“A child must not be punished over the circumstances of his birth”: Only following HaMoked’s petition, the IPS allowed a toddler to visit his imprisoned father after a two-year-long ban המוקד להגנת הפרט
01.11.2021
“A child must not be punished over the circumstances of his birth”: Only following HaMoked’s petition, the IPS allowed a toddler to visit his imprisoned father after a two-year-long ban
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Israel holds most incarcerated Palestinians in prisons inside its borders, despite the international law prohibition on the transfer of protected persons outside the occupied territory. Incarceration inside Israel severely violates the right to family life of both the inmates and their loved-ones – not least in the case of prisoners’ minor children.

On November 26, 2020, HaMoked petitioned the Beersheba Court for Administrative Affairs on behalf of a 30-year-old Palestinian man from the West Bank, married and father to two children, who is serving a long prison sentence in Eshel Prison. The petition demanded that the man’s 18-month-old younger son be allowed to visit him in prison. The toddler, who lives with his mother near Ramallah, visited his father twice without any difficulty in the latter half of 2019, but when he arrived with his mother for the third time, the IPS refused to allow his entry into the prison. On March 10, 2020, HaMoked contacted the Eshel Prison liaison office to ask that the son be allowed to visit his father. About a week later the response arrived, whereby “according to an IPS systems check, the prisoner has only one child” (emphasis added), and gave the details of the elder son.   

Thus began what appeared to be deliberate harassment on the part of the IPS against the child and his father, prompted by the circumstance of the child’s birth: fertility treatments using the father’s smuggled semen. This method of conception is occasionally used by Palestinians classified as “security” prisoners, who are categorically denied conjugal visits for the entire period of incarceration. In this case, as in others, smuggling semen was the only option available for the couple who longed to have another child. Such smuggling is not a criminal offence and can amount to no more than a disciplinary violation of prison regulations. Needless to say, it has no bearing whatsoever on the right of the father and child to family life.  

And so, although the boy was registered in the Palestinian Authority population registry and repeatedly allowed by the Israeli military to enter Israel for the express purpose of visiting his father, the IPS suddenly decided to stop allowing the child to meet his father. As its repeated communications with the IPS led nowhere, HaMoked petitioned the court, arguing that the decision to ban the son’s visit was unauthorized, unreasonable and disproportionate. HaMoked added that in the past year, it had received several similar requests for assistance from inmates, in all of them the ban against the child was issued by Eshel Prison. In one such case, HaMoked noted, following the petition and a day before the scheduled hearing, Eshel Prison reversed its decision and announced the girl could visit her father (PP 25299-07-20).   

In the present case, after two court hearings and following the parties’ agreement and the court’s decision, HaMoked supplied – beyond any legal obligation – a document signed by the Head of the Palestine European Fertility Centre in Ramallah, attesting that the child had been born as a result of fertilization of the mother’s eggs with the petitioner’s semen (a fact attested to by the petitioner’s father, brother and brother-in-law). But, inexplicably, the IPS not only persisted in its refusal but also demanded that the petitioner apply to an Israeli family court to seek a paternity test. HaMoked firmly objected to this demand and clarified this was an unauthorized demand and lacking any legal logic – given that the petitioner and his family were West Bank residents of the oPt and did not seek any status in Israel. Nonetheless, the IPS responded on April 7, 2021, that “proving the paternity is required for receipt of a ‘privilege’ in Israel – a prison visit by the one alleged to be his son…” (emphasis added).   

HaMoked countered on April 21, 2021, that the IPS’ conduct contradicted the principle of the child’s best interests as well as the presumption in Israeli case law that a person’s acknowledged paternity of his wife’s child should not be challenged and also Islamic law regarding determination of paternity. HaMoked added that the demand also contradicted Section 28(d) of the Genetic Information Law, whereby genetic paternity testing should be avoided in the absence of a substantial need surpassing the potential damage of the test results. Therefore, and given the protracted proceedings and the IPS’ insistence on its unreasonable demand, HaMoked asked the court to issue its judgment.   

Only then, on June 28, 2021, the IPS relented – possibly in order to avoid a ruling in HaMoked’s favor which could impact future cases – and announced that “After an additional review… given the petitioner’s unique and specific circumstances and in light of all of the medical documents presented during the judicial proceedings, it has been decided, beyond any legal obligation, to grant the petitioner’s request and allow his son’s visit” (emphasis is original). 

Despite the needlessly lengthy proceedings, the court found the notice satisfactory and deleted the petition on October 31, 2021, without issuing a declarative remedy or imposing costs on the state.

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