A six-year-old Israeli who was the sole survivor of a crash of a cable car in Italy will remain in Israel until a decision is reached in the custody battle over him, an Israeli court ruled Thursday.
The boy's aunt filed a civil custody suit following the alleged abduction by his maternal grandfather last week, seeking his return to Italy.
Eitan Biran’s parents and siblings died when the funicular car they were riding in fell to the ground. The boy had been living in Italy with his paternal aunt, Aya Biran-Nirko, since the accident. But his maternal grandfather recently brought him to Israel by private plane in what Biran-Nirko says was an abduction.
The grandfather, Shmuel Peleg, was questioned by police last week on suspicion of kidnapping a minor and was released with restrictions. He has been convicted in the past of assaulting his ex-wife.
In an interview with Channel 12 television last week, Peleg claimed to have a legal opinion saying he did nothing wrong, adding that his and Eitan’s passports were stamped at border control without problems. “Eitan is happy, enveloped by his family, and where he should be – at his home in Israel,” he said.
The Peleg family said in a statement that Eitan’s parents had planned to return to Israel, adding that he is currently hospitalized at Sheba Medical Center in Tel Hashomer “due to his complex, sensitive situation, on which we can’t elaborate.”
Biran-Nirko’s suit, which will be heared in the Tel Aviv Family Court, is based on the 1955 Hague Convention, which bars cross-border abduction of children by their relatives. Israel enshrined the convention in legislation in 1991, and it applies to the kidnappings of all children under 16 from other signatory countries.
The Justice Ministry said the convention’s goal is “to ensure that the custody of children kidnapped by one of their parents is determined only by a court in the child’s regular place of residence. Consequently, in general, courts in the country to which the child was abducted will make sure that he is returned ... as quickly as possible.”
The state prosecution’s international affairs department is responsible for dealing with such cases. Yuval Sasson, a former director of the department who now works for a private law firm, said, “This treaty’s main rationale is to conduct discussions about who will raise the child in his natural place. In the case of Eitan Biran, if it’s decided to return him to Italy, the discussions on who should raise him will follow Italian law, while if he remains in Israel, the discussions will take place here according to Israeli law.”
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The custody case itself is complicated, he said. On the one hand, Biran’s family was Israeli, and he speaks Hebrew; on the other, he has lived in Italy since he was a month old. But that is distinct from the question of where the custody case should be heard.
“Often, the approach is that if there was a violent act involving kidnapping the child, then he is returned to the place from which he was kidnapped for a legal discussion of his custody,” Sasson explained. “Here, there apparently was a violation of Italy’s sovereignty through the boy’s abduction to Israel.
“In general, Israel as a state wants to respect Italian interests and [legal] systems, and in the reverse situation, it wants Italy to respect us,” he added.
The fact that the Israeli police have opened an investigation against Peleg suggests that the state will support returning Biran to Italy, Sasson said.
“The second big question, beyond the question of the sovereignty violation and the fact of the abduction, is what is best for the child,” he continued. “In this case, what’s best for the child is not to go through this whole nightmare after the tragedy he suffered.”
The fact that Italy is a democracy bolsters the likelihood that the court will order Biran returned, Sasson added. By contrast, no Israeli court would ever return a Jewish child to, say, Afghanistan, even if the child was born and raised there, because that would clearly not be in the child’s best interests, he said.
Biran’s case is also unusual because most verdicts under The Hague Convention deal with a dispute between two parents. But in this case, neither parent is alive, and no other relative is the child’s natural guardian. Thus, the Pelegs argue that Eitan hasn’t been removed from his legal guardian, and moreover, since he is Israeli, his “regular” place of residence should be considered Israel rather than Italy now that his parents are dead.
The Pelegs say that Eitan’s parents had planned to move back to Israel and made concrete preparations to do so, including by entering a government lottery known as Mechir Lemishtaken to buy a subsidized apartment and looking into schools for Eitan. All this, they argue, shows that either Israel is his “regular” place of residence or he has two such places – Israel and Italy.
Biran-Nirko’s lawyers, Shmuel Moran and Avi Himi, said in a statement that their client is “worried by reports about Eitan’s psychological and emotional state, and by what his kidnappers have done in the considerable time he has already spent in their hands.
“Eitan’s real home is Italy,” the statement continued, and Biran-Nirko wants him brought back “by peaceful means and without delay, so he can continue first grade – which he already started a week before the abduction and had looked forward to and prepared for a lot – as well as all the other rehabilitative and emotional support treatments that were at their height. His family, classmates, therapy team and the entire Jewish community are all awaiting young Eitan’s return to the normal, stable life that has been so important to him after the disaster.”