Eitan Biran
Vol. 43 Executive Editor
When a cable car crashed in a popular destination in Northern Italy, five-year-old Eitan Biran lost his parents, his younger brother, and his great-grandparents. This horrific tragedy raised questions about the safety of Italian infrastructure, and the level of improvements necessary to ensure safety. However, the most pressing question continues to be the fate of Eitan Biran. After the accident, an Italian court named Eitan’s paternal aunt, Aya Biran-Nirko, as Eitan’s temporary legal guardian. Eitan’s maternal aunt in Israel, Gali Peleg, has made known her intention to try and adopt Eitan and records show that she has started these proceedings. Eitan had lived in Italy since he was 18 months old. The situation became a matter of international law when Eitan’s maternal grandfather, Shmulik Peleg, visited and allegedly kidnapped Eitan using a private plane to Israel. The Israeli police launched an investigation on the alleged kidnapping, and Peleg continues to assert that his actions were “legal and in Eitan’s best interest.” A bitter battle is now underway, prompting litigation in courts in both Italy and Israel. Lawyers have said that the manner in which Peleg took Eitan to Israel may be a violation of the Hague Convention on the Civil Aspects of International Child Abduction. Both Israel and Italy are signatories to the Convention. Article 3 is a critical provision in Eitan Biran’s case as it notes when a removal or retention of the child is considered to be wrongful. In particular, Article 3(a) notes that “the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.” In other words, the domestic law of the country where the child habitually resides immediately before the removal controls the analysis. It is also important to highlight that children under 16 years of age all fall under the Convention. Given that both Israel and Italy are signatories, and Eitan Biran is under 16 years old, the Convention may apply if a prima facie case can be established. It is first important to determine how habitual residence is defined within the Convention. The determination of Eitan Biran’s habitual residence is highly important because “the parents’ custody rights are governed by the laws of habitual residence.” Given that both of Eitan Biran’s parents are deceased, it may be relevant to consider whether Eitan Biran’s habitual residence is controlled by his parents’ residence before they died, or by the residence of his paternal aunt who was awarded custody in Italy, the place he has been residing since the accident. Article 5 of the Hague Convention notes that “the “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” In an explanatory report regarding the Hague Convention, it is noted that these individuals will often be “as a rule close relatives of the child, and normally will be its mother or father.” However, as noted above, Article 3 allows for the possibility of custody being attributed to “an institution or other body,” which is sufficiently vague to allow for the relatives in question here. If habitual place of residence is framed as broadly as to what country they reside, it is sufficient to conclude Italy should be the choice, given that Eitan Biran’s parents were residents there at the time of their death, and that is where his parental aunt resides. Furthermore, despite the importance of a definition for habitual residence, the Hague Convention does not provide one. The United States’ Courts of Appeal have long been divided on what habitual residence means. They have considered a variety of factors, such as school enrollment, the intention of the parents during a move, the location of belongings and pets, changes in physical location, and the established network of the child in a specific place. In February of 2021, the United States Supreme Court rectified the circuit split on this issue in Monasky v. Taglieri. The Court held that the habitual residence under the Hague Convention was contingent on the “totality of the circumstances specific to the case, not on actual agreement between the parents on where to raise their child.” The Court looks to the Convention’s explanatory report, which frames a child’s habitual residence within a fact-based analysis. While the United States treatment of the Convention is informative, it is highly relevant how Italy and Israel view the notion of habitual residence. According to the Hague Convention Database, Italy has 15 cases concerning the Hague Convention, and Israel has 45 cases. In 1999, a Juvenile Court in Rome noted that in line with the Convention, a child’s habitual residence is the place where the child typically spends most of his time. Within Israeli courts, the definition of habitual residence continues to be a contentious one. The Israeli Supreme Court has hesitated to decide between the parental intention approach and a fact-based approach that focuses primarily on the child’s situation. In a 2013 judgment for the court, Justice Hendel noted that habitual residence should look solely at facts from the viewpoint of the child. While parental intent is relevant, it should not be weighed above other factors. This is further supported by the Supreme Court of Israel “in the case of C.A. 7206/03, G. v. G., P.D. 51(2)241 that habitual residence reflects the continuing reality of life from the point of view of the child.” Other jurisdictions, such as Canada, Switzerland, and Germany, have used a child-centered, factual approach to the inquiry of habitual residence.  Before Monasky v. Taglieri, the United States Courts of Appeal were divided on how to weigh a child-centered approach and parental intent, which necessitated a writ of certiorari by the Supreme Court. It is critical to view the state of international law concerning the Convention in the context of the proceeding concerning Eitan Biran. On October 8th, a Tel Aviv Family Court resumed hearings not to decide custody, but whether Peleg’s actions constitute a violation of the Hague Convention. If Peleg’s actions are found to be a violation, Eitan will likely return to Italy and attend Catholic school with his cousins. Eitan Biran’s family in Israel will argue that his parents intended to return to Israel, and that it is important for him to have cultural and religious support in Israel. But it remains to be seen whether his habitual residence is in Israel. The fact that the disputing parties are not Eitan’s parents makes this case highly unusual. If Peleg’s removal of Eitan Biran is determined to be wrongful, it is probable that Eitan will be found to have been residing in Italy at the time before his removal. The interpretation of the Hague Convention will provide the legal answer to the question of Eitan Biran’s future residence. However, outside of the formal legal proceedings, there is the important question of who can see to providing a life in Eitan Biran’s best interest: his family in Italy or Israel. The implications of this cultural divide reflect the breadth of considerations inherent in an international legal system. As Eitan Biran is embroiled in a residency and custody dispute following a horrific tragedy, it is surely hoped that both parties acknowledge the need for expediency and for resolution to allow a young child a chance for continuity and support.
 See Jonathan Lis & The Associated Press, Israeli Family of Five Killed in Italy Cable Car Disaster, Haaretz (May 24, 2021), https://www.haaretz.com/israel-news/four-israeli-nationals-reportedly-killed-as-italian-cable-car-plunges-to-the-ground-1.9836483.  See Lauren Lewis, Israel Could Send Back Boy, Six, Who Was ‘Kidnapped from Italy in a Private Jet’ by his Israeli Family After Being Orphaned in Italian Cable Car Disaster, Daily Mail (Sept. 13, 2021), https://www.dailymail.co.uk/news/article-9984805/Boy-six-orphaned-Italian-cable-car-disaster-kidnapped-grandfather.html.  See id.  Eitan Biran: Italy cable car survivor to stay in Israel amid custody fight, BBC News (Sept. 23, 2021), https://www.bbc.com/news/world-middle-east-58663884.  See id.  U.S. Hague Convention Treaty Partners, U.S. Department of State – Bureau of Consular Affairs (2021), https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/hague-abduction-country-list.html.  Hague Convention on the Civil Aspects of International Child Abduction art. 3, Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11, 1343 U.N.T.S. 89 [hereinafter Hague Child Abduction Convention], available at https://assets.hcch.net/docs/e86d9f72-dc8d-46f3-b3bf-e102911c8532.pdf.  Id. art. 3(a).  Id. art. 4.  National Center for Missing and Exploited Children, Litigating International Child Abduction Cases Under the Hague Convention, in International Child Abduction Training Manual 12 (2012) [hereinafter NCMEC Manual], available at https://www.missingkids.org/content/dam/missingkids/pdfs/publications/pdf3a.pdf.  Hague Child Abduction Convention, supra note 6, art. 5.  Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention 450 (1982) [hereinafter Pérez-Vera Report], available at https://assets.hcch.net/upload/expl28.pdf.  Hague Child Abduction Convention, supra note 6, art. 3.  NCMEC Manual, supra note 9, at 13.  See Monasky v. Taglieri, 140 S. Ct 719, 726–30 (2020).  See Pérez-Vera Report, supra note 11.  Hague Conference on Private International Law, International Child Abduction Database (INCADAT), Case Law Search (2021), available at https://www.incadat.com/en.  See Trib. per i minorenni, 7 gennaio 1999, Nr. 2450/98 E (It.).  See Rhona Schuz, Summary of FamA 130/08, H v. H, INCADAT (2021).  See id.  Id.  See INCADAT Summary of Habitual Residence, INCADAT (2021).  See Federica Sasso, A Judgment More Wrenching than Solomon’s: No Imposters in the Battle for Eitan, The Times of Israel, https://www.timesofisrael.com/a-judgment-more-wrenching-than-solomons-no-imposters-in-the-battle-for-eitan/.  See id.  See Lewis, supra note 2.