On July 29, 2010
HaMoked petitioned the court on behalf of a Jerusalem resident who lives in Gaza with her husband and children and who wished to leave Gaza with her children, to visit her family in East Jerusalem, whom she had not seen for two years. The petitioner resides in the Gaza Strip under the "divided family procedure", which allows Israelis to stay with their spouses in Gaza, subject to receiving permits issued by the Israeli District Coordination Office (DCO) at the Erez Crossing. The petitioner and her children can only meet the Jerusalem-side of the family by travelling from Gaza on a visit to Jerusalem, since Israeli residents and citizens are not allowed to enter the Gaza Strip.
In the past years and lastly in the summer of 2008, the petitioner and her five minor children, ages 3 to 14, entered Israel by a military permit. Two years ago the military placed a new demand that accompanying minors who enter Israel hold individual permits, allegedly for procedural reasons, meant to facilitate their return to Gaza. The military did in fact issue such permits routinely – quite expectedly given that children and toddlers accompanying their mother do not pose a security threat.
In May 2010, the petitioner applied for permits to enter Israel for her children. Her request was denied, as were similar requests of other women, some for infants several months old. In reply to HaMoked's appeal, the military informed that the denial rests on the women's failure to meet criteria. The military made no effort explain how two years ago, and under the same criteria, a similar request for these children was approved.
HaMoked appealed to the Coordinator of Government Activities in the Territories (COGAT), demanding he examine the military's position, both in principle and specifically regarding the situation of the petitioner and her like. HaMoked stressed that such a refusal infringes on these women's right to enter Israel, since they cannot stay away for long from their children who are dependent on them. HaMoked also stressed that military regulations concerning the rare traffic from Israel to Gaza, stipulate that barring a security risk,
on the rare occasions that Israelis are allowed to enter Gaza, they may take their children along. As no reply came, HaMoked petitioned the court.
The District Attorney's Office demanded to reject the petition in limine. The grounds for its objection to the children's passage is that the children have no vested right to enter Israel, as well as general security considerations, although none such exist in the petitioner’s and her children's specific case. No notice was given to HaMoked's claims regarding the harm to the petitioner herself.
In a hearing of the petition, joined with two similar cases, the court ruled there was no cause to intervene in the state's decision. The
decision centered on the claim that a "summer vacation" in Israel is not a humanitarian need which necessitates the entry of children to Israel, and disregarded the claims regarding the injury to the mother's rights, resulting from preventing her children’s entry to Israel. The court also disregarded the fact that these child-petitioners had previously entered Israel; however the court left them option to reapply to the military, to present the "exceptional circumstances" for each child's entry.
Although the need for reapplication is unclear, HaMoked reapplied on behalf of the mother, for her three youngest. The request was approved for the two youngest children of the petitioner, and in late September she left with them for Israel.
