Court/Judicial body: Supreme Court of Israel, sitting as the High court of Justice
Date: May 14, 2006 CRC
Provisions: Article 3: Best interests of the child Article 9: Separation from parents
Other international provisions:Universal Declaration of Human Rights, Article 16: Right to family life International Convention on the Elimination of All Forms of Racial DiscriminationInternational Covenant on Civil and Political Rights, Article 23: Right to family lifeInternational Covenant on Economic, Social and Cultural Rights, Article 10: Protection of family life
Domestic provisions:Basic Law: Human Dignity and Liberty, Articles 2 (Preservation of life, body and dignity), 4 (Protection of life, body and dignity), 5 (Personal liberty), 8 (Violation of rights) Citizenship and Entry into Israel Law
Case summary
Background: In response to a series of attacks carried out by Palestinians, Israel passed new immigration measures – the Citizenship and Entry into Israel Law – to, among other things: 1) bar spouses of Israeli citizens resident in the Palestinian Territories from settling in Israel, and 2) restrict contact between Israeli parents and their children resident in the Palestinian Territories. With the assistance of local organizations, Israeli citizens with Palestinian spouses and children challenged these new rules as infringing on their rights to family life and equality.
Issue and resolution: Family reunification. The Court broadly upheld the new measures as valid restrictions on Israeli citizens’ right to family reunification with alien spouses and children, although there is some suggestion that full legality would require the screening of individual cases to allow for reunification in certain exceptional circumstances.
Court reasoning: The right to family life does not require that Israel admit non-national spouses and children of its citizens to reside in the country. Rather, it must be balanced against the right to life of all other Israeli citizens to life and security. In this case, the national security interests of Israel in not admitting potentially hostile aliens justifiably outweigh Israeli citizens’ interests in reunification with Palestinian family members.
Dissenting opinion: The new immigration measures breach the right to family life and the right to equality as under the laws of Israel and the United Nations. Banning all Palestinian spouses and children of Israeli citizens from settling in the country is a sweeping and disproportionate response to the perceived threat to national security that their entry into Israel might pose.
Excerpt citing CRC and other relevant human rights Opinion of Vice-President Emeritus M. Cheshin 53. …The rule of state prerogative is valid with regard to the immigration of foreign citizens or residents, even if they are family members of its citizens or residents. A state is end to refuse to allow the foreign family members of its citizens to enter the state, and certainly to refuse to allow them to immigrate to it, and a citizen of the state is not end to demand that the state permits his foreign family members to immigrate into the state other than in accordance with the laws of the state. Indeed, although international law recognizes the right of the individual to marriage and family life, it does not recognize the right of the individual to realize this right specifically in his country of citizenship. In other words, the right of the individual to marriage and to family life does not necessarily imply a constitutional right to ‘family reunifications’ in the state… A similar conclusion was reached by the Supreme Court in Shahin v. IDF Commander in Judaea and Samaria [103], which considered a similar case to ours. Cf. Y. Dinstein, ‘Family Reunifications in the Occupied Territories,’ 13 Tel Aviv University Law Review (Iyyunei Mishpat) (1989) 221, at p. 223. See also, for example, the research published by the European Union in 2004 with regard to the legal arrangements prevailing in the European Union until the year 2004: Family Reunification Evaluation Project (Final Report, The European Commission: Targeted Socio-Economic Research, Brussels, 2004), at p. 22: ‘Although international documents endorse family rights, none of the declarations establishes an explicit right to family reunification. Likewise, although the Convention on the Rights of the Child demands that applications by a child or parents to enter or leave the State for the purpose of family reunification be handled in a “positive, humane and expeditious manner… there is no specification that the provision provides the basis for legal claims to family reunification … The second area of international law, which may be conflictual with the principle of universal family reunification, refers to the precedence of State sovereignty.’
Opinion of Justice S. Joubran 4. …Thus the that are parties to the Convention on the Rights of the Child, 1989, including Israel, declare themselves to be: ‘Convinced that the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…’ (Convention on the Rights of the Child, 1989). 11. A basic principle in our law, with regard to the relationship between children and their parents, is that: ‘It is the law of nature that a child grows up in the home of his father and mother: they are the ones who will love him, give him food and drink, educate him and support him until he grows up and becomes a man. This is the right of a father and mother, and this is the right of the child’ (CA 3798/94 A v. B [148], at p.154 {268}; see also CFH 7015/94 Attorney-General v. A [23], at p. 65). According to this principle, the raising of a child by his parents reflects simultaneously both the right of the child to grow up in his parents’ home and the right of the parents to be the persons who raise him.
This combination of interests embodies the nature of the parent-child relationship within the framework of family life, which the state should protect against any violation, unless it is required in the best interests of the child. As my colleague Justice A. Procaccia said in CFH 6041/02 A v. B [60]: ‘Removing a child from the custody of his parent and transferring him to the welfare authorities or to an institution by its very nature touches on an issue of a constitutional nature that concerns the value of protecting the personal and family autonomy of the child and his parent and the important social value of preserving the natural family bond between parents and children and the complex fabric of rights and duties arising from that parental bond. It concerns the natural right of a child to be in his parents’ custody, to grow up and be educated by them; it concerns the basic rights of a human being to life, dignity, equality, expression and privacy (Universal Declaration of Human Rights, 1948; Convention on the Rights of the Child; CA 6106/92 A v. Attorney-General [149], at p. 836; CFH 7015/94 Attorney-General v. A [23], at p. 100). It concerns the unique rights of children by virtue of the fact that they are children, including the right to grow up in a family and to reserve the connection with their parents (The Commission for Examining Basic Principles concerning the Child and the Law and their Application in Legislation, chaired by Justice Saviona Rotlevy, 2004, ‘General Part,’ at p. 26); it concerns the right of a parent by virtue of his blood relationship to raise and educate his child, as well as to carry out his duties to him by virtue of his being the child’s parent.
The rights of children to a connection with their parents, and the rights and duties of parents to their children create a reciprocal set of rights, duties and values that make up the autonomy of the family.’ 12. In so far as the best interests of the child are concerned, art. 3(1) of the Convention on the Rights of the Child provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ Article 9(1) of the Convention on the Rights of the Child further provides that: ‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child…’ No one disputes that enforcing a separation of a child from his parents constitutes a very serious violation of the rights of the child to grow up with his family and with his parents. This is of course the case as long as the family concerned is a functioning one, where the child is not harmed by being with it. It is perhaps apposite to add remarks made by this court in CFH 7015/94 Attorney-General v. A [23], at p. 102: ‘It is the law of nature that a child should be in the custody of his parents, grow up in his parents’ home, love them and have his needs taken care of by them. This law of nature is also absorbed by the law of the state, and thus an “interest” of children has become a “right” under the law. Parents have a right to raise their children and children have a right to be loved by their parents and to have their needs provided for by them. A right corresponding to a right and rights corresponding to duties (for both parties). The translation of these into the language of the law will be formulated, inter alia, by way of presumptions: it is a presumption under the law that the “best interests” of a child to be in his parents’ home; who can love their children and care for their needs like parents? Thus children will return their love and place their reliance on their parents.’ We are not speaking merely of harm to the ‘best interests of the child,’ but of a violation of a real ‘right,’ which is possessed by the child, to grow up with his family, and the state has a duty to refrain in its actions from violating this right (CA 2266/93 A. v. B [61], at pp. 234–235). By tearing asunder the family unit, by separating the child from one of his parents, there is a serious violation of the rights of the child, a violation that the state is obliged to avoid in so far as possible.
Follow Up: Although initially designed to be a temporary measure, the Citizenship and Entry into Israel law has been extended a number of times. In 2007, it was broadened to exclude residents and nationals of Iran, Iraq, Syria, and Lebanon. Adalah, the Legal Center for Arab Minority Rights in Israel, again petitioned the Supreme Court on behalf of separated Arab families to cancel the law. The Court has demanded that the government provide reasons why the law should not be cancelled and held further hearings on the matter in March 2009; a further decision is expected soon.
Notes: Adalah, The Legal Center for Arab Minority Rights in Israel, has a series of press releases on the latest developments in legal challenges to the Citizenship and Entry into Israel law: http://www.adalah.org/eng/legaladvocacypolitical.php#7052
CRIN Comments: CRIN does not believe that this judgment is consistent with Israel’s obligations under the CRC. Separating children from their parents against their will in such a blanket fashion clearly violates Articles 3 and 9 of the Convention on the Rights of the Child, which would require individual judicial proceedings with specific legal grounds to prevent a child from residing or having contact with her parents. It is hoped that the pending legal challenges to the Citizenship and Entry into Israel law succeed and that cross-national families may again be reunited in Israel.
Citation: H.C. 7052/03; ILDC 393 (IL 2006)
Link to Full Judgment:http://elyon1.court.gov.il/files_eng/03/520/070/a47/03070520.a47.pdf