The petitioner, who resides in the West Bank with her two children, has been attempting, for two and a half years, to visit her husband and her father, who were deported to the Gaza Strip in 2002 as part of an internationally brokered agreement following the incident in which Palestinians barricaded themselves in the Church of the Nativity.
Although there is no concrete security preclusion against the petitioner, the military persistently refused the woman's requests, claiming "security related reasons" prohibit the granting of permits for passage from the West Bank to Gaza. On 12 December 2007 HaMoked appealed to the Military Legal Advisor to the West Bank in a letter, which referred to the military's undertaking - in the framework of HCJ 10677/04 Al-‘Abayat et al. v. Commander of the Army Forces in the West Bank - to permit the families of those who were removed from the Church of the Nativity to visit their loved ones in the Gaza Strip, subject to the absence of a security preclusion – an undertaking which was validated as a court judgment. In its response the army claimed that due to "the substantial change of circumstances" in the Gaza Strip since the time the undertaking was given – in 2004 – the agreement is no longer relevant and binding.
In the petition, HaMoked disputes the army's claim of a substantial change of circumstances, since, at the time the undertaking was given, the security situation in the area was also grave. Furthermore, the army continued to allow the visits even after the ostensible change of circumstances. Additionally, HaMoked claims that since these individuals were forced from their home and family, the State has a special obligation to facilitate the visits. By refusing to do so, the army is violating its obligations, injuring the fabric of the petitioners' family life and disregarding their right to family life – a cardinal right which enjoys protection under Israeli law, international humanitarian law and international human rights law. The military is also violating the children's right to live with their father, and the father’s right to parenthood, family and dignity.
In response to the petition the army restated its position that ever since the substantial change of circumstance in the Gaza Strip only applications to settle permanently in Gaza are approved. Applications for limited visitations are not approved, except in extraordinary humanitarian cases.
On 11 February 2009, the HCJ rejected HaMoked's petition to permit the woman and her children passage to the Gaza Strip. However, under pressure from the Court, the State announced that the undertaking is still in effect but is contingent upon the security circumstances. The Court stressed that although the security situation does not allow for passage at the present time, the Court is sensitive to the family's plight, and the military must permit the petitioners' passage to Gaza once the security situation allows for it.