Under
Regulation 12 of the Entry into Israel Regulations
, any child born and living in Israel is to receive the same status as his or her father, or guardian, unless the other parent objects. According to the High Court of Justice, the purpose of this regulation is to prevent a discrepancy between the status of the parent and the status of the child, thus preserving the integrity of the family and serving the child’s best interests – two fundamental principles in Israeli law. The Ministry of Interior, however, often refuses to grant status to children who are under the guardianship of their grandmothers in Jerusalem (in these cases, the father is often a Jerusalem resident who is incarcerated and the mother is a resident of the West Bank). To justify these rejections, the Ministry of Interior takes a dismissive approach to the Sharia Courts’ appointments of the grandmothers as legal guardians, saying that such decisions are not in the children’s best interests, which would be to live with the parents, if possible.
A resident of Jerusalem married a man from the West Bank and lived with him in Jerusalem. The couple divorced a year later, while the wife was pregnant. The husband, who saw his son only once, cut all ties with the mother. She remarried and had to give up her son because her new husband refused to raise him. The boy, left with no status anywhere in the world, was raised by his grandmother in Jerusalem, and a Sharia Court order appointed her as his legal guardian.
On January 5, 2011,
HaMoked filed an application to have the child registered in the population registry pursuant to Regulation 12. The Ministry of Interior rejected the application 9 months later, citing the fact that the guardianship order “was not checked by the welfare office and no reference was made to the child’s best interests”, as one of the reasons. In response to HaMoked’s inquiry, the welfare office issued an opinion, stating that the child’s best interests require that he continue to live with his grandmother in Jerusalem. HaMoked then asked the Ministry of Interior to reconsider the registration application, but the ministry persisted in its refusal after conducting a hearing for the child’s grandmother. On August 23, 2012, HaMoked appealed the decision, but two months later, the appeal was also rejected, with the Ministry of Interior stressing that “the mother is alive, available and able to file an application… for the child’s registration”.
On November 15, 2012, HaMoked appealed the ministry’s decision to the Appellate Committee for Foreign Nationals. HaMoked argued that the ministry’s refusal to register the child contravened Regulation 12, and that it ignored a judicial order issued by the Sharia Court. HaMoked also noted that the ministry’s decision violated the child’s rights and that it was not in his best interest, as determined by the welfare office. When no response came from the ministry for more than six months, HaMoked petitioned the Court for Administrative Affairs. Three weeks later,
the Ministry of Interior finally responded to the appellate committee (!), saying that the rejection was lawful as the child’s mother resided intermittently in the West Bank and in her mother’s home in Jerusalem, with the child whom she had allegedly abandoned. The ministry saw this as proof that the guardianship order had been issued in order to get around the difficulty to have the child registered as a permanent resident of Israel. The Ministry of Interior took the position that the child’s best interest was to live with his mother.
On February 19, 2014, HaMoked filed a second petition, this time against the appellate committee, which delayed its decision for over a year. On March 3, 2014,
the appellate committee finally issued its decision, in which it partially accepted the appeal and harshly criticized the Ministry of Interior, stating that its treatment of the judicial order issued by the Sharia Court was “improper and unjust”. The committee determined that as a first step toward “expressing respect for the judicial instance” the Ministry of Interior must grant the child temporary status in Israel for a year, and that his future would be determined upon completion of a welfare services review, with the child’s best interest playing a key role. The committee stressed that the child’s mother should provide a detailed affidavit, explaining her position on the issue. Once the child completed one year with temporary residency, the Ministry of Interior would render a final decision on his status.
